Re Boning

96 QSC 216

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(Judgment by: Hon. Justice White)

In the matter of the Supreme Court Rules Order 64 Rule 1A and in the matter of the Will of James Edward Boning late of Daintree Road, via Mossman in the State of Queensland, Radio Engineer, Deceased

Court:

Judge:
Hon. Justice White

Subject References:
will
Trust to shut up property for 20 years
conditional gift or trust
to Greenpeace International or Greenpeace purposes
charitable trust

Hearing date: 1 December 1995
Judgment date: 11 November 1996

Brisbane

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Judgment by:
Hon. Justice White

REASONS FOR JUDGMENT

The testator, James Edward Boning, died by his own hand at his property at Daintree Road, Mossman on 30 September 1990. He was then suffering from cancer which he understood to be terminal. He was aged 52 years and without any ascertained next-of-kin. Both his parents were dead. He was an only child, had never married nor left issue so far as can be ascertained. He had come to Australia from England some few years previously. His will is dated 15 February 1990 and was admitted to probate on 11 January 1991. There is no issue concerning the formal requirements of the Succession Act 1981, the testator's mental capacity at the time the will was made, nor his domicile of choice in Queensland. By his will he appointed ANZ Executors & Trustee Company Limited and Steven John Hall as his executors and trustees. The proper construction of the terms of the will has caused some difficulty for the executors and they seek a determination of certain questions arising in respect of the will.

The testator's estate at the date of his death consisted of a house on land at Daintree Road, Mossman, a parcel of vacant land in Cairns, two motor vehicles, various cash deposits in Australia, the United Kingdom and Switzerland, shares in a Canadian company, a safe custody box at the National Australia Bank in Brisbane containing 77 Krugerrands and a gold and diamond ring, and certain chattels. The debts of the estate were modest. The vacant land, the Krugerrands, the funds and securities held for the testator by the Swiss Banking Corporation, which included the Canadian shares, have been sold or realised by the executors. The value of the estate was approximately $670,000 at the testator's death. One of the motor vehicles was transferred to Mr Hall in accordance with the terms of the will. Two sums of $150,000 and the other motor vehicle were distributed to Greenpeace Australia Limited in 1991 as a partial distribution of the residuary estate by the executors. Greenpeace Australia Limited has transferred these funds to Greenpeace International.

Since those events the executors have received legal advice that certain questions concerning the construction of the will or arising under it ought to be put before the court. The relevant clauses of the will are:

3"b)

AS TO my property situated at Daintree Road via Mossman being all that land contained in Deed of Grant volume 393 folio 99 to be retained by my trustees upon trust for a period of twenty years from the date of my death upon the following conditions:-

i)

A fund is to be established by my trustees with monies from my estate being equivalent to an amount fifty (50) times the annual local authority rates chargeable on the subject property at the date of my death.

ii)

The monies in the abovementioned fund (hereinafter in this subsection 3(a) referred to as "the Trust Fund") are to be invested by my trustees and the interest and capital used for the purpose of maintaining the property aforementioned.

iii)

All animals and birds on the subject property are to be left undisturbed.

iv)

The water supply, electricity supply and telephone service are to be disconnected.

v)

The dwelling and garage upon the property and the entrance gate to the property are to be secured with substantial locks and kept in a secure state for the period of this trust.

vi)

All local authority rates are to be paid when they fall due from The Trust Fund.

vii)

No maintenance expenses are to be incurred by the trust in relation to the property with the exception of those which are presented to my trustees in writing by a duly authorised statutory body or authorised by a Court Order.

viii)

I direct my trustees to carry out a six monthly inspection of the property to ensure that to the best of their ability the property is maintained in an undisturbed state.

ix)

The six monthly inspection referred to above is to be carried out by either an employee of ANZ EXECUTORS & TRUSTEE COMPANY LIMITED or an ANZ Bank Manager acting as my trustees' representative.

x)

At the end of the twenty (20) year period the aforementioned property situated at Daintree Road via Mossman is to be sold and the net proceeds therefrom together with any balance monies held in the Trust Fund are to be paid to GREENPEACE AUSTRALIA LIMITED OF 37 Nicolson Street Balmain Sydney in the State of New South Wales upon the condition that the monies be used for Greenpeace International Activities.

xi)

If after the period of twenty years from the date of my death the organisation Greenpeace no longer exists then I DIRECT my trustees to pay the monies referred to in subclause 3(a) [sic] x) above to such organisation with similar aims and objectives as my trustees shall in its [sic] absolute discretion decide.

c)

AS TO the contents of my house situated at Daintree Road via Mossman such items contained therein as shall be selected by IMELDA MEARNS upon the following conditions:-

i)

My trustees are to make no attempt to contact the said IMELDA MEARNS

ii)

This legacy is valid only in the event of the said IMELDA MEARNS contacting my trustees of her own free will within ten (10) years from the date of my death

iii)

IN THE EVENT of the said IMELDA MEARNS so contacting my trustees I DIRECT my trustees as follows:-

(a)

to grant her unsupervised access to the said dwelling; and

(b)

to authorise her to remove any items of her choice without limitation; and

(c)

to offer her assistance in this endeavour

d)

I DIRECT my trustees to sell call in and convert into money such part of the rest and residue of my estate as shall not consist of money and to pay the rest and residue of my estate as soon as practicable after the date of my death to the aforesaid GREENPEACE AUSTRALIA LIMITED upon the condition that the monies be used for Greenpeace International Activities."

