In Re Will and Codicil of Walter Padbury, Deceased the Home of Peace for the Dying and Incurable v Solicitor-General

The case of *In Re Will and Codicil of Walter Padbury, Deceased: The Home of Peace for the Dying and Incurable v Solicitor-General* involved an appeal to the High Court of Australia from the Full Court of Western Australia concerning the construction of a will. The testator, Walter Padbury, had directed that a portion of his estate be divided equally among three beneficiaries: the Diocesan Trustees of the Church of England in Western Australia, the trustees for the time being of the hospitals and lunatic asylums in the Colony, and the trustees of the poor houses in the Colony. The primary dispute centred on the interpretation of the term "hospitals" and whether it included institutions wholly maintained at public expense and under the control of government officers.

The legal issues before the court were twofold. Firstly, the court had to determine the meaning of the word "hospitals" as used by the testator in his will, considering the various types of institutions that existed in Western Australia at the time of his death. This involved deciding whether the bequest extended to "government hospitals" or was limited to institutions managed by identifiable trustees. Secondly, the court was required to consider the admissibility and relevance of extrinsic evidence, specifically affidavits detailing the nature and management of different classes of hospitals, in ascertaining the testator's intention.

The High Court, in varying the order of the Full Court, reasoned that extrinsic evidence was admissible to identify the objects of a gift in a will, particularly when the language used to describe those objects was capable of more than one interpretation. The court held that the term "trustees" in the will should be interpreted to include bodies that, in substance, discharged the functions of trustees in administering funds for the benefit of institutions, even if not formally designated as "trustees." Consequently, the court determined that the bequest to "hospitals" encompassed public hospitals proclaimed under the *Hospitals Act 1894* and those established and governed by elected committees, whether or not they received public funding. However, it excluded hospitals that were entirely maintained at public expense and under the sole control of government officers, as these lacked the element of trusteeship in substance.