Application of Paul James Edwards: Estate of the Late John McGregor Edwards

John McGregor Edwards (‘the deceased’) made a will on 9 July 2019 (‘the will’) and died on 26 June 2020. The deceased had two children, Paul James Edwards and Kim Elizabeth White (née Edwards). The will appointed the first plaintiff, Paul James Edwards, and the second plaintiff, Monelita Hopfner, as joint executors (‘the executors’). The will gave several legacies and divided the residue of the deceased’s estate between his children, several friends, and several charities. On 2 November 2020, a grant of probate was made by this Court.

The executors, as plaintiffs, seek the Court’s advice, opinion and direction under s 63 of the Trustee Act 1925 (NSW) in relation to one of the objects of these residual charitable gifts. The principal questions raised by the request for judicial advice include:

These are proceedings “with respect to the administration of a charitable trust” and are therefore “charitable trust proceedings” within the Charitable Trusts Act 1993, s 5(1). The Attorney General of New South Wales, who has a right of appearance in charitable trust proceedings, was given notice of the proceedings and was made the first defendant.

In short submissions, the Attorney General authorised the bringing of the proceedings pursuant to the Charitable Trusts Act, s 6(1)(a).

The Court has been much assisted on this application by written and oral submissions made by Ms L. Clarke for the Executors, Mr R. Bhalla for the Attorney General and Mr D. Barlin for the second defendant.

These reasons first outline the principal background facts, then give a profile of the two charitable organisations that are candidates for the Court’s selection under a cy-près scheme, before dealing with the questions upon which the parties seek the Court’s advice and opinion. The facts were provided to the Court by way of submissions and several affidavits. The Court assumes the correctness of these facts.

The deceased’s son, Paul, says that the deceased first began to talk about a group of three organisations as objects of his charitable interest as early as 1997. The three were “Dogs for the Blind”, the “Bill Crewes Exodus Foundation” and the “Aboriginal Children’s Medical Research Trust founded by Noel Pearson”, which the Court infers from Paul Edwards’ affidavit the deceased described in this way when he spoke about them. These three organisations, so described by the deceased, remained among his testamentary preferences when he made his will 20 years later.

When he first mentioned these three organisations to his son, Paul, the deceased was struggling financially because a builder that the deceased had engaged to build a house for him had become insolvent. This experience led the deceased to become more open with his son about his financial affairs and testamentary wishes.

Paul Edwards’ deposes the following about his father’s mention of the “Aboriginal Children’s Medical Research Trust” in his affidavit:

Two factors point towards the likelihood of misdescription of organisations in the will. First, the deceased was unlikely to have been able to check the exact name of organisations that he wished to benefit in his will because he was not computer literate and was unable to use the internet or a smart telephone.

The second factor is that the will was prepared by a friend of the deceased, Reema Doueihi, who the Court understands does not claim any specialised legal training. The will is nevertheless a remarkably well-crafted instrument from the hand of a non-lawyer author. The will was based on the deceased’s hand-written and oral instructions. The will does not accurately identify the business names of several intended recipients of the gifts of residue. It would have been possible to identify them with precision, for example, by referring to their Australian Company Number (‘ACN’). Instead, the result was, slight misdescriptions of all the named recipient organisations and uncertainty about one of the named recipients.

The will disposes of the residue of the deceased’s estate at clause 9(c), as follows:

The will, at clause 9(d), provides:

In places the will appears to use the expression “bequeath” in the sense of “bequest”. In cl 9(c)(iii) the will refers to the “Aboriginal Children’s Medical Research Trust, c/o Noel Pearson, Cape York”.

The plaintiffs have without success made extensive enquiries as to locating an entity with a name identical, or like, Aboriginal Children’s Medical Research Trust. It is common ground that there is no trust known as the “Aboriginal Children’s Medical Research Trust”.

The plaintiffs submit that the gift of residue under the will to the Aboriginal Children’s Medical Research Trust should be applied cy-près in favour of th“for the purpose of Aboriginal children’s medical research”. An alternative scheme, advanced by the second defendant, Good to Great Schools Australia, is that the gift should be applied in its favour “for the purposes of research with respect to medical issues that relate to Aboriginal Children”.

