Nofz as executor of the estate of Henry Matthew Fitzgerald (deceased) v Kane & Ors  QSC 372 (30 November 2015)
Keywords: beneficiaries incorrectly described or non-existent- intention
The following case shows how a court interprets a Will that has been wrongly described.
Henry Fitzgerald died in 24 February 2014. The residue of the estate was incorrectly described and the executor of his estate applied under s 96 of the Trust Act (QLD) for the Court’s direction on how to distribute the estate.
It should be noted that the Court was guided by the “falsa demonstratio non nocet, cum de corpore constat” principle which means “a false description does not vitiate when the thing is described with certainty” at .
Tammy v Tania
Clause 4 gifts 3.5% of residue of the estate to several persons including a Tammy Ritchies. The applicant searched and could not find a Tammy Ritchies but she did find a Tania Marie Richards. Tania was there god daughter of the deceased and was known to her friends and family as Tammy.
Gift to aged care
The entity described in clause 4 category 7 paragraph 2 was “The District Board of Benevolence of the Aged Masons, Widows and Orphans fund for the District Grand Lodge of Carpentaria to be used by that organisation for the charitable purposes associated with the Freemasons Home for the Aged situated at McManus Street, Cairns.”
There was no Freemasons Home for the Aged on McManus street, but there was a Morinda Aged Care Facility which is operated by Masonic Care Queensland under the auspices of The District Board of Benevolence of the Aged Masons, Widows and Orphans Fund, a charity. The district of grand lodge of Carpentaria had no interest in the gift. The court understood that the deceased intention was to gift the aged persons home at McManus Street.
The court directed that the clause should now read “the board of Board of Benevolence and Aged Masons, Widows and Orphans fund (ABN 54216065828) of 60 Wakefield Street, Sandgate, Queensland, 4017 for the general charitable purposes of Morinda Aged Care, McManus Street, Cairns.”
Gift to Church
Paragraph 3 was described as “The Anglican Church of Australia to be used by that religious body for charitable purposes in respect of the Diocese of Cairns …”. the mis-description was the Diocese of Cairns which should be North Queensland, which include the parishes of Townsville and Cairns. The was changed to read “the Corporation of the Anglican Diocesan Synod of North Queensland for the general charitable purposes of the Parish of Cairn”.
Gift to Salvos
The entity in paragraph 5 was “The Salvation Army in Queensland to be utilised by that organisation for the charitable purposes of the Salvation Army in the Cairns area ….”. This entity did not exist on the register on the Australia Charity and Not-for-profits register, but the Salvation Army (QLD) Property Trust was registered and the gift was directed to this entity.
Gift to Blue Care
The clause 8 entity was “Blue Care (Blue Nursing Services) in the Cairns area”. This entity is an operational branch of the Uniting Church in Australia Property Trust (Qld) and thus the gift was directed to the latter entity.
As for entities that ceased to exist at the time of the testator’s death, there are four exceptions that the court must follow in  to : from A Lyons J in Public Trustee of Queensland v Attorney-General for the State of Queensland (2009) QSC 353.
- If the gift was to be added to the assets of an institution which had a trust, and the institution no longer existed but the trust was still on foot, the gift would become part of the assets of the trust.
- If the gift was to an institution but was taken over by another entity, the gift would go to the dominant entity.
-  The third exception is if, upon the proper construction of the will, it is found that the testator had a general charitable intention to benefit work or purposes of the kind which the named institution carried out, then the property the subject of the trust can be applied cy-pres.
- If the gift was for a particular charitable purpose but no charitable institution was named, then the court can allocate a suitable charitable entity or person to apply the gift so long as it was for the intended purpose.
In clause 7, paragraph 1 the entity was Cairns Marine Radio Club Inc which was deregistered in 2012 and was taken over by Australian Volunteer Coast Guard Association Incorporated QF9 Cairns. This fell into the 2nd exception.
In category 7, clause 4 The Roman Catholic Trust Corporation for the Diocese of Cairns. The entity did exist but was sold and then demolished. The court did not give a direction to this regard.