PUBLIC TRUSTEE OF SOUTH AUSTRALIA [2024] SASC 104

Applicant: PUBLIC TRUSTEE OF SOUTH AUSTRALIA Counsel: MS E RAMSAY - Solicitor: ADELTA LEGAL First Interested Party: THE UNIVERSITY OF ADELAIDE Counsel: MR E FORTUNATOW Second Interested Party: SOUTH AUSTRALIAN HEALTH AND MEDICAL RESEARCH INSTITUTE Counsel: MS A DEBATS Third Interested Party: WOMEN'S AND CHILDREN'S HEALTH NETWORK Counsel: MS B GEPPA - Solicitor: CROWN SOLICITOR (SA) Fourth Interested Party: THE ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA Counsel: MS I NIKOLOUDAKIS - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 02/05/2024, 29/05/2024 File No/s: CIV-23-012344 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. In the Estate of PHILP (DECEASED) PUBLIC TRUSTEE OF SOUTH AUSTRALIA [2024] SASC 104 Judgment of the Honourable Justice Bampton 14 August 2024 EQUITY - TRUSTS AND TRUSTEES - APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY CHARITIES - CHARITABLE GIFTS AND TRUSTS - IN GENERAL - CONSTRUCTION - ASCERTAINMENT OF OBJECTS - GENERALLY - GIFT TO INSTITUTION CHARITIES - CHARITABLE GIFTS AND TRUSTS - WHEN APPLIED CY-PRES - GENERALLY - STATUTORY PROVISIONS Application for advice or directions regarding the proper construction of a will and distribution of the deceased’s estate – where legal identity of two legatees changed within the testator’s lifetime – whether the gifts lapsed – whether there are successor institutions to the named legatees – whether there is a general charitable intention for the purposes of making a cy-près scheme – whether to approve a scheme altering the charitable trusts pursuant to s 69B of the Trustee Act 1936 (SA). Held: Engage Church Kadina is the successor of the first named legatee and the recipient of the first gift – SAHMRI and the WCH Network would be appropriate recipients of the second gift in equal shares pursuant to a scheme under s 69B of the Trustee Act 1936 (SA). Trustee Act 1936 (SA) s 69B, referred to. Attorney General (NSW) v Perpetual Trustee Co (Ltd) (1940) 63 CLR 209; Cancer Council of Western Australia v Attorney-General (2016) 15 ASTLR 422; Public Trustee (GD Butler Medal Trust) v Attorney-General (SA) (2019) 132 SASR 574; University of Adelaide v Attorney-General -- 1 of 13 -- (SA) [2018] SASC 80; Re Royal Society's Charitable Trusts [1956] 1 Ch 87; National Trustees Executors & Agency Co of Australasia Ltd v Attorney-General (Vic) [1978] VicRp 39; University of Adelaide v Attorney-General (SA) [2018] SASC 82; City of Burnside v Attorney-General (No 2) [1998] SASC 7128; Wallis v Solicitor-General [1903] AC 173; Sir Moses Montefiore v Howell & Co (No 7) Pty Ltd [1984] 2 NSWLR 406; Smith v West Australian Trustee Executor & Agency Co Ltd (1950) 81 CLR 320; Commissioners for the Special Purposes of the Income Tax v Pemsel [1891] AC 531; Re Pitt (2002) 84 SASR 109, considered. -- 2 of 13 -- In the Estate of PHILP (DECEASED) PUBLIC TRUSTEE OF SOUTH AUSTRALIA [2024] SASC 104 Civil: Application 1 BAMPTON J: Prophetically, Ian Harold Philp (“Ian”) is reported to have said, “they will work it out”, when it was bought to his attention that the Balaklava Family Church, one of the legatees named in his will, did not exist. 2 Ian died on 13 August 2021 leaving a will dated 20 May 2016 (“the will”) appointing the Public Trustee his executor. 3 Ian is survived by his two adult children, Emily Maree Jean Yvonne Philp (“Emily”) and Lee Stephen Daryl Philp (“Lee”), his sister, Michelle Ann Philp (“Michelle”), and his nephew, Daniel Philp (“Daniel”). 4 Probate of the will was granted to the Public Trustee on 3 May 2022. The net value of Ian’s estate is disclosed as $234,608.44. By clause 4(1) of his will, Ian gifted his household and furniture effects to Michelle. By clause 4(2), he gifted a legacy in the sum of $5,000 to what was described in the will as the “BALAKLAVA FAMIL CHURCH corner of Short Terrace and Gwy Terrace Balaklava”.1 By clause 4(2), he also: (A) bequeathed two equal parts of the residue to Michelle; (B) bequeathed two equal parts of the residue to Daniel; (C) bequeathed one equal part of the residue to each of Emily and Lee; and (D) bequeathed one equal part of the residue to the: WOMEN’S AND CHILDREN’S HEALTH RESEARCH INSTITUTE of 72 King Williams Street North Adelaide and I DESIRE but without creating a binding trust or legal obligation that one half the money be used for the Cardiology Unit of the said Institute and that a plaque be erected that this is in appreciation of the care given to my daughter the said Emily Maree Jean Yvonne Philp and the other half of the money be used for the Renal Unit of the said Institute and that a plaque be erected that this in appreciation of the care given to my son the said Lee Stephen Daryl Philp and I DECLARE that my trustee shall not be concerned as to the applications thereof. 