Mrs Imelda Mearns, referred to in cl. 3(c) of the will was a long-time close friend of the testator and lives in England. She fulfilled the condition of cl. 3(c)(ii) in that she contacted the executors shortly after the testator's death and has had access to the Daintree Road property.

The will has the appearance of being a combination of the professionally drawn and the homemade. There are a number of aspects of the will which call for consideration. The questions upon which the executors seek the court's answer are:

"1.

Whether the direction in clause 3(b) of the Will that the property situated at Daintree Road via Mossman be retained by the Applicants on trust for a period of 20 years from the date of death of the deceased upon the conditions therein set out is valid.

2.

If that direction is not valid, is the consequence that the gift in clause 3(b)(x) is accelerated?

3.

If not upon what trust do the Applicants hold the interest in that property for the period of 20 years referred to in that clause?

4.

Do the gifts in clauses 3(b)(x) and 3(d) take effect on the true construction of a Will as:

(a)

Gifts to Greenpeace Australia Limited absolutely;

(b)

Gifts to Greenpeace Australia Limited subject to a condition subsequent;

(c)

Gifts to Greenpeace Australia Limited upon trust for the purpose of being used for Greenpeace International activities;

(d)

Gifts to Greenpeace Australia Limited upon some other and what trust; or

(e)

In some other and what way?

5.

If the gifts in clauses 3(b)(x) and 3(d) take effect as gifts to Greenpeace Australia Limited subject to a condition, what is that condition?

6.

If the gifts in clause 3(b)(x) and 3 (d) take effect as gifts to Greenpeace Australia Limited upon a trust:

(a)

Is such trust valid as a charitable trust?

(b)

If not, do those gifts take effect pursuant to S.63 of the Succession Act 1981?

(c)

If not, are those gifts effective?

7.

Do the "items contained therein" referred to in clause 3(c) of the Will include:

(a)

A motor vehicle which was in a garage which was close to but detached from the house situated at Daintree Road via Mossman referred to in that clause, at the date of death of the deceased and at the date on which the Imelda Mearns referred to in that clause contacted the Applicants;

(b)

The contents of a safe deposit box held at a bank in Brisbane the keys to which were situated in the house on both such dates;

(c)

The amount standing to the credit of the deceased in a bank account with the Swiss Banking Corporation and securities held by the Swiss Banking Corporation for the deceased, papers in relation to which were in the house on both such dates."

Question 1 - Retention of property for 20 years by trustees

The effect of locking up the Mossman property for 20 years is that the trust created by the will in that property has no object for those years. It might be inferred from the specific reference to the animals and birds being left undisturbed and the direction to carry out no maintenance unless compelled by law to do so that the testator wished to obliterate evidence of having lived on the property and to allow it to revert to its natural state. The trust does not tend to a perpetuity, so the question remains whether the purpose being non-charitable is one to which property might be devoted by way of trust.

No party sought to uphold it as a valid trust and there were no submissions that the principles in McPhail v. Doulton [1971] AC 424 ought to be applied. The generally accepted view that there is no one interested to enforce such a trust as the rationale for refusing to pronounce for the validity of a non-charitable trust has had some anomalous exceptions, eg, Re Hooper [1932] 1 CH 38. Generally the courts have declined to give effect to non-charitable purpose trusts, Morice v. Bishop of Durham (1804) 9 Ves 399; 32 ER 656; aff'd (1805) 10 Ves 522; 32 ER 947. The Scottish case of Duffus (M'Caig's Trustees) v. Kirk-Session of the United Free Church of Lismore [1915] Sess. Cas 426 is a colourful example. The testatrix left no heir-at-law and provided in a codicil to her will that an existing tower erected by her late brother on a promontory near the town of Oban be converted into a private enclosure and therein the trustees were to have erected bronze statues of her parents and their nine children, including herself, each of which was to cost not less than £1,000 and to maintain the entire works. Since the cost of the works was to come from income it could have been at least 8 years before the beneficiaries would take their legacies under the will. They challenged the validity of the direction. The trust would have been void under English law because of the rule against perpetuities but not in Scotland. Lord Salvesen noted at p. 432 that no beneficiary could enforce the trust and concluded that the bequest was void as being contrary to public policy. At p. 434 his Lordship observed

"In the first place, I think it is so because it involves a sheer waste of money, and not the less so that the expenditure would give employment to a number of sculptors and workmen, for it must be assumed that their labour could be usefully employed in other ways. I think, further, that it would be a dangerous thing to support a bequest of this kind which can only gratify the vanity of testators, who have no claim to be immortalised, but who possess the means by which they can provide for more substantial monuments to themselves than many that are erected to famous persons by public subscription. A man may, of course, do with his money what he pleases while he is alive, but he is generally restrained from wasteful expenditure by a desire to enjoy his property, or to accumulate it, during his lifetime. The actings of the two M'Caigs form an excellent illustration of this principle of human conduct. For many years they had apparently contemplated the erection of similar statues, but they could not bring themselves to part with the money during their own lifetimes. Such considerations do not restrain extravagance or eccentricity in testamentary dispositions, on which there is no check except by the Courts of law. A testator may still leave means to be expended in stone and lime which will form a monument to his memory, provided the bequest he makes is of some useful public purpose and is not merely for his own glorification. The prospect of Scotland being dotted with monuments to obscure persons who happened to have amassed a sufficiency of means, and cumbered with trusts for the purpose of maintaining these monuments in all time coming, appears to me to be little less than appalling."

