DECEASED MADE A TESTAMENTARY DISPOSITION UNDER A CORPORATION’S OLD NAME

IN THE ESTATE OF BRINE (DECEASED) [2021] SASC 54 (13 May 2021)

This is an application for advice and direction under the Administration and Probate Act 1919 lodged by the executor asking for the court’s determination if whether a diposition made under the corporation’s old name is still valid.

Facts:

This is an application for advice and direction under  S.69 of the Administration and Probate Act 1919  (SA) lodged by Mr Franco Camatta in his capacity as executor and trustee of the estate of the late Shirley Winifred May Brine.

The last will of the deceased gifted 75 percent of her residual estate to “Animals Australia Inc” for the general purposes of the Association. As of the date of Ms Brine’s death, there was no association in existence that matched the name of Animals Australia Inc.

The applicant submits that Animals Australia Inc. “migrated” from being an incorporated association to a company limited by guarantee pursuant to the Corporations Act 2001 (Cth), which ultimately became the entity “Animals Australia Federation”.

Ms Brine made significant donations to AAI and AAF over the years. The total amount of donations made by Ms Brine in the period from 2008 to 2019 was either $493,189.30 or $588,179.30. A sum of either $211,689.30 or $261,679.30 was donated after the changes on 13 February 2017 to the name and the basis of incorporation.

The executor submits that the effect of S.601BM of the Corporations Act is that AAF is the same legal entity as AAI.  Counsel submitted that it should be seen as “the same entity but in new clothes”.  On that basis, the executor submits that the gift to AAI did not lapse and must be paid to AAF.

Issue: Should the gift be given to AAI be given to AAF?

Law:

• Corporations Act S.601BM(1)

Analysis:

The principle purpose of AAI was “to protect animals from exploitation and suffering and permanently improve the lives of all animals in Australia”. The sole object of AAF adopted on 19 October 2019, and in force at the date of the death of Ms Brine, was to “prevent or alleviate the suffering of animals”.

The differences between the principle purpose of AAI as expressed in 2005 and the sole object of AAF as adopted in 2019 are not matters of substance. In each instance, the goal was to prevent animals from suffering. While the 2005 purposes included additional references to protection from exploitation and permanent improvement in the lives of animals, the court is satisfied that these were, in substance, particular avenues of preventing or alleviating the suffering of animals rather than a separate or distinct goal.  On that basis, the court accepta the correctness of the submission by the executor that there is a practical identity between the 2005 purposes and those adopted in 2019.  On that basis, and quite apart from the operation of S.115(1) of the Victorian Act and  S.601BM(1) of the Corporations Act, the court is satisfied that AAF is the successor institution to AAI. The conclusion is reinforced by the fact that both AAI and AAF use the trading name of Animals Australia and operate from the same address.

The fact that Ms Brine’s substantial  inter vivos  gifts were made to both AAI and AAF, regardless of the change of name and the basis of incorporation, further supports the conclusion that her dominant charitable intention was to allow the gift in her will to take effect in favour of the body trading under the name of Animals Australia to prevent or alleviate the suffering of animals.

Conclusion: The Court declares that Animals Australia Inc is the same entity as the Animals Australia Federation.

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