5 The Public Trustee seeks advice and direction regarding the proper construction of the will due to the changes in the legal identities of the legatees named in the will as “BALAKLAVA FAMIL CHURCH corner of Short Terrace 1 Balaklava is a small town 93 km north of Adelaide, named after the port town of Balaclava (now Balaklava) in Crimea, near Sevastopol. In the winter of 1854-1855, British and Irish troops were sent to Balaclava to fight Russian soldiers. A Google search for the derivation of “balaclava” hoods results in accounts that, following a British public outcry at the failure of British commissariat to provide winter clothing for the troops enduring the freezing Crimean winter, the commissariat shipped out hand knitted woollen hoods to the troops stationed at Balaclava. These hoods became known as balaclavas. -- 3 of 13 -- [2024] SASC 104 Bampton J 2 and Gwy Terrace Balaklava” and “WOMEN’S AND CHILDREN’S HEALTH RESEARCH INSTITUTE of 72 King Williams Street North Adelaide”. The beneficiary of the gift in clause 4(2) 6 In the Public Trustee’s affidavit filed in support of the application affirmed on 26 October 2023,2 the Public Trustee deposed that there are two churches claiming to be the successor to the Balaklava Family Church named in the will, namely Engage Church Kadina (formerly Connect Church Balaklava) and Encounter Church Balaklava. The Public Trustee stated there is no clear evidence as to which Church Ian intended the gift to benefit. The Public Trustee also said that given the conflicting information from the existing church entities, it is difficult to ascertain the objectives and work performed by the original Balaklava Family Church and, therefore, which entity is continuing the original institution’s objectives such that it can be regarded as the successor. Engage Church Kadina 7 Kadina Assembly of God Inc (Engage International Inc) (“Engage Church Kadina”) is recognised by the Australian Securities and Investments Commission, the Australian Business Register, and the Australian Charities and Not for Profit Commission as having the same Australian Business Number as the Balaklava Family Church. 8 Exhibited to the Public Trustee’s affidavit is: 1. a copy of a letter apparently written by the secretary of Connect Church Balaklava dated 4 August 2016 purporting to give notice “of the change of name and contact details for the Balaklava Family Church” saying that “as of 9 May 2016 we are now known as Connect Church Balaklava”. 2. a copy of special board meeting minutes of Connect Church Balaklava dated 4 February 2018 recording a recommendation and unanimous agreement in favour of winding up Connect Church Balaklava “to handover to [Engage Church Kadina]”. 3. an email and attachments from Pastor Greg Donald of Engage Church Kadina to a Public Trustee officer dated 24 March 2022 indicating that Engage Church Kadina retains the assets originally held by the Balaklava Family Church. 4. a copy of the contact record made by a Public Trustee officer recording that Pastor Greg Donald informed the Public Trustee via telephone on 10 March 2022 that he spoke with Ian regarding the fact that the Balaklava Family Church no longer existed, whereupon Ian allegedly stated, “they will work it out”. 2 FDN 2. -- 4 of 13 -- [2024] SASC 104 Bampton J 3 Encounter Church Balaklava 9 The Public Trustee further deposes that: 1. Encounter Church Balaklava is situated on the original property of the Balaklava Family Church (being situated on the corner of Short Terrace and Gwy Terrace, Balaklava as described in the will). The land title transfer occurred in April 2021. 