NSW Trustee and Guardian v The Attorney General in and for the State of New South Wales

[2012] NSWSC 1282

Supreme Court

New South Wales

Medium Neutral Citation:

NSW Trustee and Guardian v The Attorney General in and for the State of New South Wales [2012] NSWSC 1282

Hearing dates:

10 August 2012; 27 September 2012

Decision date:

30 October 2012

Jurisdiction:

Equity Division

Before:

Hallen AsJ

Decision:

The Court:

1. Orders pursuant to UCPR rule 54.3(2), that the Plaintiff would be justified in distributing the estate of the late Leslie Vernon Bryce ("the deceased") on the basis that the gift in the second clause 3(d) of the Will of the deceased dated 9 May 2006 ("the Will") to Lorraine (surname unknown) has lapsed by reason of uncertainty.

2. Determines that on the true construction of the Will of the deceased that the gift of the residue of the Estate of the deceased to "all public hospitals in New South Wales" in clause 4 of the Will, be distributed in equal proportion to each of the public hospitals set out beside 1 to 205, 207, 208, 211, 213, 214, 217, and 220 in the "Agreed table of Public Hospitals" that is annexed to these reasons, to be used by that public hospital for medical purposes or the purchase of medical equipment.

3. Orders that the Plaintiff's costs of the proceedings on the indemnity basis be paid out of the estate of the deceased.

4. Orders that the costs of the Defendant from the date of filing of the Summons (13 June 2012) be paid out of the estate of the deceased.

5. Notes that the Defendant will consider whether it will seek to enforce order 4 for its costs upon being advised by the Plaintiff of the amount of the residue of the Estate following payment of the Plaintiff's costs.

Catchwords:

TRUSTS AND TRUSTEES - Application to the court for determination of how the estate of the deceased should be distributed - Also question as to the composition of the beneficiaries having a beneficial interest in the estate - Which institutions or organisations are "public hospitals" in New South Wales

Legislation Cited:

Health Services Act 1997
Hospitals Act 1894
Uniform Civil Procedure Rules 2005

Cases Cited:

Adams v Jones [1852] EngR 285; (1852) 9 Hare 485
Ambulance Service (NSW) v Deputy Commissioner of Taxation [2002] FCA 1023; (2002) 50 ATR 496
Hodgson, Re; Nowell v Flannery [1936] 1 Ch 203
Lockrey v Ferris [2011] NSWSC 179
Mason v Robinson (1825) 2 Sim & St 295
Padbury Deceased, Re The Will and Codicil of Walter, Home of Peace for the Dying and Incurable v The Solicitor General [1908] HCA 72; (1908) 7 CLR 680
Perpetual Trustees WA Ltd (As Executor of the Estate of Eleanor Anne Seward (Dec)) v Riverwest Pty Ltd & Ors [2004] WASC 81
Rennes v Death [2003] NSWSC 708
Public Trustee v Hospitals Commissioner of New South Wales (1939) 56 WN (NSW) 198
Roberts, Re; Repington v Roberts-Gawen (1881) 19 Ch D 520
Tomasevic v Jovetic [2011] VSC 131

Texts Cited:

G L Certoma, 'The Law of Succession in New South Wales' 4th ed (2010)
Kerridge & Brierley, 'Parry and Kerridge The Law of Succession' 12th ed (2009) at 337-339
Australian Government Productivity Commission, "Public and Private Hospitals", December 2009 Research Report

Category:

Principal judgment

Parties:

NSW Trustee and Guardian (Plaintiff)
The Attorney General in and for the State of New South Wales (Defendant)

Representation:

Counsel:
Mr M Meek SC (Plaintiff)
Ms G Mahony (Defendant)
Solicitors:
NSW Trustee and Guardian (Plaintiff)
Crown Solicitor's Office (Defendant)

File Number(s):

2012/185230

Judgment

Introduction

1. HIS HONOUR: The Plaintiff, the NSW Trustee and Guardian (formerly the Public Trustee), is the executor of the Will and the trustee of the estate of Leslie Vernon Bryce ("the deceased"), who died on a date between 26 May 2007 and 9 June 2007. (In the events that have happened, there is no need to establish the exact date of the deceased's death.)

1. The deceased left a Will dated 9 May 2006, probate of which was granted to the Plaintiff on 13 March 2009. Relevantly, the deceased's Will provided:

"3(d)To the parents of LORRAINE (surname unknown) who was attacked and badly injured in an accident about 18 months before the date of this my Will, the sum of Twelve thousand dollars ($12,000.00).

...

4.I GIVE DEVISE AND BEQUEATH the rest and residue of my Estate both real and personal of whatsoever sort or kind the same may be or wheresoever situate to pay the same over to all public hospitals in New South Wales for medical purposes or the purchase of medical equipment only, provided that each hospital shall receive an equal proportion of the residue of my Estate."

5.I DECLARE that in respect of any legacy or share of residue by this my Will or any Codicil to my Will given to any charitable or benevolent institution the receipt of the Secretary, Treasurer or other Proper Officer for the time being of that institution shall be a full discharge to my Trustee for the legacy or share of residue nor shall my Trustee be bound to see to its application."

1. Nothing else in the Will provides any pointer to the identity of the person referred to as "Lorraine" in Clause 3(d) of the Will.

1. There is no definition of the term "public hospitals" in the Will.

1. By Summons filed on 13 June 2012, the Plaintiff sought the following relief:

"1.A determination pursuant to r 54.3(2) Uniform Civil Procedure Rules or otherwise that in the events which have occurred:

(a)the Plaintiff is justified in proceeding on the basis that the gift in clause 3(d) of the will dated 9 May 2006 of Leslie Vernon Bryce deceased (the Will) to Lorraine (surname unknown) has lapsed by reason of uncertainty.

(b)as to whom the Plaintiff ought to distribute the gift of residue to all public hospitals in New South Wales in clause 4 of the Will.

2.Directions as to whether the proceedings as sufficiently constituted in order for the determinations in order 1 above to be made, and if not, directions as joinder of parties in relation to parties interested in the gift of residue in clause 4 of the Will.

3.Costs."

1. In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the property owned by the deceased at the date of death, was disclosed as having an estimated, or known, gross value of $783,457. (I have omitted, and shall continue to omit, any reference to cents in amounts referred to, but, if necessary, the cents may be included in totals.)

1. As at November 2011, after the Plaintiff had paid the legacies in the deceased's Will (which were not the subject of doubt or dispute and have not been referred to), the balance in the Plaintiff's estate account was $458,690 (of which $30,974 was income and $427,716 was capital). The current value of the balance of the deceased's estate is not known but I have been asked to assume that it has not increased substantially.

1. The Attorney General in, and for, the State of New South Wales is named as the only Defendant in these proceedings in his role as protector, or guardian, of charities. The Attorney General also represents the Crown and is the legal protector of all persons interested in charity funds: Tomasevic v Jovetic [2011] VSC 131 at [6].

1. The Attorney General, by counsel, agrees that the case involves a charitable trust and has appeared to afford advice and assistance to the Court and not to embrace any particular point of view. An affidavit has been filed on behalf of the Attorney General that has been read in the proceedings.

1. The issues that arise in the case are:

(a) Whether the gift in clause 3(d) of the Will of the deceased fails by reason of the uncertainty of the identity of the person referred to as "Lorraine";

(b) In relation to the gift of residue in clause 4 of the Will of the deceased, which institutions or organisations are "public hospitals in New South Wales".

1. (An additional question raised in the Defendant's submissions, related to whether it is necessary to join any other Defendants. However, neither party submits that it is, in fact, necessary, to do so, since there is no suggestion of an intestacy. With respect, I agree. In the circumstances, there is no need to spend further time on this aspect.)

1. Before proceeding further, it would be remiss of me not to mention the assistance provided to me by each of the party's legal representatives and the sensible and practical approach that they adopted during the course of the hearing. I am particularly indebted to counsel for the detailed submissions that he, and she, each provided before the hearing and their compliance, no doubt with the assistance of their instructing solicitors, following the hearing, in providing the Court with an agreed list of organisations and institutions that fell within the description of "public hospitals in New South Wales".

The Proceedings

1. The matter, initially, came before me on 10 August 2012, at which time I made some directions for the filing of further evidence. The type of evidence referred to in those directions has been filed.

1. The parties agree that the proceedings, so far as it relates to the gift of residue, is a matter under Uniform Civil Procedure Rules 2005 ("UCPR"), rule 54.3(2)(b), which provides:

"(2) Proceedings may be brought for the determination of any question which could be determined in administration proceedings, including:

...

(b) any question as to the composition of any class of persons:

...

(ii) having a beneficial interest in an estate, or

(iii) having a beneficial interest in property subject to a trust ..."

1. Since there were really no facts in dispute and as all of the evidence was read without objection, the hearing was concluded relatively quickly. However, so that some further matters could be agreed, directions were made for the preparation of short minutes of order and a schedule identifying the hospitals which the parties agree fall within the meaning of the term "public hospitals in NSW".

The Background

1. The draftsman of the deceased's Will was Neville Edward Menlove, a partner in the firm of Molloy and Shrader, solicitors. In his affidavit, read in the proceedings, relevantly, he stated:

"...

4.The testator was very specific about the terms of the gifts he wished to give by his Will and I was satisfied the testator had testamentary capacity during the interview on 26 April 2006, and at 9 May 2006 when the Will was executed ...

