Part 9Testamentary gifts and trusts

Part 9—Testamentary gifts and trusts 76—Interpretation prescribed entity means— (a) a hospital or health centre incorporated under the repealed Act; or (b) an entity incorporated under another Act which performs functions related to the provision of a health service, other than a private hospital; or (c) an entity incorporated under this Act, but does not include any entity excluded from the ambit of this definition by the regulations. 77—Application of Part (1) This Part applies to a testamentary disposition or trust made or created before or after the commencement of this Part. (2) This Part is in addition to, and does not derogate from, the Trustee Act 1936. (3) However, references in section 69B of the Trustee Act 1936 to the original purposes of a trust will, if relevant to an application under that section, be construed after taking into account the operation of this Part. 78—Testamentary gifts and trusts (1) If— (a) a testamentary disposition has been made in favour of, or a trust has been created for the benefit of, a prescribed entity or a part of a prescribed entity; and (b) the prescribed entity has been dissolved (whether before or after the commencement of this section); and (c) either— (i) all of the functions of the prescribed entity or the relevant part of the prescribed entity (as the case requires) have been transferred to an incorporated hospital or an incorporated health service under this Act; or (ii) the Minister has, by instrument published in the Gazette, certified that, in his or her opinion, a major proportion of the functions of the prescribed entity or the relevant part of the prescribed entity (as the case requires) have been transferred to an incorporated hospital or an incorporated health service under this Act, then the disposition will be taken to be made, or the trust will be taken to be created, (as the case requires) in favour of— (d) in a case where paragraph (c)(i) applies— (i) subject to subparagraph (ii) of this paragraph—the relevant incorporated hospital or incorporated health service (as the case requires); or (ii) if the constitution of an incorporated HAC provides that the HAC is to assume the benefit of any testamentary disposition or trust to which this section applies in substitution for the hospital (named in the constitution) that would otherwise obtain the benefit of this section under subparagraph (i)—that HAC; (e) in a case where paragraph (c)(ii) applies—an incorporated hospital, an incorporated health service or an incorporated HAC, as designated by the Minister by notice in the Gazette. (1a) If— (a) a testamentary disposition has been made in favour of, or a trust has been created for the benefit of, a prescribed entity that was a hospital or health centre incorporated under the repealed Act and that has been dissolved; and (b) — (i) all of the functions of the prescribed entity have been transferred to an incorporated hospital under this Act; or (ii) subparagraph (i) does not apply and the Minister has, by instrument published in the Gazette, identified an incorporated hospital or an incorporated HAC under this Act that, in the Minister's opinion, is the appropriate incorporated hospital or incorporated HAC (as the case requires) to assume the benefit of the testamentary disposition, taking into account the transfer of functions of the prescribed entity on and after its dissolution, then the disposition will be taken to be made, or the trust will be taken to be created, (as the case requires) in favour of— (c) in a case where paragraph (b)(i) applies— (i) subject to subparagraph (ii) of this paragraph—the relevant incorporated hospital; or (ii) if the constitution of an incorporated HAC provides that the HAC is to assume the benefit of any testamentary disposition or trust to which this section applies in substitution for the hospital (named in the constitution) that would otherwise obtain the benefit of this section under subparagraph (i)—that HAC; or (d) in a case where paragraph (b)(ii) applies—an incorporated hospital or an incorporated HAC, as designated by the Minister by notice in the Gazette. (2) The Minister must consult with the Attorney‑General before making a designation under subsection (1)(e). (3) If— (a) a testamentary disposition has been made in favour of, or a trust has been created for the benefit of, the patients or residents of a prescribed entity or a part of a prescribed entity; and (b) the prescribed entity has been dissolved (whether before or after the commencement of this section); and (c) either— (i) all of the functions of the prescribed entity or the relevant part of the prescribed entity (as the case requires) have been transferred to an incorporated hospital or an incorporated health service under this Act; or (ii) the Minister has, by instrument published in the Gazette, certified that, in his or her opinion, a major proportion of the functions of the prescribed entity or the relevant part of the prescribed entity (as the case requires) have been transferred to an incorporated hospital or an incorporated health service under this Act, then the disposition will be taken to be made, or the trust will be taken to be created, (as the case requires) in favour of, the patients or residents of the incorporated hospital or the incorporated health service (as the case requires). (3a) If— (a) a testamentary disposition has been made in favour of, or a trust has been created for the benefit of, the patients or residents of a prescribed entity that was a hospital or health centre incorporated under the repealed Act and that has been dissolved; and (b) — (i) all of the functions of the prescribed entity have been transferred to an incorporated hospital under this Act; or (ii) subparagraph (i) does not apply and the Minister has, by instrument published in the Gazette, identified an incorporated hospital or an incorporated HAC under this Act that, in the Minister's opinion, is the appropriate incorporated hospital or incorporated HAC (as the case requires) to assume the benefit of the testamentary disposition, taking into account the transfer of functions of the prescribed entity on and after its dissolution, then the disposition will be taken to be made, or the trust will be taken to be created, (as the case requires) in favour of the patients or residents of the incorporated hospital or incorporated HAC. (4) A testamentary disposition or trust that is subject to the operation of this section must be administered in a manner that accords, as far as is reasonably practicable, with the spirit of the original purposes of the disposition or trust. (5) Nothing in this section operates to defeat the intention reflected by the provisions or terms of a testamentary disposition or trust that provide that, should the beneficiary cease to exist, the testamentary disposition or trust was to lapse or was to be in favour of some other person or body. (6) Nothing in this section invalidates the execution, declaration or creation of a testamentary disposition or trust made or effected before the commencement of this section. (7) Nothing in this section— (a) affects the operation of any order or determination of a court made before the commencement of this section; or (b) affects the operation or validity of an act or decision of an executor or executrix, or a trustee, lawfully taken or made before the commencement of this section. (8) This section operates subject to any exclusions prescribed by the regulations. (9) For the purposes of this section, a reference to a testamentary disposition includes a reference to a surrender or release effected by a testamentary disposition.