2. on 19 January 2022, Pastor John Griffiths, State Secretary of the Australian Christian Churches SA, wrote to the Public Trustee explaining the circumstances of the Balaklava Family Church becoming Encounter Church Balaklava. Pastor Griffiths noted that the former church was part of the Australian Christian Churches Movement, the movement of which Encounter Church Balaklava is a part. 3. as at the date of the Public Trustee’s affidavit, Encounter Church Balaklava was listed as permanently closed. Affidavits of Public Trustee’s solicitor 10 The Public Trustee’s solicitor, Elyse Caitlin Ramsay, in an affidavit affirmed on 17 April 2024,3 stated that on 27 February 2024 she received an email from the Finance Administrator of Encounter Church confirming receipt of the originating application. Ms Ramsay’s further investigations suggested that Encounter Church Balaklava has permanently closed. In an affidavit affirmed on 19 April 2024,4 Ms Ramsay deposed that she received an email from the Finance Administrator of Encounter Church confirming it will not be participating any further in the proceedings and that Encounter Church’s Balaklava campus is permanently closed. 11 In a further affidavit affirmed on 13 March 2024,5 Ms Ramsay deposed to having served the Public Trustee’s application on Engage Church Kadina, but it was returned to her firm, Adelta Legal, marked “RTS”. Ms Ramsay deposed that the envelope appeared to have been torn open and re-stapled. Ms Ramsay deposed that on 1 March 2024 she telephoned Engage Church Kadina and was informed that Pastor Greg Donald was “across” the matter and would return her telephone call. On 13 March 2024, Ms Ramsay emailed Pastor Greg Donald seeking a reply to her earlier correspondence and received a telephone call from him later that day, during which he informed her that he had returned the envelope marked “RTS” as Engage Church Kadina did not wish to be involved in the proceedings. 3 FDN 15. 4 FDN 18. 5 FDN 11. -- 5 of 13 -- [2024] SASC 104 Bampton J 4 12 Exhibited to Ms Ramsay’s final affidavit affirmed on 18 June 2024 is a copy of her letter to Engage Church Kadina enquiring at the Court’s request: … whether, in the event the Court determines that [Engage Church Kadina] is the proper beneficiary of the $5,000.00 gift to the Balaklava Family Church6 under the deceased’s will (“the gift”), [Engage Church Kadina] would be willing to receive the gift for its general religious purposes. (Footnote in original) Pastor Greg Donald, by email dated 17 June 2024, advised Ms Ramsay: Engage Church Kadina has received over the years conflicting messages from the Ian’s Estate Department. This is fine and understandable now; however, we did not anticipate this legal Supreme Court outcome. Our reason for not wishing to be involved was due to not wishing to be in court with the appearance of challenging a fellow Church. I guess like how two siblings or family members (who are in good standing) may not wish to be in either. If the court finds Engage Church the legal beneficiary in our absence, we would receive with gratitude any funds relevant. The beneficiary of the gift in clause 4(2)(D) 13 The University of Adelaide (“the University”), the South Australian Health and Medical Research Institute (“SAHMRI”), and the Women’s and Children’s Health Network (“WCH Network”) were joined to these proceedings as interested parties. 14 The Executive Director, Corporate Services of the WCH Network, Philip James Robinson, affirmed in an affidavit dated 6 May 20247 that he was a member of the Women’s and Children’s Health Research Institute Inc (ABN 49 616 827 762) (“the Institute”). Mr Robinson deposed that the Institute was established in 1989 as the Child Health Research Institute Inc and subsequently changed its name to the Women’s and Children’s Health Research Institute. The Institute operated from 72 King William Street, North Adelaide, South Australia 5006, the same site as the Women’s and Children’s Hospital, and worked collaboratively with the WCH Network. 15 The Institute was established as an independent medical research institute to conduct research in several areas, including child and maternal health and nutrition. The Institute joined the University as a controlled entity on 1 January 2013. 16 Pursuant to a transfer deed dated December 2015, the Institute transferred the research work carried out by it, together with selected assets and employees of the Institute, to SAHMRI. The Institute was wound up in 2017 and all its assets were 6 As you are aware, the Balaklava Family Church ceased to operate prior to the deceased’s death. 