Re Bell [2004] NSWSC 1175

Re Bell [2004] NSWSC 1175

The trustees were advised that future income is to be distributed on the basis that next of kin are those specified in the pre-1977 version of s 33 of the Conveyancing Act 1919; if an income next of kin dies intestate, the income passes to the administrator of that estate. For capital distribution, the futurity problem could be addressed through s 63(8) of the Trustee Act 1925 notice protections, and the pre-1977 s 33 applies to determining the next of kin of the nephews and nieces who are to take capital. The Court would not give general advice on terminating the trust without a proposed scheme.

Jurisdiction
Australia
Judgment Date
06 December 2004
Procedural Posture
Application for Advice to Trustees Concerning Administration of a Testamentary Trust / Judgment on Orders and Further Consideration of Gifts of Capital
Outcome
Advice given as to proper administration of trust; matter stood over.
Legal Topics
['advice to Trustees' 'administration of Testamentary Trust' 'declaratory Orders on Hypothetical or Future Questions' 'next of Kin' 'acceleration of Remainder Interests' 'distribution of Income and Capital']
['equity' 'trusts' 'succession' 'practice and Procedure'] ['advice to Trustees' 'administration of Testamentary Trust' 'declaratory Orders on Hypothetical or Future Questions' 'next of Kin' 'acceleration of Remainder Interests' 'distribution of Income and Capital']

Case Brief

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Procedural Posture

Application for Advice to Trustees Concerning Administration of a Testamentary Trust / Judgment on Orders and Further Consideration of Gifts of Capital

Legal Issues

  1. 1 ['Whether the trustees should continue to administer the estate on the basis of the 1988 advice or distribute future income in accordance with s 33 of the Conveyancing Act 1919 as amended in 1954.' 'If any of the income next of kin die intestate, how the trustees should determine the identity of the next of kin and whether s 33 in its pre-1977 form applies.' 'For capital distribution purposes on the death of the survivor of Joan and Ellen, whether the trustees should distribute capital to the next of kin then living in accordance with the pre-1977 regime and, if not, on what basis capital is to be distributed.' 'Whether the trustees are entitled to wind up the trust at this stage on the ground that it would be expedient to do so and what steps should be taken to bring about a final distribution of capital.' 'Whether the Court should answer questions arising in the administration of an estate that are hypothetical or dependent on future events.']

Ratio Decidendi

The trustees were advised that future income is to be distributed on the basis that next of kin are those specified in the pre-1977 version of s 33 of the Conveyancing Act 1919; if an income next of kin dies intestate, the income passes to the administrator of that estate. For capital distribution, the futurity problem could be addressed through s 63(8) of the Trustee Act 1925 notice protections, and the pre-1977 s 33 applies to determining the next of kin of the nephews and nieces who are to take capital. The Court would not give general advice on terminating the trust without a proposed scheme.

Court Disposition

Advice given as to proper administration of trust; matter stood over.

Orders

  • ['The trustees from now on are to distribute income on the basis that the next of kin are those specified in the pre-1977 version of s 33 of the Conveyancing Act 1919.' "If any income next of kin dies intestate, the pre-1977 form of s 33 applies and the income will pass to the administrator of that income next of...