Good to Great Schools Australia, the second defendant, submits that the address contained within the will, that is “c/- Noel Pearson, Cape York” supports its contention that Good to Great Schools Australia is the entity being referred to when the will uses the expression Aboriginal Children’s Medical Research Trust.

Mr Noel Pearson is a co-founder and a Director of Good to Great Schools Australia, a company limited by guarantee and a registered charity with the Australian Charities and Not-for-Profits Commission. Good to Great Schools Australia was established in 1990 as Cape York Aboriginal Australian Academy Limited. On 4 October 2010, the organisation’s name was changed to Cape York Aboriginal Australia Academy, and, on 21 October 2014, its name was changed to Good to Great Schools Australia.

Good To Great Schools Australia operates in the Cape York area and is focused principally on the advancement of the education, health and wellbeing of children and young people in the community. As Mr Pearson deposes, Good to Great Schools Australia is,

At about the time of the making of the will, in July 2019, Mr Pearson says that he regularly spoke on radio and at community events about the need for more medical research into Aboriginal children’s heath, and the need to address specific health problems such as rheumatic heart disease. Whether the deceased heard these broadcasts is unclear.

The Good to Great Schools Australia constitution identifies its objects as follows:

Mr Pearson’s evidence traces out the complex relationship between indigenous health and indigenous educational attainment. He explains that relationship in the following passages and how Good to Great Schools Australia is especially well-placed as an agency to deal with indigenous health issues.

Mr Pearson further explains Good to Great Schools Australia’s staff composition, research objectives and the funding and job descriptions of the positions of researchers and caseworkers as follows.

Finally, Mr Pearson explains Good to Great Schools Australia’s partnerships with health and medical organisations to further its work in a holistic manner integrating health and educational objectives for indigenous children:

The charitable work of Murdoch Children’s Research Institute was explained by its Chief Operating Officer, Mr Gregory O’Brien. The Murdoch Children’s Research Institute was incorporated on 16 June 1998 and is a registered charity with the Australian Charities and Not-for-Profits Commission.

The objects of Murdoch Children’s Research Institute are:

In undertaking its objects, Murdoch Children’s Research Institute has established an Aboriginal Health Program to co-design, implement and evaluate strategies to promote health, wellbeing and equity for Aboriginal children, young people and families, including through several large-scale research projects. The mission of the Aboriginal Health Program includes:

Mr O’Brien explains that Murdoch Children’s Research Institute has produced over 280 publications in relation to indigenous children’s health and is involved in several ongoing research projects. He gives examples of some of the recent publications resulting from these projects. These are a Child Resilience Questionnaire – Child, a Child Resilience Questionnaire (parent/caregiver report), a publication entitled “Her Tribe in His Tribe – Aboriginal Designed Empowerment Programs”, a multiphase study and report on the Aboriginal Women’s Experience of Partner Violence Scale, a report on healthcare experiences and birth outcomes, entitled “Results of an Aboriginal Birth Cohort”, a report, “Evaluation of an Online Health and Well-Being Program for Aboriginal and Torres Strait Islander People.”

The Murdoch Children’s Research Institute is currently engaged in several large-scale research projects relating to indigenous health and well-being entitled as follows, the Aboriginal Family Study, Healing for Survivors of Child Sexual Abuse in Aboriginal Communities, Corka – Bubs, Deadly Mums and Strong Families – connecting pregnant women with support for stress, yarndi and alcohol, and a Childhood Resilience Study to develop a better understanding of how trauma and stress impact on children’s health and well-being.

Mr O’Brien further explains that Murdoch Children’s Research Institute is currently funding PhD research for a thesis entitled “Understanding high mobility Aboriginal families, impacts on children’s health, social and emotional well-being, and what support is needed to foster positive child outcomes”.

Mr O’Brien explains that Murdoch Children’s Research Institute has been the recipient of multiple funding grants for additional children’s medical research from the National Health and Medical Research Council.