Lord Guthrie at p. 436 noted that Scottish law recognised the desire to record the virtues and perpetuate the memory of parents and brothers and sisters but said that the proposed method of carrying out that desire in this case was unnatural, not customary and unreasonable. That was so because, inter alia, of the method of commemoration by bronze statues "of people of whom it would be impossible to make non-ludicrous representations without abandoning likeness ..."

A case with some similarity to the present is Brown v. Burdett (1882) 21 Ch D 667 where a testatrix devised her house and its contents to trustees, requiring them to cause it to be bricked up immediately after her funeral for 20 years and at the end of that period to pass to certain beneficiaries. Bacon VC held that he must ""unseal" this useless, undisposed of property." He declared, somewhat surprisingly it might be thought, that the house and premises fell into an intestacy as to the 20 years term rather than into the residuary estate. A similar case was Re Headrick's Will (1953) QWN 23. A testatrix directed that if the Rockhampton City Council did not accept land upon which her home stood for a park and sportsground, the trustees were to have the dwelling and other improvements on the land demolished and the proceeds of the sale of the land were to form part of her residuary estate. Stanley J held that the direction to demolish was not a good and valid direction binding on the trustees.

Here the purpose of shutting up the property for 20 years is non-charitable. The law will not give effect to a trust of the kind envisaged in the will.

The answer to Question 1 is "NO".

Question 2 - Is the gift in Clause 3(b)(x) accelerated?

The executors submit that in the event the direction to shut up the property for 20 years is held not to be a valid direction to the trustees the interest in the property should fall into the residuary estate pursuant to s.28(b) of the Succession Act 1981. Greenpeace submits that the gift of the property should be accelerated, although being the residuary legatee there is little practical difference in the outcome.

Whether an interest deferred for the period of a prior interest is to be accelerated on the failure or earlier determination of that prior interest will depend on the language of the will, s.28 of the Succession Act. See also Re Flower's Settlement Trusts [1957] 1 WLR 401; and Tidex v. Trustees Executors & Agency Company Ltd [1971] 2 NSWLR 453. If the gift following the determination of the prior estate is still contingent there can be no acceleration because being contingent it cannot be established whether it will take effect, Re Taylor [1957] 1 WLR 1043, per Upjohn J at p. 1045. The conditional nature of the bequest ascertained from the construction of the trust instrument in Sir Moses Montefiore Jewish Home v. Howell [1984] 2 NSWLR 406, a case relied upon by the executors, meant that the gift would not vest on the determination of an intermediate interest.

The executors submit that since the testator envisaged that Greenpeace may no longer exist 20 years from his death and made provision for the gift to be paid to an organisation with similar aims and objects the gift to Greenpeace was thereby rendered contingent or dependent. If that were the case then there could be no acceleration of the gift to Greenpeace. No such intention should be inferred from that provision in the will. The testator would not have anticipated that the 20 year interregnum would be held an invalid trust. He made prudent provision for the future should Greenpeace have ceased to exist at the end of that time. There is no sense of contingency here. He left his residuary estate to Greenpeace. There can be little doubt that on the proper construction of this will the gift to Greenpeace is accelerated on the failure of the intermediate trust.

The answer to Question 2 is "YES".

Question 3 - It is unnecessary to answer Question 3.

Questions 4, 5 and 6 - The Gifts to Greenpeace

It is unnecessary to consider the question posed in Question 6(c) concerning the application of s.63 of the Succession Act relating to gifts to unincorporated associations as that is not the case here.

It is convenient to consider these questions together. The relevant words in the will found in cl. 3(b)(x) and cl. 3(d) are to pay in the case of the proceeds of the sale of the house and land to "... GREENPEACE AUSTRALIA LIMITED of 37 Nicolson Street Balmain Sydney in the State of New South Wales upon the condition that the moneys be used for Greenpeace International Activities" and "... to the aforesaid GREENPEACE AUSTRALIA LIMITED upon the condition that the moneys be used for Greenpeace International Activities" in respect of the residue.

There appear to be three available constructions of cl. 3(b)(x) and 3(d) of the will

•

an absolute gift to Greenpeace Australia Limited with the additional words "on condition" being no more than an expression of expectation by the testator;

•

a conditional gift to Greenpeace Australia

•

that it be paid to Greenpeace International or

•

that it be devoted to the purposes of Greenpeace International;

•

a gift to Greenpeace Australia on trust for

•

Greenpeace International or

•

the purposes of Greenpeace International.

If the gift is construed as a gift to Greenpeace Australia for the purposes of Greenpeace International and those purposes are found not to be charitable as understood by the law then the gifts may fail unless its purposes include charitable purposes and the provisions of s.104 of the Succession Act can exclude the non-charitable purposes from the gift.

Mr H Fraser QC appears for Greenpeace Australia and Stichting Greenpeace Council (Greenpeace International) although the latter is not a party to the summons. Both are content for any construction which does not invalidate the gifts.