7 FDN 20. -- 6 of 13 -- [2024] SASC 104 Bampton J 5 transferred to a new Women’s and Children’s Health Research Fund (“the Fund”) which is administered by the Women’s and Children’s Health Research Fund Committee (“the Committee”) through the University. The Committee comprises representatives from the University, SAHMRI, and the WCH Network, including the Chief Executive Officer of the WCH Network. The Committee meets twice a year to determine how the funds are utilised. Generally, those funds go to the University, SAHMRI, and the WCH Network. Finally, Mr Robinson deposed that functions previously undertaken by the Institute are, to a significant extent, carried out by SAHMRI and the WCH Network including in the areas of perinatal care, women’s and children’s health, cardiology, and renal medicine research. The Attorney-General as guardian of the public interest in charitable trusts8 17 As the Attorney-General for the State of South Australia (“the Attorney-General”) represents and supports the objects of charities and is a necessary party where a scheme is sought under s 69B of the Trustee Act 1936 (SA) (“the Act”) the Attorney-General was also joined to the proceedings as an interested party. 18 The Attorney-General’s detailed submissions on behalf of the Crown were adopted by the interested parties. I set out the substance of those very helpful submissions as follows. 19 The general principle articulated in Re Tyrie (No 1),9 known as the “lapse rule”, provides that a gift by will to a particular charitable institution, which had at some time existed but which had ceased to exist in the lifetime of the testator, would ordinarily have lapsed. In Cancer Council of Western Australia v Attorney- General, Banks-Smith J explained that the word “lapse” in the context of charitable trusts “signifies the return (or resulting back) of the beneficial interest in the property to the settlor (ie the trust lapses) or, where the settlor is deceased, to their residuary estate”.10 There are exceptions to the lapse rule for example, if at the time of the testator’s death another institution existed which had taken over the work previously carried out by the named institution, and can properly be regarded as the successor of the named institution, and if the dominant charitable intention of the testator was wide enough to allow the gift to take effect in favour of the successor institution, then the gift will take effect in favour of it.11 20 If there is no successor institution, as submitted by the Attorney-General, the Court has the power to vary charitable trusts under general law. Prior to the 8 Re Royal Society’s Charitable Trusts [1956] 1 Ch 87 at 92-93; National Trustees Executors & Agency Co of Australasia Ltd v Attorney-General (Vic) [1978] VicRp 39; [1978] VR 374 at 375; University of Adelaide v Attorney-General (SA) [2018] SASC 82 at [4]; City of Burnside v Attorney-General (No 2) [1998] SASC 7128 (Debelle J); Wallis v Solicitor-General [1903] AC 173 at 181-182. 9 [1972] VR 168. 10 Cancer Council of Western Australia v Attorney-General (2016) 15 ASTLR 422 at [22]. 11 Re Tyrie (No 1) [1972] VR 168 at 177-178. -- 7 of 13 -- [2024] SASC 104 Bampton J 6 enactment of s 69B of the Act, this could only be done by means of a cy-près scheme. 21 A cy-près scheme can only be made where the purpose of a charitable trust has become impossible or impracticable to fulfil such that its purpose has failed. As submitted, the doctrine allows the Court to make a scheme for the application of the subject property for some other charitable purpose which is as near as possible to the original purpose as designated by the donor to save a trust from failing. 22 The Attorney-General pointed out that at general law, it is, in some cases, necessary to find that a “general charitable intention” exists before a cy-près scheme may be made. In Attorney-General (NSW) v Perpetual Trustee Co (Ltd), Dixon and Evatt JJ said:12 Almost all charitable trusts expressed with any particularity must tend towards some more general purpose. But to find that the trust as expressed is designed to achieve some further and wider end of a charitable nature is one thing. To find that the secondary and wider end is the dominant object to which the property is devoted is another and a further step. This step cannot be taken unless, from the nature of the trust, the provisions of the instrument and any circumstances which may legitimately be taken into account, the existence of such an intention may reasonably be inferred. For no definite presumption has been established in favour of a general charitable intention. At the same time the court leans, it is said, in favour of charity and is ready to infer a general intention. But little is therefore required as a ground for treating a wider purpose as the essential object of the trust. 