5.In relation to the gift to "Lorraine" in Clause 3 (d) of the Will, I said to the testator words to the effect:

"Do you realise that the executor may have some difficulty in tracking this person down? Do you know her surname, or where she lived, or what hospital she was treated at, or any other details?"

The testator said words to the effect:

"I can't remember but I do want to leave her a gift. I read about it in the papers. The Public Trustee should be able to find her."

6.In relation to the gift of residue, the testator said words to the effect:

"I would like to leave the remainder of my property to all hospitals in New South Wales and the Royal Perth Hospital."

I said to the testator words to the effect:

"Do you realise that the gift to each hospital will be very small because there are a large number of hospitals in New South Wales? Also, do you mean all hospitals, both public and private, or public hospitals only?"

The testator said words to the effect:

"Public hospitals only. I want the Royal Perth Hospital to get a reasonable amount, so I will leave them a particular amount. What is the total of all the gifts so far?"

I then added up the total of all legacies and said to the testator words to the effect:

"The total is $193,000.00."

He said words to the effect:

"In that case I'll leave the Royal Perth Hospital $25,000.00, and also Norma Bryce, wife of Norman Bryce, $10,000.00."

I said words to the effect:

"The total of the legacies is now $228,000.00."

He said words to the effect:

"I would also like to leave $10,000.00 to the House with No Steps."

7.I prepared a draft Will in accordance with the testator's instructions and my file notes of the interview.

...

9.The witnesses to the testator's execution of the Will are Derek Russell Molloy, the principal of the firm of Molloy & Schrader, and myself."

1. In the affidavit of Margaret Pringle, formerly a solicitor employed by the Plaintiff and its predecessor, there is evidence that reveals the extensive attempts made by the Plaintiff to locate the person named "Lorraine". These attempts included contacting Mr Menlove, the NSW Police Media Unit, the manager of the company that owns the block of units where the deceased lived, and a neighbour of the deceased. There were also searches of the community newspaper, "The Wentworth Courier", a wider newspaper search, and correspondence with the archive section of the Nine Network Australia (to which a response was received) and Channel 7 (which provided no response).

1. In addition, in January 2008, Ms Pringle attended the Sutherland Council library and accessed the Proquest database which contains references for all newspapers published in Australasia.The database did not return a result for a search of each of the phrases "Lorraine bashed", and "assault Lorraine". A search for the name "Lorraine" returned a number of results for aggressors named "Lorraine". Only one result was returned for a victim named "Lorraine", a person who was murdered in 1974.

1. I am satisfied that no information revealing the identity of "Lorraine" has been able to be obtained by the Plaintiff, as a result of her surname being unknown.

1. The Plaintiff has also taken various steps to identify "public hospitals in New South Wales" by contacting the Commonwealth Department of Health and Ageing as well as NSW Health.

1. The parties agreed that, as at the date of the deceased's death, the current version of the Health Services Act 1997 (1 February 2007 to 30 June 2007) listed in Schedule 1, eight Area Health Services namely:

(a) Greater Southern Area Health Service;

(b) Greater Western Area Health Service;

(c) Hunter and New England Area Health Service;

(d) North Coast Area Health Service;

(e) Northern Sydney and Central Coast Area Health Service;

(f) South Eastern Sydney and Illawarra Area Health Service;

(g) Sydney South West Area Health Service;

(h) Sydney West Area Health Service.

1. In a letter dated 29 May 2008, addressed to the Plaintiff, NSW Health stated that it "does not maintain a list of all public hospitals in NSW due to the fact that such details are generally held by the eight (8) area health services".

1. At the date of hearing, none of the eight area health services exist. There has been a reform and restructure by NSW Health.

1. At the date of the deceased's death, which the parties suggest should be taken, for convenience, to be 9 June 2007, the then current version of Schedule 2, listed five statutory health corporations namely:

(a) Clinical Excellence Commission;

(b) HealthQuest;

(c) Justice Health;

(d) The Royal Alexandra Hospital for Children;

(e) The Stewart House Preventorium, Curl Curl.

1. As to "a hospital that is a recognised establishment of an affiliated health organisation", enquiries by the NSW Crown Solicitor reveal that the Minister does not hold a list of all hospitals that were recognised establishments of affiliated health organisations as at 9 June 2007. However Schedule 3 to the Health Services Act, as amended from time to time, constitutes the authoritative list of affiliated health organisations. Schedule 3, as it was at the date of death of the deceased, revealed 36 recognised establishments, or recognised services, in respect of 21 affiliated health organisations.

Construction of the Will

1. In Lockrey v Ferris [2011] NSWSC 179, I set out the principles that apply in construing a will, by reference to previous authority, as follows:

"43What has been described as the ten 'incontestable principles' for the construction of wills, described by Isaacs J in Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, 273-275, should be remembered, as they are, for the most part, as apt today as they were almost 90 years ago:

"(1) "Every will must by law be in writing, and it is a necessary consequence of that law that the meaning must be discovered from the writing itself, aided only by such extrinsic evidence as is necessary in order to enable us to understand the words which the testator has used" - Lord Chelmsford, L.C, in Abbott v Middleton, 7 H.LC at p 88; Lord Wensleydale, ib., p 114. 2

(2) "The instrument must receive a construction according to the plain meaning of the words and sentences therein contained."

But you must look at the whole instrument, and inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole, in order to give effect, if it be possible to do so, to the intention of the framer of it (Lord Halsbury, L.C, in Leader v Duffey 13 AC 294 at p 301; Ward v Brown, 31 T.L.R p 545; Buckley, LJ, in Kirby-Smith v Parnell, (1903) 1 Ch at p 489.)

(3) "If the will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, the court is to supply the defect by implication, and thus to mould the language of the testator so as to carry into effect as far as possible the intention which it is of opinion that the testator has, on the whole will, sufficiently declared (Towns v Wentworth, 11 Moo. P C. 526 at p 543; Hawkins on Wills (2nd ed), at p 6).

(4) "An inference cannot be made that does not necessarily result from all the will taken together" - Sir R P Arden, M.R, in Upton v Lord Ferrers, 5 Ves Jun 801 at p 804. "A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed" (James, LJ, in Crook v Hill, 6 Ch App p 311).

(5) "We cannot give effect to any intention which is not expressed or plainly implied in the language of (the) will" (Lord Watson, in Scale v Rawlins, (1892) AC 342 at pp 344-345). "You have no right to fancy or to imply, unless there be something within the four corners of the will, which is not only consistent with the implication you make, but which could hardly stand, if at all, in the will without that implication being made. That is what is called necessary implication, and legitimate implication, in contradistinction to gratuitous, groundless, fanciful implication (Lord Brougham, L.C, in Langston v Langston, 2 Cl & F. 194 at p 237.)

(6) "If the contents of a will show that a word has been undesignedly omitted or undesignedly inserted, and demonstrate what addition by construction, or what rejection by construction, will fulfil the intention with which the document was written, the addition or rejection will by construction be made" (Knight-Bruce, LJ, in Pride v Fooks, 3 De G. & J 252 at p 266).

(7) "When the will is in itself incapable of bearing any meaning unless some words are supplied, so that the only choice is between an intestacy and supplying some words, but even there, as in every case, the court can only supply words if it sees on the face of the will itself, clearly and precisely what are the omitted words, which may then be supplied upon what is called a necessary implication from the terms of the will and in order to prevent an intestacy" (Page-Wood, VC., in Hope v Potter, 3 K. & J 206 at p 209).

(8) "There are two modes of reading an instrument; where the one destroys and the other preserves, it is the rule of law and of equity following the law in this respect (for it is a rule of common sense) that you should rather lean towards that construction which preserves than towards that which destroys. Ut res magis valeat quam pereat is a rule of common law and common sense; and much the same principle ought surely to be adopted where the question is, not between two rival constructions of the same words appearing in the same instrument, but where the question is on so ready an instrument as that you may either take it verbally and literally, as it is, or with a somewhat larger and more liberal construction, and by so supplying words as to read it in the way in which you have every reason to believe that the maker of it intended it should stand; and thus again, according to the rule ut res magis valeat quam pereat, to supply, if you can safely and easily do it, that which he per incuriam omitted, and that which, instead of destroying preserves the instrument; which, instead of putting an end to the instrument and defeating the intention of the maker of it, tends rather to keep alive and continue and give effect to that intention" (Lord Brougham, L.C, in Langston v Langston, 2 Cl & F. at p 243.

(9) "If on reading the will you can see "some mistake must have happened, that is a legitimate ground in construing an instrument, because that is a reason derived, not dehors the instrument, but one for which you have not to travel from the four corners of the instrument itself" (Langston v Langston, 2 Cl & F. at pp 240 and 241.

(10) "The mind never inclines towards intestacy; it is a dernier ressort in the construction of wills" (Lord Shaw in Lightfoot v Maybery, (1914) AC 782 at p 802). "In ascertaining the intention I ought to a certain extent - we all know what the expression means - to lean against an intestacy, and not to presume that the testator meant to die intestate, if, on a fair construction, there is reason for saying the contrary" (Buckley, LJ, in Kirby-Smith v Parnell, (1903) 1 Ch 483 at p 489)."

