Dixon v Dixon [2022] NSWSC 721

Dixon v Dixon [2022] NSWSC 721

Although the Court acknowledged the general reluctance to appoint a close family member as trustee, the trust estate was modest and governmental trustee fees would be a significant burden; the Queensland location of the Public Trustee carried little weight because the trust assets were liquid investments; the deceased had originally appointed a family member as trustee; Stephen was the only practicable family replacement, with no evidence showing he was unsuitable; any potential conflict was remote; and the Uniting Church, as residuary beneficiary, did not oppose Stephen's appointment. Stephen should therefore be appointed as new trustee in place of Eunice.

Jurisdiction
Australia
Judgment Date
01 June 2022
Procedural Posture
Equity Application Concerning Removal and Appointment of a Trustee of a Testamentary Trust / Principal Judgment on the Papers; Final Submissions Received 14 April 2022
Outcome
Stephen Dixon is to be appointed as the new trustee in place of Eunice Helen Morgan, with proceedings adjourned for the parties to bring in a minute of orders giving effect to that conclusion and dealing with costs.
Legal Topics
["court's Power to Appoint a New Trustee" 'testamentary Trust' 'removal of Trustee' 'appointment of Family Member as Trustee' 'public Trustee Fees' 'beneficiary With Disability']
['equity' 'trusts and Trustees' 'succession'] ["court's Power to Appoint a New Trustee" 'testamentary Trust' 'removal of Trustee' 'appointment of Family Member as Trustee' 'public Trustee Fees' 'beneficiary With Disability']

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Procedural Posture

Equity Application Concerning Removal and Appointment of a Trustee of a Testamentary Trust / Principal Judgment on the Papers; Final Submissions Received 14 April 2022

Legal Issues

  1. 1 ["Whether Eunice Helen Morgan should be removed as trustee of Lois Ruth Dixon's testamentary trust." 'Whether Stephen Dixon or an independent governmental trustee should be appointed as replacement trustee.']

Ratio Decidendi

Although the Court acknowledged the general reluctance to appoint a close family member as trustee, the trust estate was modest and governmental trustee fees would be a significant burden; the Queensland location of the Public Trustee carried little weight because the trust assets were liquid investments; the deceased had originally appointed a family member as trustee; Stephen was the only practicable family replacement, with no evidence showing he was unsuitable; any potential conflict was remote; and the Uniting Church, as residuary beneficiary, did not oppose Stephen's appointment. Stephen should therefore be appointed as new trustee in place of Eunice.

Court Disposition

Stephen Dixon is to be appointed as the new trustee in place of Eunice Helen Morgan, with proceedings adjourned for the parties to bring in a minute of orders giving effect to that conclusion and dealing with costs.

Orders

  • ['Adjourn the proceedings to 9:30 am on 7 June 2022 or such other time as may be arranged with my Associate.' 'Direct that the parties confer on the form of orders to be made to give effect to this judgment and to deal with costs, and, no later than 24 hours before the adjourned hearing, submit proposed orders for...