The Estate of Leslie Walter Morgan; The Salvation Army (NSW) Property Trust v Kenneth Mervyn Patteson [2015] NSWSC 194 (6 March 2015)

Last Updated: 13 March 2015

Supreme Court New South Wales

Case Name:	The Estate of Leslie Walter Morgan; The Salvation Army (NSW) Property Trust v Kenneth Mervyn Patteson
Medium Neutral Citation:	[2015] NSWSC 194
Hearing Date(s):	06 March 2015
Decision Date:	6 March 2015
Jurisdiction:	Equity Division
Before:	Young AJA
Decision:	1. Declare that the property of the late Leslie Walter Morgan, known as 29 Wolger Road, Ryde passes to the Salvation Army (NSW) Property Trust absolutely. 2. Order that the costs of all parties to these proceedings be paid out of the estate.
Catchwords:	Wills – Construction – gift with proviso – proviso fails – whether charitable trust – whether specific or general charitable purpose
Cases Cited:	Harris v Skevington (Justice Powell, 27 June 1977, NSWSC) Re Tyrie [1970] VicRp 33; [1970] VR 264 South Australia, Gilmore v The Uniting Church in Australia Property Trust (SA) (1984) 36 SASR 475
Category:	Principal judgment
Parties:	Plaintiff 1 - The Salvation Army (NSW) Property Trust Defendant 1 - Kenneth Mervyn Patteson
Representation:	Counsel: First Plaintiff – Mr NCT Bilinsky with Mr J Dooley Defendant – Mr MK Meek SC Solicitors: First Plaintiff – Paul Aidan Evans, Makinson d'Apice Lawyers Defendant – Lindsay Stoddart, Acorn Lawyers
File Number(s):	2013/00247232

JUDGMENT – EX TEMPORE

1. HIS HONOUR: This is a case involving construction of the last will and testament of Leslie Walter Morgan, who died on 12 July 2013. Probate of his will was granted to the defendant on 12 November 2013. The will bears date 24 August 1999. The plaintiff is The Salvation Army (NSW) Property Trust, the defendant is the executor of the Estate.
2. After making specific legacies, the testator provided in clause 7 of his will

“7. I GIVE DEVISE AND BEQUEATH the property known as ... Ryde to the Salvation Army PROVIDED THAT the said Salvation Army shall demolish the house standing on the property and in its place build a church.”

3. Clause 8 gave the rest and residue of the estate to the Salvation Army.
4. The problems with the will are two-fold: (a) that the Salvation Army, as such, does not exist, and (b) that the cost of demolishing the house and building a church is not worthwhile in view of the already existing - if I can use the word - Salvation Army ecclesiastical infrastructure in the area and that, in any event, the land at Ryde is unsuitable for a church building. The Salvation Army does not wish to demolish the house or build a church on the land and, accordingly, the proviso to gift 7 cannot take effect.
5. So far as the first matter is concerned, Mr Bilinsky of counsel, who appeared with Mr Dooley, for the plaintiff, suggests that the will should be rectified by substituting the words “the Salvation Army (NSW) Property Trust” for the words “Salvation Army” in the will so that there is a gift to an actual person. Very often courts do rectify wills even where they can be construed to show the testator’s true meaning. This is so that people searching in the future can see exactly what is meant by the will rather than have them have to have recourse to a judgment of the Supreme Court. I myself have some doubts about whether that is good practice, but this is not the case to discuss that. It would seem to me that anybody who, reading the will, would read the words “Salvation Army” as meaning the appropriate body which holds the Salvation Army property. I so hold. Accordingly, in my view, it is not necessary to rectify this will.
6. The second question is again one that has a different answer, whichever way one approaches it. The simplest way of approaching a matter is to say that this is a gift, conditioned on a proviso. The gift only takes effect if the proviso can take effect. It cannot take effect. Therefore, the gift fails and falls into residue.
7. The other way of approaching it is to say: What is the proper way of construing clause 7? There are three possibilities. One is that it is a charitable gift to the Salvation Army and that the words “PROVIDED THAT” are not a condition at all, but merely prefatory words, which give the testator’s desire as to what the Salvation Army should do with the property. That is a possible construction and, if it is the proper construction of the will, then the Salvation Army take the property and are not bound to comply with the testator’s wishes. It seems to me that that is an unlikely meaning of the clause.
8. The second alternative is that there is a general charitable intention and that the proviso to the gift has obviously become impracticable and, accordingly, there should be a cy pres scheme, almost certainly in favour of the Salvation Army to carry out a charitable purpose.
9. The third possibility is that the gift is a specific charitable gift, in which case, if it is impracticable, it fails.
10. I have been given extensive material by counsel for the plaintiff and Mr Meek SC for the defendants on the particular question. I have been referred to authority, the most significant being the decision of the Supreme Court of Victoria in Re Tyrie [1970] VicRp 33; [1970] VR 264; and in South Australia, Gilmore v The Uniting Church in Australia Property Trust (SA) (1984) 36 SASR 475; as well as the decision in this Court of Justice Powell in Harris v Skevington 27 June 1977.
11. The Victorian and South Australian cases could be said to be distinguishable because they have, in the terms of the gift, as in many cases in this sort of area, the element of there being a memorial to the testator. For instance, in the South Australian case the will provided the church to be built would be known as the “P H The Cornue Memorial Church”. That factor is not present in the instant case. Despite that, it does seem to me that that line of territory is applicable here. The testator was a lifelong member of the Salvation Army and he raised a very large sum of money for the Salvation Army, despite his physical disabilities. It could almost be said that the Salvation Army was his life. He had the house, and he would only be too happy if that, forever, could be a place of worship for the members of the Salvation Army.
12. In my view, the facts point to the conclusion that if this is a charitable gift, it is for specific charitable purposes not general charitable purposes and, accordingly, in the circumstances, fails. So, whichever way one looks at it, clause 7 fails; the Salvation Army takes the property, absolutely as residuary beneficiary.
13. Accordingly, I declare that the property of the late Leslie Walter Morgan, known as 29 Wolger Road, Ryde passes to the Salvation Army (NSW) Property Trust absolutely and order that the costs of all parties to these proceedings be paid out of the estate.

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