Contemporary or traditional? $2 million bequest dances with the law

The court found in favour of the Queensland Ballet, but the consequences of language can be costly. LSJ Online spoke to Deanne Kindis, Senior Associate at PB Ritz Lawyers, about the debate in this situation, the necessity of clarity in any estate bequest, and how common it is for benefactors to be ambiguous about which organisations receive their estate versus naming specific organisations.

In New South Wales, charitable bequests are governed by a combination of statute and common law.

The principal statutes include the:

• Succession Act 2006 (NSW), which governs the validity and interpretation of wills generally
• Probate and Administration Act 1898 (NSW) which concerns the administration of an estate
• Charitable Trusts Act 1993 (NSW), which in this instance, concerns what happens after a charitable gift has been made but said gift cannot be carried out exactly as the testator intended
• Charities Act 2013 (Cth), which helps determine whether the recipient or purpose described in the will is legally charitable in the first place.

Kindis says however, “many of the key principles concerning charitable bequests – specifically the interpretation of charitable gifts, certainty of charitable intention and the application of the cy-près doctrine – are derived from common law.”

The messy entanglements resulting from contested wills and estates can impact relationships, business, and future-planning. While the Queensland Ballet case – McKay v Queensland Ballet Company [2026] QSC 137 – ought to serve as an educational warning for arts institutions, beneficiaries in general, and benefactors, it is not unusual for artists and patrons to have their estates end up contested in court. In November 2022, Sydney artist Mimi Milka Berger died at age 86. Her $24 million estate comprised her property, art collection, and cash. Her will stipulated that her niece, Bozica, and her grand-nephew split the estate between them. Another niece, Branka Jaksic-Repac initiated proceedings in NSW Supreme Court in 2025, arguing that Berger’s will – made in 2015 – was invalid (Branka Jaksic-Repac v Dusko Dundjerski 2025/00153997). The original copy of Berger’s will was not able to be found, allowing her niece to argue that other wills had been made since, making Berger’s will invalid and requiring the estate to go into intestacy. Ultimately, the appeals panel dismissed the case owing to it resting on “pure speculation” regarding Berger’s intention to revoke her original will. Further, Jaksic-Repac was ordered to pay for her own and her grand-nephew’s legal costs.

While “contemporary dance” has a specific meaning for the dance industry and patrons – referring to a specific style and genre – it has been interpreted otherwise by the law in the Queensland case. How problematic is it for benefactors to use language such as “modern art”, “contemporary dance” or “abstract painter” and to leave that to interpretation?

“Broad or subjective descriptions can create uncertainty,” says Kindis. “While terms such as ‘modern art’, ‘contemporary dance’, or ‘abstract painter’ may be easily understood by those within the arts community, this does not necessarily mean that they have an exact legal definition or meaning. This can become problematic because the language may have more than one reasonable interpretation, or sometimes several organisations or individuals could satisfy the description.”

She explains that if more than one organisation or individual could reasonably satisfy the description, the executor may be left uncertain as to how the gift should be administered. This uncertainty can lead to delays in administering the estate, applications for judicial advice, construction proceedings, increased legal costs and, ultimately, a reduction in the value of the estate available for distribution.

A dance around intention versus language

Kindis says it is extremely important that a testator names or identifies the beneficiaries specifically.

“Specific identification ensures that the testator’s intentions are accurately met, reduces confusion and ambiguity, minimises the risk of litigation and assists the executor with a smoother administration process.”

She adds, “In my experience, unclear or ambiguous drafting can often lead to litigation, applications for judicial advice, construction proceedings, increased administration costs and ultimately, delay to distribution. This is why careful and considered drafting is so important.”

In the Queensland case, applicant Judith Marilyn McKay, executor of the estate of Glenn Rycen Cooke, took on the respondents Queensland Ballet Company (QB), Attorney-General for the State of Queensland, and Australian Dance Collective (ADC). On 24 June this year, Brisbane Supreme Court Justice Melanie Hindman found that McKay was justified in donating the residuary estate of Cooke to the Queensland Ballet, “for the purposes set out in clause 10(iv) of the will of the deceased dated 22 June 1993”.

Clause 10(iv) of the will left the residuary: “… to my Trustee upon trust to be donated to a significant Queensland contemporary dance company in the discretion of the Trustee to form a scholarship for a young dancer or choreographer to assist in the development of such persons’ professional skills.”

While McKay had considered donating the residuary to QB or ADC, amongst other dance companies, she ultimately preferred QB, despite the claim by ADC that QB is not a “contemporary dance company”. ADC applied for the court to direct Dr McKay to donate the residuary to ADC.

The Attorney-General for the State of Queensland (A-G) had an interest in the proceeding as it involves a charitable purpose trust and though the A-G made submissions, no evidence nor cross-examination occurred.

Whether QB accurately fits the description of “contemporary dance company” was challenged by expert witnesses, but the consensus appeared to be that the QB offering ultimately expanded beyond classical ballet repertoire to embrace modern dance styles that resulted in a contemporary nature to its company. The ADC argued that contemporary dance is “distinct”, “contrasting” and largely a “separate art form” from ballet.

Judge Hindman considered Cooke’s experience with dance personally and professionally, and thus his intention in referring to “contemporary dance”, deciding that the technical description of contemporary dance had not been applicable.

Hindman found: “There is no evidence that Mr Cooke otherwise took any particular interest in the world of dance – either in a professional way or socially. There is no evidence that he attended dance performances or supported any particular dance company or preferred any particular dance style (other than as he participated in as above). There is no evidence he kept up in trends in the world of dance.”

Hindman cited two NSW cases. Firstly, Attorney-General v Trustees of National Art Gallery of New South Wales (1944) 62 WN (NSW) 212 (Dobell’s case).

In that case, the issue was whether the winning painting was in fact a “portrait”. The artist, Joshua Smith, had painted William Dobell in what can best be described as a caricature or fantasy because of exaggerated elements. Hindman determined: “just as the decision as to which is the best portrait is a matter for the judgement of the trustees, so too whether a painting is a portrait. The testator, by the will, requires the trustees to make those decisions.”

Secondly, Johansen v Art Gallery of NSW Trust [2006] NSWSC 577. [49]. In that case, the issue was whether the winning portrait was in fact painted or a painting. The case advanced by the plaintiff was that the winning portrait was a drawing. Hindman concluded that the result “means that, as in the Dobell case, the Court is not required to interfere with the trustee’s determination. As in that case, that is sufficient to doom the plaintiff’s case to failure.”

Where specificity isn’t possible, be clear about intention

An estate lawyer may advise to not name a specific company or artist, and rather specify the type of art form in the instance that a dance company named in a will goes out of business before the will can be revised, though it is wiser to name second and third preferences specifically rather than “a ballet company” or “an art gallery”.

Kindis believes that the best approach ultimately depends on the testator’s objectives.

“If their primary objective is to benefit a particular organisation, it is generally preferable to name that organisation specifically and include second and even third preference beneficiaries if the first choice no longer exists or no longer carries out substantially the same charitable purpose.”

This approach not only provides greater certainty for the executor, but it also reduces the risk of disputes about who the gift was intended to benefit.

“If, however, the testator’s intention is to support a particular purpose or art form rather than any one organisation, then a broader gift, for example, ‘to an Australian brain cancer research company’ or ‘to an art gallery promoting young Australian artists’ may better reflect their wishes.”

This approach provides greater flexibility and, if circumstances change (for example if a specific organisation no longer exists, has merged with another entity or has changed its activities) may be more readily applied to another organisation pursuing the same charitable purpose.

Kindis says, “In my own practice, I generally advise my clients to specify the preferred organisation together with alternative beneficiaries. If the client wants the bequest to be applied in a particular way, the intention can usually be expressed in the will after specifically identifying the beneficiary – for example, by specifying that the gift is to be used for a particular charitable purpose, project or program.”

If after the testator’s passing, all of the nominated organisations cease to exist or no longer pursue the relevant charitable purpose, Kindis would also consider including a further fallback provision allowing the executor to select an appropriate charity or organisation with substantially similar purposes.

“This helps minimise the risk of the gift failing while still giving effect to the testator’s intentions as closely as possible.”

Don’t DIY a substantial charitable gift

“Where a client wishes to benefit a specific organisation, I would recommend identifying that beneficiary by its full legal name and, where appropriate, its ABN or other identifying details. If the client also wishes for the funds to be applied for a particular purpose, I would recommend expressly stating that purpose,” says Kindis.

If, on the other hand, the client’s intention is to support a charitable purpose rather than a particular organisation, she would encourage them to ensure that purpose is described as precisely as possible.

“The more clearly that purpose is articulated, the less likely it is that uncertainty will arise during the administration of the estate. It is also important to include alternative beneficiaries or a suitable fallback provision. Organisations can merge, change their names, substantially alter their charitable activities or cease operating altogether over time.”