THE PUBLIC TRUSTEE -v- ATTORNEY GENERAL OF WESTERN AUSTRALIA [2026] WASC 350

[2026] WASC 350 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : THE PUBLIC TRUSTEE -v- ATTORNEY GENERAL OF WESTERN AUSTRALIA [2026] WASC 350 CORAM : MASTER RUSSELL HEARD : 18 AUGUST 2026 DELIVERED : 18 AUGUST 2026 FILE NO/S : CIV 1055 of 2026 BETWEEN : THE PUBLIC TRUSTEE as executor of the will of MARCIA MORGAN NICOL (DECEASED) Plaintiff AND ATTORNEY GENERAL OF WESTERN AUSTRALIA Defendant Catchwords: Trusts - Charitable Trusts - Failure of charitable bequest - Application for approval of a scheme to apply property to another charitable purpose - Charitable Trusts Act 2022 (WA) - Turns on own facts Legislation: Charitable Trusts Act 2022 (WA) Pt 3, s 4, s 10, s 10(1)(a), s 10(2), s 10(4), s 13, s 13(1), s 14, s 14(3), s 16(1), s 18, s 18(1), s 19, s 19(2), s 20, s 21(3), s 21(4), s 22, s 24, s 25, s 25(1), s 47, s 47(3) -- 1 of 17 -- [2026] WASC 350 Page 2 Charities Act 2013 (Cth) s 12, s 12(1)(a), s 12(1)(c), s 12(1)(d) Result: Application granted Orders made approving a scheme under s 21(4) of the Charitable Trusts Act 2022 (WA) Category: B Representation: Counsel: Plaintiff : C Hamilton Defendant : M J Elliott Solicitors: Plaintiff : McWilliams Davis Lawyers Defendant : State Solicitor's Office Case(s) referred to in decision(s): Aid/Watch Incorporated v Commissioner of Taxation (2010) HCA 42; [2010] 241 CLR 539 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 Commissioners for Special Purpose of Income Tax v Pemsel [1891] AC 531 Jeffery Lin as executor of the estate of Emerald Cynthia Wolff Michaelson v Schubert [2019] WASC 212 Kevin Desmond De Souza as administrator of the estate of Kin Chan Sae Yung v Attorney General of Western Australia [2025] WASC 319 Roger Price as Executor of the Estate of Beryl Sheila Price v Attorney General for Western Australia [2014] WASC 430 Scottish Burial Reform and Cremation Society v Glasgow Corporation [1968] AC 138 Tan as Executor of the Estate of Margaret Joy Langton Britton v Attorney General of Western Australia [2025] WASC 242 The Public Trustee as Executor of the Will of Cecily Patricia Lindsey (Dec) v Australian Conservation Foundation Inc [2015] WASC 29 The Public Trustee as Executor of the will of Granville Cecil Venters (Dec) v Attorney General for the State of Western Australia [2015] WASC 33 -- 2 of 17 -- [2026] WASC 350 Page 3 -- 3 of 17 -- [2026] WASC 350 MASTER RUSSELL Page 4 MASTER RUSSELL: Introduction 1 The plaintiff, the Public Trustee, brings this application in its capacity as executor of the estate of the late Marcia Morgan Nicol (Estate), who died on 20 August 2019, leaving a will dated 27 March 1981 (Will). 2 The Public Trustee was appointed as executor and trustee of the Will. A copy of the grant of probate issued to the Public Trustee on 17 December 2019 with the Will annexed is attached to the affidavit of Jean Clifford Henrisson, Acting Director of Trustee Services of the Public Trustee, sworn on 9 January 2026 (Henrisson Affidavit).1 3 Pursuant to the Will, the deceased gave all her Estate, after payment of debts, funeral and testamentary expenses, to her husband, Edward Nicol, and if he did not survive her (which he did not) the residue of the Estate was to be divided into six equal parts for distribution, as provided in the Will. 4 Relevantly, one of those parts (one sixth of the residue of the Estate) was to be distributed to the Uniting Church in Australia Property Trust (WA) for the benefit of the Mofflyn Group Children's Homes, which I will refer to as the Bequest. 5 It is apparent from materials obtained by officers of the Public Trustee from its investigations into the Mofflyn Group Children's Homes that, whilst such existed at the time the Will was made in 1981, it had ceased to exist at the time of the deceased's death in 2019.2 6 By originating summons filed on 16 January 2026, the plaintiff applies pursuant to s 18(1) of the Charitable Trusts Act 2022 (WA) (Act) for approval of a proposed scheme to vary the terms of the charitable trust established by the Will by deleting the reference to 'Mofflyn Group Children's Homes' and substituting it with 'Uniting WA's out-of-home care services for children and adolescents' as the beneficiary of the Bequest (Scheme). 