Greenpeace

Before turning to the construction of the will it is appropriate to say something about Greenpeace. Greenpeace Australia Limited ("Greenpeace Australia") is a company limited by guarantee. It uses the name "Greenpeace" as licensee under a licence agreement made with Stichting Greenpeace Council ("SGC"). SGC is a non-profit legal entity incorporated in the Netherlands. The word "Stichting" means "foundation". It has legal personality under the law of the Netherlands. It might conveniently be described as the international organisation with which national Greenpeace groups are associated. Greenpeace Australia has the status of a national participant in SGC with voting rights. By virtue of SGC's by-laws Greenpeace Australia is required to remit 24% of its gross annual income to SGC to maintain its voting status. There is evidence to show that SGC is known to its own employees, to Greenpeace Australia and worldwide as "Greenpeace International". Greenpeace Australia's audited financial statements show that it acts as trustee for SGC in respect of grants received for funding Greenpeace International campaigns.

Greenpeace Australia has been unable to find any record of membership of its organisation by the testator. Had he been a member it could have been readily inferred that in referring to Greenpeace International in his will he was familiar with that expression as referring to a particular entity whose proper name was SGC since those things appear in the literature circulated to members. By his gifts to Greenpeace Australia he has demonstrated an interest in it and has made reference in his will to its proper name and to its address. I am prepared to infer that the testator had an understanding that there was a body or entity known as Greenpeace International and by reference to it intended to refer to the organisation SGC.

"On Condition"

The use of the expression "on condition" in a will is of little weight in ascertaining the intention of the testator to make an absolute gift, a conditional gift strictly so called, a gift upon condition or to create a trust, Attorney-General v. Master, Wardens etc of the Wax Chandlers' Co [1873] LR 6 HL 1 at pp. 10, 12, 18, 19 and 21; Theobald, Wills, 15th ed. (1993) at pp. 639 et seq; Ford and Lee, Principles of the Law of Trusts 3rd ed. (1996) pp. 15 et seq.

Absolute Gift

If the words "upon the condition that the moneys be used for Greenpeace International Activities" were used by the testator as indicating his wish as to how the gifts might be used then Greenpeace Australia Limited would take absolutely and there is no enforceable obligation to any third party and no concern with purposes. The testator might have intended to convey outright gifts upon Greenpeace Australia Limited but wished it to use the funds not in administration or salaries or the like but specifically for projects coordinated by the international body. That is a view which I held initially. However there are two considerations which would incline against it. The testator uses words which are more positive and peremptory than expressions such as "recommendation", "confidence" or "hope", which have been held to create no trust or condition but merely to have been precatory, Re Williams [1897] 2 CH. 12 at p. 18 per Lindley CJ; Theobald at pp. 526-7 and the cases cited at footnote 91. The other is that the testator has used the words "upon ... condition (s)" four times within the will - twice in respect of the gifts to Greenpeace Australia, once in directing the trustees as to how they should deal with his house and land at Daintree Road and once in directing the circumstances in which Mrs Mearns might take items from his dwelling. There is no ambiguity about the latter two. They are precise and the words used indicate that they are to bind the trustees. The will read as a whole suggests that the testator did not intend that the "condition" in cl. 3(c)(x) and cl. 3(d) was not to operate as a condition but as an expression of desire or recommendation without legal effect.

A Conditional Gift or a Trust?

The cases show that courts are not quick to construe a testator's words as a strict condition in favour of a third party liable to forfeiture if breached if a different meaning can fairly be given, Theobald, p. 639. The rationale for this approach need not be canvassed here and is discussed in a useful article by TC Thomas "Conditions in Favour of Third Parties" in (1952) Camb LJ Vol. 11 No 2 240 at pp. 242 et seq. It was early recognised by the courts that a third party would be more directly protected if the transferee was made a trustee of property the subject of the condition because if the condition was breached the whole gift would fail including the benefit to the third party, ibid at p. 243. This and other reasons inclined the courts to construe the will or other gifting document as giving rise to a trust imposed upon the beneficiary rather than a condition, Re Oliver (1890) 62 LT 533 per Chitty J at p. 534. Chitty J pointed out, ibid, at p. 534 that the language used by the courts in construing what was imposed on the beneficiary was often that of a trust but in many cases the effect was to create a special charge by the third party and not a trust. In Re Williams, supra, at p. 19 Lindley LJ observed

"But there is no difficulty in disposing of one's own property upon condition expressed or implied that the person who takes it shall do something himself, e.g., shall dispose of his property in a particular way indicated by the owner of the property which he accepts. Moreover, a condition of this kind is enforceable in equity, and need not amount to a common law condition - ie a condition involving a forfeiture of the property taken subject to the condition - if that condition is not performed."

Such a condition is not one of forfeiture and falls short of creating a trust or a charge.

This characterisation of a condition as equitable creating a personal obligation to fulfil it was discussed by Brennan J (as his Honour then was) in Muschinski v. Dodds (1984-85) 160 CLR 583 at p. 605 quoting the above passage from Williams. He noted that a donee who takes a gift with a personal obligation attached to it incurs an equitable obligation to perform the condition. Such a condition may be enforced in equity by an order for compensation or, where appropriate, by a decree of specific performance. Dawson J agreed adding that the precise basis in principle of the doctrine was debateable "but is firmly founded in precedent and affords a convenient means of reflecting the equity of the situation", at p. 625. See also Gregg v. Coates (1856) 23 Beav. 33; 53 ER 13; Gill v. Gill (1921) 21 SR (NSW) 400; Countess of Bective v. FCT (1932) 47 CLR 417; Hodge v. Griffiths [1940] CH. 260; and Re Hyne [1958] QD. R. 431 at p. 446.

