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STUDENT NAME(S) (PLEASE UNDERLINE YOUR FAMILY NAME )
FOR GROUP ASSESSMENTS, WRITE THE GROUP LEADERS NAME FIRST.
Rod Hyatt
STUDENT NO.(S)


n9209972

QUT SCHOOL OF ACCOUNTANCY ASSESSMENT COVER SHEET
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DATE RECEIVED
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CAMPUS Gardens Point
UNIT NAME Legal P & NPS
UNIT CODE GSN 485 DUE DATE Saturday 20 September 2014
LECTURERS/TUTORS NAME Myles McGregor-Lowndes
TUTORIAL DAY/TIME Tuesday
ASSESSMENT NO. Assignment One
DESCRIPTION/TOPIC

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1 Rod John Hyatt
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DATE:___20/09/2014________________________ Updated 01/03/2012





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Report

LEGAL IMPLICATIONS ON BEQUEST FUNDRAISING








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Legal Implications on Bequest Fundraising
with Reference to
Dickman v Holley; Estate of Simpson [2013] NSWSC 18
Supreme Court of New South Wales, White J, 31 January 2013
(AustLII, 2013)

1. What were the relevant facts?
2. What was the legal issue/dispute/problem?
3. What did each side to the case argue?
4. What was the result and why was the decision made?
5. What implications does this have for our organisation particularly for risk management or
legal compliance considerations?

1. Relevant Facts

This case concerns the estate of Vera May Simpson who died on 16 September 2005, aged 102.
From January 1997 till her death Mrs Simpson was a resident of the Salvation Army Elizabeth
Jenkins Place Residential Aged Care Facility (Elizabeth Jenkins Place).
On 14 September 1999 she made a will (the 1999 will) that, after revoking prior wills, appointed the
financial secretary of the Salvation Army (NSW) Property Trust as her executor and gave the whole
of her estate to the Salvation Army Eastern Australian Territory for the use and benefit of Elizabeth
Jenkins Place.

David Dickman (the plaintiff) alleged that at the time of making the 1999 will, Mrs Simpson lacked
testamentary capacity, that there were suspicious circumstances around the making of the will, and
that there had been undue influence on Mrs Simpson from her Mona Vale neighbours (David and Mrs
Jeskie and Graeme Nicholson) and officers of the Salvation Army, who may have included the
management of Elizabeth Jenkins Place.

Peter Holley (the defendant), was financial secretary at the time the application was made for probate
of the will. Probate of the 1999 will was granted to him on 5 October 2006. The principal asset of the
estate was a house owned by Mrs Simpson in Mona Vale. This was sold and after payment of debts,
funeral and testamentary expenses, $732,133.76 was paid to the Salvation Army on and prior to 5
December 2006.



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2. Legal Issues

The case raised the following issues:
1. Whether Mr Holley held the deceaseds estate on a constructive trust for the plaintiff, and if so
whether the trust was enforceable against the Salvation Army (NSW) Property Trust.
2. Whether the plaintiffs claim to revoke the grant of probate of the 14 September 1999 will is
barred by reason of his delay in instituting the probate proceedings.
3. Whether probate of the 14 September 1999 will should be revoked, and probate not be
granted of another will of 10 September 1999, on the grounds that Mrs Simpson lacked
testamentary capacity, or she was coerced into making these wills, or she did not know and
approve of their contents.
4. Whether probate in solemn or common form of the 23 September 1998 will should be granted
to the plaintiff.
5. Whether Mr Holley is liable to reimburse the estate that has been distributed to the Salvation
Army (NSW) Property Trust.

3.A. Plaintiff

David Dickman claimed that the deceased lacked testamentary capacity when the second will was
made, and that the second will was made through the undue influence of the deceaseds neighbours
and also the Salvation Armys officers. These claims were based on the deceaseds age and health,
and events involving the deceaseds neighbours and the charitys officers.

3. B. Defendant

Mr Holley had deposed that he was not aware of any circumstances which raised doubt about his
entitlement to a grant of probate of Mrs Simpson's will. Despite doubt as to Mr Holleys entitlement
to a grant of probate raised by Mr Dickmans solicitor, Mr Holley did not disclose those allegations in
the application for probate.









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4. Result

David Dickman (the plaintiff) was successful in all his claims except as to a constructive trust. The
Salvation Army (through Mr Holley) was ordered to reimburse the estate for the moneys distributed.

His Honor, J. White, gave 194 paragraphs of reasoning in his summation. Amongst which he dealt
with: Background to the making of the will of 23 September 1998; Background to the will of 10
September 1999; Circumstances of the will of 14 September 1999; Local Court and Guardianship
Tribunal Proceedings; Cessation of relationship between Mr Dickman and Mrs Simpson; The
application for probate; Constructive Trust Claim; Are the probate proceedings barred by laches?;
Testamentary capacity; Undue influence and knowledge and approval; Grant of probate of 1998 will;
Claim against Mr Holley to reimburse the estate.



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5. Implications of this case

The finding in this case, that undue pressure was applied reflects poorly on the Salvation Army or any
other charity for that matter. Furthermore, there was a finding of conflict of interest and duty on the
part of a solicitor for the Salvation Army. To avoid such problems, the legal recommendations are:
If the testator is near death, or is elderly, or is incapacitated physically or mentally, the following
measures should be considered:

appropriate policies, informed by specialist legal advice, are in place for bequest
solicitation and disputed bequests.

-maker who intends to make a
bequest.

