Douglas v James [2015] NSWSC 299

Douglas v James [2015] NSWSC 299

On the true construction of the will, the Appointor of the CPT did not have the power to appoint or remove trustees. There was no express grant of such a power, nor justification for implying it from the terms of the will. The definition and structure of the will distinguished between the different powers of various Appointors in relation to the CPT and the BCTTs, indicating that any power to remove original trustees of the CPT was not given. Extrinsic evidence did not establish a relevant intention by the testator. Rectification was not available and no words could be read in to cure the absence of the power, as the testator's intention was not sufficiently clear.

Parties
First Plaintiff / First Cross Defendant / First Respondent: Zeta Kathleen Douglas; Second Plaintiff / Second Cross Defendant / Second Respondent: Marea Gilbert; First Defendant / Cross Claimant / Applicant: David James; Second Defendant / Sixth Cross Defendant / Sixth Respondent: Janina Kik; Third Defendant / Fifth Cross Defendant / Fifth Respondent: Trudy James; Third Cross Defendant / Third Respondent: Lyn Ison; Fourth Cross Defendant / Fourth Respondent: Angela Webber; Seventh Cross Defendant / Seventh Respondent: John Croce Palmieri
Jurisdiction
Australia
Judgment Date
25 March 2015
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Plaintiffs entitled to declarations; cross-summons dismissed; costs reserved; directions listed for further hearing.
Legal Topics
Construction of Will, Testamentary Trusts, Appointor Powers, Removal and Replacement of Trustees, Rectification of Will
Wills & Estates Equity Construction of Will Testamentary Trusts Appointor Powers Removal and Replacement of Trustees Rectification of Will

Case Brief

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Parties

Zeta Kathleen Douglas

First Plaintiff / First Cross Defendant / First Respondent

Marea Gilbert

Second Plaintiff / Second Cross Defendant / Second Respondent

David James

First Defendant / Cross Claimant / Applicant

Janina Kik

Second Defendant / Sixth Cross Defendant / Sixth Respondent

Trudy James

Third Defendant / Fifth Cross Defendant / Fifth Respondent

Lyn Ison

Third Cross Defendant / Third Respondent

Angela Webber

Fourth Cross Defendant / Fourth Respondent

John Croce Palmieri

Seventh Cross Defendant / Seventh Respondent

Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 Whether the will gave the Appointor of the Capital Protected Trust (CPT) the power to remove and appoint trustees of the CPT
  2. 2 Whether it is justified to imply or read in such a power to the Appointor from the will
  3. 3 Whether extrinsic evidence showed direct instructions or actual intention of the testator for such a power

Ratio Decidendi

On the true construction of the will, the Appointor of the CPT did not have the power to appoint or remove trustees. There was no express grant of such a power, nor justification for implying it from the terms of the will. The definition and structure of the will distinguished between the different powers of various Appointors in relation to the CPT and the BCTTs, indicating that any power to remove original trustees of the CPT was not given. Extrinsic evidence did not establish a relevant intention by the testator. Rectification was not available and no words could be read in to cure the absence of the power, as the testator's intention was not sufficiently clear.

Court Disposition

Plaintiffs entitled to declarations; cross-summons dismissed; costs reserved; directions listed for further hearing.

Orders

  • Declare that on the true construction of the will dated 4 May 2011 of Stanley Edward Douglas deceased, the Appointor named in cl 10.4 of that will has no power to remove and appoint trustees of the Capital Protected Trust created by that will.
  • Declare that neither Zeta Kathleen Douglas nor Marea Gilbert has been validly removed as a trustee of the said Capital Protected Trust.