Mr McGill SC (as his Honour then was) for the executors submitted that the testator intended to create a trust in this part of his will and not to impose an equitable condition. By the words which the testator has used elsewhere in the will he understands what trustees are and do and what a trust fund is. Had it been the case that a trust was to be imposed on Greenpeace Australia, the testator might have used language more apt to impose a trust had that been his intention. One matter which might suggest that a trust was being imposed is that the whole of the gifts to Greenpeace Australia are seemingly for the benefit of another. However that does not take account of the degree of community of interest between Greenpeace Australia and Greenpeace International (or SGC), which suggests that the gifts have been given "on condition" rather than "on trust".

If the words are construed as giving rise to a trust the further question arises as to whether it is a trust for the corporate entity or for the purposes which it advocates. If the latter, then issues about their charitable nature will need to be addressed. I do not attach any significance to the capital "A" used in "Activities". I incline to the view that if a trust was intended the gifts are to Greenpeace Australia for the benefit of Greenpeace International for use in its activities. The testator has preferred organisations or entities rather than purposes throughout his will. In cl. 3(b)(xi) he directed that the funds resulting from the sale of his Daintree Road property, should Greenpeace Australia no longer be in existence, should go to an organisation with similar aims and objectives.

Counsel have referred me to a great many cases in respect of these matters. None was similar to the will here under construction. Mr McGill referred to a number of decisions concerning gifts to unincorporated associations, for example Re Cain [1950] VLR 382 and Re Goodson [1971] VR 801, but they did not seem to be of any great relevance here. One theme however which runs strongly through the cases is that the words in a will must be considered in the context of that will and that it is often unhelpful to rely unduly upon other cases.

I have come to the conclusion on a reading of the will as a whole and by reference to the admissible extrinsic material that the gifts in the will in cl. 3(b)(x) and cl. 3(d) on their true construction take effect as gifts to Greenpeace Australia Limited upon the condition that Greenpeace Australia contribute the amount of those gifts to Stichting Greenpeace Council for use in its activities.

On the construction which I have given to this will it is unnecessary to deal with the further question whether the purposes of Greenpeace are "charitable" such as to be the object of a purpose trust but I will make a few observations out of deference to the considerable amount of material which has been placed before the court relating to Greenpeace International and Greenpeace Australia Limited - its objects and activities, organisation and administration. James Gillespie, the organisational director of SGC states that

"... SGC is a passionate but non-violent world leader for positive environmental change. I see its primary objective as integrating the 34 national Greenpeace offices worldwide and co-ordinating and assisting in the operation of Greenpeace's non-violent direct action campaign. Further, it runs global campaigns such as that against nuclear armaments, toxin disposal and climate change, all being campaigns of a global, not regional, nature."

The sole object of SGC as set out in the by-laws at Article 2 "is promoting the conservation of Nature". It aims to attain this object by

"(a)

co-ordinating its national organisations in the execution of their objectives, to lend them assistance where required and serve all their interests in the widest sense ...

(b)

undertaking all other tasks which may be conducive to its object such as for instance ...

•

trying to abolish certain abuses;

•

trying to save a certain species of animals;

•

with a view to the future, organising non-violent direct action so as to help bringing about a fundamental change in Man's way of thinking and thus to be instrumental in raising ecological awareness."

The Memorandum of Association of Greenpeace Australia (New South Wales) Limited describes its objects in Article 2 as

"... to seek to preserve, maintain and improve the environment and eco-systems in the State of New South Wales and elsewhere and to create and develop interests throughout the Earth, to encourage and foster the interest, awareness, understanding and moral and financial support in New South Wales and elsewhere for the benefit of the said environment and any of the said eco-systems and in particular without limiting the generality of the foregoing:-

(a)

to identify, research and monitor anything which in the opinion of the Company affects or may affect the said environment or any of the said eco-systems.

(b)

to develop and implement programs which in the opinion of the Company will aid in the protection of flora and fauna and will foster and increase and [sic] good health of depleted or endangered species.

(c)

to create and develop interest, awareness and understanding of and moral and financial support for the abovementioned objects and the said environment in any of the said eco-systems by means of the electronic and other media, educational programs and acts of protest and dissent from policies and actions whether of governments or others which, in the opinion of the Company may detrimentally affect any part of the said environment or any of the said eco-systems. ..."

A fair reading of the Greenpeace material before the court including its annual reports and annual reviews indicates a persuasive aspect to much of Greenpeace's endeavours. The changing of governmental attitudes to the environment is an important aspect of its work. Generally speaking activities directed to securing benefits by persuading, particularly governments, to pursue policies which are favourable to the objects sought to be secured have been held not to be charitable on the basis that they are, in truth, trusts for political purposes, Royal North Shore Hospital (Sydney) v. Attorney-General (NSW) (1938) 60 CLR 396; National Anti-Vivisection Society v. IRC [1948] AC 31; Re Shaw [1957] 1 WLR 729; McGovern v. Attorney-General [1982] CH. 321; Webb v. O'Doherty TLR 11 February 1991. See also Keeton & Sheridan, The Modern Law of Charities 4th ed. (1992) pp. 34 et seq; Ford and Lee, op. cit., para 9570 et seq.