7 In addition to the Henrisson Affidavit, the plaintiff relies on an outline of submissions filed on 17 July 2026, an affidavit of Caroline Muthoni Ngare sworn on 17 August 2026 (Ngare Affidavit) and 1 Henrisson Affidavit [5], 'JCH1'. 2 Henrisson Affidavit [7], 'JCH2' - 'JCH8'. -- 4 of 17 -- [2026] WASC 350 MASTER RUSSELL Page 5 affidavits of Carol Hamilton sworn on 9 February 2026 (First Hamilton Affidavit), 23 July 2026 (Second Hamilton Affidavit) and 17 August 2026 (Third Hamilton Affidavit). 8 An outline of submissions was also filed on 3 August 2026 on behalf of the defendant, the Attorney General of Western Australia, in support of the application to approve the Scheme. 9 Orders were made by the Acting Master on 23 March 2026 for the publication of notices pursuant to s 19(2) of the Act. Notices have been published, as ordered, in the West Australian Newspaper, the West Australian Government Gazette, Uniting WA's newsletter and on Uniting WA's website, requiring any person who wishes to oppose the Scheme to give written notice to the Principal Registrar of this Court, the Public Trustee and the Attorney General not less than seven clear days before 18 August 2026, being the date fixed for the hearing of the application.3 No notice was given by any person wanting to oppose the Scheme. 10 I heard the application for approval of the Scheme on the advertised date of 18 August 2026. There was no opposition to the application. For the following reasons, I was satisfied that the Scheme should be approved and I made orders to the effect sought. Relevant provisions of the Charitable Trusts Act 2022 (WA) 11 I set out the relevant provisions of the Act and the principles that apply to an application to approve a scheme under the Act in Tan as Executor of the Estate of Margaret Joy Langton Britton v Attorney General of Western Australia,4 which I repeat, with some modification, as follows. 12 Section 10 of the Act applies where property is held for a charitable purpose (original purpose) but is incapable of being disposed of for that purpose. Section 10(1) contemplates five circumstances under which this might occur. Relevantly, s 10(1)(a), provides that s 10 will apply where 'it is impossible, impracticable or inexpedient to carry out the original purpose'. 3 Second Hamilton Affidavit. 4 Tan as Executor of the Estate of Margaret Joy Langton Britton v Attorney General of Western Australia [2025] WASC 242 (Tan) [9] - [18]. See also Kevin Desmond De Souza as administrator of the estate of Kin Chan Sae Yung v Attorney General of Western Australia [2025] WASC 319 (De Souza) [20] - [25] (Hill J). -- 5 of 17 -- [2026] WASC 350 MASTER RUSSELL Page 6 13 Under such circumstances, s 10(2) of the Act requires the property held for a charitable purpose to be applied to some other charitable purpose (alternative charitable purpose) that is 'as close as possible to the original purpose'. 14 'Property held for a charitable purpose' is defined in s 4 of the Act to mean property that is held on trust for, or is otherwise to be applied to, a charitable purpose. 15 'Charitable purpose' is defined in s 4 of the Act as follows: charitable purpose — (a) means a purpose that is charitable under the law of this State; and (b) includes a charitable purpose as defined in the Charities Act 2013 (Commonwealth) section 12. 16 Under s 10(4) of the Act, the persons in whom the property is vested must, as soon as reasonably practicable after becoming aware of any of those circumstances, submit to the Attorney General for approval a scheme for the application of the property to an alternative charitable purpose. 17 Section 13(1) of the Act provides that persons in whom property held for a charitable purpose is vested must prepare, and submit to the Attorney General, a scheme if they want the property to be dealt with in accordance with an approved scheme. 18 Section 14 of the Act deals with submission of a scheme to the Attorney General. Section 14(3) requires the Attorney General to prepare a report (scheme report) about the scheme addressing the matters referred to in s 25(1), to which I will return. 19 By letter dated 28 November 2024, the Attorney General provided a scheme report (Scheme Report),5 in which the Attorney addresses each of the criteria in s 25(1) of the Act and concludes that he supports the Scheme. 