Estate of the late Morris Zion Forbes v State of New South Wales & Ors [2010] NSWSC 1439

New South Wales Supreme Court

CITATION : Estate of the late Morris Zion Forbes v State of New South Wales & Ors [2010] NSWSC 1439

HEARING DATE(S) : 7 December 2010

JUDGMENT DATE : 16 December 2010

JUDGMENT OF : Hallen AsJ

1. Order that the Plaintiff's notice of motion filed on 24 August 2010 is dismissed. DECISION : 2. Declare that upon a true construction of the Will of Morris Zion Forbes, and in the events that have happened, the second Defendant is entitled to the share of the deceased's estate referred to in Clause 9.60 of the deceased's Will for "Prince Henry Hospital of Anzac Parade Little Bay". 3. Order that the Plaintiff's costs, calculated on the indemnity basis, of the proceedings, including costs of the notice of motion referred to in Order 1 above, be paid or retained as the case may be, out of the residuary estate of the deceased. 4. Order that each of the Defendant's costs, calculated on the ordinary basis, of the proceedings, be paid out of the residuary estate of the deceased.

CATCHWORDS : PROCEDURE - Amendment of Summons - Joinder of parties - CONSTRUCTION OF WILL - meaning of identified beneficiary - whether gift to identified beneficiary (Hospital) lapsed - identity of beneficiary entitled - whether organisation successor to beneficiary

Area Health Services Act 1986 Civil Procedure Act 2005 LEGISLATION CITED : Civil Procedure Act 2006 Health Services Act 1997 Public Hospitals Act 1929 Succession Act 2006

CATEGORY : Principal judgment

Australian Executor Trustees Ltd v Ceduna District Health Services Inc & Ors [2006] SASC 286 Higstrim v Ray (1895) 16 LR (NSW) Eq 1 In re Groom [1897] 2 Ch 407 CASES CITED : In re Hall-Dare [1916] 1 Ch 272 In re Servers of the Blind League [1960] 1 WLR 564 Murdocca v Murdocca (No 2) [2002] NSWSC 505 Re Tyrie, deceased (No 1) [1972] VR 168 South Eastern Sydney Area Health Service v Wallace, [2003] NSWSC 1061