Williams v Attorney-General for the State of Tasmania
[1990] TASSC 12
•19 March 1990
Serial No 6/1990
List "A"
CITATION: Williams v Attorney-General for the State of Tasmania [1990] TASSC 12; A6/1990
PARTIES: WILLLIAMS
v
ATTORNEY-GENERAL
FOR THE STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M30/1989
DELIVERED ON: 19 March 1990
JUDGMENT OF: Neasey J
Judgment Number: A6/1990
Number of paragraphs: 6
Serial No 6/1990
List "A"
File No M30/1989
WILLIAMS v ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
REASONS FOR JUDGMENT NEASEY J
19 March 1990
The testatrix died on 14 July 1988, leaving a Will which contained inter alia the following clause:
"I give devise and bequeath unto my trustees the whole of my estate both real and personal of whatsoever nature and wheresoever situate to hold the same upon the following trusts:–
1As to my money in the ANZ Bank Latrobe for the Peter McCallum Clinic for Cancer Research."
The applicants are executors and trustees of the Will. The amount they hold in trust pursuant to clause 1 of the Will is $37,580.11. They have applied on an originating application for determination by the court of certain questions of construction arising under the Will, of which the principal are:
1Whether any, and if so what, institution is entitled to the legacy under clause 1 of the Will.
2Whether the answer to question 1 is affected, and if so how, by the provisions of the Cancer Services Act 1986 of Tasmania.
It was common ground on the hearing of the application, though there is no specific evidence to that effect, that no institution known as "Peter McCallum Clinic for Cancer Research" exists or has been known to exist in Tasmania or elsewhere, but the evidence filed in support of the application indicates that a "Peter McCullum Clinic (Tasmanian Division)" was established in Tasmania in 1952. It operated a centre at the Royal Hobart Hospital and another at the Launceston General Hospital. This Clinic was operated in Tasmania by the Victorian Cancer Institute Board in accordance with two agreements made between the States of Victoria and Tasmania dated 13 January 1952 and 18 March 1954, and also pursuant to the Cancer Institute Act 1948 of Victoria. Notwithstanding the administration of the Clinic from Victoria in this way, the costs of operation have been at all material times borne by the State of Tasmania.
On 1 July 1986, in accordance with the provisions of the Cancer Services Act 1986 of Tasmania (No 53/1986), control of the Peter McCullum Clinic was transferred to the State of Tasmania, and the name of the clinic was changed to "W P Holman Clinic", because the name "Peter McCullum" was a registered trade name of the Victorian Cancer Institute Board. Since that change was made, the W P Holman Clinic has been the principal organisation in Tasmania controlling and administering the treatment of cancer, and services provided at the Launceston centre and staffing levels maintained there have continued to be the same as they were before the change in 1986 was made. Before 1 July 1986, bequests of money to the Peter McCullum Clinic by Tasmanian residents were as a matter of consistent practice applied by the Victorian Cancer Institute Board to the Tasmanian division of the Clinic. Since 1 July 1986, there has been a special State Treasury account administered by the Department of Health in this State, established for reception of the payment of bequests made to the W P Holman Clinic. Moneys which had been held in trust for the Tasmanian division of the Peter McCullum Clinic by the Victorian Cancer Institute Board were paid into this account. Individual bequests of money which are paid into this account for the purposes of either the Hobart or Launceston centres are applied out of that account for the purposes of the particular centre designated. If the court should order that the W P Holman Clinic is entitled to receive payment of the gift in the present estate, it would be taken into that account.
There are two issues for determination here. The first is whether any institution is sufficiently designated by the description used by the testatrix in clause 1 of the Will so as to be entitled to the gift; or whether if no institution is sufficiently designated, it lapses. In my opinion there is no doubt that this gift does not lapse. The principle is succinctly stated in Jarman on Wills, 8th edn, Vol2, at p1233, in the following terms:
"But if the testator uses a description which, though inaccurate, affords some means of identifying the subject or object of the gift, the error may be explained by oral evidence".
