Situation

Mr Niall died leaving a bequest in his will[1] to the ‘Order of Selesians’ in India for the purposes of work among the poor in India’

No organisation by the title ‘Order of Selesians’ or ‘Order of Selesians in India’ existed in Australia or India.

‘Selesians’ appeared to be a misspelling of ‘Salesians’ known as the Salesians of Don Bosco otherwise known as the ‘Societa Di San Francesco Di Sales’. This organisation is an international organisation of Catholic priests and brothers founded by St John Bosco in 1859, now in 132 countries worldwide, including in Australia and India. It operates missionary works with a particular focus on providing for young people and all organisations have, as part of their purposes, ‘work among the poor in India’. The Salesians also operate in Australia through an association named ‘Salesian Society (Vic) Inc.’ (‘Salesian Missions Australia’) and act a conduit of funds to overseas partners, including those in India.

The deceased’s sister challenged the validity of the bequest on the grounds that it was uncertain and argues that the funds should therefore fall into the residuary of the estate. Further, an administrative scheme was unavailable because the will evinces a specific, rather than a general, charitable intention.

Uncertainty

As a general rule, where the meaning of a disposition in a will is uncertain, the disposition will fail. There are some special rules for uncertainty in respect of charitable gifts which will be considered in the following section.

The Judge found that the clause was uncertain and thus it failed. If the issue had been a mere mis-spelling of an organisation’s name, there would have been a different conclusion or if other parts of the will had enabled the correction of the misdescribed part of the will.

The executor had relied on the surrounding extrinsic evidence to clarify the meaning of the gift. Evidence was produced of numerous donations to Salesian Missions Australia for poverty relief in India, travel by the deceased to visit Indian Salesian priests and the fact that the last 2 wills of Mr Niall had included gifts for Salesian work in India. The executor submitted that it was a fair inference from that evidence that the deceased intended his gift to be applied in the same manner as his inter vivos donations to the Salesians.

It was submitted that this extrinsic evidence to clarify the will was permitted by either s.36 of the Wills Act 1997 (Vic) or the common law. The Judge found that neither of these applied in these circumstances. So, the clause was regarded as uncertain.

Administrative scheme

An administrative scheme is a scheme administered by a Court of equity to give effect to a charitable trust where a charitable object is intended but the directions are indefinite, ambiguous or insufficient.

Where there is a general intention in a will to give to charitable purposes, but the will either fails to specify a particular means by which the gift is to be applied for those purposes or the means specified are otherwise insufficient for the practical application of those purposes, the Court has jurisdiction to settle an administrative scheme, which is a mechanism detailing the means by which the gift is to be applied for the charitable purposes.

In this situation, there was a charitable purpose specified in the will—’work among the poor in India’. The deficiency was in the means by which that purpose is achieved (lack of an existing organisation).

Therefore the Court could devise a scheme to effect the charitable purpose.

Outcome

The Judge ordered that a scheme be prepared with a further hearing to approve the scheme.

Learnings

This case illustrates the importance of charities working to ensure that every opportunity is afforded to will-makers and their advisors to be aware of the exact legal name or names of the organisation.

Prominence of the name in bequest literature and websites should be considered with a suggested template bequest clause. This becomes all the more important when a charity uses another or shortened name in its general operations and fundraising activities.

The importance of donor records is also evident in this case. Although not decisive, it may well assist in the character of the scheme that will be proposed.

[1] Re Niall [2019] VSC 423

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