In the October 2016 issue of the NSW Law Society Journal, a
matter handled by Watkins Tapsell was profiled. The matter, Estate
of Polykarpou; Re a Charity  NSWSC 409, dealt with the issue
of what happens when a charitable gift within a Will fails because
the charity receiving the gift no longer exists.
The facts of the matter were as follows. The deceased left her
entire estate valued at approximately $1.4 million to charitable
causes. Exactly half of the estate was specifically gifted to
Oprah's Angel Network, which was a charity founded and managed
by American entertainer Oprah Winfrey. Oprah's Angel Network
was a charity in operation from 1998 to 2010 that provided
charitable donations to a variety of causes and focused its
donations to causes which promoted the education and advancement of
At the time that the deceased made her Will in 2004, Oprah's
Angel Network was operating as a charity. The deceased passed away
in 2015. At the time that the deceased passed away, Oprah's
Angel Network had ceased operation for 5 years. The result of the
Will was the gift to Oprah's Angel Network failed – there
was no organisation in existence to accept the gift.
Generally, in circumstances when a specific gift within a Will
fails, and there is no provision in the Will for dealing with the
residue of the estate, that portion of the Will is considered
"void" and treated as if it did not exist. If a gift
within a Will is void, then the assets which are the subject of
that specific gift (in this case, one half of the estate) are no
longer controlled by the Will. In that situation, those assets
would be distributed as if the deceased died "intestate"
(without a Will). In circumstances where someone dies
"intestate" their estate is distributed to their
When a specific charitable gift within a Will fails, there are
instances where the court can step in and establish a scheme by
which a failed gift is distributed to an alternate charitable
beneficiary that is as closely aligned to the deceased's
intentions as possible. These instances fall under a legal
exception known as the cy-prcs doctrine. The cy-prcs doctrine
states (in part) that the intended charitable purpose of a gift in
a Will or trust can be varied by a court when it is impossible or
impractical to carry out the objects of the trust gift in the way
that the creator of the trust intended.
In the Polykarpou matter, the Court's analysis first
considered whether the failed gift to Oprah's Angel Network was
for a charitable purpose. Because the gift was to a charitable
institution, the gift was considered prima facie to be for a
charitable purpose. The next phase of the Court's analysis
considered whether the Will had a general charitable intention
which should be administered through a cy-pres scheme. Taking into
consideration that the entirety of the Estate was gifted to charity
and that the failed gift was to a charitable institution, the Court
ruled that the intent of the deceased in her Will was charitable in
nature. The Court then ordered that a cy-pres scheme be established
to distribute the gift to a similar charitable interest and
referred the matter to the Attorney General's office for
implementation of the scheme. The lesson to take away from this
case is that Estate Planning does not end once you have made your
Will. Proper planning also includes ensuring that the beneficiaries
of your Estate are still either alive or (in the case of a charity)
in existence at all times during your lifetime.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The person named as an executor in the deceased's will has the right to arrange for the burial of the deceased's body.
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