44More recently, in Coorey v Coorey (NSWSC, 22 February 1986, unreported), Powell J (as his Honour then was) said, in a passage approved by Bryson J in Perpetual Trustee Co. Ltd v Wright, Re Will of James Paul Gee Cox Junior deceased (1987) 9 NSWLR 18, at 33; and repeated again by Hamilton J in Hatzantonis v Lawrence [2003] NSWSC 914; by Gzell J in Peoples v Simpson [2005] NSWSC 355; and by Hamilton J, again, in Arnott v Leong [2009] NSWSC 187; and by Campbell JA in Fairbairn v Varvaressos [2010] NSWCA 234 at [19]:

"... It seems to me that one's task is, first, if it be possible, to ascertain what was the basic scheme which the deceased had conceived for dealing with his estate and then, so to construe the will as, if it be possible, to give effect of the scheme so revealed."

45In Muir v Winn [2009] NSWSC 857, Bryson AJ added:

"24 It is necessary to seek to understand the scheme of a testator's dispositions. Where the terms of the will are perfectly clear search for the scheme may be of little use, but where the language is obscure or the effects of the literal reading and the reasoning impliedly underlying it are startlingly unlikely, as in this case, the scheme of dispositions is very important."

1. In Re Hodgson; Nowell v Flannery [1936] 1 Ch 203, at 206, Farwell J described the approach the Court should take in this way:

"I think that it comes to this: the duty of the Court in the first place is to read the will itself. The Court is bound in the first instance to read it, giving the words used their primary and proper meaning. The Court is then entitled to look at the surrounding circumstances. If the surrounding circumstances are such that the words of the will, if construed in accordance with their primary meaning, are not apt to apply to any of the circumstances, then the Court is entitled, having regard to the surrounding circumstances, to see whether the language used is capable of some meaning other than its ordinary meaning, not for the purpose of giving effect to what the Court may think was the intention of the testator, but for the purpose of giving effect to what the intention of the testator is shown to be from the language used having regard to the surrounding circumstances. In other words, the Court is not entitled to disregard the language which the testator has used in order to give effect to what the Court may think to have been the intention, but the Court is entitled to say that the words which the testator has used were not intended to have their primary meaning if the surrounding circumstances are such as to lead inevitably to that conclusion."

1. In Lockrey v Ferris, I also dealt with the concept of a "class gift":

"49Black's Law Dictionary, 6th Edition, (1991), defines "class gift" (at 249) as:

"A gift of an aggregate sum to a body of persons uncertain in number at time of the gift, to be ascertained at a future time, who are all to take in equal, or other definite proportions, the share of each being dependent for its amount upon the ultimate number."

50In Halsbury's Laws of Australia, Vol 50, it is said:

"Prima facie a class gift is a gift to a class of persons included and comprehended under some general description and bearing a certain relation to the testator or another person or united by some common tie. Thus, where a testator divides his residue into as many equal shares as he shall have children surviving him, or predeceasing him leaving issue, and gives a share to, or in trust for, each such child, the gift is to a class. There may also be a class compounded of persons answering one or other of alternative descriptions, for example 'the children of A and the children of B', or 'the children of A who attain twenty-one and the issue of such as die under that age'."

51In G L Certoma, The Law of Succession in New South Wales, 3rd ed, (1997), the learned author summarised, at 178, the operation and purpose of the rule relating to class gifts as follows (omitting citations):

"Examples of class gifts are 'to my grandchildren', 'to my grandchildren A, B and C and such of my grandchildren hereafter born', 'to A, B, C and D if living'. The essence of a class gift is that if a potential member of the class cannot take, the shares of the remaining members are increased and so there is no question of the gift becoming partly undisposed of. The potential member may not be able to take for any one of a number of reasons such as death before the testator or before attaining a vested interest, express exception or revocation by the testator, attestation of the will, or the felonious killing of the testator. A true class gift must be distinguished from a series of independent gifts to the members of a class, the difference being that in the latter case the gift of each member of the class is quantified from the beginning as if each person had been given a separate gift and if any such gift fails it does not augment the shares of the remaining members of the class but passes as part of the residue or on intestacy as the case may be, for example, a gift equally to 'my nine grandchildren' or 'to the three children of A'. Gifts to several persons by name, number or reference are not usually true class gifts."

52This passage was referred to, with approval, in Arnott v Leong at [13].

53In Re Chaplins' Trust (1863) 12 WR 147, 148, Page-Wood VC held:

"A gift to a class...is a gift to a set of persons all filling one common character, or holding some definite position, and a gift to a number of residuary legatees does not thereby constitute them a class. Where there is a gift to children as tenants in common this is a gift to a class as tenants in common, the members of the class not being ascertained until the death of the testator. In the same way a gift to executors as such, being made to them in that capacity, is a gift to them as a class, and on the death of one of the persons named in the testator's lifetime, his share will not lapse, but go to the survivors."

54In Pearks v Moseley (1880) 5 App Cas 714 at 722-723, Lord Selborne LC said:

"A gift is said to be to a "class" of persons, when it is to all those who shall come within a certain category or description defined by a general or collective formula, and who, if they take at all, are to take one divisible subject in certain proportionate shares; and the rule is, that the vice of remoteness affects the class as a whole, if it may affect an unascertained number of its members."

55In Bentinck v Duke of Portland (1877) 7 Ch D 693 at 698, Fry L.J. said:

"It is a class gift where the total and ultimate amount of the share to be taken by any one donee cannot be ascertained until all the persons who are to take, and the ultimate proportions in which they are to take, are finally ascertained."

56The concept of a gift to a class of persons was very plainly described by Lord Macnaghten in Kingsbury v Walter & Ors [1901] AC187 at 191:

"When there is a gift to a number of persons who are united or connected by some common tie, and you can see that the testator was looking to the body as a whole rather than to the members constituting the body as individuals, and so you can see that he intended that if one or more of that body died in his lifetime, the survivors would take the gift between them, there is nothing to prevent your giving effect to the wishes of the testator."

57Thus, a gift to a class is characterized by the use of a term descriptive of the persons to be included in the class. But there may be a class gift notwithstanding that one, or more, persons are individually named: see, Kingsbury, at 192, per Lord Davey. However, a direct reference to specific individuals ordinarily suggests that they are to take as particular persons, and not because they answer a description (Tompkins v Simmons & Ors [1931] HCA 8; (1931) 44 CLR 546 at 557, per Dixon J)."

1. Neither counsel submitted that other principles should apply.

Uncertainty in the Deceased's Will - The bequest to "Lorraine"

1. A disposition in a will is not to be avoided for uncertainty if the Court can arrive at a reasonable degree of certainty: Adams v Jones [1852] EngR 285; (1852) 9 Hare 485 at 486; 68 ER 602. In order to avoid a will it must be incapable of any clear meaning: Mason v Robinson (1825) 2 Sim & St 295 at 298 (57 ER 359 at 360).

1. A disposition will be void for uncertainty if it is utterly impossible to put a meaning upon it: Re Roberts; Repington v Roberts-Gawen (1881) 19 Ch D 520 at 529; Rennes v Death [2003] NSWSC 708, per Gzell J, at [8].

1. In Perpetual Trustees WA Ltd (As Executor of the Estate of Eleanor Anne Seward (Dec)) v Riverwest Pty Ltd & Ors [2004] WASC 81, it was put this way:

"61 It is well accepted that a provision of a Will must be incapable of any clear meaning before it is avoided on the ground of uncertainty: see "Williams on Wills" 8th ed (supra) at 566 and the authorities referred to in footnote 1. In some cases, uncertainty may be avoided by the admission of extrinsic evidence, but if the evidence offered, even though it resolves the uncertainty, is inadmissible under the rules governing admission of such evidence, then the gift must inevitably be declared void: "Williams on Wills" (supra) at 566 and authorities referred to in footnotes 5 and 6."

1. Turning to uncertainty of the object of a gift in a will, it is clear that if, after applying any relevant rules of construction and considering any admissible evidence, it remains impossible to identify the object of the gift, the gift will be uncertain and will fail: Kerridge & Brierley, 'Parry and Kerridge The Law of Succession', 12th ed (2009) at 337-339; see, also, G L Certoma, 'The Law of Succession in New South Wales', 4th ed (2010) at [11.720].

1. If the gift fails, the subject of the gift will pass under the residuary clause contained in the will.

Meaning of "Public Hospitals"

1. It is clear, and there was no dispute, that the trust of residue in the deceased's Will is a charitable trust. It is a trust concerning property held by the Plaintiff for the benefit of the community. There was also no dispute that it was a "class gift".

1. The parties, in this case, agreed that the class of public hospitals comprises institutions or organisations existing, ascertainable, and capable of taking, at the date of death of the deceased. I respectfully agree.

1. The question then is which entities fall within the description of "all public hospitals in New South Wales" as at the date of the deceased's death? Clearly, each must be a "public hospital" and it must be situated "in New South Wales".

1. The only assistance provided by the deceased's Will itself as to the meaning of the term "public hospitals" is given by what follows, namely the words "for medical purposes or the purchase of medical equipment only". (The purpose referred to is identified elsewhere in the Will in relation to specific bequests to the Children's Hospital Westmead, the Burns Unit of Concord Hospital and the Royal Perth Hospital (Clauses 3(g), (h) and (i)).