-length relationship between the charity and the will-maker, without any undue
influence, harassment, intimidation or coercion from the fundraiser to the donor while the
donor is alive. These things can give rise to a claim in equity under the doctrine of undue
influence/unconscionable conduct/unconscionable dealings, or the possibility of a claim of
unconscionable bargain which could result in the bequest being invalid and brought back into
the estate after the donors death.


during bequest negotiations to avoid any allegations of undue influence or coercion.
(Overell, 2014)

Fuller Center should generally be careful about the extent to which they are involved in the
creation of wills in which they are likely going to be a beneficiary, to avoid claims of undue
influence.
If Fuller Centers lawyers are involved in the creation of a will, the lawyer/s involved should
ensure to undertake appropriate checks of the testators testamentary capacity, and keep thorough
records of this.










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It is recommended that our fundraising volunteers be made aware of this case and the implications
and that they be guided by the Fundraising Institute of Australia's Standards as set out here:

Professional Conduct

(Fundraising Institute of Australia, 2011)

Further guidelines for Fundraising Volunteers can be found in the report of the Victorian Law Reform
Commission "Succession Law: final report". (Victorian Law Reform Commission, 2013)
6.1 A Fundraiser must ensure that:
a) the Fundraiser maintains an appropriate arms length relationship with the
Donor in connection with any Bequest or proposed Bequest;
b) a Donor is not subjected to undue influence, harassment, intimidation or
coercion when approached by the Fundraiser or person under the direction of
a Fundraiser for the granting of a Bequest;
c) a Donor is not prevented or discouraged by the Fundraiser from seeking
independent legal advice in relation to a Bequest;
d) written acknowledgement and receipt of a Bequest is provided to a Donors
executor or legal personal representative; and
e) where a Bequest is a specific Bequest, a Donors executor or legal personal
representative is informed of how the Organisation intends to use that
Bequest.



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Bibliography

AustLII, 2013. Dickman v Holley; Estate of Simpson [2013] NSWSC 18 (31 January 2013). [Online]
Available at: http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/18.html
[Accessed 18 September 2014].

Fundraising Institute of Australia, 2011. Standard of Bequest Fundraising Practice. [Online]
Available at:
http://www.fia.org.au/data/documents/Resources/Principles__Standards/Standard_of_Bequest_Fundr
aising_Practice.pdf
[Accessed 18 September 2014].

Overell, A., 2014. Dickman v Holley; Estate of Simpson. [Online]
Available at: https://wiki.qut.edu.au/pages/viewpage.action?pageId=173980515
[Accessed 18 September 2014].

Victorian Law Reform Commission, 2013. Succession Law: final report, Melbourne: Victorian Law
Reform Commission.





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GSN485 Assignment One Marking Schema

Criterion Poor (1-3) Fair (4) Good (5) Very Good (6) Excellent (7) Marks
Evidence of
understanding of key
legal concepts and
issues

Failed to identify or
incorrectly defined
relevant key legal
concepts or issues with
inadequate or no
justification of the
assessments made.
Some key legal
concepts and issues
identified, with some
assessment provided.
Issues are partly
analysed in some detail.
Most of legal key
concepts and issues are
identified, with some
assessment provided.
Issues are partly
analysed in some detail.
Comprehensive identification of
key concepts and issues with
reasonable assessment and
justification. Issues are
comprehensively analysed in
reasonable detail.
Comprehensive identification
of key concepts and issues
with critically informed
assessment and justification.
Issues are analysed in
comprehensive detail.
Up to 15
Evidence of
independent research
appropriate to the task
Sources utilised to
inform the assignment
are insufficient or
mismatched to the task
Sources utilised are
adequate to respond to
the assessment task but
do not exceed resources
provided in the unit
curriculum. Limited
evidence of selection of
sources relevant to the
task
Sources used are
appropriate to the essay
question and exceed
resources provided in
the unit curriculum.
There is evidence of
sound judgement in
selection of sources
relevant to the task
Sources used are appropriate to
the essay question and exceed
those provided in the unit
curriculum. Sources used
demonstrate comprehensive
review in selection. Research
evidence is utilised to support
argumentation.
Sources used are directly
relevant to the essay question
and exceed those provided in
the unit curriculum. Sources
used demonstrate thorough
review and critical judgement
in selection. Research
evidence is used to support
argumentation and is
integrated into the body of the
essay.
Up to 5
Evidence of
understanding of key
legal compliance/risk
management concepts
and issues

Failed to identify or
incorrectly defined
relevant key concepts or
issues with inadequate
or no justification of the
assessments made.
Some key concepts and
issues identified, with
some assessment
provided. Issues are
partly analysed in some
detail.
Most of key concepts
and issues are
identified, with some
assessment provided.
Issues are partly
analysed in some detail.
Comprehensive identification of
key concepts and issues with
reasonable assessment and
justification. Issues are
comprehensively analysed in
reasonable detail.
Comprehensive identification
of key concepts and issues
with critically informed
assessment and justification.
Issues are analysed in
comprehensive detail.
Up to 15
Attention to grammar,
written expression and
accurate referencing
The report is unclear
and/or characterised by
poor grammar and
written expression.
The essay is reasonably
clear and/or
characterised by basic
standards of grammar
The report is clear but
contains frequent errors
of grammar and written
expression. Referencing
The report is clear and contains
only a small number of errors of
grammar and written
expression. Referencing is
The essay is clear and
contains almost no errors of
grammar and written
expression. Referencing is
Up to 5


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Referencing is
insufficient or
inaccurate. Word limits
have not been complied
with.
and written expression.
Referencing is sufficient.
Word limits have/have
not been complied with
is sufficient and
accurate. Word limits
have been complied
with.
sufficient and accurate. Word
limits have been complied with.
sufficient and accurate. Word
limits have been complied
with.
Total 40