South Australian Numbered Acts

HEALTH CARE ACT 2008 (NO 3 OF 2008) - SECT 78

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; 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 have been transferred to an incorporated hospital 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 have been transferred to an incorporated hospital 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

                  (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 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; 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 have been transferred to an incorporated hospital 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 have been transferred to an incorporated hospital 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.

        (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.