Application by BT Funds Management Ltd [2017] NSWSC 45

Application by BT Funds Management Ltd [2017] NSWSC 45

Because the trustee had actual knowledge that the deceased and his widow were permanently separated after the giving of the direction, the trust deed required the trustee to treat the direction as a non-binding request; the trustee was not compelled to pay all or any part of the death benefit to the widow but could exercise its discretion to pay the benefit or any remaining part to dependants and/or the legal personal representative.

Jurisdiction
Australia
Judgment Date
03 February 2017
Procedural Posture
Application for Judicial Advice / Final Judgment
Outcome
Application for judicial advice granted; orders made as sought.
Legal Topics
['judicial Advice to Trustee' 'superannuation Death Benefits' 'permanent Separation and Effect on Beneficiary Directions']
['equity' 'trusts' 'superannuation'] ['judicial Advice to Trustee' 'superannuation Death Benefits' 'permanent Separation and Effect on Beneficiary Directions']

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Procedural Posture

Application for Judicial Advice / Final Judgment

Legal Issues

  1. 1 ['Whether trustee must treat a non-lapsing direction in favour of a separated spouse as a binding direction or as a request' "Whether trustee is compelled to pay all or any part of a superannuation death benefit to the deceased's former spouse" 'Entitlement of trustee to indemnity for costs from the death benefit']

Ratio Decidendi

Because the trustee had actual knowledge that the deceased and his widow were permanently separated after the giving of the direction, the trust deed required the trustee to treat the direction as a non-binding request; the trustee was not compelled to pay all or any part of the death benefit to the widow but could exercise its discretion to pay the benefit or any remaining part to dependants and/or the legal personal representative.

Court Disposition

Application for judicial advice granted; orders made as sought.

Orders

  • ['Order pursuant to section 63 of the Trustee Act 1925 (NSW) that the trustee is justified in determining its conditional consent to the Non-Lapsing Direction is revoked due to actual knowledge of separation.' 'Order that the trustee is justified in not being compelled to pay death benefit to Grace as provided in...