1. The term "medical" is commonly defined as relating to, or concerned with, physicians, or with the practice of medicine, including surgery. However, that word may limit simply the type of equipment able to be purchased.

1. Otherwise, there is nothing in the Will that gives any guidance as to which hospitals were intended by the deceased to be included as residuary beneficiaries.

1. There is a statutory definition of "public hospital" and "hospital" to be found in the Health Services Act, 1997 which was in force at the time of the deceased's death. In that Act, "public hospital" is defined in s 15 (see s 3 and Dictionary) as:

"(a)a hospital controlled by an area health service, or

(b)a hospital controlled by a statutory health corporation, or

(c)a hospital that is a recognised establishment of an affiliated health organisation, or

(d)a hospital controlled by the Crown (including the Minister or the Health Administration Corporation).

Note. Clause 2 of Part 2 of the Dictionary provides that a reference in this Act to a hospital controlled by a public health organisation or any other body or person includes a reference to a hospital that is conducted by or on behalf of such an organisation, body or person."

1. "Hospital" is defined in the Dictionary as:

"An institution at which relief is given to sick or injured people through the provision of care or treatment."

1. Relevantly "an Area Health Service" is "an Area Health Service constituted under section 17 and specified from time to time in Schedule 1": s 8(1), s 3 and Dictionary.

1. A "statutory health corporation" is defined as "a statutory health corporation constituted under section 41 and specified from time to time in Schedule 2": s 11(1), s 3 and Dictionary.

1. An "affiliated health organisation" is "an organisation or institution that is an affiliated health organisation under section 62": s 13(1), s 3 and Dictionary.

1. The Dictionary defines a "recognised establishment" of an affiliated health organisation to mean "a hospital or health institution of the organisation that is listed in column 2 of Schedule 3 next to its name".

1. The "Health Administration Corporation" is defined as meaning "the Health Administration Corporation constituted by the Health Administration Act 1982": s 3 and Dictionary.

1. I have earlier identified the area health services that existed at the date of the deceased's death.

1. There is no evidence that the deceased was aware of the statutory definitions in existence at the time he made his Will or that he intended such statutory definitions to apply. It is to be noted that s 15 does not speak of "public hospitals" as "including" those identified.

1. In the Australian Government Productivity Commission, in its December 2009 Research Report titled "Public and Private Hospitals", "public hospital" is defined to mean:

"A health care provider facility that has been established under state or territory legislation as a hospital or as a freestanding day procedure unit. Public hospitals are operated by, or on behalf of, the government of the state or territory in which they are established. Public hospitals provide hospital services free of charge to all eligible patients."

1. To the extent that other cases are able to provide assistance in determining the meaning of either word, it is useful to refer to the decision of Allsop J (as his Honour then was) in Ambulance Service (NSW) v Deputy Commissioner of Taxation [2002] FCA 1023; (2002) 50 ATR 496 in which several of the cases are discussed. In that case, his Honour noted that decided cases identify legal issues affecting, or influencing, the answering of the question whether any given body falls within a phrase used (in that case "public benevolent institution") as a matter of popular or ordinary meaning at the particular time and that they illuminate the meaning of the phrase.

1. His Honour discussed some of the earlier authorities in which the term "public hospital" had been considered. He wrote:

"[17] ...The Little Company of Mary (SA) Inc v The Commonwealth and The Memorial Hospital Incorporated v The Commonwealth (1942) 66 CLR 368 ... cases concerned the phrase "public hospital" in reg 32 of the National Security (War Damage to Property) Regulations (SR 1942 No 79), which exempted from the assessment of any obligation to pay contributions to the War Damage Fund, inter alia, fixed property or plant used primarily and principally as or in (a) a public hospital or (b) a public benevolent institution.

[18] The members of the plaintiff association in the first case (the Little Company of Mary) comprised a congregation of nursing sisters of the Roman Catholic Church. The Little Company of Mary owned and conducted the Calvary Hospital in North Adelaide. The plaintiff in the second case (the Memorial Hospital Inc) carried on the Memorial Hospital, also in North Adelaide.

[19] The Calvary Hospital was established using money and property provided by the South Australian public and by the Little Company of Mary. The objects or purposes of the Little Company of Mary included the following:

(ii) To establish and carry on a nursing institution or nursing institutions.

(iii) In particular to establish and maintain a hospital or hospitals for the benefit of the public generally, irrespective of class or religious belief, and particularly to maintain the same for the poor and those of limited means.

[20] The Memorial Hospital was established in 1919 by the Methodist Church with gifts from members of the public of all religious denominations. It was under the control of the Methodist Church. Its objects were:

(a) To provide and maintain hospitals and rest homes for the medical and surgical treatment of patients and persons requiring hospital treatment.

(b) To perpetuate the memory and sacrifice of those who gave their lives in the Great War 1914-1919.

[21] Both hospital charged fees at varying rates. The staff of the Calvary Hospital included 35 sisters of the Little Company of Mary, but no discrimination ("of either class or religion": at 371) was made in the hiring of lay nurses or paid staff. Both hospitals were open to the public, irrespective of the faith of the patient. Neither hospital was carried on for profit and no person derived any monetary gain from the running of either hospital. Neither hospital had been declared a "public hospital" under s5 of the Hospitals Act 1934 (SA).

[22] Latham CJ placed emphasis on public control as a constituent of "public" in the phrase "public hospital". His Honour distinguished both hospitals the subject of the proceedings from the Mater Misericordiae Hospital in Waratah, New South Wales, which had been the subject of consideration by Jordan CJ in O'Connell v The Council of the City of Greater Newcastle (1941) 41 SR (NSW) 190 in connection with the rating exception in para 132(1)(d) of the Local Government Act 1919 (NSW), and which been held to be a "public hospital" by the Full Court in that case. Latham CJ noted (at 378-79) that whether any particular hospital was a public hospital was a question to be determined on the facts of each case and was a question on which prior cases were of little value as precedents. However, he pointed out (at 379) that in respect of the Mater:

The hospital was subject to the Public Hospitals Act 1929 (NSW): see s 4. As a hospital mentioned in the Third Schedule it was bound to submit to any inquiry into administration and management which the Hospitals Commission might think proper to make; it was subject to annual inspection; it was eligible for subsidy from public moneys; and the Commission could attach to the payment of any subsidy such conditions in respect of the maintenance, equipment, management, capital expenditure, building, or repairs to existing buildings as it might think fit (s 11). The hospital was bound to receive destitute persons without payment (s30 (6)). It would have been difficult to hold that a hospital subject in this degree to a Public Hospitals Act was not a public hospital within the meaning of another New South Wales statute. The Calvary and Memorial Hospitals possess none of the characteristics mentioned.

[23] Latham CJ then proceeded to answer the question before the Court by reference to the common understanding of the phrase in question. He said (at 379-80):

I therefore ask whether, in common understanding, these hospitals would be called "public hospitals." I find it difficult to believe that the patients in them would not be very astonished if they or their friends were told that they were in a public hospital. So also I conceive that the authorities of both the Roman Catholic Church and of the Methodist Church would receive with incredulity a statement that their respective institutions were public institutions and not simply and entirely church institutions. The question is not merely whether there is any charitable element in the conduct of the hospitals. There is such an element, but it is not very great. From the point of view of the community - the public in the ordinary sense - these are, I think, private institutions, controlled by churches which would naturally most strongly object to any claim that the public had any rights whatever in relation to the hospitals - whether as to management and control, or as to admission of patients, or as to utilization of funds, or as to disposition of property, or as to development or continuance of the hospital undertakings. The hospitals are not carried on for the purpose of discharging any duties owed to the public: cf Griffiths v Smith (1941) AC 170, at pp 178, 186, 206. The only element which, in these cases, points to the opposite conclusion, is to be found in the degree to which benevolent treatment is given, and this, though admirable, is relatively small. The hospitals are open to the public only in the sense that there is no exclusion of any specific class on religious or other grounds. But that may be said of most, if not all, private hospitals. Further, these hospitals are not conducted for the private profit of the members of the associations which own and control them. But the profits can be used and rightly used for church purposes as the churches concerned think proper. It cannot be said, as it appears to me, that the churches are bound to continue to apply the profits to hospital purposes. I think that these hospitals are, to borrow the words of Starke J in Public Trustee (NSW) v Federal Commissioner of Taxation (1934) 51 CLR 75 at p 100 private organizations conducted by or in connection with churches.

[24] Starke J referred (at 385-86) to the elusiveness of the adjective "public". He said (at 386):

[T]he authorities establish that whether a hospital is public or private is, in the main, a question of fact and a question of degree in every case. It depends, not so much upon the manner in which the Calvary Hospital was established and is financed, as upon the character of the hospital and the nature of the services rendered...

[25] Whilst recognising, as relevant considerations, that the purpose of those who established and conducted the hospitals was for the care of the sick irrespective of background and religion, that the hospitals were not conducted for private profit and that the hospitals provided services of inestimable value to the people of South Australia, Starke J concluded that they were not "public hospitals". Speaking of Calvary (but equally applicable to Memorial) his Honour said (at 386):

The hospital was established by a private organization; it is not subject to the control or supervision of any public authority; the public have no right of admission - no trust or other right has been created in their favour and the patients are charged for their maintenance and treatment unless too poor to pay therefor. Apart from authority, I should not have thought that such a hospital would, in the ordinary and usual use of words, be described as a "public hospital", but the question is one of fact to be resolved upon a consideration of all the circumstances.

