The following memorandum has been submitted to me by the Chairman of the A.I.F. Canteens Fund Trust with a request for advice:

The executors of the estate of the late Sir Samuel McCaughey propose to transfer, for administration by the trustees of the A.I.F. Canteens Fund, an amount of about £450000 representing a bequest by the late Sir Samuel McCaughey towards-

relief or assistance of the members of the Australian Military or Naval Expeditionary Forces who should have served on active service abroad in the war against Germany and her allies or the widows of any of such members who might be killed or die of wounds received in such war.

Arrangements have been practically made for transfer of the sum in question and draft deed has been referred to the Crown Solicitor for approval.

It will be observed, however, that the terms of the will are peculiar, and it would appear, if given a literal interpretation, they would exclude the widows and children of soldiers whose deaths resulted from the after-effects of gassing, of exposure in the trenches, of accident in the course of duty, and of other causes directly or indirectly attributable to their war service, since these may not be said, in the ordinary sense, to have been killed or to have died of wounds.

The trustees of this Fund are of opinion, and the executors of the McCaughey bequest agree with them, that it clearly was not the intention of Sir Samuel McCaughey to make such an invidious distinction.

It is considered it would be a great misfortune if there is no remedy and this magnificent bequest were marred by a discrimination which would make it impossible to assist some of the most deserving and distressing cases arising out of the war.

At the request of the trustees, the executors obtained Counsel's opinion in the hope that a remedy might possibly be effected by judicial sanction.

In reply, Mr James Ashton, on behalf of the executors, states:

I have had Counsel's opinion on the subject, with the result, which I regarded as practically inevitable, that I am advised it is not a case in which we could look to the Court for relief . . . That means there is only one possible way of obtaining relief, and that by Act of Parliament. I don't like the method, but as there is no other way out, the executors would be prepared to take any necessary steps to that end ... It would certainly be more appropriate for the matter to be dealt with by a Commonwealth Act, seeing that it is a matter arising out of the war, and affects all States, but whether it is within the competence of the Federal Parliament to alter the will is, so far as I know, quite a novel point.

The trustees would be greatly favoured by advice whether the difficulty may be remedied by legislative enactment, and if so, whether it is competent for the Commonwealth Parliament to exercise the necessary powers.

In the event of it not being considered practicable to obtain a remedy, either by legislative or judicial authority, an alternative remains which, though of a somewhat drastic character, may yet perhaps be worthy of some consideration.

If, in the interests of the widows and children of those soldiers who have served abroad and who have lost their lives directly or indirectly as a result of their war service, the trustees placed the wider interpretation on the terms of the will, in order to give effect to what appears to have been the real intention of Sir Samuel McCaughey, would it be possible for the Government to consent to such a course and indemnify the trustees, in the event of any action being brought against them for breach of their trust? It is inconceivable to anticipate any such action would be likely to be brought against them, since the wider interpretation must meet with general approval.

The law relating to the interpretation and administration of wills is a matter within the province of the States and not of the Commonwealth.

The enactment suggested is one to authorise the administration of a bequest to certain members of the Forces and to widows of members of the Forces who were killed or who died of wounds, so as to include among the beneficiaries the widows of members who died from the result of war service.

I do not think that the circumstance that the beneficiaries contemplated by the bequest, and those to whom the bequest is proposed to be extended, are persons who served as members of the Commonwealth Forces or are dependants of such members, is sufficient ground for regarding the proposed enactment as within the constitutional powers of the Commonwealth.

The opinion of the trustees and executors that the testator intended the bequest for the benefit of persons not included within its terms appears to be a wholly insufficient reason for administering the funds in a manner different from that authorised by the express words of the will.

The proposal that the Commonwealth Government should consent to the trustees administering the Trust funds in accordance with their conception of the testator's intention instead of in accordance with the terms of the bequest, and indemnifying them against actions for breach of trust is a matter of policy but in my opinion the Government would be ill advised to grant a formal sanction of the application of the money in a manner not authorised by law, or to give the required indemnity.

[Vol. 17, p. 128]