Weekly Snapshot Issue: 17 – 22 February 2019

Case we’re reading… 

When drafting Wills, some testators direct to leave a portion of their estate (defined in a lump sum or percentage of the residue) to a charity of their choice. In such cases, we draft the Will to allow for a substitution charity should the first appointed one no longer exist at the time the testator passes away. 

The case of Russell v Attorney General of New South Wales [2019]closely dealt with this matter. The court exercised the cy-pres doctrine of amending the terms of a charitable trust when its objective becomes impossible or cannot be fulfilled and re-directing it to another trust with similar objectives. The Testator in this matter left a considerable amount to the “Oprah Angel Network” (“OAN”). The gift failed because OAN ceased to exist before the testator’s death. 

The Executor filed a Summons on the question of whether he would be justified in making an application for a cy-pres scheme with respect to the failed gift to Oprah Angel Network. Justice Lindsay dealt with the Application and directed Attorney General (who then delegated the Solicitor General) the duty to establish a cy-pres scheme. The Solicitor General formulated the cy-pres scheme and nominated the Young Women’s Christian Association of NSW (“YWCA”) to receive amount the testator had otherwise gifted to the Oprah Angel Network. 

The Executor appealed the orders of the Attorney General on the basis that the cy-pres scheme did not sufficiently accord with the wishes of the deceased as the nominated charity was not associated with Ms. Oprah Winfrey. The Executor submitted that the testator was a devotee of Ms. Winfrey for many years and had she known the gift to Oprah Angel Network would fail, she would have likely nominated another charity closely associated with Ms. Winfrey and with objectives similar to that of the OAN. 

Ultimately, the Executor and the Attorney General came to a settlement whereby 60% of the residue of the estate would pass to the Oprah Winfrey Leadership Academy Foundation and the remaining 40% to the YWCA. 

The case serves as a great reminder to always include substitution charities when drafting gift clauses. 

Research we’re fascinated by…

We recently delved into a discussion of the concept of “phantom pain” at the office and synchronously came across an articleauthored by Dempsey-Jones, Postdoctoral researcher in Cognitive Neuroscience discussing the most recent research into the matter. New ultra-high resolution brain scanning reinforces the relationship between the individual’s control over their missing limb and their mind map. The subject is truly a mind bender!

Cakes we’re salivating for…

Our Instagram feed is infiltrated with videos of workouts (which we dutifully save but never really get around to trying); quotes on stoicism and images of cakes. We’ve long been suspicious of beautifully decorated cakes (you know the type; the sexy swirls, gorgeous piping and impossible to pronounce layers and ingredients) for the belief that it’s all a decadent façade to hide rubbery, plain or stodgy cake. 

This all changed when we tasted the creations by Cocoaduo; the woman behind the brand puts her heart and soul into her work and we won’t be surprised to see her whipped up (cheesy pun intended) by Karim Bourgi or Amaury Guichon in the near future. Her cakes will make you close your eyes and savour the moment. Put in an order and let us know what you think! 

Philosophy we’re attempting to live by…

Derived from Balinese Spiritualism, the philosophy of “Tri Hita Karana” roughly translates as the “three causes of well-being”; referring to harmony among people, harmony with nature or environment and harmony with God. Easily integrated into your personal belief system, this philosophy serves as a gentle reminder to remain connected and tolerant in order to achieve equilibrium in your life. 

Life advise we are following…

‘The Fear will never go away as long as you continue to grow’

Susan Jeffers. 

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