Hirst Estate - Atkinson & Anor v Royal Alexandra Hospital for Children & Ors [2010] NSWSC 613

Procedural Posture

Equity Division, Probate List; Construction of Will and Charitable Trust / Principal Judgment on Executors' Application for Declarations as to the True Construction of Clause 10 of the Will

Legal Issues

1. 1 ['Whether the gift to "The Royal Alexandria Hospital for Children" was valid notwithstanding the misspelling of "Alexandra" and whether that hospital was a separately operating hospital at the date of death.' 'Whether the reference to "Sydney Hospital" meant the institution known as "Sydney Hospital and Sydney Eye Hospital".' "Whether Sydney Hospital and Sydney Eye Hospital was a separately operating hospital at the date of the testatrix's death." 'Whether the terms of the gift to Sydney Hospital and Sydney Eye Hospital were impracticable and required a cy-pres scheme.']

Ratio Decidendi

The gift to the Royal Alexandra Hospital for Children was valid because the word "Alexandria" was a misspelling of "Alexandra" and the hospital was a separately operating hospital. The reference to "Sydney Hospital" was a reference to the single institution more fully described as "Sydney Hospital and Sydney Eye Hospital", which operated separately from any other hospital at the testatrix's death. The gift to that institution did not fail, but because its purposes involving an Accident and Emergency Centre and Intensive Care Facility were impracticable, a cy-pres scheme should be ordered.

Court Disposition

Gifts declared valid; cy-pres scheme ordered.

Orders

• ['Declare that the gift to the Royal Alexandra Hospital for Children is valid according to its tenor.' 'Declare that the gift to Sydney Hospital and Sydney Eye Hospital does not fail.' 'Order that a cy-pres scheme be settled for the gift to Sydney Hospital and Sydney Eye Hospital on terms to be agreed between Sydney...