Estate of the late Connie Wai Fong Wong [2021] NSWSC 967

Estate of the late Connie Wai Fong Wong [2021] NSWSC 967

Although the constitution of the Education Fund referred to in clause 8.1 was not annexed and did not exist, the other provisions of the Will sufficiently constituted the Education Fund, identified its term and beneficiaries, and conferred powers on the trustees. Clause 3.2(j) empowered reimbursement of school and university education expenses already paid where proper proof of expenditure was provided. Because the trustees were likely required to act unanimously and there were practical difficulties involving Sai Ki Yeung, it was expedient under s 70 of the Trustee Act 1925 (NSW) to appoint Anthony Joseph Gagliano as new trustee in substitution for Mr Yeung, with liberty to Mr Yeung to...

Jurisdiction
Australia
Judgment Date
09 July 2021
Procedural Posture
Application by Summons for Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) and Appointment of a New Trustee Under S 70 of the Trustee Act 1925 (nsw) / Principal Judgment
Outcome
Judicial advice granted, Anthony Joseph Gagliano appointed as new trustee in substitution for Sai Ki Yeung, and plaintiffs' costs ordered to be paid from the Education Fund on the indemnity basis.
Legal Topics
['judicial Advice' 'administration of Testamentary Education Fund' 'construction of Will' 'substitution of Trustee' 'reimbursement of School and University Education Expenses']
['succession' 'trusts and Trustees' 'equity'] ['judicial Advice' 'administration of Testamentary Education Fund' 'construction of Will' 'substitution of Trustee' 'reimbursement of School and University Education Expenses']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application by Summons for Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) and Appointment of a New Trustee Under S 70 of the Trustee Act 1925 (nsw) / Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiffs and any current trustees were justified in administering the Education Fund despite the absence of the constitution said to be annexed to the Will.' 'Whether clauses 2.1, 2.2, 3.1, 3.2, 8.1, 8.2 and 9 of the Will sufficiently constituted the Education Fund.' 'Whether clause 3.2(j) empowered trustees to reimburse beneficiaries, or their parents or guardians, for fees already paid for school and university education.' 'Whether Anthony Joseph Gagliano should be appointed as a new trustee in substitution for Sai Ki Yeung under s 70 of the Trustee Act 1925 (NSW).']

Ratio Decidendi

Although the constitution of the Education Fund referred to in clause 8.1 was not annexed and did not exist, the other provisions of the Will sufficiently constituted the Education Fund, identified its term and beneficiaries, and conferred powers on the trustees. Clause 3.2(j) empowered reimbursement of school and university education expenses already paid where proper proof of expenditure was provided. Because the trustees were likely required to act unanimously and there were practical difficulties involving Sai Ki Yeung, it was expedient under s 70 of the Trustee Act 1925 (NSW) to appoint Anthony Joseph Gagliano as new trustee in substitution for Mr Yeung, with liberty to Mr Yeung to...

Court Disposition

Judicial advice granted, Anthony Joseph Gagliano appointed as new trustee in substitution for Sai Ki Yeung, and plaintiffs' costs ordered to be paid from the Education Fund on the indemnity basis.

Orders

  • ['Order pursuant to s 63 of the Trustee Act 1925 (NSW), that the plaintiffs and any current trustees of the Education Fund referred to in clause 8.1 of the Will dated 15 December 1999 of the late Connie Wai Fong Wong are justified in proceeding to administer the Education Fund on the basis that the constitution of...