In the estate of the late Patrick Ambrose Tunchon [2019] NSWSC 802

In the estate of the late Patrick Ambrose Tunchon [2019] NSWSC 802

On the proper construction of the Will and having regard to the evidence, the executors would be justified in (1) distributing income and capital to a private ancillary fund established on terms consistent with the Will's definition of Beneficiaries and intended charitable purpose; (2) transferring the relevant Property to the Company for no consideration, accepting a resulting trust in its favour; but (3) would not be justified in releasing the debt owed to the estate by the Company, as it is not established that the debt is statute-barred or otherwise unenforceable, nor does the Will provide clear authority to release it.

Parties
Plaintiff/executor: Michael Tunchon; Second Plaintiff/executor: Margaret Anne Hodgkinson; Third Plaintiff/executor: Timothy John Edmondson
Jurisdiction
Australia
Judgment Date
28 June 2019
Procedural Posture
Procedural and Other Rulings / Judicial Advice Application
Outcome
Questions posed for judicial advice answered as set out in the judgment at [112].
Legal Topics
Applications for Judicial Advice, Resulting Trusts, Trusts—distribution of Income and Capital, Trust Property—management and Administration
Equity Trusts and Trustees Applications for Judicial Advice Resulting Trusts Trusts—distribution of Income and Capital Trust Property—management and Administration

Case Brief

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Parties

Michael Tunchon

Plaintiff/executor

Margaret Anne Hodgkinson

Second Plaintiff/executor

Timothy John Edmondson

Third Plaintiff/executor

Procedural Posture

Procedural and Other Rulings / Judicial Advice Application

Legal Issues

  1. 1 Whether the executors would be justified in distributing income and capital to a private ancillary fund under the will
  2. 2 Whether Property was held subject to a resulting trust in favour of Nina Clothing Pty Ltd
  3. 3 Whether executors would be justified in releasing a debt recorded in company records as owing to the deceased

Ratio Decidendi

On the proper construction of the Will and having regard to the evidence, the executors would be justified in (1) distributing income and capital to a private ancillary fund established on terms consistent with the Will's definition of Beneficiaries and intended charitable purpose; (2) transferring the relevant Property to the Company for no consideration, accepting a resulting trust in its favour; but (3) would not be justified in releasing the debt owed to the estate by the Company, as it is not established that the debt is statute-barred or otherwise unenforceable, nor does the Will provide clear authority to release it.

Court Disposition

Questions posed for judicial advice answered as set out in the judgment at [112].

Orders

  • Executors are justified in distributing trust income and capital to a private ancillary fund, subject to compliance with the Will's charitable purpose.
  • Executors are justified in transferring the Wahgunyah Property for no consideration to Nina Clothing Pty Ltd, accepting a resulting trust in its favour, unless further facts appear.