Re the Will of Edwin Marsden Tooth; Ex parte Corporation of the Synod of the Diocese of Brisbane

In this case, Martin J considered whether a gift in a will to pay a named entity an amount “for the purposes of establishing a home for aged persons” should be construed as an absolute gift on the basis that the words “for the purposes of” were merely precatory words. His Honour found that it was an absolute gift.

Martin J

22 July 2020

The deceased left a detailed will. [1]. The question for the Court concerned the true nature of one of the gifts in that will – whether the words in a particular clause “for the purposes of” attached a condition or trust, or whether they were merely precatory words expressing the deceased’s wishes in respect of the gift. [1], [21]. The relevant gift was an amount to be paid “for the purposes of establishing a home for aged persons” to be named after the deceased.

The applicant, the Corporation of the Synod of the Diocese of Brisbane (“the Corporation”), sought a declaration regarding the proper construction of the relevant clause. It submitted that the clause provided for an absolute gift to it. The Attorney-General, who had exercised the right to intervene, submitted that the gift was instead for a charitable purpose and that a trust was therefore created. [2].

At the outset, Martin J considered that when construing the will, it was relevant to consider who had drawn the will. [6]. Whilst in this case there was no formal indication that the will had been prepared by solicitors, a number of features including the will’s formal and precise nature indicated it had been prepared by solicitors. [7].

The relevant clause of the will defined the entire residuary estate as constituting 100 per cent. The clause then allotted specific percentages in various ways. The trust impressed on the trustees was to hold of the residuary estate so that the identified portions could be paid to the named institutions, including the Corporation. [9].

It was uncontentious that the money received under the clause was to be used to establish a home for aged persons. It was also agreed that the money was insufficient, on its own, to establish such a home. The home was later built through the combination of government grants and other legacies and gifts. [13].

The Corporation made four arguments to support its submission that the clause was an absolute gift and not a gift on trust. First, the Corporation argued that the clause did not clearly establish a charitable trust. The will included a number of gifts which could be described as philanthropic. The words usually associated with charitable trusts were absent. [14].

Second, the clause directed the trustees to pay identifiable proportions of the residuary estate to the Corporation. A direction to pay without condition is inconsistent with the creation of a trust. [17]. The only obligation arising from such an instruction was to transfer the property to the beneficiary. [17].

Third, the words “upon trust” in the clause referred to the trustees rather than the beneficiaries. [18]. Justice Martin placed particular importance on this difference in terminology, especially since his Honour had found that the will was drafted professionally. [19].

Fourth, apart from the reference to the purpose of establishing the aged care home, the clause did not include identified terms. It also did not provide the Corporation with powers if it were to be a trustee for the proportion of the residuary it received. [20].

Justice Martin noted that whilst the gift was not conditional, it was reasonably clear it was intended to be a gift for a purpose. His Honour repeated what he said in Re Frigo; Ex parte Missionaries of the Sacred Heart [2017] QSC 81 where he referred to a well accepted principle that “it is a well-known rule of construction that, if there be a clear gift, subsequent words to defeat such a gift must be reasonably clear or sufficiently certain”. [22].

Ultimately, in this case, Martin J was satisfied that the reference to the purpose of establishing the aged care home was merely precatory. That construction was consistent with both the balance of other gifts in the clause as well as other provisions in the will. [25].

Finally, Martin J found that the inclusion of a “gift over” sub-clause did not disrupt this construction because it did not necessarily follow that a testator would, because it made provision for a failed gift to be applied charitably, intend that the gift be charitable in all circumstances. [28].

Ultimately, Martin J declared that, upon the proper construction of the will, the Corporation was justified in regarding itself as having been beneficially entitled to the provisions from the estate of the deceased in respect of which it had all the powers of an absolute owner. [30].

K Anderson