Although the statute 43 Elizabeth c.4 (the Charitable Uses Act 1601) has been repealed by the Trusts Act 1973 in Queensland, s.103(1) provides that this repeal shall not affect the established rules of law relating to charity. (Section 103(2) makes an addition to the recognised categories of charity by adding leisuretime activities if in the interests of social welfare and for the public benefit.) Accordingly, Lord Macnaughten's classification of charitable trusts into four principle divisions: the relief of poverty; the advancement of education; the advancement of religion; and other purposes beneficial to the community not falling under any of the preceding heads has become and continues to be the touchstone for charitable trusts, Commissioners for Special Purposes of Income Tax v. Pemsel [1891] AC 531 at 583. Trusts for other purposes beneficial to the community must be beneficial within the spirit and intendment of the preamble to the Charitable Uses Act 1601, Attorney-General v. National Provincial Bank Limited [1924] A.C. 262 per Viscount Cave LC at p. 265.

It is unnecessary to canvass the many cases referred to by counsel relating to gifts for the benefit of animals and wildlife. The mixed success of such trusts indicates that it is still a difficult area both for testators and for the courts, Re Ingram [1951] VLR 424; RSPCA v. Benevolent Society (1960) 102 CLR 629; Re Green [1970] VLR 442; Perpetual Trust Co Ltd v. Salesian Society Inc [1978] ACLDT 241; Attorney-General v. Sawtell [1978] 2 NSWLR 200. However, Holland J in Sawtell, supra, considering a bequest for "the preservation of native wildlife (flora and fauna)" concluded that there had been a radical change of opinion relating to the benefit to the community from the preservation of native wildlife such as to make reliance upon some of the older cases questionable. He was able to conclude on the extensive evidence before him that the preservation of native flora and fauna was beneficial to the community generally and also advanced learning and education.

A trust for mixed charitable and non-charitable purposes would generally fail under the general law because to be charitable at law a trust must be for an exclusively charitable purpose, Morice v. Bishop of Durham, supra, at p. 406; 32 ER 656 at p. 659. In Queensland, as in all of the Australian States, legislative provision exists to rescue trusts for mixed charitable and non-charitable purposes from the strictness of the general rule so as to give proper effect to the impulse to charity of the donor. See s.104 of the Trusts Act. Had it been necessary to do so the evidence suggested that SGC endowed research at a British University, for example, and a scheme could have been settled, see McCracken v. Attorney-General for Victoria [1995] 1 V.R. 67.

The answer to Question 4(a) is "NO".

The answer to Question 4(b) is "YES".

The answer to Question 4(c) is "NO".

The answer to Question 4(d) is "Unnecessary to answer".

The answer to Question 4(e) is "Unnecessary to answer".

The answer to Question 5 is "upon the condition that Greenpeace Australia Limited contribute the amount of the value of the gifts to Stichting Greenpeace Council for use in its activities".

The answer to Question 6 is "Unnecessary to answer".

Question 7 - Items in the House

Mrs Mearns has fulfilled the conditions upon which her entitlement to such items from the contents of the house as she might select is dependent. Two cars were in a garage adjacent to the house and removed prior to her visit to the house but after she had notified the executors. One was chosen by Mr Hall in accordance with the terms of the will. The will anticipated that the house and its contents would remain undisturbed (save for any car which Mr Hall might choose) and should Mrs Mearns qualify she could select any items from it.

The questions to be answered are whether the following or any of them fall within the description of "contents of my house" at the date of the testator's death and when Mrs Mearns contacted the executors:

•

the motor vehicle not chosen by Mr Hall;

•

the contents of a safe deposit box held at the National Australia Bank in Brisbane containing valuables the key to which was situated in the house;

•

the amount standing to the credit of the deceased in a bank account with the Swiss Banking Corporation and securities held by that bank for the deceased, papers in respect of which were in the house.

Mrs Mearns has sought to place before the court material to establish the special nature of her longstanding friendship with the testator, acknowledged by him, and his love of games and puzzles which he shared with her. She contends that the testator set certain puzzles or tests for her which, if successfully solved or completed, would entitle her to the contents of the safe deposit box and the property held for the testator by the Swiss Banking Corporation. This material goes to the intention of the testator and, apart from a recognised and relatively narrow category of evidence of which this does not form part, such evidence is not admissible, Miller v. Travers (1832) 8 Bing 244; 151 ER 395; Re Plant [1974] Qd R 203. There is nothing ambiguous about the words "contents of my house" and there are no features of these chattels or choses in action or money which requires any explanation which might include all or any of them in the description of "contents of my house".

The Motor Vehicle

The testator refers to "the dwelling and garage" in cl. 3(b)(5) when directing the shutting up of the property. In cl. 3(c) he refers to "my house" when circumscribing the physical place from which Mrs Mearns could select items of property and in the same clause, in (iii)(a), directs that she have unsupervised access to "the said dwelling". The garage in which the car was housed was detached from the house proper by a gap between the eaves of some 600mm.

There is ample authority to support the submission of Mr A Lyons who appeared for Mrs Mearns that "house" without more includes a detached garage, Re Rankin [1938] VLR 339 and that the expression "contents of my house" includes a motor vehicle, Re Howe [1908] WN 223; Re Ashburnham [1912] WN 234; Re White [1916] CH 172; Johnston v. Doak [1953] VLR 678; and Re King [1971] SASR 147.

There is nothing in the use of "house" and "dwelling" in cl. 3(c) and "dwelling and garage" in cl. 3(b)(v) which precludes a construction which would include the motor vehicle in the garage in the contents of the house. Clause 3(b)(v) directed the trustees to secure the dwelling and garage upon the property and the entrance gate with substantial locks. The special reference here to garage was necessary to effect this particular purpose only and does not give rise to any inference that it was in some fashion excluded when the word "house" was employed in cl. 3(c).

