Soo v Soo [2016] NSWSC 1666

Soo v Soo [2016] NSWSC 1666

Clause 15.17 does not empower the trustee to amend the trust as NSW law does not permit such amendments. The trustee is justified in construing 'each year' in clause 15.5 as 'each financial year' and may determine net income using taxation concepts and maintain accounts for specific beneficiary entitlements, per clauses 19.1(m) and 19.1(n) of the will.

Jurisdiction
Australia
Judgment Date
25 November 2016
Procedural Posture
Application for Judicial Advice (trusts) / Principal Judgment
Outcome
Advice given to trustee pursuant to s 63 of the Trustee Act 1925 (NSW); costs to be paid out of the Trust; summons otherwise dismissed.
Legal Topics
['testamentary Trusts' 'judicial Advice to Trustee' 'powers of Trustee' 'trust Amendment' 'allocation of Trust Income']
['equity' 'trusts'] ['testamentary Trusts' 'judicial Advice to Trustee' 'powers of Trustee' 'trust Amendment' 'allocation of Trust Income']

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Procedural Posture

Application for Judicial Advice (trusts) / Principal Judgment

Legal Issues

  1. 1 ['Whether clause 15.17 of the will gives the trustee power to amend the terms of the trust' "Interpretation of 'each year' in clause 15.5 of the will" "Trustee's power to determine net income in accordance with taxation concepts" "Trustee's power to maintain separate accounts for specific beneficiary entitlements"]

Ratio Decidendi

Clause 15.17 does not empower the trustee to amend the trust as NSW law does not permit such amendments. The trustee is justified in construing 'each year' in clause 15.5 as 'each financial year' and may determine net income using taxation concepts and maintain accounts for specific beneficiary entitlements, per clauses 19.1(m) and 19.1(n) of the will.

Court Disposition

Advice given to trustee pursuant to s 63 of the Trustee Act 1925 (NSW); costs to be paid out of the Trust; summons otherwise dismissed.

Orders

  • ['Advice given to Julie Yim Ying Soo as trustee as set out in paragraph [46]' 'Costs of plaintiff and defendants to be paid out of income and/or capital of the Trust on an indemnity basis' 'Summons otherwise dismissed']