Mr O’Brien further explains that if the Court recognises Murdoch Children’s Research Institute as the recipient of the gift of residue in a cy-pres scheme that, the Murdoch Children’s Research Institute will reserve the funds for Aboriginal children’s medical research, such as that detailed in the preceding paragraphs.

In their Amended Summons the Executors seek the following opinion, advice, and direction of the Court under Trustee Act s 63 and related relief as follows:

The Amended Summons also seeks an order that the costs of the application be paid out of the Estate on the indemnity basis.

In its Cross-Summons, the second defendant, Good to Great Schools Australia seeks the following declarations and orders:

The parties filed an Agreed Statement of Issues, as follows:

This Agreed Statement of Issues conveniently guides the path of analysis followed in these reasons although it has not been found necessary for the Court to address each numbered question in order.

Trustee Act s 63 provides that a trustee may apply to the court for judicial advice on any question “respecting the management or administration of the trust property or the interpretation of the trust instrument”. The High Court has definitively restated the principles governing making of Trustee Act s 63 applications in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 [2008] HCA 42; and see also, Re Permanent Trustee Australia Ltd (1994) 33 NSWLR 547.

Where a bequest has been made to a specific charitable institution, the first step is to identify the institution. Hasluck J explained this to be the primary step in Hood as Executor of the Estate of Inez Irene Barbetti (Dec) v The Attorney General for Western Australia & Anor [2006] WASC 157 at [25] – [27]:

There is support for the proposition that if the recipient of a charitable bequest is simply misdescribed in a will, the gift will not lapse and it is unnecessary to consider the possible application of the cy-près doctrine: Re Estate of Brine (decd) [2021] SASC 54 at [38] per Parker J, citing Professor G E Dal Pont in his Law of Charity, LexisNexis Butterworths, 2nd ed, 2017) [15.29], as follows:

In circumstances where an institution and its address are named in a will, the address may be considered as being only for the identification of the institution and as having no other significance: The Estate of Rand (decd), Re [2009] NSWSC 48 at [35].

Where a bequest made in a will is made in favour of an organisation that has never existed, the gift will lapse unless it can be inferred that the donor intended to benefit a charitable purpose, in which case it is open to the Court to find a general charitable intention and to apply the gift cy-près: Public Trustee v Attorney General [2005] NSWSC 1267. If, however, the donor intended to benefit a specific or particular charitable purpose, the gift cannot be applied cy-près as this would be inconsistent with the donor’s intention: Morrison-Conway & Anor; Estate of the Late Judith Christine Walsh [2018] NSWSC 685 at [39].

The process of distinguishing between a general and a particular charitable intention is a question of construction of the will and, where permissible, by drawing inferences about the testator’s wishes from surrounding circumstances: Public Trustee v The Attorney General & Ors [2005] NSWSC 1267 at [17].

Charitable Trusts Act, Part 3, ss 9-11 declares that the principles in relation to cy-près schemes developed at general law have become ineffective (s 9) and provides for a presumption of a general charitable intention to enable cy-près schemes (s 10), and for a statutory duty upon a trustee to secure the application of the property of a charitable trust “to secure its effective use for charitable purposes” (s 11).

The Charitable Trusts Act, s 10 provides that a general charitable intention will be presumed unless the instrument establishing the charitable trust contains evidence to the contrary:

Little is required to establish a general charitable purpose. As a general principle, courts will lean in favour of charity, and upon the failure of a specific gift, courts will be ready to infer a general intention on the part of the will maker to provide a gift to charity: Connery v Williams Business College Ltd [2014] NSWSC 154 at [55].

Where a testator makes a gift to a non-existent body but from the description of the body in the will it may be assumed that the testator intended it to be a body carrying on a charitable activity, then a court of equity will lean in favour of finding a general charitable intention from the slightest indication in the will to save the gift from lapse: Re Daniels (Deceased) [1970] VR 72. In that regard, the Court will treat as significant the fact that the gift is interpolated between other charitable gifts: Re Davis; Hannen v Hillyer [1902] 1 Ch 879.