The answer to Question 7(a) is "YES".

Contents of the Safe Deposit Box

The key and number to the safe deposit box in the bank in Brisbane were "selected" by Mrs Mearns from the testator's house where they were apparently "hidden" and for which she had "clues" from the testator. She claims the contents of the safe deposit box. The executors sold the gold and have retained the ring valued at $3,900. Mrs Mearns says that the testator initially told her that he was going to Brisbane to get the gold for her but subsequently told her he was too ill to travel and would arrange for her to have it. This evidence is admissible to the extent of showing where the contents of the safe deposit box were customarily kept. Chattels which are removed to a place of safekeeping temporarily from their usual locality may be included in the expression "contents of the house", Chapman v. Hart (1749) 1 Ves Sen 271 at p. 273; 27 ER 1026 at pp. 1027-8; Re Johnston [1884] 26 Ch D 538 at p. 553 per Chitty J; Re Baxendale (1919) 148 LT 139; and Re Eumorfopoulis [1944] 1 CH 133 at p. 137 per Simonds J. Valuables which are normally kept at a bank or place of security and occasionally brought to the house will not be included in the description of "contents of my house" Re Eumorfopoulis, ibid. In Re Robson [1891] 2 CH. 559 a key to a tin box containing valuables was in a desk which, together with its contents, was bequeathed to the plaintiff. Chitty J held at p. 565 that the key did not pass with the contents of the desk as it was only the "accessory" to the box which was not given. He likened the key to title-deeds which had they been in the desk would not be sufficient to pass title to the land. See also Re Stephenson [1899] S.A.L.R. 65; and Re Allen [1988] Qd. R. 1.

No material suggests that the contents of the safe deposit box customarily were retained in the house by the testator and were temporarily removed for safekeeping. As I have said no extrinsic evidence may be admitted to show that the testator intended by his "game" to pass this property to Mrs Mearns. There is nothing in the context of the will to extend the words "contents of my house" so as to include the contents of the security box.

The answer to Question 7(b) is "NO".

(c) Swiss Bank Holdings

Mrs Mearns "found" in the house letters one of which was to the Swiss Banking Corporation enclosing the testator's account number and appointing Mrs Mearns with his "full power of Attorney" in respect of any securities or moneys held for him in the bank. In one of the personal letters to her the testator mentions that he did not know if "it" would work and that she ought not to advise the bank that he was dead.

There is no dispute that the testator acquired a Queensland domicile of choice prior to his death. The disposition of his moveable property, including property in Switzerland, is governed by the law of Queensland, Nygh Conflicts of Law in Australia, 2nd ed. (1971) p. 685. By s.174 of the Property Law Act 1974 a power of attorney is revoked on the death of the donor, so too at common law, Halsbury, vol. 1 para. 882. The power of attorney on death becomes of no value and did not then entitle Mrs Mearns of itself to property of the testator. Counsel have referred to a number of will cases in which the question of entitlement to choses in action has arisen. They are of little relevance here but out of deference to the submissions I ought to make some reference to them. Re Robson, supra, concerned a bequest of a "desk with the contents thereof". Chitty J held that the word "contents" was sufficient to pass certain securities normally kept in the desk. He accepted that as a general rule a gift in a will of goods and chattels in a house will not pass choses in action. He drew a distinction between a gift of chattels in a house and a gift of the contents of a desk, a desk being the kind of place, he considered, in which valuable things would usually be kept, pp. 563-3. The Privy Council in Joseph v. Phillips [1934] AC 348 described Robson at p. 353 as a case which depended on its own peculiar circumstances and ought not be accepted as establishing any general principle. The court held that a bequest of "my personal effects in my room, including pictures roll-top desk and chiffonier complete with their contents" did not include the contents of a number of bank accounts the passbooks to which were in the desk and nine promissory notes payable to the testator's order and not endorsed. See also Re Plant supra.

Re Prater (1888) 37 Ch D 481 was a case involving the interpretation of an expression in a will bequeathing "half my property at Rothschilds' Bank". The account at the main bank in Paris had a cash balance and certificates of French shares. Chitty J at first instance had held that the expression "property" was not apt to include the share certificates. The Court of Appeal concluded that construing the language of the particular will the expression "property" was sufficient to pass the securities. In Re Abbott [1944] 2 All ER 457 the testatrix directed, inter alia, that "all other contents of my home and at the bank be sold" and the proceeds divided between named charities. One of the questions for decision was whether the gift included stocks and shares and other choses in action the certificates for which were in the home, the bank, or the nursing home where the testatrix had been taken shortly before her death. Lord Greene MR distinguished the words "all other contents" from words which would normally have been used by a lay person desiring to pass all her other property or possessions. He concluded that on their face the words had some restricted scope which excluded the choses of action. Woodhouse J in Re Harvey [1962] NZLR 524 construed a bequest of "my house ... and contents" in the absence of any qualification or enlargement by its context as excluding valuable securities and choses in action in the house. These cases do nothing to assist Mrs Mearns, rather to the contrary.

Mr Lyons relied upon an unreported decision of Needham J of 7 September 1977, Tzanavras v. Andrew No 1359 of 1977. His Honour construed a clause in a will bequeathing "my watch, jewellery and personal effects including all the contents of my own bedroom at ... except bank books" as including the contents of interest bearing deposits the receipts for which were found in the room. Although the documents themselves were of no value and passed no title to the contents of the interest bearing deposit account nonetheless by specifically excluding the bank passbooks, which of themselves passed no title to the contents of the bank account, suggested that the testator thought that they did. In so doing it could then be inferred that the testator thought that the bank books would entitle the beneficiary to money in the bank. Accordingly the exception reflected the class of benefits which the testator intended should pass in the bequest.