20 The property to which the Scheme relates in this case has a value of $243,231.12 as at 17 August 2026.6 As such, it falls outside the scope of a scheme that may be approved by the Attorney General 5 Henrisson Affidavit [11], 'JCH11'. 6 Third Hamilton Affidavit [4] - [5], [7], 'CH2'. -- 6 of 17 -- [2026] WASC 350 MASTER RUSSELL Page 7 (presently less than $100,000),7 and must be approved by this court, as provided in s 18 of the Act. 21 Before the court considers an application under s 18(1) of the Act, the persons in whom the property is vested must be given notice of the application in accordance with s 19(2) of the Act. As referred to, notice of the Scheme has been given in accordance with the orders made on 23 March 2026, as required by s 19 of the Act.8 No notice has been given to the Principal Registrar, the Public Trustee (being the 'person' in whom the property is vested) or the Attorney General pursuant to s 20 of the Act by any person wanting to oppose the application to approve the Scheme. 22 Section 21(3) of the Act provides that the court has jurisdiction and authority to hear and determine all matters relating to the scheme and, subject to s 25, may make an order pursuant to s 21(4) of the Act approving the scheme with or without modification or refusing to approve the scheme, as it thinks fit. The court may also approve the inclusion of a provision in a scheme for the expenses of the scheme to be paid out of, and be a charge on, the property to which the scheme relates, as provided in s 24 of the Act. An order in those terms is sought in this case. 23 Before approving a scheme, the court must be satisfied of the following matters, as provided in s 25(1) of the Act: (a) the scheme is appropriate to carry out each proposed purpose and is not contrary to the law of this State or generally accepted standards of decency and propriety (s 25(1)(a)); (b) the scheme can be approved under Pt 3 of the Act (s 25(1)(b)); (c) each proposed purpose under the scheme is a charitable purpose that can be carried out (s 25(1)(c)); and (d) the requirements of Pt 3 of the Act have been complied with in relation to the scheme (with the court having the power under s 22 to approve the scheme if it thinks fit, despite non-compliance with the procedural requirements in Pt 3 in relation to the scheme) (s 25(1)(d)). 7 Charitable Trusts Act 2022 (WA) s 16(1). 8 Second Hamilton Affidavit. -- 7 of 17 -- [2026] WASC 350 MASTER RUSSELL Page 8 24 Section 47 of the Act relates to the conduct of proceedings relating to charitable trusts. Section 47(3) provides that, when hearing the proceedings, the Court is not bound by the rules of evidence and may be informed and conduct the proceedings in any manner the Court thinks fit. Mofflyn Group Children's Homes 25 It is apparent from the materials produced in support of the Scheme and the application for its approval that the entity known as Mofflyn Group Children's Homes, which I will refer to as Mofflyn, and the nature and method of the childcare it provided evolved over time. Whilst the services provided changed with the times, a central feature was the provision of residential care for children cared for outside of their natural family environment consistent with Christian values and beliefs. 26 The documents reflect that in the 1920s Mofflyn provided dormitory style accommodation which later evolved into cottage style residences, and later included foster care. The out-of-home care was provided at a site in Sussex Street, Victoria Park and at other locations until about 1991. 27 Mofflyn came to be operated under the agency of the United Church Child and Family Care Services, which later became Mofflyn Child and Family Care Services. That entity later merged with other community services and, on 1 July 2006, became UnitingCare West, trading and operating under the name Uniting WA. 28 One of the documents produced from the Public Trustees' investigations is a 'Blueprint for Methodist Homes for Children (Now Mofflyn Group Children's Homes) and Child and Family Welfare, 1976', a copy of which is attached to the Henrisson Affidavit (Blueprint).9 The aims and objectives of Mofflyn are stated in cl 2.2 of the Blueprint, as follows: 2.2 Aims and Objectives (I) To provide care and treatment for children whose needs cannot at the time be adequately met in their own family