Lessons for executors and estate planners
McCullough Robertson successfully acted for Queensland Ballet Company in the recent decision of McKay v Queensland Ballet Company [2026] QSC 137, where the Supreme Court of Queensland made orders that will see Queensland Ballet receive a bequest of approximately $2 million from the estate of a well-regarded Queensland arts patron. The funds are to be used to establish a scholarship for young dancers and choreographers in the field of contemporary dance.
The Court confirmed that Queensland Ballet can validly be selected as the recipient of a charitable bequest for “a significant Queensland contemporary dance company”. Executors and trustees retain broad discretion where a will entrusts them with discretionary powers, provided they act in good faith and on “real and genuine consideration”.
The decision highlights the importance of careful will drafting and the need for trustees to ensure they carefully and diligently exercise any discretionary powers granted to them under a will or trust deed.
The will and the dispute
Glenn Cooke was a well-known arts curator and historian in Brisbane who died in 2025. Mr Cooke’s will left his residuary estate – about $2 million – on 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.”
Mr Cooke’s executor, Dr Judith McKay, had to exercise her discretion to identify a suitable recipient. Dr McKay shortlisted a panel of dance companies as potential recipients. After seeking proposals from each about how they would manage the charitable bequest, Dr McKay ultimately decided to donate the funds to Queensland Ballet. She applied to the Supreme Court for advice that she was justified in doing so.
Queensland Ballet’s selection was opposed by another dance company on the basis that it did not fit the description of “a significant Queensland contemporary dance company”. The matter went to trial, where several issues were considered by the Court.
What do the words “contemporary dance company” mean?
A central issue was how to read the phrase “a significant Queensland contemporary dance company” and whether Queensland Ballet properly fit that description.
While Mr Cooke had a well documented interest in visual arts, the evidence of his interest in dance was more limited. Indeed, he participated in Zumba classes, despite Justice Hindman noting it “might be somewhat of a misnomer to call Zumba a form of dancing”.[1]
The Court applied the “plain meaning rule” by looking to the words used in the will to determine how they should be construed. The Court rejected submissions that the word “contemporary” simply meant current, modern or existing at the time. Instead, Justice Hindman held that:
- a “contemporary dance company” is a single concept – a company that engages in the practice of contemporary dance; and
- “significant” and “Queensland” are adjectives describing that contemporary dance company.
Is Queensland Ballet a “contemporary dance company”?
The Court accepted that Queensland Ballet is unquestionably a ballet company, with ballet forming a core part of its identity, repertoire and public profile. However, the evidence before the Court also demonstrated that Queensland Ballet has long presented contemporary works, commissioned contemporary choreographers and actively contributed to the development of contemporary dance practice. Justice Hindman concluded that:
QB is certainly able to be described in a number of different ways including as a ballet company, a modern ballet company, a dance company, and a hybrid dance company, to name a few. It also spends a significant (not de minimus) amount of its time devoted to contemporary dance. That QB might be described in the ways mentioned does not mean it is also not properly described as a contemporary dance company.[2]
On that basis, the Court found it could not exclude Queensland Ballet from the category of a “contemporary dance company”.
What is “real and genuine consideration” in executing wills
It was alleged that the executor failed to give real and genuine consideration to other potential dance companies when she selected Queensland Ballet. The Court was asked whether it would interfere with the executor’s decision and direct her to distribute Mr Cooke’s residuary estate to another dance company.
The Court applied well-established principles about when it will interfere with a trustee’s exercise of discretion. In short, the Court will not interfere unless there is evidence the trustee has:
- acted in bad faith;
- failed to exercise its discretion at all; or
- acted without giving real and genuine consideration to all beneficiaries or potential beneficiaries.
Here, there was no allegation of bad faith on the part of the executor. The question was whether Dr McKay’s proposed decision was outside the scope of the power or so unreasonable that the Court should interfere. After determining that Queensland Ballet could not objectively be excluded as a “contemporary dance company”, which was the relevant criteria under the will, the Court determined that[3]:
- the choice between eligible companies was for the executor to make, as she was granted that power by the will;
- the executor’s proposed donation to Queensland Ballet was within the power granted to her by the will; and
- the executor made reasonable enquiries and had given real and genuine consideration to a range of recipients – not just with Queensland Ballet.
McKay v Queensland Ballet Company provides important lessons for both trustees and estate planners.
For trustees, the case is an example of why trustees must carefully exercise any discretionary powers granted to them, including by giving real and genuine consideration to a range of beneficiaries or potential beneficiaries when the trust deed and circumstances require it. It also provides helpful commentary on the limited circumstances where a court will be prepared to interfere with a trustee’s decision. For estate planners, the decision is an important reminder to use unambiguous language in wills and to clearly identify beneficiaries to reduce the risk of dispute or confusion.
[1] McKay v Queensland Ballet Company [2026] QSC 137 at [18].
[2] Ibid at [55].
[3] Ibid at [66].