The words themselves used by the testator are unremarkable. Mrs Mearns is entitled to unsupervised access of the dwelling house from the contents of which she may select such items as she wishes. The executors were directed to authorise her to remove any items of her choice without limitation and to offer her assistance in this endeavour. Nothing in those words suggests anything other than ordinary chattels. Mr Lyons points to the absence of any item of real worth in the house except for the cars and the word "legacy" which he submits takes the case out of the ordinary. "Legacy" appears in cl. 3(c)(ii) to describe what the testator is giving to Mrs Mearns when he says "this legacy is valid only in the event of the said Imelda Mearns contacting my trustees of her own free will ..." Mr Lyons submits that that expression is not apt to describe chattels but is used to describe a monetary sum. The word legacy includes both specific and pecuniary legacies, Ward v. Grey, 29 LJ Ch 75 at p. 76 per Romilly MR; Windus v. Windus 26 LJ Ch 185. If the word is to be limited in the way in which Mr Lyons would submit it ought then one might expect the expression "pecuniary legacy" to be employed, see s.5(1) of the Succession Act (1981). I can find nothing in the context of the will itself which would lend a wider meaning to the expression "contents of my house" than is generally accepted as being encompassed in that expression. The power of attorney can have no status as a testamentary document. Testators run a considerable risk in seeking to dispose of their property outside the legislative requirements for the disposition of property after death.

The answer to Question 7(c) is "NO".

Costs

There was some internal evidence in the will as to the occupations of the attesting witnesses which might lead to an inference that the professional executor and trustee had some part to play in drawing the will. Mr Fraser foreshadowed a submission that unless the executor were to explain why it was necessary to seek the advice of the court in respect of a will which was apparently drawn with its professional assistance it ought not to have its costs out of the estate. Mr McGill indicated that he would want the opportunity to put some evidence before the court as to the circumstances surrounding the making of the will including the extent of correspondence with the testator which might have an effect on submissions against the executor having costs.

Mrs Mearns has been separately represented but no submissions have been made that this was inappropriate particularly in view of the approach which the executor has taken to the construction of the gifts in the will relating to her. She has had only partial success, but the conduct of the testator in encouraging her to participate in his "puzzles" in order to be benefited from his estate persuades me that it is appropriate that she have her costs out of the estate.

The Attorney-General was served with the material and is a respondent to the summons as was appropriate. He appeared represented by counsel, Mr D Campbell, at the commencement of the hearing. Mr Campbell sought leave to withdraw asking for costs. I was inclined against allowing the cost of counsel's appearance on behalf of the Attorney-General on the basis that a Crown Law officer could have done as much. However Mr Campbell explained that it was only after he was given the opportunity to read Mr McGill's and Mr Fraser's extensive outlines of submission that it was apparent that all relevant issues and competing constructions of the will relating to charitable trusts, the only aspect of the application of concern to the Attorney-General, would be canvassed and he concluded that he could contribute nothing extra. He had express instructions not to support one construction or another of the will but to abide the outcome of the court's decision. He was provided with Mr Fraser's outline of submissions only on the morning of the hearing. Mr Fraser formally opposed the application for costs for the Attorney-General but added nothing more than that. Mr Campbell tendered a schedule of costs which the Attorney-General would seek asking that the court approve those costs (since they are modest) and without the need for taxation. The costs refer only to conferences with counsel, counsel's opinion and counsel's fee on appearance amounting in total to $2,585.

The Attorney-General was properly served and made a respondent to the summons. Although the summons did not immediately relate to a charitable trust a potential charitable trust was involved, see s.106 of the Trusts Act. The Attorney-General should be given his costs in the amount of $2,585 such costs to be paid from the residuary estate.

I propose to make an order that each party apart from the Attorney-General have his, her or its costs of and incidental to the summons to be taxed on a solicitor and client basis to be paid out of the residuary estate unless submissions are made that some other order ought to be made with respect to costs. I should add that I have been greatly assisted by the careful and full submissions made by all counsel. Mr McGill having perused Mr Fraser's submissions assisted the court by presenting opposing constructions of the relevant words in the will. Mr Fraser made no submissions in respect of the questions concerning the contents of the house.

Orders

1.

The answer to Question 1 is "NO".

The answer to Question 2 is "YES".

It is unnecessary to answer Question 3.

The answer to Question 4(a) is "NO".

The answer to Question 4(b) is "YES".

The answer to Question 4(c) is "NO".

The answer to Question 4(d) and (e) is "Unnecessary to answer."

The answer to Question 5 is "Upon the condition that Greenpeace Australia Limited contribute the amount of the value of the gifts to Stichting Greenpeace Council for use in its activities."

It is unnecessary to answer Question 6.

The answer to Question 7(a) is "YES".

The answer to Question 7(b) is "NO".

The answer to Question 7(c) is "NO".

2.

The costs of and incidental to the summons of the executors, Greenpeace Australia Limited and Imelda Mearns are to be paid from the residuary estate of the testator to be taxed on a solicitor and client basis.

3.

The costs of the Attorney-General are to be paid from the residuary estate of the testator fixed at the sum of $2,585.