Examples are given. In Tudor on Charities, 6th edn, at p204 the following statement apt for the present purpose appears:
"Ambiguity in Wills. If the evidence as to what institution is entitled raises an ambiguity in the Will, as if it appears that there is more than one institution to which the description given in the Will equally applies, then, but not otherwise, further evidence is admissible to determine which was the institution intended (cases cited). In cases of this kind evidence of the testator having been acquainted with or having subscribed to, or otherwise taken an interest in, one of the institutions, is always received, and such evidence will usually turn the scale (cases cited)."
See also, Picarda, The Law and Practice Relating to Charities, London, Butterworths, 1977, ch18.
The present case is one in which on the face of the description, though it is to some extent a misdescription, it might apply to more than one institution, for example, the Melbourne or Hobart or Launceston centres formerly operated under the Peter McCullum name, or the Clinic as a whole, and extrinsic evidence is admissible. The evidence in this case makes it plain, in my view, that the testatrix intended the Launceston Peter McCullum Centre to be the beneficiary. An affidavit has been filed by Lexie Gladys Williams, one of the applicants and a daughter of the deceased. The deponent states that she believes her mother intended the Launceston Peter McCullum Clinic to benefit, because her sister Nancy Smith, also a daughter of the deceased, died of cancer five or six years before 1989. Nancy Smith had been treated "at Clinic in Launceston in respect of her illness" (sic), and the deponent is aware that her deceased sister had asked the testatrix to direct her share of her mother's estate towards cancer research. It can be inferred from this that Nancy Smith was treated at the Launceston Peter McCullum centre for cancer treatment (not research), and that the testatrix intended that centre as the beneficiary. The fact that the word "research" is used in the Will, instead of "treatment" or some like word, as used by a lay testatrix and evidently adopted by her solicitor, comes within the category of a relatively minor misdescription. Therefore the first issue is resolved by holding that the Launceston centre operated by the Peter McCullum Clinic was the beneficiary intended, and will take if still in existence.
The second issue is whether, in the events which have happened, the gift nevertheless lapses because the Launceston centre operated by the Peter McCullum Clinic does not exist any longer, precisely under that description. The ordinary rule is that a gift by will to a particular charitable institution named therein, which at one time existed, but ceased to do so during the testator’s lifetime, ordinarily lapses; but to this rule there are some exceptions. The law is set out in a useful manner by Newton J in In Re Tirey [1972] VR 168, at pp177–178. One of the exceptions is referred to by his Honour by the following terms:
"(A)If at the testator's death there is in existence another institution which has taken over the work previously carried on by the named institution and which can properly be regarded as the successor to the named institution, and if the dominant charitable intention of the testator was wide enough to allow the gift to take effect in favour of that successor institution, then the gift will take effect in favour of the successor institution ...". (Ibid at p177).
The present case might at first glance be thought to come within that exception, but in my view there is no need to have recourse to it. The evidence in the present case shows that in all essentials the W P Holman Clinic is the same institution, carrying on the same work, as it was when operated under the Peter McCullum name as the Launceston centre carried on by the Tasmanian division of that Clinic. It has merely been renamed, and some alterations have been made to the method of its administration, of a kind which in my opinion do not effect the disposition of the gift. I think that this case merely requires identification from the evidence of the institution intended by the testatrix to benefit; and there is no doubt that the institution in question is the one presently operated under the name, "W P Holman Clinic". That institution is entitled under the Will to receive the gift. The case is quite like In Re Morgan’s Will Trusts; Lewirne v Minister of Health [1950] 1 Ch 637, except that the hospital which constituted the charity in question there had been during the testator's lifetime vested in the Minister of Health free from trusts, pursuant to the National Health Service Act 1946, and was thereupon operated by the Ministry of Health as one only of many hospitals so operated. The court had no difficulty in holding that a gift to the hospital, in the will slightly misdescribed, did not lapse but took effect as the testator intended. However, it was necessary to invoke a somewhat wider principle of the law governing charitable trusts because of the fact that the hospital had become one only of a large group. Here, there is no such need. It is merely a matter of identifying the beneficiary institution, which is the W P Holman Clinic. The questions should be answered accordingly, but in order to do that some amendment of the application will be necessary. I shall leave it to the parties to make the necessary application, and to speak to the minutes of the order.
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