Saul & Ors v Lin [2004] NSWSC 307

Saul & Ors v Lin [2004] NSWSC 307

The Deed Poll constituted a valid trust as the Defendant was not the sole beneficiary; it is expedient to remove the Defendant as trustee on grounds of incapacity and to appoint new trustees, but the Court generally prefers independent trustees over close relatives unless special circumstances justify otherwise.

Jurisdiction
Australia
Judgment Date
15 April 2004
Procedural Posture
Equity (trusts) / Ex Tempore Judgment at First Instance
Outcome
Declaration that valid trust created; trustee will be removed if suitable independent trustees are proposed.
Legal Topics
['validity of Self Declaration of Trust' 'removal and Appointment of Trustees Under Trustee Act' "management of Incapable Person's Estate"]
['equity' 'trusts'] ['validity of Self Declaration of Trust' 'removal and Appointment of Trustees Under Trustee Act' "management of Incapable Person's Estate"]

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Procedural Posture

Equity (trusts) / Ex Tempore Judgment at First Instance

Legal Issues

  1. 1 ['Whether a valid trust was created by the Defendant declaring himself trustee of his own shares for himself for life with remainder to named beneficiaries' 'Whether the Defendant, being incapable, should be removed as trustee and new trustees appointed under s.70(2) Trustee Act' 'Whether near relatives of the beneficiaries should be appointed as new trustees']

Ratio Decidendi

The Deed Poll constituted a valid trust as the Defendant was not the sole beneficiary; it is expedient to remove the Defendant as trustee on grounds of incapacity and to appoint new trustees, but the Court generally prefers independent trustees over close relatives unless special circumstances justify otherwise.

Court Disposition

Declaration that valid trust created; trustee will be removed if suitable independent trustees are proposed.

Orders

  • ['Matter stood over to allow parties to consider trustee appointments and make further submissions.' 'Declaration to be made in terms of paragraph 1 of the Summons.' 'Order for removal of Defendant as trustee and appointment of new trustees to be made if suitable new trustees are proposed.' 'Further orders and...