In Estate Polykarpou; Re A Charity [2016] NSWSC 409 at [4] Lindsay J concisely framed the question of inferring a general charitable intention in the following way:

In circumstances where a general charitable intention is found, it is open to the Court at general law to apply the funds represented by this failed gift cy-près to ensure that the intention of the testator is carried out as nearly as possible in a way that he would have intended: Re Taylor (1888) 58 L.T. 538, 543; Estate Polykarpou; Re A Charity [2016] NSWSC 409 at [104] – [105] per Lindsay J.

In Graeme Philip White as administrator of the Estate of Josephine Agnes Virgona v Attorney General of NSW [2019] NSWSC 917, Henry J said at [43] – [45]:

In oral submissions, counsel for the plaintiffs submitted that in circumstances where a gift is made to an entity that never existed, s 9 and 10 of the Charitable Trusts Act do not apply: Cram Foundation v Corbett-Jones [2006] NSWSC 495 at [50]. The question of whether s 10 applies to gifts to non-existent institutions remains an open question: Public Trustee v The Attorney General & Ors [2005] NSWSC 1267 at [25]; Morrison-Conway & Anor; Estate of the Late Judith Christine Walsh [2018] NSWSC 685 at [41].

The application of these principles to the will of the deceased produces a clear result.

This is an apt case for the giving of Trustee Act s 63 advice. These proceedings relate both to the administration of the trust property and the interpretation of the trust instrument, namely the residuary gift in clause 9(c)(iii) of the will.

The residuary gift at clause 9(c)(iii) to the “Aboriginal Children’s Medical Research Trust c/o Noel Pearson, Cape York” fails. The evidence indicates that there presently does not exist and never existed any identifiable entity with the name identical, or similar, to the “Aboriginal Children’s Medical Research Trust”.

This is not a case where the will, clause 9(c)(iii) makes a trivial misdescription of an intended recipient of a gift. An inference of trivial misdescription might be available if Mr Pearson had, for example, been associated with the conduct of a trust in Cape York that was solely devoted to medical research in relation to indigenous children. His evidence does not go that far. Good to Great Schools Australia has always had, as its name implies, a primary objective of advancing indigenous children’s education. Nor can it be said for similar reasons that the will, clause 9(c)(iii) describes an entity that has ceased to operate and was succeeded by another.

The gift will therefore lapse, unless it can be inferred that the testator intended to benefit a charitable purpose, in which case it is open to the Court to find a general charitable intention and to apply the gift cy-près.

The Court concludes that the residuary gift in clause 9(c)(iii) demonstrates a general charitable intention. The starting point is the presumption in Charitable Trusts Act, s 10: the will contains no evidence to the contrary of the implication of a general charitable intention. And apart from Charitable Trusts Act, s 10, a general charitable intention would be inferred here at general law.

The positive inference of a general charitable intention follows from the nature of the gift itself. The execution of what the testator had in mind must necessarily result in a benefit to the public. A trust for the purpose of the advancement of medical research is prima facie a trust for a valid charitable purpose: see, eg, Taylor v Taylor (1910) 10 CLR 218; [1910] HCA 4.

The inference of a general charitable intention also follows from the context of clause 9(c)(iii), which is placed with two other residuary gifts for clearly charitable purposes, the “Guide Dogs for the Blind” and “the Exodus Foundation”, all three of which the deceased had long considered and expressed as part of a group of his related charitable intentions. The gift to the “Aboriginal Children’s Medical Research Trust” is of 8/40ths of the residue of the estate. The two other accompanying gifts of residue to charitable objects are given equal portions of residue, of 8/40ths. All three of these gifts have an apparent priority in the testator’s consideration above the smaller gifts of residue to individuals, which range between 6/40ths and 1/40th of residue.

As cl 9(c)(iii) of the will fails as a gift to an identifiable organisation but exhibits a general charitable intention, the Charitable Trusts Act s 11 places the plaintiffs under a duty to have the trust property applied cy-près and attracts the Court’s jurisdiction to order a scheme cy-près, to secure its effective use for charitable purposes, due to the inability to locate an entity with a name identical, or like, the Aboriginal Children’s Medical Research Trust.