In my judgment, the Calvary Hospital, having regard to all the circumstances of the case, is not a "public hospital" within the meaning of the Regulations already mentioned. The facts which lead me to this conclusion are that the hospital was established and is conducted by a private organization, that it is not subject to the control or supervision of any public authority, that the public have no right of admission to the hospital, and, substantially, are charged for their treatment.

[26] In the reasons of each of Latham CJ and Starke J the lack of public control or some element of public control or supervision was a consideration in coming to a view, overall, as to whether the ordinary meaning of the phrase "public hospital" was satisfied. It was a discussion ending in the characterisation as a public hospital.

[27] Rich J dissented. He said the following in connection with the phrase "public hospital" (at 380-81):

No definition of the latter expression is given in the Regulations and in relevant judicial decisions as to the meaning of the word "public" judges have refrained from attempting an exhaustive decision. It is neither necessary nor desirable to do so. In every case which arises for determination a number of factors have to be considered, and none is an absolute criterion. "Public hospital" is not a precise or technical expression. In Hall v Derby Sanitary Authority (1885) 16 QBD 163 the question for determination was whether a certain orphanage was a public institution and A L Smith J, as he then was, lays it down simply that if a thing is not "private" then it is "public" [(1885) 16 QBD at p 173], recalling inevitably the definition of prose which we owe to Le Bourgeois Gentilhomme. The definition to which Darling J, as he then was, in Royal Masonic Institution v Parkes (1912) 3 KB 212 at p 216 refers, is to be found in Acte II, Scène VI: Le Maitre de Philosophie - "Tout ce qui n'est point prose est vers et tout ce qui n'est point vers est prose." In Seal v Trustees of the British Orphan Asylum (1911) 104 LT 424 at p 428 Hamilton J, as he then was, also adopts the language of A L Smith J in Hall's Case (1885) 16 QBD at p 173, who distinguishes "public" from "private" by regarding the purposes which the particular institution served. The observations of Hamilton J in Seal's Case (1911) 104 LT at p 428, as to the publicity and purposes of the orphanage institution he was then considering are very relevant in the same connection in this case.

[28] For Rich J, the purposes served (rather than public control) were central. At 383-84 his Honour made this clear, significantly, in the light of the approach of Latham CJ referred to at [22] and [23] above. At 383-384 his Honour said:

"Public control" is not, in my opinion, an essential element in the definition of "public hospital." In any event the sections of the Associations Incorporation Act 1984 (NSW) to which I have referred show that the association, its rules and operations are subject to supervision by a public officer and a court. In this connection I concur in the interpretation of the expression "public hospital" occurring in a similar context in the Local Government Act 1919-1940 (NSW) by Jordan CJ in O'Connell v Newcastle Municipal Council (1941) 41 SR (NSW) 190; 58 WN 166, where his Honour says: - "I can see nothing in the phrase 'public hospital' nor in its immediate or general context to suggest that it is confined to hospitals which are subject to some form of public control (whatever is to be understood by this expression) and whose income and property are not at the disposal of any private authority. On the contrary, it is the purpose to which the hospital is directed, not the manner in which it is controlled, which determines whether it should be regarded as a public hospital" (1941) 41 SR (NSW) at p 193; 58 WN, at p 168. The terms and circumstances in which sick relief is given are material conditions. Public service is the discrimen - and publicity may be gauged by the extensiveness of an institution's operations (A-G v Pearce (1740) 2 Atk. 87 [26 ER 454]; Shaw v Halifax Corp (1915) 2 KB at pp 180 - 184). The admitted facts show that the hospital, having regard to its objects and operations, is carried on for the benefit of the community or an appreciably important class of the community (Verge v Somerville (1924) AC 496 at p 499) and "not for private gain but for the public good" (Seal v Trustees of the British Orphan Asylum (1911) 104 LT, at p 428). During the relevant period the profits from the hospital have been applied solely to the operations of the hospital. Par 19 of the case stated emphasises the fact that "the hospital is not carried on for purposes of profit; and no person derives any profit or monetary gain therefrom." Indeed, any diversion of the profits to other purposes whether religious or otherwise would bring the association within the prohibition contained in s 3 of the Associations Incorporation Act 1984 (NSW) and endanger its incorporation. Thus the hospital is clearly distinguishable from what is known as a private hospital established and carried on for private gain as a means of livelihood for the owners. And in my opinion the scope and operations of the hospital are sufficiently wide and large to make it a public hospital within the meaning of reg 32."

1. I then turn to some other cases in which the meaning of the phrase "public hospital" has been discussed.

1. In Re The Will and Codicil of Walter Padbury Deceased, Home of Peace for the Dying and Incurable v The Solicitor General [1908] HCA 72; (1908) 7 CLR 680, the High Court at 683 considered a residuary gift in the following terms:

"... the whole of such balance shall be divided into three equal parts one of which shall be paid or transferred to the said Diocesan Trustees of the Church of England in Western Australia, a second to the trustees for the time being of the hospitals and lunatic asylums in the said Colony to be divided among them equally and the third to the trustees of the poor houses in the said Colony."

1. At first instance, Rooth J held that "government hospitals" were not entitled to share, and that the word "hospitals" signified:

"An unsectarian public charitable building supported in the main by voluntary contributions for the reception of sick poor for treatment medically or quasi-medically medicinally or surgically combined with such possibilities of outdoor life as would be calculated to make that treatment more effective and which is not maintained for private gain."

1. From that order the Solicitor General appealed to the Full Court of the Supreme Court and, at the request of that Court, evidence was given by affidavit as to the hospitals and lunatic asylums existing in Western Australia at the date of the will. That evidence was given by reference to three classes of hospitals specified in the provisions of the Hospitals Act 1894.

1. The Full Court opined that all institutions (including government hospitals) of the three classes that were in existence at the testator's death were entitled to share in the gift.

1. The only question raised for determination on the appeal to the High Court was whether the institutions described in argument as "government hospitals" were entitled to share in the gift for the benefit of hospitals and lunatic asylums.

1. The High Court held that the word "hospitals" included public hospitals existing at the date of the testator's death which had been proclaimed under the Hospitals Act, and hospitals then established which were governed by elected committees, whether assisted by contributions from the public revenue or not, but did not include hospitals which were wholly maintained at the public expense and were subject to the entire control of government officers.

1. Griffith CJ, at 686, stated:

"The term "hospital" is not a term of art, and may have different meanings in different countries. In Australia it is commonly used to denote an institution for the medical or surgical treatment of persons suffering from bodily ailment or injury. Used without the adjective "private" prefixed, it commonly means a charitable institution of that kind, whether supported wholly, or in part, or not at all, by voluntary contributions. Other charitable institutions which are in some countries included in the term "hospital" are in Australia ordinarily called by other names. The evidence showed that in Western Australia, as the testator knew it, there were many institutions of the kind I have mentioned, some of which were managed by boards or committees of management, while others, although charitable institutions, were wholly maintained at the public expense and managed by government officers."

1. Barton J, at 693-694, stated:

"As to the word "hospital," I see no reason to doubt that the testator employed it also in its ordinary sense as understood in Australia. He distinguishes between hospitals, lunatic asylums and poor houses, so that he seems to have taken hospitals to be for the bodily and not the mentally sick, and for the sick and not the merely poor. The sense in which the word is generally understood is, I think, that of an institution for those who, being sick or injured in body, are in need of medical or surgical aid. In this sense no doubt the testator used it."

1. O'Connor J, at 696-697, wrote:

"Although it may become necessary for the purposes of construction to examine the language of the gifts to each of these classes of charity, we are in this case directly concerned only with the devise to hospitals. Whether or not a particular institution is a hospital, and comes within the class to which the Court may declare the will to apply, is a matter for inquiry in Chambers. I gather from the evidence that the hospitals which claimed to be within the testator's bounty may be separated into two general divisions. Those initiated, managed and maintained by private benevolence, such for example as the Home of Peace for the Dying and Incurable, in many cases aided by subsidy from Government, and those which are described as public hospitals. The latter are divided into three classes. First, hospitals proclaimed under the Hospital Act 1894, maintained partly by Government moneys and partly by voluntary subscription, managed and controlled by boards of management in part appointed by the Government and in part by subscribers in terms of the Act. Second, Hospitals not under that Act, but assisted and subsidised by Government, maintained partly by those subsidies and partly by voluntary subscription, and managed by committees or boards of management appointed by subscribers. Third: Hospitals instituted, maintained and managed entirely by Government, under direct departmental control. It follows from what I have said that, in my opinion, the hospitals privately managed and maintained, such as the Home of Peace for the Dying and Incurable, whether subsidised by government subscription or not, are within the testator's gift in all cases where the management responsible for application of the funds are trustees in the sense which I have explained. It follows also, that the first and second classes of public hospitals are included."

1. In Public Trustee v Hospitals Commissioner of New South Wales (1939) 56 WN (NSW) 198, Long Innes CJ in Eq, dealt with a residuary gift that was to "The Public Hospitals in The County of Cumberland in the State of New South Wales in equal shares absolutely". His Honour noted at 198 - 200:

"Here the word "hospital" is preceded by the adjective "Public" and one question is what is meant by the word "public." Does it mean "general" in the sense of not being confined to patients suffering from one particular disease or class of diseases or injuries, or does that mean one that is available to the public generally or to a particular section of the public; or does it mean hospitals which are maintained by the public or State as opposed to those which are proprietary, or what are generally known as private hospitals?"

