The $2M charitable bequest, the Supreme Court case, and the real cost of winning

A Queensland arts patron, Glenn Cooke, died leaving $2 million in trust to fund a scholarship for a young dancer or choreographer. The money was to be given to "a significant Queensland contemporary dance company." Cooke did not name the company. He deliberately left that decision to his trustee.

This was not careless drafting, it was considered flexibility. Cooke understood that arts organisations change, merge, disappear and reinvent themselves, and he trusted his trustee to judge which organisation should receive the gift when the time came.

His executor, Judith McKay, chose Queensland Ballet. The Australasian Dance Collective disagreed, arguing that the executor had not properly considered its claim and that Queensland Ballet was not, in any event, a "contemporary dance company." A philanthropic gift meant to support a young artist became the subject of Supreme Court proceedings instead.

In McKay v Queensland Ballet Company [2026] QSC 137, Queensland Ballet prevailed. It received the full $2 million. But "prevailed" is doing some work in that sentence.

The executor's legal costs were paid from the residuary estate, which meant the litigation reduced what was left for the other beneficiaries. The scholarship was delayed. Considerable time and money were spent determining what Cooke meant, despite the fact that his intention to give the money away was never really in doubt.

The dispute was not about whether Cooke was generous. It was about which institution was legally entitled to his generosity, and that distinction matters well beyond the Queensland dance sector.

The money was not the only asset at risk

There is a tendency to treat a contested bequest as a binary event: the charity either receives the money or it does not. The economics are less tidy than that.

A charity can win the gift and still incur reputational cost. Philanthropists pay attention to how organisations behave when money is disputed, whether an organisation appears measured, mission-led and respectful of the donor's intentions, or simply determined to secure the funds.

That does not mean a charity should surrender a legitimate entitlement. Trustees and directors may well have duties that require them to protect it. But the legal question, can we pursue this gift, is not the only one worth asking. There is a strategic question sitting right beside it: what will pursuing it communicate to the next person deciding whether to leave us one?

Future bequests are invisible assets. They do not appear on the balance sheet, and nor does the trust on which they depend, but both can be damaged all the same. A charity can win the case and still lose something harder to quantify, the confidence of donors who begin to wonder, without saying so, whether another organisation might be a safer custodian of their legacy.

The drafting was not necessarily the problem

The instinctive response to a case like this is that somebody should have drafted the will more precisely. Perhaps. But that misses the more useful lesson.

Trustee discretion is common in charitable estate planning, and for good reason. A person making a will today cannot know what the charitable landscape will look like in ten, twenty or thirty years. Organisations change names, programs close, causes evolve, and some charities cease to exist altogether. Flexibility can preserve a gift that rigid drafting would defeat. The trouble is that flexibility requires judgment, and judgment leaves room for disagreement.

A solicitor can draft a clause that allows a trustee to select the most appropriate organisation. What a solicitor cannot do is guarantee nobody will challenge the selection. The remaining risk sits partly with the charity itself, whether its identity, purposes, activities and public materials make it an obvious and defensible recipient when a trustee is eventually required to choose.

That is not merely a fundraising issue. It is governance.

A bequest is not secured when it is promised

Charities have become very good at asking for gifts in wills. There are legacy campaigns, donor events, brochures, pledge forms, sample clauses and carefully worded webpages, and considerable effort goes into obtaining the promise. Far less attention is paid to what happens during the years, sometimes decades, between that promise and payment.

A notified bequest is often recorded as a fundraising success, when in reality it is only the beginning of a long and fragile process. The donor may update the will. The charity may change its name or legal structure. A program the gift was meant to fund may no longer exist. The staff member who knew the donor may leave. An executor may struggle to identify the correct organisation. Family members may challenge the estate. Another charity, as Queensland Ballet found out, may claim that the wording points to it instead.

Eventually, someone who never met the donor has to interpret a handful of lines written many years earlier, and by then the only person who could explain exactly what was intended is unavailable for comment.

The missing-gifts problem is larger than litigation

Research into "missing gifts" has estimated that more than $40 million intended for Australian charities is lost each year through estate-processing problems and gifts that are never properly paid. Ambiguous wording creates a related but distinct risk. The gift may not disappear altogether, but it can become delayed, negotiated, divided or litigated, and legal fees accumulate while the money that was meant to fund charitable work sits in an estate instead.

That difference matters a great deal to the lawyers involved. It probably matters less to the scholarship recipient, the research grant, the shelter or the community program that has gone unfunded in the meantime.