environment. (II) To offer opportunities for a variety of experiences, principally through group living and specialised 9 Henrisson Affidavit [7(c)(i)], 'JCH2' (Blueprint). -- 8 of 17 -- [2026] WASC 350 MASTER RUSSELL Page 9 services that can be selectively used, in accordance with an individual plan for each child,  to foster normal maturation,  within the particular capabilities of each child to correct or modify the effect of previous unsatisfactory experiences,  to ameliorate social and emotional problems interfering with the child's personality development and functioning. (III) In accordance with contemporary child care practice (see paragraphs 1 to 5 "W.A. Standards in Child Care") to provide preventative care services in preference to residential care in all cases where this is a viable proposition, and (IV) where this is not possible, to provide a variety of residential child care services moulded to the special needs of specific children rather than children forced into the mould of an institution that happens to be free to receive them; … 29 The Sussex Street site is described in the Blueprint, as follows:10 A cottage home settlement of four cottages caring for children aged two to twelve. Each cottage cares for a maximum of ten children, boys and girls, and full age range. This means that Mofflyn is often one of the few places capable of keeping a large family of children together. Food is cooked in a central kitchen, taken over to a food warmer in the cottage and then served to the children as a family, the cottage mother having her meals with the children. 30 A 2003 Senate inquiry submission describes changes to Mofflyn around the time, and following the making, of the Will:11 By the early-1980s, with satellite cottages as well as the main campus, and a service delivering residential care to children with intellectual disabilities, Mofflyn had become a multifaceted agency and determined, in 1985, to close the Victoria Park campus as it no longer met the agency's criteria for modern residential care. By this time, also, Mofflyn had also began to provide in-home Family Support, fuelled by a belief that working with the family to assess what support they needed and to 10 Blueprint, Appendix A. 11 Henrisson Affidavit [7(c)(ii)], 'JCH3', page 24. -- 9 of 17 -- [2026] WASC 350 MASTER RUSSELL Page 10 provide or find it, could result in families staying together without the need for children to go into residential care. 31 A document titled 'Signposts - A Guide for Children and Young People in Care in WA from 1920' published in 2004 by the Department for Community Development includes a history of 'Mofflyn (previously Methodist Home for Children)',12 from which the following is extracted:13 … 1923-current, though in very different forms. It would appear that the old Methodist Home for Children had effectively ceased dormitory style residential care by around 1953, when the Cottage Campus model succeeded it. By 1985, most of the campus cottages had closed, though a short-term cottage continued operating on the old Sussex Street site until 1991. However, apart from that unit, Mofflyn's residential services were scattered throughout the metropolitan area. Mofflyn is no longer involved in residential child care. 32 The same document describes the 'Sponsoring Agency' of Mofflyn as: Methodist Church / Uniting Church of Australia / Uniting Church Child and Family Care Services / Mofflyn In 1982, Departmental administrative files show the Administrative Body for the Mofflyn Group Children's Homes as the Uniting Church. 33 As referenced in the scheme report,14 'Mofflyn House' was part of the 'Uniting Church Group Children's Home', which operated under the larger umbrella agency of the 'Uniting Church Child and Family Care Services', all of which comprised part of the Uniting Church. Ultimately, on 1 July 2006, Mofflyn, as it was previously known, was merged together with seven other community agencies to form UnitingCare West, which remained the same entity but changed its name to Uniting WA, in April 2020. Uniting WA is a registered charity and a body incorporated under the Uniting Church in Australia Act 1976 (WA).15 34 Whilst the intended charitable body appears to still exist and now operates as Uniting WA, since at least 1991 there have been no homes 12 Henrisson Affidavit [7(c)(iii)], 'JCH4', pages 39 - 48. 