...

I do not intend to attempt to give an exact definition of the term "Public Hospitals" as used in this will, but merely to decide whether the particular institutions mentioned in the affidavits come within that term.

I may, however, state, that as Sir John Romilly M.R. said is Wallace v. The Attorney-General (5) - " of course no hospital which was not in existence at the date of the testator's death can have any share in the bequest."

The question for my determination is not what the testator intended to mean by the term "public hospital," for in the absence of any admissible evidence on that point to do so would be merely to speculate, but to determine which of the institutions in question were, in fact, public hospitals in the County of Cumberland at the date of the testator's decease. If I were permitted to speculate as to the testator's intention I should think it highly improbable that he intended to include, for instance, the Hospitals for the Insane.

I think that it is an essential characteristic of a hospital that medical or surgical services should be rendered, including in the term such services as are rendered by trained nurses during the period of convalescence; and I think further that in determining whether a particular institution is or is not a hospital, it is very material to consider the qualifications by which a person obtains admission to that institution; in other words whether the qualification is the need for medical or surgical treatment, or care of that nature, or, for instance, poverty.

Further, I am of opinion that unless "public" means "general" which, as I said before, has not been suggested in this case, I see no reason in this age of specialisation why a hospital which receives patients suffering from only one type of illness or disease should not be a public hospital, nor why an institution which treats diseases or infirmity of the mind or nerves which require medical attention and care should not be any less a hospital than one which receives patients suffering merely from bodily infirmities or injuries."

1. His Honour then identified which "hospitals" he concluded fell within the term "public hospitals" and which did not.

1. In considering the cases to which reference has been made, and construing the terms of the deceased's Will, the parties agreed that the term "public hospitals" will apply to institutions or organisations that have some, or all, of the following features, none of which is absolute:

(a) Admission is open, generally, to members of the general public, or the public of a particular locality or class, or a section of the public, irrespective of class, background, religious beliefs, or other grounds;

(b) Medical, or surgical, treatment of such persons suffering from bodily ailment, injury or disease is rendered; they may specialise in one form, or all forms, of illness, or sickness, mental or otherwise;

(c) They provide medical services for both 'acute' patients and 'elective' patients;

(d) They are maintained by the public, or that receive grants or subsidies from the State or Commonwealth, as opposed to ones which are proprietary, or which are generally known as a "private hospitals"; and whose objects and operations are carried on for the benefit of the community, or an appreciably important class of the community, and not for private profit or private monetary gain, but for public good;

(e) Their profits are not diverted but are applied principally to their own operations;

(f) Their affairs have some element of public control or supervision, such as by an area health service or a statutory health corporation;

(g) They are bound to submit to any inquiry into their administration that the State, or Commonwealth, might think proper to make;

(h) The word "hospital" is included in the name.

1. Ultimately, in each case, it will be a question of fact and degree.

Determination

1. In relation to the bequest to "Lorraine", it is important to note that the deceased acknowledged that her surname was unknown and that she was only described as "Lorraine ... who was attacked and badly injured in an accident about 18 months before the date of this my Will". It appears from the instructions that the deceased gave, that he was unable to identify "Lorraine" in any other way and that he was leaving it to the Plaintiff, his executor, to identify and locate her.

1. In the circumstances, relying upon what was written in the Will, is the only method of identifying and locating the beneficiary. All reasonable efforts have been made to do so without success.

1. This is not a case in which the object of the deceased's bounty, or the subject of disposition (i.e., the person or thing intended), is described in terms that are applicable indifferently to more than one person or thing. In such a case, evidence is admissible to prove which of the persons or things so described the testator intended. In this case, only one object was intended and she is unable to be identified. When one asks the question "To whom does the bequest of $12,000 go", one is unable to answer by reference to a specific person.

1. In the circumstances, I am satisfied that the bequest to "Lorraine" fails because it is impossible to identify or locate her. It follows that the answer to the first question posed in the Summons is that the Plaintiff is justified in proceeding on the basis that the gift in clause 3(d) of the Will dated 9 May 2006 of Leslie Vernon Bryce deceased (the Will) "to Lorraine (surname unknown)" has lapsed by reason of uncertainty.

1. I turn now to identifying to which institutions the Plaintiff ought to distribute the residue of the estate, that is which entities are "public hospitals in New South Wales" as set out in clause 4 of the deceased's Will.

1. Following the completion of the submissions, having identified the features that the parties agreed were useful in identifying whether an organisation or institution was a "public hospital", I gave directions to assist the parties to determine whether any further evidence was required.

1. In accordance with those directions, I was provided with the list of hospitals that the parties agree are, or may be, "public hospitals". I attach that list as a schedule to these reasons. They agree that the hospitals identified in 1 to 205 of the Schedule have one, or more, of the criteria referred to earlier and that they fall within the words in the deceased's Will.

1. The facilities listed as 206-220 of the Schedule provide rehabilitation and/or palliative type care services. It is specifically noted that The Lottie Stewart Hospital, listed as 213, provided (and still apparently provides) care for persons with Huntington's disease. They ask whether that hospital might properly be included in the listing of "public hospitals" or not.

1. It seems to me, that the entities referred to as 206, 209, 210, 212, 215, 216, 218 and 219 would not fall within the meaning of the term in the deceased's Will. However, I am prepared to hear any additional submissions in respect of any of these entities if either party wishes to argue to the contrary.

1. The parties are agreed that the facilities listed as 221-239 of the Schedule are not to be regarded as being "public hospitals" and, in those circumstances should not be included. There is no reason to reject their conclusion in this regard.

1. Finally, the Eversleigh Hospital listed as 240 of the Schedule closed prior to the deceased's death and is, therefore not to be included.

1. In the circumstances, I make the following orders and directions:

(a) Order pursuant to UCPR rule 54.3(2), that the Plaintiff would be justified in distributing the estate of the late Leslie Vernon Bryce ("the deceased") on the basis that the gift in the second clause 3(d) of the Will of the deceased dated 9 May 2006 ("the Will") to Lorraine (surname unknown) has lapsed by reason of uncertainty.

(b) Determine that on the true construction of the Will of the deceased that the gift of the residue of the Estate of the deceased to "all public hospitals in New South Wales" in clause 4 of the Will, be distributed in equal proportion to each of the public hospitals set out beside 1 to 205, 207, 208, 211, 213, 214, 217, and 220 in the "Agreed table of Public Hospitals" that is annexed to these reasons, to be used by that public hospital for medical purposes or the purchase of medical equipment.

(c) Order that the Plaintiff's costs of the proceedings on the indemnity basis be paid out of the estate of the deceased.

(d) Order that the costs of the Defendant from the date of filing of the Summons (13 June 2012) be paid out of the estate of the deceased.

(e) Note that the Defendant will consider whether it will seek to enforce order 4 for its costs upon being advised by the Plaintiff of the amount of the residue of the Estate following payment of the Plaintiff's costs.

**********

Schedule of "Public Hospitals"

