The deceased left her estate to the “Medical Superintendent for the time being of the Mater Children’s Hospital in Brisbane for the purchase of medical equipment for the treatment of seriously ill children”. Further, the deceased directed her trustees “to see to the proper expenditure of this money for this purpose”.
However, at the time the deceased executed her will, there was no position properly characterised as the “Medical Superintendent of the Mater Children’s Hospital”. Relevantly, Mater Children’s Hospital, then operated by the first respondent, ceased to function as a public hospital in November 2014 and was replaced by the Lady Cilento Children’s Hospital, now operated by the second respondent.
The first respondent continues to provide hospital services in Brisbane but does not have an exclusive children’s hospital. The second respondent now operates the Lady Cilento Children’s Hospital. Accordingly, the questions for Douglas J were whether to apply the benefit of the estate to the first or second respondent and whether the bequest should be applied cy-près.
Determining that a cy-près order should be made in favour of the second respondent, Douglas J held:
 The first respondent submitted that there were three issues to be determined. The first was whether the will should be interpreted as conferring a gift to Mater Misericordiae Limited or its Chief Medical Officer for the charitable purpose set out in the will. The second point was whether the testator had failed to appoint a trustee effectively while the third was whether a cy-près order should be made.
 The first issue raises as a preliminary question, however, the nature of the charitable purpose set out in the will. The argument urged by Mater Misericordiae Limited was that the purpose was simply “the purchase of medical equipment for the treatment of seriously ill children”, which could readily be performed by Mater Misericordiae Limited as the body which actually ran the institution known as the Mater Children’s Hospital. The submission was that Mater Misericordiae Limited has simply been misdescribed in the will.
 The submissions for the Attorney-General were, however, that “on the four corners of the will” the funds were given for the purchase of medical equipment for the treatment of seriously ill children at the Mater Children’s Hospital, where the naming of the institution “demonstrated an intention that the charitable work or purposes which the testator wishes to benefit are to be benefited through the instrumentality of the named institution and in no other manner”. In that context, Ms Blattman submitted that the Mater Children’s Hospital was an institution even if it was not a legal entity, an institution including an undertaking formed to promote some defined purpose such as a hospital. That submission seems to me to be correct.
Further, as the deceased had used the words “in memory of myself and my late husband”, his Honour found that extrinsic evidence of the testatrix can be used pursuant to s 33C(1) of the Succession Act 1981 (Qld) to determine intention because:
 … the words “Medical Superintendent for the time being” are meaningless, there being no such position, or because the words “Medical Superintendent for the time being of the Mater Children’s Hospital” are now ambiguous in the light of surrounding circumstances since the Mater Children’s Hospital ceased its institutional existence. It is also relevant to any cy-près application in helping to establish what was the “spirit of the trust” for the purposes of s 105(1)(a)(iii) of the Trusts Act 1973.
Clearing the ambiguity, his Honour found:
 The evidence does not support the proposition that the reference to the “Medical Superintendent for the time being of the Mater Children’s Hospital” should be construed as a misdescribed reference to Mater Misericordiae Limited. Rather, it is consistent with the bequest having been made to the Mater Children’s Hospital as an institution where that institution has ceased to exist since her death so that it is now impossible to complete the bequest. In those circumstances, it is then relevant to consider when it became impossible to perfect the bequest.
Douglas J found that the bequest became impossible to perfect on 29 November 2014 when the Mater Children’s Hospital was replaced by the Lady Cilento Children’s Hospital. Making a cy-près order in favour of the second respondent, His Honour stated:
 When one considers the evidence in this case, the conclusion that seems logical to me is that the fund has “vested in charity” so there is no lapse and the gift should be applied cy-près. In any event, the language of the bequest established a wider charitable purpose permitting its application cy-près pursuant to the jurisdiction given by s 105(1)(a) of the Trusts Act 1973 on the bases that the original purposes can no longer be carried out or cannot be carried out according to the directions given and to the spirit of the trust.
 The institution having objects as near as possible to the objects of the extinct Mater Children’s Hospital must be the Lady Cilento Children’s Hospital. It was consciously built to take over the functions of the Mater Children’s Hospital as well as those of the Royal Children’s Hospital. The Mater interests had agreed to ensure the smooth transition of paediatric services from the Mater Children’s Hospital to the Lady Cilento Children’s Hospital. Significantly, from the testatrix’s point of view, it is a public hospital, and so falls within the spirit of the trust. Although Mater Misericordiae Limited continues to provide public hospital services to children, those objects of its continuing operation are not as near as possible to those of the Mater Children’s Hospital when compared to the operations of the Lady Cilento Children’s Hospital.
David Cormack – Brisbane Barrister & Mediator