13 Henrisson Affidavit [7(c)(iii)], 'JCH4', page 39. 14 Henrisson Affidavit [11], 'JCH11'. 15 See Henrisson Affidavit, 'JCH5' - 'JCH7'. -- 10 of 17 -- [2026] WASC 350 MASTER RUSSELL Page 11 named 'Mofflyn Group Children's Homes', nor any equivalent replacement at the same sites. Those homes no longer exist. 35 As I referred to in Tan,16 the Second Reading Speech for the Charitable Trusts Bill 2022 (Bill)17 introduced the Bill as one to repeal and replace the Charitable Trusts Act 1962 (WA) with a new modern act, stating that charitable trusts are trusts for purposes rather than persons.18 36 As submitted, Mofflyn and the services it provided evolved and developed to adopt modern childcare practices and principles but its purposes throughout, which were largely directed to providing out-of-home care to children, were clearly charitable purposes by reference to at least one, if not more, of the four well-recognised principal divisions of charity, being:19 (a) the relief of poverty; (b) the advancement of education; (c) the advancement of religion; and (d) other purposes beneficial to the community. 37 As observed in Aid/Watch Incorporated v Commissioner of Taxation,20 'the law of charity is a moving subject which has evolved to accommodate new social needs as old ones become obsolete or satisfied.' 38 The care of children through out-of-home care has obvious community benefit. The definition of a charitable purpose in s 4 of the Act expressly includes any purpose that is charitable under the Charities Act 2013 (Cth) (Commonwealth Act). The services provided by Mofflyn in providing care for children also fall within the charitable 16 Tan [27]. 17 Western Australia, Parliamentary Debates, Legislative Assembly, 7 April 2022; Western Australia, Parliamentary Debates, Legislative Assembly, 16 June 2022. 18 Western Australia, Parliamentary Debates, Legislative Assembly, 7 April 2022, 1785b (Mr D Templeman, Leader of the House). 19 See Aid/Watch Incorporated v Commissioner of Taxation (2010) HCA 42; [2010] 241 CLR 539 (Aid/Watch) [18] (French CJ, Gummow, Hayne, Crennan and Bell JJ), referring to Commissioners for Special Purpose of Income Tax v Pemsel [1891] AC 531, 583 (Lord Macnaghten). See also The Public Trustee as Executor of the Will of Cecily Patricia Lindsey (Dec) v Australian Conservation Foundation Inc [2015] WASC 29 (Lindsey) [65] (McKechnie J). 20 Aid/Watch, citing Scottish Burial Reform and Cremation Society v Glasgow Corporation [1968] AC 138, 154 (Lord Wilberforce) and Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566, 582 [34]. -- 11 of 17 -- [2026] WASC 350 MASTER RUSSELL Page 12 purpose of advancing social or public welfare under s 12(1)(c) of the Commonwealth Act. 39 A bequest to a charity that does not exist or no longer exists is a typical example of a situation to which s 10 of the Act (and s 7 of the Charitable Trusts Act 1962 (WA), which preceded it) applies.21 In this case, although the recipient charity, the Uniting Church in Australia Property Trust (WA), may still exist albeit under a different name, the purpose of the Bequest was to benefit 'the Mofflyn Group Children's Homes'. 40 The Scheme proposes that the trust property, originally subject of the Bequest to the Uniting Church in Australia Property Trust (WA) for the benefit of the Mofflyn Group Children's Homes be distributed instead to Uniting WA's out-of-home care services for children and adolescents. 41 The plaintiff applies for approval of the Scheme on the basis that Uniting WA's out-of-home care services for children and adolescents has charitable purposes, 'as close as possible' to those of the Mofflyn Group Children's Homes. Uniting WA's out-of-home care services for children and adolescents 42 Uniting WA's purposes are set out in cl S8.4.3 of its by-laws,22 as follows: S8.4.3 The principal object and purpose of the Agency is: to deliver a range of quality community services and programs within the geographical area of the Synod of Western Australia which are responsive, accessible and relevant to the needs of those groups and persons who are most vulnerable and disadvantaged, and which include early intervention and prevention activities. 