Institution Agreed to be a "Public Hospital"	Current Governing Body	Previous Governing Body
Albury Base Hospital	Murrumbidgee LHD	Greater Southern AHS
Armidale Rural Referral Hospital	Hunter New England LHD	Hunter New England AHS
Auburn Hospital	Western Sydney LHD	Sydney West AHS
Ballina District Hospital	Northern NSW LHD	North Coast AHS
Balmain Hospital	Sydney LHD	Sydney South West AHS
Balranald Hospital	Far West LHD	Greater Western AHS
Bankstown-Lidcombe Hospital	South Western Sydney LHD	Sydney South West AHS
Baradine Subsidiary Hospital	Western NSW Local Health District
Barham Koondrook Soldiers' Memorial Hospital	Murrumbidgee LHD	Greater Southern AHS
Barraba Multi Purpose Service (Hospital)	Hunter New England LHD	Hunter New England AHS
Batemans Bay District Hospital	Southern NSW LHD	Greater Southern AHS
Bathurst Base Hospital	Western NSW Local Health District
Batlow/Adelong Multi Purpose Service	Murrumbidgee LHD	Greater Southern AHS
Bega District Hospital	Southern NSW LHD	Greater Southern AHS
Bellinger River District Hospital	Mid North Coast LHD	North Coast AHS
Belmont District Hospital	Hunter New England LHD	Hunter New England AHS
Berrigan War Memorial Hospital	Murrumbidgee LHD	Greater Southern AHS
Bingara Community Hospital	Hunter New England LHD	Hunter New England AHS
Blacktown Hospital	Western Sydney LHD	Sydney West AHS
Blayney District Hospital	Western NSW Local Health District
Blue Mountains District ANZAC Memorial Hospital	Nepean Blue Mountains LHD	Sydney West AHS
Boggabri District Hospital	Hunter New England LHD	Hunter New England AHS
Bombala District Hospital	Southern NSW LHD	Greater Southern AHS
Bonalbo Hospital	Northern NSW LHD	North Coast AHS
Boorowa District Hospital	Murrumbidgee LHD	Greater Southern AHS
Bourke District Hospital	Western NSW Local Health District
Bowral and District Hospital	South Western Sydney LHD	Sydney South West AHS
Braidwood Hospital	Southern NSW LHD	Greater Southern AHS
Brewarrina District Hospital	Western NSW Local Health District
Broken Hill Base Hospital and Health Service	Far West LHD	Greater Western AHS
Bulahdelah Community Hospital	Hunter New England LHD	Hunter New England AHS
Bulli Hospital	Illawarra Shoalhaven LHD	South Eastern Sydney Illawarra AHS
Byron District Hospital	Northern NSW LHD	North Coast AHS
Calvary Mater Newcastle (previously Newcastle Mater Misericordiae)	Calvary Health Care (Newcastle) Ltd or Sisters of the Little Company of Mary?	Mercy Health Care (Newcastle) Ltd
Camden Hospital	South Western Sydney LHD	Sydney South West AHS
Campbelltown Hospital	South Western Sydney LHD	Sydney South West AHS
Canowindra Soldiers Memorial Hospital	Western NSW Local Health District
Canterbury Hospital	Sydney LHD	Sydney South West AHS
Casino & District Memorial Hospital	Northern NSW LHD	North Coast AHS
Cessnock District Hospital	Hunter New England LHD	Hunter New England AHS
Cobar District Hospital	Western NSW Local Health District
Coffs Harbour Base Hospital	Mid North Coast LHD	North Coast AHS
Coledale Hospital	Illawarra Shoalhaven LHD	South Eastern Sydney Illawarra AHS
Collarenebri District Hospital	Western NSW Local Health District
Concord Repatriation General Hospital	Sydney LHD	Sydney South West AHS
Condobolin District Hospital	Western NSW Local Health District
Coolah District Hospital	Western NSW Local Health District
Coolamon Multi-Purpose Service	Murrumbidgee LHD	Greater Southern AHS
Cooma Hospital and Health Service	Southern NSW LHD	Greater Southern AHS
Coonabarabran District Hospital	Western NSW Local Health District
Coonamble District Hospital	Western NSW Local Health District
Cootamundra Hospital	Murrumbidgee LHD	Greater Southern AHS
Corowa Hospital	Murrumbidgee LHD	Greater Southern AHS
Cowra District Hospital	Western NSW Local Health District
Crookwell District Hospital	Southern NSW LHD	Greater Southern AHS
Cudal War Memorial Hospital	Western NSW Local Health District
Culcairn Multi-Purpose Service	Murrumbidgee LHD	Greater Southern AHS
David Berry Hospital	Illawarra Shoalhaven LHD	South Eastern Sydney Illawarra AHS
Delegate Multi-Purpose Service	Southern NSW LHD	Greater Southern AHS
Deniliquin Hospital	Murrumbidgee LHD	Greater Southern AHS
Denman Multi Purpose Service Hospital	Hunter New England LHD
Dorrigo Multi Purpose Service	Mid North Coast LHD	North Coast AHS
Dubbo Base Hospital	Western NSW Local Health District
Dunedoo War Memorial Hospital	Western NSW Local Health District
Dungog Community Hospital	Hunter New England LHD	Hunter New England AHS
Emmaville-Vegetable Creek Multi Purpose Service	Hunter New England LHD	Hunter New England AHS
Eugowra Memorial Hospital	Western NSW Local Health District
Fairfield Hospital	South Western Sydney LHD	Sydney South West AHS
Finley Hospital	Murrumbidgee LHD	Greater Southern AHS
Forbes District Hospital	Western NSW Local Health District
Gilgandra District Hospital	Western NSW Local Health District
Glen Innes District Health Service	Hunter New England LHD	Hunter New England AHS
Gloucester Soldiers Memorial Hospital (Gloucester District Health Service)	Hunter New England LHD	Hunter New England AHS
Goodooga District Hospital	Western NSW Local Health District
Gosford Hospital	Central Coast LHD	Northern and Central Coast AHS
Goulburn Base Hospital	Southern NSW LHD	Greater Southern AHS
Grafton Base Hospital	Northern NSW LHD	North Coast AHS
Grenfell District Hospital	Western NSW Local Health District
Griffith Base Hospital	Murrumbidgee LHD	Greater Southern AHS
Gulargambone Hospital	Western NSW Local Health District
Gulgong District Hospital	Western NSW Local Health District
Gundagai Hospital	Murrumbidgee LHD	Greater Southern AHS
Gunnedah District Health Service	Hunter New England LHD	Hunter New England AHS
Guyra Community Hospital	Hunter New England LHD
Hawkesbury District Health Service	Catholic Health Care (in the Nepean Blue Mountains LHD)
Hay Hospital	Murrumbidgee LHD	Greater Southern AHS
Henty Multi-Purpose Service	Murrumbidgee LHD	Greater Southern AHS
Hillston Hospital	Murrumbidgee LHD	Greater Southern AHS
Holbrook Hospital	Murrumbidgee LHD	Greater Southern AHS
Hornsby Hospital	Northern Sydney LHD	Northern Sydney and Central Coast AHS
Inverell District Health Service	Hunter New England LHD	Hunter New England AHS
Ivanhoe Hospital	Far West LHD	Greater Western Area Health Service
Jerilderie Multi-Purpose Service	Murrumbidgee LHD	Greater Southern AHS
John Hunter Hospital (incorporating John Hunter Children's Hospital and Royal Newcastle Centre)	Hunter New England LHD
Junee Hospital	Murrumbidgee LHD	Greater Southern AHS
Kempsey District Hospital	Mid North Coast LHD	North Coast AHS
Kiama Hospital	Illawarra Shoalhaven LHD	South Eastern Sydney Illawarra AHS
Kurri Kurri District Health Service	Hunter New England LHD	Hunter New England AHS
Kyogle Memorial Hospital	Northern NSW LHD	North Coast AHS
Leeton Hospital	Murrumbidgee LHD	Greater Southern AHS
Lightning Ridge Health Service	Western NSW Local Health District
Lismore Base Hospital	Northern NSW LHD	North Coast AHS
Lithgow Hospital	Nepean Blue Mountains LHD	Sydney West AHS
Liverpool Hospital	South Western Sydney LHD	Sydney South West AHS
Lockhart Hospital	Murrumbidgee LHD	Greater Southern AHS
Macksville District Hospital	Mid North Coast LHD	North Coast AHS
Maclean District Hospital	Northern NSW LHD	North Coast AHS
Maitland Referral Hospital	Hunter New England LHD	Hunter New England AHS
Manilla District Health Service	Hunter New England LHD	Hunter New England AHS
Manly Hospital	Northern Sydney LHD	Northern Sydney and Central Coast AHS
Menindee Hospital	Far West LHD	Greater Western Area Health Service
Merriwa Community Hospital	Hunter New England LHD	Hunter New England AHS
Milton Ulladulla Hospital	Illawarra Shoalhaven LHD	South Eastern Sydney Illawarra AHS
Molong District Hospital	Western NSW Local Health District
Mona Vale Hospital	Northern Sydney LHD	Northern Sydney and Central Coast AHS
Moree District Health Service	Hunter New England LHD	Hunter New England AHS
Moruya District Hospital	Southern NSW LHD	Greater Southern AHS
Mt Druitt Hospital	Western Sydney LHD	Sydney West AHS
Mudgee District Hospital	Western NSW Local Health District
Mullumbimby & District War Memorial Hospital	Northern NSW LHD	North Coast AHS
Murrumburrah-Harden Hospital	Murrumbidgee LHD	Greater Southern AHS
Murrurundi Community Hospital (Wilson Memorial)	Hunter New England LHD	Hunter New England AHS
Murwillumbah District Hospital	Northern NSW LHD	North Coast AHS
Muswellbrook District Health Service	Hunter New England LHD	Hunter New England AHS
Narrabri District Health Service	Hunter New England LHD	Hunter New England AHS
Narrandera Hospital	Murrumbidgee LHD	Greater Southern AHS
Narromine District Hospital	Western NSW Local Health District
Nelson Bay District Hospital / Tomaree Community Hospital	Hunter New England LHD	Hunter New England AHS
Nepean Hospital	Nepean Blue Mountains LHD	Sydney West AHS
Nimbin Health Service	Northern NSW LHD	North Coast AHS
Nyngan District Hospital	Western NSW Local Health District
Oberon District Hospital	Western NSW Local Health District
Orange Base Hospital /Bloomfield	Western NSW Local Health District
Pambula District Hospital	Southern NSW LHD	Greater Southern AHS
Parkes District Hospital	Western NSW Local Health District
Peak Hill District Hospital	Western NSW Local Health District
Port Kembla Hospital	Illawarra Shoalhaven LHD	South Eastern Sydney Illawarra AHS
Port Macquarie Base Hospital	Mid North Coast LHD	North Coast AHS
Portland Hospital / Portland Tabulam Health Centre	Nepean Blue Mountains LHD	Sydney West AHS
Prince of Wales Hospital	South Eastern Sydney LHD	South Eastern Sydney Illawarra AHS
Queanbeyan District Hospital	Southern NSW LHD	Greater Southern AHS
Quirindi Community Hospital / Quirindi District Health Service	Hunter New England LHD	Hunter New England AHS
Royal Hospital for Women	South Eastern Sydney LHD	South Eastern Sydney Illawarra AHS
Royal North Shore Hospital	Northern Sydney LHD	Northern Sydney and Central Coast AHS
Royal Prince Alfred Hospital	Sydney LHD	Sydney South West AHS
Ryde Hospital	Northern Sydney LHD
Rylstone District Hospital	Western NSW Local Health District
Scone District Health Service	Hunter New England LHD	Hunter New England AHS
Shellharbour Hospital	Illawarra Shoalhaven LHD	South Eastern Sydney Illawarra AHS
Shoalhaven District Memorial Hospital	Illawarra Shoalhaven LHD	South Eastern Sydney Illawarra AHS
Singleton District Health Service	Hunter New England LHD	Hunter New England AHS
Springwood Hospital	Sydney West AHS
St George Hospital	South Eastern Sydney LHD	South Eastern Sydney Illawarra AHS
St Joseph's Hospital Ltd	St Joseph's Hospital (Auburn).
St Vincent's Hospital, Darlinghurst.	St Vincent's Hospital Sydney Ltd
St Vincents Private Hospital - previously known as St Vincent's Community Hospital (Lismore) in respect of the day hospital, the rehabilitation unit and the community health facilities.	St Vincents Private Hospital	The Trustees of the Roman Catholic Church for the diocese of Lismore
Sydney Hospital and Sydney Eye Hospital	South Eastern Sydney LHD	South Eastern Sydney Illawarra AHS
Tamworth Referral Hospital	Hunter New England LHD	Hunter New England AHS
Taree-Manning Referral Hospital	Hunter New England LHD	Hunter New England AHS
Temora Hospital	Murrumbidgee LHD	Greater Southern AHS
Tenterfield Community Hospital	Hunter New England LHD	Hunter New England AHS
The Campbell Hospital, Coraki	Northern NSW LHD	North Coast AHS
The Children's Hospital at Randwick	The Sydney Children's Hospital Network	South Eastern Sydney Illawarra AHS
The Children's Hospital at Westmead (incorporating The Royal Alexandria Hospital for Children)	The Sydney Children's Hospital Network
The Sutherland Hospital	South Eastern Sydney LHD	South Eastern Sydney Illawarra AHS
The Tweed Hospital	Northern NSW LHD	North Coast AHS
Tibooburra Hospital	Far West LHD	Greater Western Area Health Service
Tingha Community Hospital	Hunter New England LHD	Hunter New England AHS
Tocumwal Hospital	Murrumbidgee LHD	Greater Southern AHS
Tottenham Hospital	Western NSW Local Health District
Trangie District Hospital	Western NSW Local Health District
Trundle Hospital	Western NSW Local Health District
Tullamore District Hospital	Western NSW Local Health District
Tumbarumba Multi-Purpose Service	Murrumbidgee LHD	Greater Southern AHS
Tumut Hospital	Murrumbidgee LHD	Greater Southern AHS
Urana Multi Purpose Service / McCaughey Memorial Hospital	Murrumbidgee LHD	Greater Southern AHS
Urbenville Health Service	Northern NSW LHD	North Coast AHS
Wagga Wagga Base Hospital	Murrumbidgee LHD	Greater Southern AHS
Walcha Multi Purpose Service	Hunter New England LHD	Hunter New England AHS
Walgett District Hospital	Western NSW Local Health District
Warialda Multi Purpose Service	Hunter New England LHD	Hunter New England AHS
Warren District Hospital	Western NSW Local Health District
Wauchope District Memorial Hospital	Mid North Coast LHD	North Coast AHS
Wee Waa Multi Purpose Service	Hunter New England LHD	Hunter New England AHS
Wellington District Hospital	Western NSW Local Health District
Wentworth Hospital	Far West LHD	Greater Western Area Health Service
Werris Creek Community Hospital	Hunter New England LHD	Hunter New England AHS
West Wyalong Hospital	Murrumbidgee LHD	Greater Southern AHS
Westmead Hospital	Western Sydney LHD	Sydney West AHS
White Cliffs Hospital	Far West LHD	Greater Western Area Health Service
Wilcannia Hospital	Far West LHD	Greater Western Area Health Service
Wingham Community Hospital	Hunter New England LHD	Hunter New England AHS
Wollongong Hospital	Illawarra Shoalhaven Local Health District	South Eastern Sydney Illawarra AHS
Woy Woy Hospital	Central Coast LHD	Northern and Central Coast AHS
Wyong Hospital	Central Coast LHD	Northern and Central Coast AHS
Yass District Hospital	Southern NSW LHD	Greater Southern AHS
Young Hospital	Murrumbidgee LHD	Greater Southern AHS

