Charity does not always begin at home

Posted on August 24th, 2018

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Charity does not always begin at homeLever v Attorney General of NSW [2018] NSWSC 838

A Will-maker left a gift of approximately $4.5m to her nephew and his wife to create a trust to “benefit women and children in the United Kingdom“.  The Will-maker was in the process of divorce at the time the Will was made and did not want her estate to go to her ex-husband or his children.  A Trust known as the “Ellie Trust” was established in an effort to comply with the Will and the purpose of the trust was to “preserve and protect the mental and physical health of women and children who have suffered domestic violence through the provision of refuges and safe accommodation in Liverpool”.

The Court was asked to declare that despite the wording of the Will (which was vague) the terms of the Will allowed for the funds to be paid to the Ellie Trust.  Judge Ward agreed and made the order. She found that the terms of the Will did evidence a “charitable purpose”.  The Judge had to consider whether the failure to benefit the NSW community was fatal.  However she determined it was sufficient benefit to NSW, in any event, that the Will set an “example of philanthropy” towards the welfare of women.

The lesson to be learnt from this case is not that the Court managed to “save a gift” from failure but rather that it is preferable to frame charitable gifts with precision.

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay, and practises extensively in Wills and Estate Planning, Commercial and other Litigation and Employment LawIf you require any assistance in these areas please contact Felicity Wardhaugh or contact our Newcastle office.

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