Both problems share the same root cause: treating a bequest as a completed fundraising outcome. It is not one. A bequest is a contingent legal interest, administered by other people, at some unknown point in the future. That sounds a good deal less uplifting on a campaign brochure, but it is considerably closer to the truth.

Keeping the gift alive

Legal risk sits at one end of a bequest's life. The relational risk begins much earlier, often decades earlier, and it is just as easy to get wrong.

When a donor tells a charity they have been included in their will, that notification should be the start of a relationship, not the end of a transaction. A single thank you letter followed by twenty years of silence is not stewardship. It is optimism with a filing system.

Donors do not need to be constantly asked for more money, and a charity should never ask to inspect the will itself, since the document is private and remains entirely the donor's business. What the relationship does need is enough warmth that the donor remembers the organisation when the will is next reviewed. In practice that might mean a legacy circle, occasional impact updates, a personal note from leadership, invitations that are not disguised fundraising asks.

Continuity matters here too. When the staff member who knows the donor moves on, somebody else needs to inherit the relationship, not just the database entry. And if the organisation's name or structure changes, notified donors should be told directly and given clear updated wording to take to their next will review, rather than the charity hoping every solicitor independently catches the change.

None of this guarantees the gift will arrive. It simply improves the odds, which is what governance usually does.

More wealth means more disputes

Australia is moving through an enormous transfer of intergenerational wealth, and charities understandably see bequests as one of the great fundraising opportunities of the coming decades. They are right to. They should also notice that the same trend carries more risk alongside it.

Larger estates mean more money available for charitable giving, but they can also mean more family provision claims, more disappointed beneficiaries, more complex asset structures and more incentive to contest ambiguous language. The opportunity and the exposure are not really separate developments. They are the same development, arriving together.

The maths is straightforward enough: more wealth passing through wills produces more charitable gifts, and more arguments about charitable gifts. Boards that budget for the first without preparing for the second are only doing half the planning.

Bequest governance is not a brochure review

Good bequest governance is, at its core, fairly unglamorous. It means making sure a charity's correct legal name and ABN appear consistently across its website, brochures, pledge forms and correspondence, reviewing suggested clauses not only for how they read today but for whether they could survive a change in name, structure or program, and having a process for handling unclear notifications and estate correspondence before positions harden and lawyers start writing to one another. It also means keeping records of how the organisation described itself and what it was actually doing at different points in time, since years later those records may be what helps an executor or a court decide whether the charity fits the words used in a will.

These are simple steps. Simple is not the same as easy. Someone has to own them, review them, and understand why they matter, and this is increasingly where my estate planning and philanthropy work intersect.

Having spent a decade advising philanthropists, I know that donors rarely think about their giving purely in legal terms. They think about trust, identity, impact, and whether an organisation will stay faithful to the purpose the money was given for. As an estate planning solicitor, I see the other side of the same coin: the technical wording, the executor decisions, the governance evidence that ultimately determines whether those intentions survive contact with a real estate.

I currently work with charities both to build bequest programs from the ground up and to review established programs for legal and governance gaps. The work is not really about producing better sample clauses. It is about joining the donor relationship to the legal machinery that eventually has to deliver the gift. The two have traditionally been managed separately. The Cooke estate is a fairly good illustration of why they shouldn't be.

Five things every charity should check

Regardless of the size of the bequest program, the basics are worth revisiting:

1. Identity. Confirm the charity's legal name, ABN and stated purposes are current and consistent across every document a donor or solicitor might use.
2. Wording. Review suggested bequest clauses for enough flexibility to survive changes in structure, name or program delivery.
3. Escalation. Set a clear process for ambiguous notifications, unusual will clauses and disputed estates, before a problem arises rather than after.
4. Stewardship. Keep notified donors properly connected to the organisation, with a real handover process when staff change.
5. Evidence. Retain records of what the charity did, how it described itself, and what programs it ran, at different points in time.

None of this will prevent every dispute. A trustee's judgment can still be challenged, a family member may still object, and two organisations may still have plausible claims to the same language. But good governance narrows the space in which an honest gift turns into an expensive argument.

Glenn Cooke trusted his executor to make the right decision, and she ultimately succeeded in defending it, but only after a $2 million scholarship became a Supreme Court case and the estate picked up the cost. Every charity with a bequest program is already making a case for why it deserves the gifts promised to it. The only real question is whether that case is built deliberately over time, through legal identity, donor relationships, public purpose and governance, or assembled in a hurry once a judge has already started asking questions.