23 The Attorney-General stated whether it is necessary to find that a general charitable intention exists depends on whether the recipient institution existed at the time of the testator’s death. Where the recipient institution ceases to exist after the testator’s death, unless the testator has expressly provided for what is to happen upon failure, the property remains dedicated to charitable purposes and the Court must apply it cy-près.13 It follows that there is no need to identify a general charitable intention, and no question of lapse or failure of the gift arises. Whereas when the recipient institution ceased to exist before the testator’s death, then, generally, charitable intention must be established before a cy-près scheme may be made. 24 The Attorney-General submitted that while the inherent jurisdiction of the Court to make a cy-près scheme remains, this is less likely to be relied upon given the greater breadth of s 69B of the Act, which prescribes the power of the Court to approve a scheme (“a s 69B scheme”) altering a charitable trust on application by the trustee. 25 Section 69B of the Act provides: 69B—Alteration of purposes of charitable trust 12 (1940) 63 CLR 209 at 227-228. 13 Cancer Council of Western Australia v Attorney-General (2016) 15 ASTLR 422 at [29], [31]. -- 8 of 13 -- [2024] SASC 104 Bampton J 7 (aa1) Subject to subsection (1), the purposes for which property is required or permitted to be applied in pursuance of a charitable trust may be altered by a scheme approved under this section. (a1) The powers of the trustees of a charitable trust in respect of which a trust variation scheme under this section may be approved by the Attorney General (on account of the operation of subsection (3)(b)) to manage or administer the trust may be altered by a scheme approved under this section. (1) The purposes for which property is required or permitted to be applied in pursuance of a charitable trust may be altered by a trust variation scheme in any of the following circumstances: (a) where the original purposes, in whole or in part— (i) have been as far as possible fulfilled; or (ii) cannot be carried out, or not according to the directions given and to the spirit of the gift; or (b) where the original purposes provide a use for part only of the trust property; or (c) where the trust property could be more effectively used if combined with other property applicable for similar purposes and administered jointly with that property; or (d) where it is not reasonably practicable having regard to— (i) the value of the trust property; or (ii) changes in circumstances that have taken place since the constitution of the trust; or (iii) any other relevant factor, to apply the trust property in accordance with the original purposes; or (e) where the original purposes, in whole or in part— (i) have been adequately provided for by other means; or (ii) have ceased to be charitable purposes; or (iii) have ceased to provide a suitable and effective method of using the trust property. (2) References in this section to the original purposes of a charitable trust shall be construed, where the purposes for which the trust property is required or permitted to be applied have been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being required or permitted to be applied. (3) A trust variation scheme may be approved, on the application of the trustee, by— -- 9 of 13 -- [2024] SASC 104 Bampton J 8 (a) the Supreme Court; or (b) if the value of the trust property does not exceed $300 000 or another limit prescribed by regulation—the Attorney-General. (3a) The authority to which the application is made (ie the Supreme Court or the Attorney-General) is referred to in this section as the relevant authority. (4) However, the Attorney-General has a discretion to refer an application to the Supreme Court if the application raises questions that should, in the Attorney- General's opinion, be decided by the Court. (5) Notice of an application for approval of a trust variation scheme must be given as the relevant authority directs. (6) If the relevant authority is satisfied, on application under this section, that the variation of the terms of a trust proposed