In formulating a scheme cy-pres the Court must consider to which of the two institutions, Good to Great Schools Australia or Murdoch Children’s Research Institute, carries out as nearly as possible the general paramount intention of the deceased. The Court is satisfied that it does not have to look further afield, as both these organisations reflect important elements of the deceased’s charitable purpose.

The Attorney General submits, correctly in the Court’s view that the words of clause 9(c)(iii) demonstrate an intent that the gift be used for the purpose of medical research for Aboriginal children. Both Good to Great Schools Australia and the Murdoch Children’s Research Institute have claims to serve this purpose.

The form of words of clause 9(c)(iii) and the mention of Mr Noel Pearson’s name have some importance in profiling the deceased’s charitable intention in relation to Aboriginal medical research as associated with or centred in North Queensland. The words “Aboriginal Children’s Medical Research Trust” are bolded, as are the organisations referred to in clauses 9(c)(i) and (ii) and capitalised. In clause 9(c)(iii) the following words “c/o Noel Pearson, Cape York” are not bolded or capitalised. This is to be contrasted with the way that clause 9(c)(ii) places in bold letters and capitals the name of the Rev. Bill Crews, with the Exodus Foundation.

Counsel for the attorney general, Mr Bhalla, captured the central issue in his oral submissions. He submitted that this bolding and capitalisation implies that the most important element in the testator’s mind was the name of the organisation and the charitable purpose that is evidenced from that name and not the person who might form part of the address. He further submitted that in essence this matter will come down to the view that the Court takes as to what the words “c/o Noel Pearson, Cape York” mean and the significance that should be attached to them. He submits that if the Court formed the view that the name of the organisation is determinative, then the gift should be applied cy-pres to the Murdoch Children’s Research Institute for the purpose of aboriginal children’s medical research.

But Mr Balla also submitted that if the Court took the view that the abbreviation “c/o” meaning “care of” is an important indicator of the testator’s intention then that indicator would have to be weighed in the balance in formulating a scheme and reconciled with the fact that the primary charitable purpose of Good to Greater Schools Australia is education rather than medical research. The Court inclines to the latter view for the following reasons.

The deceased’s testamentary intentions show a pattern of benefiting charitable organisations associated with a philanthropic leader, who has significant responsibility for guiding the structure and ethos of the charitable organisation the deceased had selected. For example, the Exodus Foundation is not described in those terms alone in clause 9(c)(ii) but is associated with “Rev Bill Crews”. The association with such philanthropic leaders is an important element in the deceased’s selection of more than one of the charities in clause 9(c).

In the Court’s view, the reference to Mr Pearson in clause 9(c)(iii) cannot be either ignored, or reduced in importance because it is not bolded or capitalised, in comparison with the reference to Rev Crews in clause 9(c)(ii). The reference to Mr Pearson is present and was deliberately placed in the clause, as was the reference to Rev Crews, where no similar name appears in clause 9(c)(i). The differences in bolding and capitalisation between clauses 9(c)(ii) and 9(c)(iii) are not of great significance and probably only indicate that the deceased had greater confidence that Rev Crews was the controlling philanthropic personality associated with the Exodus Foundation than Mr Pearson was in relation to the Aboriginal Children’s Medical Research Trust.

But the deliberate inclusion of Mr Pearson’s name and the area of Australia of Cape York, should be seen as important elements in the intent behind the gift. The Macquarie Dictionary definition of the expression “care of” is “at the address of”, which taken with Mr Pearson’s name and the region of Cape York tend to show that the testator wished to give preference to medical research for indigenous children in the Cape York area and Mr Pearson was the selected channel through which that intent should best be fulfilled.