21 See for example, under the Charitable Trusts Act 1962 (WA), Roger Price as Executor of the Estate of Beryl Sheila Price v Attorney General for Western Australia [2014] WASC 430 (Price); Lindsey [76] - [78]; Jeffery Lin as executor of the estate of Emerald Cynthia Wolff Michaelson v Schubert [2019] WASC 212 (Jeffery Lin v Schubert) and, under the Act, Tan [26]; De Souza [26]. 22 Henrisson Affidavit [7(c)(vi)], 'JCH7'. -- 12 of 17 -- [2026] WASC 350 MASTER RUSSELL Page 13 43 Clause S8.4.4 of the by-laws provides:23 S8.4.4 In fulfilling this object and purpose, the Agency will: (a) be and remain an agency of the Uniting Church in Australia; (b) operate as a Christian organisation and as an integral part of the Uniting Church in Australia demonstrating through its operations the centrality of worship, witness and service and the particular ethos of the Uniting Church in Australia; (c) undertake a significant leadership role within the Synod of Western Australia and the broader community services industry in Western Australia in activities including social advocacy and the influencing of social policy; (d) work in close co-operation with community service agencies and other agencies of the Uniting Church in Western Australia and nationally; (e) engage with industry bodies, governments, other non- government community service agencies, business, media, other relevant institutions and service users in order to advance the objects and purposes of the Agency; and (f) adopt any additional object from time to time of a public benevolent nature and consistent with the principal object and purpose. 44 As its name suggests, Uniting WA's out-of-home care services for children and adolescents provides accommodation and care services to children and adolescents who are unable to live with their natural families. It does so in conjunction with the Department of Communities Child Protection and Family Support Services. 45 The Scheme Report quotes from a submission made in support of the Scheme, as follows:24 Uniting WA continues to fulfil the original mission of the Mofflyn Home and Mofflyn Child and Family Care Services, by providing residential services to children and adolescents by way of out of home care services (or OOHC Services) pursuant to contracts with the Department of Communities. Out-of-home care refers to a range of 23 Henrisson Affidavit [7(c)(vi)], 'JCH7'. 24 Henrisson Affidavit [11], 'JCH11', page 82. -- 13 of 17 -- [2026] WASC 350 MASTER RUSSELL Page 14 short or long-term care options for children and young people aged less than 18 years who are unable to live with their families for a variety of reasons, usually due to child abuse and/or neglect. Uniting WA currently holds contracts with the Department of Communities to provide 32 group foster care placements in 8 homes, 8 placements in 2 temporary care homes, and 18 Community Foster Care Placements for children with disabilities and complex needs. Mofflyn developed tertiary prevention and family reunification services known as Intensive Family Services in the 1980s. The services were designed to provide families at risk with in-home support aimed at keeping children out of the child protection system and supporting reunification where children had been removed. Uniting WA took over Mofflyn's Intensive Family Support Services after the merger and continues to operate these services with additional funding provided by the Department of Communities, Child Protection and Family Support. The primary services provided by Mofflyn at the time of the will involved care and accommodation for children who were unable to live with their families (usually due to child abuse and or neglect). This service continues today through Uniting WA, albeit it has evolved with the oversight of the relevant government departments and the manner in which the services are provided. 46 As noted in the scheme report,25 although the Mofflyn Group Children's Homes have closed, Uniting WA continues to provide out- of-home care with various placements in group homes. In addition to those placements, some children who, at the time of the Will, might previously have lived at a Mofflyn Group Children's Home may today benefit instead from foster care placements and other support services, as described above. Determination 47 I am satisfied that a Scheme is required under s 10(1)(a) of the Act, in the circumstances, as outlined, where it is impossible to carry out the original purpose because the Mofflyn Group Children's Homes no longer exist and did not exist at the time of the deceased's death. 