The following facilities have not been included in any correspondence but do appear on the associated Local Health District Website:

Facility

Local Health District

Gower Wilson Multi Purpose Service /

Gower Wilson Memorial Hospital (Lord Howe Island)

South Eastern Sydney LHD

Lake Cargelligo Hospital

Murrumbidgee LHD

The Cumberland Hospital (speciality Mental Health Facility)

Western Sydney LHD

Agreed Schedule of "Public Hospitals" being specialist hospitals

Institution Agreed to be a "Public Hospital"	Current Governing Body	Previous Governing Body	Specialist Service
Sydney Dental Hospital	Sydney LHD	Sydney South West AHS	Oral Health
James Fletcher (Newcastle)	Mental Health Hospital
Morrisett	Mental Health Hospital
Rozelle Hospital	Mental Health (It is noted that the public hospital functions were relocated to the Concord Centre for Mental Health at Concord Repatriation General Hospital in June 2008.)
Kenmore Hospital	Greater Southern AHS	Mental Health

Agreed Schedule of Rehabilitation and Palliative Care Facilities - Undecided "Public Hospitals"

Facility	Current Governing Body	Previous Governing Body
Bourke Street Health Service	Southern NSW LHD	Greater Southern AHS
Braeside Hospital, Prairiewood.	HammondCare	Hope HealthCare Ltd
Buckland Convalescent Hospital t/a Buckland Aged Care Services	Buckland Aged Care Services
Calvary Health Care Sydney Limited	Calvary Hospital, Kogarah.
Carrington Centennial Nursing Home.	Carrington Care	Sydney South West AHS/ The Trustees of the Carrington Centennial Trust
Greenwich Hospital, Greenwich.	HammondCare	Hope HealthCare Ltd
Long Jetty Healthcare Facility	Central Coast LHD	Northern and Central Coast AHS
Lottie Stewart Hospital1	Uniting Church in Australia
Lourdes Hospital and Community Health Service (other than Holy Spirit Dubbo).	Catholic Health Care Services Limited
Mercy Care Centre, Young	Mercy Health
Mercy Health Service Albury Limited	Mercy Health
Neringah Hospital, Wahroonga.	HammondCare	Hope HealthCare Ltd
Royal Rehabilitation Centre	Northern Sydney LHD
Sacred Heart Hospice	Sacred Heart Hospice Limited.
War Memorial Hospital (Waverley).	Uniting Church in Australia

Agreed List of Services / Facilities that are not Public Hospitals

Facility	Current Governing Body	Previous Governing Body
Eleanor Mackinnon Junior Red Cross Home, Cronulla.	Australian Red Cross Society	Australian Red Cross Society
Glen Mervyn Junior Red Cross Children's Home, Randwick.	Australian Red Cross Society	Australian Red Cross Society
Central Sydney Scarba Services.Early Intervention Program.Eastern Sydney Scarba Services.South West Sydney Scarba Services.	Benevolent Society of New South Wales	Benevolent Society of New South Wales
Clinical Excellence Commission
HealthQuest
Karitane Family Care Centre	Child and Family health services at Carramar, Fairfield, Liverpool and Randwick.	Sydney South West AHS
Long Bay Hospital	Justice Health & Forensic Mental Health Network	Justice Health
Nursing Education Programs conducted under agreement with the NSW Department of Health.	The College of Nursing
Royal Flying Doctor Service of Australia (South Eastern Section)	Royal Flying Doctor Service of Australia (South Eastern Section).
St Vincent's Health Service Bathurst	Catholic Healthcare (appears to be an outreach service p41 affidavit S Wilson 24.9.12)
Tresillian Family Care Centres at Belmore, Penrith, Willoughby and Wollstonecraft.	Royal Society for the Welfare of Mothers and Babies	Sydney South West AHS
The Stewart House Preventorium
Tresillian Family Care Centre	Sydney South West AHS

Agreed Schedule of Aged Care Facilities not being "Public Hospitals"

Aged Care Facility	Current Governing Body	Previous Governing Body
Babworth House (After Care Unit), Darling Point.	St Vincent's Hospital Sydney Ltd - in any event the property was sold in 2000 and the unit is no longer operating
Governor Phillip Nursing Home	Nepean Blue Mountains LHD (transferred to RSL LifeCare Ltd on 20 June 2011)	Sydney West AHS
Graythwaite Nursing Home, North Sydney.	Hope HealthCare Ltd
St Anthony's Home, Croydon.	St Anthony's Family Care	St Anthony's and St Joseph's Centre of Care Ltd
The Garrawarra Aged Care Centre	South Eastern Sydney LHD
Queen Victoria Memorial Home	Sydney South West AHS

Agreed Schedule of other Services closed prior to the deceased's death

Institution / Facility	Governing Body
Eversleigh Hospital, Petersham.	Hope HealthCare Ltd

Decision last updated: 30 October 2012