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Rankin Ellison Lawyers recently assisted Calvary Mater Newcastle to ensure that it received a gift to which it was entitled under the Will of the late Professor Anna Rutherford.


In the Will, dated 9 February 1999, Professor Rutherford left the residue of her estate to the “Newcastle Mater Misericordiae Cancer Research Fund”.


Two problems arose, in that the Newcastle Mater Misericordiae Hospital has changed entity name since the date of the Will, and the fund to which the gift was bequeathed was incorrectly named in the Will. The Executors of the Estate sought an order from the Supreme Court to confirm to whom the gift should be paid.


The Newcastle Mater Misericordiae Hospital was founded by The Trustees of the Sisters of Mercy (Singleton) in 1921. When the Will was made in 1999, the Hospital was still operated by The Trustees of the Sisters of Mercy, through a company called Mercy Health Care (Newcastle) Limited.  The Hospital is currently operated by Calvary Health Care (Newcastle) Limited, and the Court considered “the Hospital has always been under the same proprietorship”.


The Court also needed to be satisfied that the “Cancer Research Fund” referred to in the Will, existed at the time the Will was made, and continues to exist today. Evidence was presented to show that the Hospital’s Oncology Research Fund was formally established in 1993 and has continued through the change in entity name.


Acting Justice Young of the Supreme Court of NSW found:


If there is a gift to the Mater Hospital Cancer Research Fund and one takes the view, as I do on the evidence, that that is merely a misnomer of the Oncology Research Fund, then there is a gift to Calvary Health Care Newcastle Ltd on (quasi) trust for the Oncology Research FundIt is apparent that the testatrix meant to give her money to the proprietor of the Mater Hospital on trust for cancer research and nominated the Oncology Research Fund as the medium to let this happen.”  

The Court made an order that the residue of the Deceased’s estate, which was a substantial sum, should be distributed to the Oncology Research Fund at the Calvary Mater Hospital Newcastle. 


This case highlights the importance of correctly naming charitable beneficiaries in your Will. We recommend inclusion of the organisation’s ACN or ABN. If you have a gift to a charity or a health organisation in your Will and would like to review the wording, contact Rankin Ellison Lawyers.


Sydney: 02 8297 5900 Newcastle: 02 4929 9333  

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