48 I accept the submissions made in support of the application for approval of the Scheme to the effect that, as with Mofflyn, Uniting WA: (a) has a Christian identity and purpose and incorporates Christian values and principles into its work and the services it provides; 25 Henrisson Affidavit [11], 'JCH11', page 82. -- 14 of 17 -- [2026] WASC 350 MASTER RUSSELL Page 15 (b) undertakes substantially the same type of charitable purpose or activity, being the care of children; and (c) recognises that the goal in providing out-of-home care and accommodation is to ultimately return the child to their natural family, where possible. 49 The exact services of Uniting WA's out-of-home care services for children and adolescents differ from those provided by Mofflyn at the time of the Will. As is to be expected, the way in which the out-of-home care and the services offered and provided have evolved and operate under the supervision of the Department of Communities, which is responsible for children and young people in out-of-home care. 50 However, it is apparent that Uniting WA's services are the current equivalent of the services the Uniting Church previously provided through the Mofflyn Group Children's Homes. I am satisfied that the purposes of Uniting WA's out-of-home care services for children and adolescents are as close as possible to those of the original purpose, as required by s 10(2) of the Act. 51 I am satisfied that each of the requirements of s 25(1) of the Act have been met: (a) the Scheme is appropriate to carry out the proposed purpose and is not contrary to the law of this State or generally accepted standards of decency and propriety; (b) the Scheme can be approved under Pt 3 of the Act; and (c) the proposed purpose under the Scheme is a charitable purpose that can be carried out. 52 I am also satisfied that the requirements of pt 3 of the Act have been complied with. The Scheme has been submitted to the Attorney General for approval as required by s 10 and s 13 of the Act. The Attorney General has prepared a scheme report addressing the matters in s 25(1) and supports the Scheme. Notice of the Scheme has been published pursuant to s 19(2) of the Act, and notice of opposition was given pursuant to s 20. -- 15 of 17 -- [2026] WASC 350 MASTER RUSSELL Page 16 Costs and expenses 53 The application for approval of the Scheme proposes that all reasonable costs and expenses of and incidental to obtaining approval for the Scheme be paid out of, and be a charge on, the trust property, the subject of the Scheme. This is provided for by s 24 of the Act. 54 I am satisfied that it is appropriate to make an order in the terms proposed. An order in such terms is also consistent with the orders made for applications of a similar nature under the Charitable Trusts Act 1962, which was replaced by the Act,26 and with orders that have been made in applications under the Act.27 Conclusion and orders 55 For these reasons: (a) I was satisfied that a scheme is required in relation to the failed gift to Mofflyn Group Children's Homes under the Will, that the Scheme meets the requirements of the Act and should be approved; and (b) I made orders: (i) approving the Scheme and to the effect that the terms of the charitable trust established by the Will are varied by substituting 'Uniting WA's out-of-home care services for children and adolescents' in place of the named beneficiary, 'Mofflyn Group Children's Homes'; and (ii) that the plaintiff's and the defendant's reasonable costs and expenses of and incidental to preparing and advertising the Scheme, and of obtaining the Court's approval of the Scheme, including the costs reserved on 23 March 2026, be paid out of, and be a charge on, the trust property the subject of the Scheme. 26 See Price; The Public Trustee as Executor of the will of Granville Cecil Venters (Dec) v Attorney General for the State of Western Australia [2015] WASC 33; Jeffery Lin v Schubert. 27 See Tan [37] - [38]; De Souza [43] - [46]. -- 16 of 17 -- [2026] WASC 350 MASTER RUSSELL Page 17 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SC Associate to Master Russell 21 AUGUST 2026 -- 17 of 17 --