Keulemans v Attorney-General, New South Wales [2013] NSWSC 1772

Keulemans v Attorney-General, New South Wales [2013] NSWSC 1772

The will does not fail for uncertainty and need not be rectified, as the evidence does not provide clear and convincing proof that it did not give effect to the deceased’s instructions. Clause 8(c) operates to require the creation of a foundation or trust by the trustees to be applied for charitable purposes, preserved by the Charitable Trusts Act. Costs are to be borne out of the assets comprising the 45% share of residue, as the issues arose from the inadequacy of this provision and not from issues affecting other beneficiaries.

Parties
Plaintiff: Hendrik Jan Keulemans; First Defendant: Attorney-General, New South Wales; Second Defendant: Lorna May Nicholl
Jurisdiction
Australia
Judgment Date
02 December 2013
Procedural Posture
Civil / Judgment After Hearing of Originating Summons for Declarations and Rectification
Outcome
Rectification of the will refused; declaration as to proper construction of will made; costs orders made according to specific fund affected; short minutes of order to be brought in.
Legal Topics
Construction of Wills, Rectification of Will, Charitable Intentions, Validity of Testamentary Gifts, Testamentary Costs
Succession Law Equity Charitable Trusts Construction of Wills Rectification of Will Charitable Intentions Validity of Testamentary Gifts Testamentary Costs

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Parties

Hendrik Jan Keulemans

Plaintiff

Attorney-General, New South Wales

First Defendant

Lorna May Nicholl

Second Defendant

Procedural Posture

Civil / Judgment After Hearing of Originating Summons for Declarations and Rectification

Legal Issues

  1. 1 Whether clause 8(c) and (d) of the will creates a valid trust for charitable purposes
  2. 2 Whether the will should be rectified to reflect the testator's intentions
  3. 3 Whether the gift of 45% of the residuary estate is void for uncertainty

Ratio Decidendi

The will does not fail for uncertainty and need not be rectified, as the evidence does not provide clear and convincing proof that it did not give effect to the deceased’s instructions. Clause 8(c) operates to require the creation of a foundation or trust by the trustees to be applied for charitable purposes, preserved by the Charitable Trusts Act. Costs are to be borne out of the assets comprising the 45% share of residue, as the issues arose from the inadequacy of this provision and not from issues affecting other beneficiaries.

Court Disposition

Rectification of the will refused; declaration as to proper construction of will made; costs orders made according to specific fund affected; short minutes of order to be brought in.

Orders

  • Leave granted to extend time to apply for rectification under Succession Act 2006 s 27(3).
  • Claim for rectification dismissed.