in a trust variation scheme— (a) accords, as far as reasonably practicable, with the spirit of the trust; and (b) is justified in the circumstances of the particular case, the relevant authority may approve the trust variation scheme and the approved scheme prevails over inconsistent provisions of a relevant instrument or declaration of trust. (7) The reasonable costs of an application under this section are payable at the direction of the relevant authority from the trust property. (8) In the case of an application decided by the Attorney-General, the costs— (a) are to be fixed by the Attorney-General; and (b) may include costs payable to the Crown to defray the cost of investigating and deciding the application; and (c) may be recovered as a debt. (9) The Attorney-General must keep available for public inspection a register of approvals given by the Attorney-General under this section. (10) In this section— trust variation scheme means a scheme approved under this section for the alteration of a charitable trust. 26 As Hinton J said in Public Trustee (GD Butler Medal Trust) v Attorney-General (SA), in considering s 69B:14 The inherent power to award a cy-près scheme aside, the power to approve a trust variation scheme is contained in s 69B(3). The circumstances that must exist before the power may be exercised are set out in ss 69B(1)(a)-(e). That is, s 69B(1) conditions the power conferred by s 69B(3). If any of the circumstances set out in s 69B(1) are found to exist 14 (2019) 132 SASR 574 at [18]. -- 10 of 13 -- [2024] SASC 104 Bampton J 9 the power conferred by s 69B(3) is enlivened, however, such power may only be exercised if the requirements of s 69B(6) are also satisfied. Section 69B(6) contains two requirements. They are cumulative. With respect to the first requirement, the “spirit of the gift” was held in Re Lepton’s Charity to “be equivalent in meaning to the basic intention underlying the gift, that intention being ascertainable from the terms of the relevant instrument read in light of the admissible evidence”. … With respect to the second requirement, it must always be borne in mind that the primary responsibility of this Court in the administration of charitable trusts is to give effect to the trusts as laid down by the settlor or testator. Thus, if a trust variation scheme is to be made the circumstances must be of sufficient cogency to justify the alteration bearing in mind the settlor’s original intentions. Accepting this, a variation will not be justified on the basis of mere expediency or because the trust assets could be used more beneficially for a different purpose. (Footnotes omitted) 27 In University of Adelaide v Attorney-General (SA),15 Stanley J noted that the “effect of s 69B(6) is that a trust variation scheme should accord as closely as possible to the original purposes of the trust. This is consistent with the general law and equitable principles”.16 As submitted, in addition to expanding the Court’s jurisdiction to make a scheme altering a charitable trust, including expanding the range of circumstances where the purposes of the charitable trust is found to be impracticable, s 69B also removes the requirement that there be a general charitable intention where the intended recipient of the gift ceased to exist before the death of the testator and there is no proper successor. Applying the law 28 It is to be noted that any failure of Ian’s gifts the subjects of the application occurred during his lifetime. Under general law, in the absence of a proper successor, a general charitable intention is therefore required before a cy-près scheme can be made with respect to either or both gifts. A gift to a charitable institution is, prima facie, for the charitable purposes of that institution and thus is not an absolute gift to the institution.17 A gift to a church as an organisation would ordinarily be for the advancement of religion, which is plainly charitable,18 as is a gift for medical research (if on a not-for-profit basis).19 29 Whether a general charitable intention exists is a matter of construction of the will and is determined by drawing inferences about the testator’s wishes from the surrounding circumstances. Ordinarily, the absence of a clause dealing with gifts that fail is an indication that supports a conclusion of a general charitable intention. However, the presence of such a clause is no more than a factor that 15 [2018] SASC 82. 