To the extent that the deceased wished to give effect to his charitable intention of aiding Aboriginal children’s medical research he wished to do so through Mr Pearson and through an organisation that would be based in and focus upon Cape York indigenous children. This interpretation of the testator’s words is also consistent with the evidence of what the deceased said to his son about Aboriginal children “sick and dying in far North Queensland”. The testator’s gift can be seen as recognising that the specific medical and health needs of indigenous children in remote areas of Australia, such as far North Queensland, may be different from those in more urban areas.

This combination of words used by the testator in clause 9(c)(iii) shows an emphasis on research which could have a practical and direct effect in a particular region, rather than generalised or theoretical research. This consideration within clause 9(c)(iii) is consistent with the intent of the suite of charitable gifts in clause 9(c)(i)-(iii).

The schemes proposed by each of Good to Great Schools Australia and Murdoch Children’s Research Institute fulfil different parts of the deceased’s intention. The Good to Great Schools Australia proposal is weighted towards research addressing the medical health needs of indigenous children in the Cape York area. The Murdoch Children’s Research Institute proposal is more directed towards general medical research in relation to indigenous children throughout Australia.

The ordinary meanings of the words “research” and “medical” in the composite expression Aboriginal Children’s Medical Research Trust are important guides in the task at hand. The Macquarie Dictionary defines “research” as “diligent and systematic enquiry or investigation into a subject, in order to discover factual principles”. And “medical” means “of or pertaining to the science or practice of medicine”. The related definition of “health”, meaning “soundness of body; freedom from disease or ailment”, is the result of the application of the science of and the practice of medicine.

Research into the health and wellbeing of indigenous children is an essential foundation of the work carried out by Good to Great Schools Australia. It is part of that organisation’s holistic approach to getting children “school ready”. It has budgeted significant amounts for salaries for health research into diseases prevalent within the Cape York community. As Mr Pearson explains in his affidavit, these diseases are “presented by children in our schools”. He gives examples of how in the past research has identified serious auditory problems with many children resulting from such diseases and that identification of these symptoms has resulted in teachers using equipment to overcome the damage from the diseases. He explains that the Good to Great Schools caseworkers are “de facto medical researchers” who identify medical issues within the Cape York indigenous communities.

In addition to the evidence outlined above, Good to Great Schools Australia has, since 2014-15, conducted what could readily be described as medical research in relation to Aboriginal children. Between 2013 and 2023, Good to Great Schools Australia has partnered with a number of health and medical organisations and Cape York communities to produce studies, reports and submissions to government enquiries on the subject of indigenous education, health and wellbeing. Good to Great Schools Australia has received funding support from the Royal Flying Doctor Service to partner in the assessment of the special needs of First Nations students in Queensland’s indigenous communities and these assessments revealed, for example, that approximately one quarter of the students surveyed met the criteria for the diagnosis of intellectual impairment. This kind of research meets the description of “medical research”, but is research which is directed towards immediate health outcomes among Cape York indigenous children.

Mr Pearson has explained that should the Court approve a cy-pres scheme Good to Great Schools Australia “will use the money from this legacy to fund components of “our Health and Wellbeing strategy, particularly the research and evaluation components”, which are components that reflect the elements the Court has classified above as medical research.

The research proposed to be conducted by the Murdoch Children’s Research Institute should a cy-pres scheme be approved also undoubtedly qualifies as medical research. The research that the the Murdoch Children’s Research Institute would undertake is probably more academically rigourous than what is proposed by Good to Great Schools Australia. But it is research which does not have the practical connection with the medical needs of Cape York indigenous children that the Court has found is an important feature of the testator’s residuary gift in this case.

Accordingly for the reasons above, the proposal of Good to Great Schools Australia more adequately reflect the intention of the testator.

Upon an application under Trustee Act, s 63 the costs of the plaintiffs would ordinarily be paid out of the estate on the indemnity basis and the orders below so provide. The Attorney General’s costs would ordinarily be paid out of the disposition contained at cl 9(c)(iii) of the will, as that is the part of the estate in respect of which his intervention was necessary. Unless the parties wish to contend otherwise, the costs of the second defendant, Good to Great Schools Australia will be paid out of the estate on the ordinary basis.

Accordingly, and for the reasons given, the Court makes the following orders and directions: