Background
Glenn Rycen Cooke, a retired Queensland Art Gallery curator with deep ties to the Queensland arts community, died in early January 2025 aged 78. His will, executed in 1993, directed the residuary of his estate — approximately $2 million — to be held on trust and 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.” The executor, Dr Judith McKay, considered several eligible recipients and ultimately elected to donate to the Queensland Ballet Company (QB), a major organisation that performs both classical and contemporary ballet.
Australasian Dance Collective Limited (ADC), a company with an exclusive focus on contemporary dance, was joined as third respondent after learning of the proposed gift. ADC contended that QB — primarily a ballet company — did not qualify as a “contemporary dance company” within the meaning of the will, and applied for the court to direct that the donation be made to ADC instead. The Attorney-General for Queensland participated as second respondent given the charitable purpose trust dimension. Expert witnesses called by QB and ADC held diametrically opposed views: one characterised contemporary dance as “hybrid and relational, often incorporating ballet,” while the other described it as a “distinct” and “separate art form” from ballet. They disagreed equally on whether QB qualified as a contemporary dance company.
Dr McKay applied to the court under s 6 of the Succession Act 1981 (Qld) and s 106(1)(a) of the Trusts Act 1973 (Qld) for an advisory opinion that she was justified in donating the residuary to QB. The central disputes before Hindman J were: (1) the proper construction of the phrase “a significant Queensland contemporary dance company”; (2) whether that classification was a question of objective fact for the court or a matter left to the executor’s discretion; and (3) whether the executor had given real and genuine consideration to donating to ADC.
The Court’s Holding
Hindman J held that the phrase “contemporary dance company” in the will functions as a compound noun — identifying a specific style of dance — and is not simply the word “contemporary” used as a free-standing adjective modifying “dance company.” The proper grammatical and purposive reading yields two adjectives, “significant” and “Queensland,” describing the type of contemporary dance company required, rather than three adjectives (“significant,” “Queensland,” and “contemporary”) modifying a generic “dance company.” The court found that the testator, an arts professional, understood “contemporary dance” to denote a particular dance style distinct from classical and traditional forms, and his use of the phrase carried that ordinary meaning rather than any technical one. Accordingly, the expert evidence — which assumed a specialised, contested definition of “contemporary dance” — was given no weight.
Drawing on the Archibald Prize cases — Attorney-General v Trustees of National Art Gallery of New South Wales (1944) 62 WN (NSW) 212 (Dobell’s case) and Johansen v Art Gallery of NSW Trust [2006] NSWSC 577 — the court applied the principle that where a trustee is charged with making a judgment involving categories with uncertain, overlapping boundaries, a court will not interfere unless it can be established on an objective basis that the trustee’s choice falls outside the permissible category, or that the trustee acted in bad faith. There was no allegation of bad faith against Dr McKay. Given the genuine and reasonable debate among experts and dance professionals about whether QB qualifies as a contemporary dance company, the court found it impossible to conclude on any objective basis that QB does not fall within that category. That question was therefore properly left to the executor’s discretion.
The court also rejected ADC’s contention that Dr McKay had failed to give real and genuine consideration to the exercise of her powers. The evidence established that she had considered donating to multiple dance organisations including ADC before settling on QB. The court granted Dr McKay the advisory opinion she sought, confirmed that QB’s receipt would be a sufficient discharge, awarded her costs from the residuary estate on a solicitor-own client basis, and dismissed ADC’s application in its entirety.
Key Takeaways
- When a will bequests property to an entity matching a descriptive phrase with indeterminate or contested boundaries, courts applying the Dobell’s case line of authority will defer to the trustee’s judgment unless the chosen recipient is objectively outside the category or bad faith is established — the mere existence of expert disagreement is itself evidence that the choice falls within the permissible range.
- “Contemporary dance company” must be read as a compound noun identifying a recognised dance style, not as a generic “dance company” qualified by the adjective “contemporary” (meaning merely “existing” or “modern”) — drafters should use explicit language if they intend a broader or narrower meaning.
- An executor who documents genuine deliberation among multiple candidates satisfies the requirement of real and genuine consideration, even if the executor ultimately rejects a competing claimant that regards itself as a more natural fit for the gift.
- Expert evidence on the classification of an artistic genre will be disregarded where there is no basis to conclude the testator used the relevant words in a special or technical sense beyond accepted common usage.
Why It Matters
This decision confirms and extends the Dobell’s case principle beyond the visual arts into the performing arts context, providing practitioners with clear authority that trustees holding discretion over bequests to arts organisations with blended or hybrid programming will receive substantial deference from Queensland courts. Where a will’s descriptive phrase tracks a genre whose boundaries are genuinely contested — as between “ballet” and “contemporary dance” — the trustee’s considered judgment is effectively conclusive absent bad faith, even against a competing beneficiary that may more obviously satisfy the description.
For estate planning practitioners, the case is a caution against imprecise genre-based charitable bequests. A testator who wishes to favour one category of arts organisation over another should define the category explicitly in the will — for example by reference to organisational characteristics, programming percentages, or named recipients — rather than relying on descriptive labels whose technical meaning is contested within the relevant professional community.