16 [2018] SASC 82 at [8]-[9]. 17 Sir Moses Montefiore v Howell & Co (No 7) Pty Ltd [1984] 2 NSWLR 406 at 415-417 (Kearney J). See also Smith v West Australian Trustee Executor & Agency Co Ltd (1950) 81 CLR 320 at 322 (Latham CJ, Fullager and Kitto JJ agreeing). 18 Commissioners for the Special Purposes of the Income Tax v Pemsel [1891] AC 531 at 583. A gift for the building, maintenance etc of a church building is also charitable: Re Pitt (2002) 84 SASR 109 at [22]. 19 Re Estate of Edwards [2023] NSWSC 714 at [58]; see, eg, in relation to cancer research: Cancer Council of Western Australia v Attorney General (WA) (2016) 15 ASTLR 422. -- 11 of 13 -- [2024] SASC 104 Bampton J 10 may weigh against finding a general charitable intention. Of note, the description of the organisation of Women’s and Children’s Health Research Institute references a charitable purpose.20 30 Whether a cy-près scheme is made under general law or under s 69B of the Act, the question arises as to the destination of the gift. 31 In relation to the gift to the Balaklava Family Church, I am satisfied having regard to the matters deposed to by the Public Trustee and Ms Ramsay in their affidavits that Engage Church Kadina is the most obvious recipient of the gift and has a better claim to be the successor of the Balaklava Family Church than Encounter Church Balaklava. This conclusion is supported by Pastor Donald’s report that Ian was aware the Balaklava Family Church did not exist and the fact that Ian and Pastor Donald were familiar enough with each other to discuss the terms of Ian’s will. I also infer that Ian had a connection with the Engage Church Kadina. 32 I therefore find that Engage Church Kadina is the successor body or organisation to the Balaklava Family Church and, as such, it is not necessary for a cy-près scheme to be made under general law or for a scheme to be made under s 69B of the Act. 33 In relation to the gift to the Women’s and Children’s Health Research Institute, I note the matters deposed to by Mr Robinson in his affidavit as detailed above and further note the WCH Network, SAHMRI and the University have agreed that if the gift were split evenly between SAHMRI and the WCH Network, these two organisations would utilise the gift in the areas of cardiology and renal research.21 The Attorney-General considers this proposal is sensible and practical. 34 Accordingly, SAHMRI and the WCH Network would be appropriate recipients of the gift in the will to the Women’s and Children’s Health Research Institute under a s 69B scheme. Altering clause 4(2)(D) of the will to identify SAHMRI and the WCH Network as the beneficiaries would accord with the spirit of the trust in clause 4(2)(D) of the will, and would be justified in the circumstances of this matter, thereby satisfying s 69B(6) of the Act. 20 See Re Morrison-Conway [2018] NSWSC 685, [43] (Slattery J) (concerning a cancer research gift). 21 Ian expressed his wish in clause 4(2)(D) of the will in respect of the gift to the Women’s and Children’s Health Research Institute that “one half the money be used for the Cardiology Unit of the said Institute and that a plaque be erected that this is in appreciation of the care given to my daughter the said Emily Maree Jean Yvonne Philp and the other half of the money be used for the Renal Unit of the said Institute and that a plaque be erected that this in appreciation of the care given to my son the said Lee Stephen Daryl Philp”. -- 12 of 13 -- [2024] SASC 104 Bampton J 11 Advice and direction 35 I give the following advice and directions: 1. I advise and direct that Engage Church Kadina is the successor body or organisation to the Balaklava Family Church and the proper recipient of the gift in clause 4(2) of the will. 2. I advise SAHMRI and WCH Network and would be appropriate recipients of the gift in clause 4(2)(D) of the will to the Women’s and Children’s Health Research Institute under a s 69B scheme. 3. I direct the Public Trustee to apply for a trust variation scheme pursuant to s 69B of the Act to vary the charitable trust to replace the Women’s and Children’s Health Research Institute as beneficiary of the gift in clause 4(2)(D) of the will with SAHMRI and WCH Network as beneficiaries of the gift in equal shares. 4. I direct the Public Trustee to provide draft orders agreed to by the interested parties reflecting my advice and direction. -- 13 of 13 --