Power v Ekstein [2000] NSWSC 905

Power v Ekstein [2000] NSWSC 905

The trustee of the Otto Ekstein Family Trust is bound by clause 25 of the trust deed to give effect, as far as possible, to the wishes of Otto Ekstein deceased as evidenced by his last will and testament. No effective exercise of trust powers to determine distribution date, beneficiaries, or to appropriate assets was found through the will, but clause 25 validly binds the trustee to carry out the testator's wishes in managing the trust. The executor is to distribute estate assets according to the will, disregarding certain problematic terms in clauses 10(a)(i) and 10(c)(ii) as directed.

Jurisdiction
Australia
Judgment Date
14 September 2000
Procedural Posture
Civil / Judgment
Outcome
Claim partly succeeded, cross-claim partly succeeded
Legal Topics
['exercise of Trustee Powers by Will' 'distribution of Trust Assets' "binding Effect of Testator's Wishes" 'powers of Appointment' 'interpretation of Trust Deed Amendments']
['trusts' 'wills & Estates'] ['exercise of Trustee Powers by Will' 'distribution of Trust Assets' "binding Effect of Testator's Wishes" 'powers of Appointment' 'interpretation of Trust Deed Amendments']

Case Brief

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Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 ['Whether a testator may effectively exercise powers as trustee of a discretionary trust by will' "Whether the trustee is bound to give effect to the testator's wishes as set out in the will" 'Whether amendments allowing exercise of trust powers by will are valid and effective' 'Whether the will determined the distribution date and entitlements of beneficiaries under the trust' "Whether clause 25 of the trust deed binds the trustee to the testator's wishes"]

Ratio Decidendi

The trustee of the Otto Ekstein Family Trust is bound by clause 25 of the trust deed to give effect, as far as possible, to the wishes of Otto Ekstein deceased as evidenced by his last will and testament. No effective exercise of trust powers to determine distribution date, beneficiaries, or to appropriate assets was found through the will, but clause 25 validly binds the trustee to carry out the testator's wishes in managing the trust. The executor is to distribute estate assets according to the will, disregarding certain problematic terms in clauses 10(a)(i) and 10(c)(ii) as directed.

Court Disposition

Claim partly succeeded, cross-claim partly succeeded

Orders

  • ['Declare that the trustee for the time being of the Otto Ekstein Family Trust is bound by clause 25 of the trust deed to give effect so far as possible to the wishes of Otto Ekstein deceased as evidenced by his last will and testament' 'Amended statement of claim otherwise dismissed' "Upon proper construction of...