Kepkey v Edwards [2017] NSWSC 925

Kepkey v Edwards [2017] NSWSC 925

The Will was drafted in the expectation that Lynette would have no more children and that only those children of Lynette who survived the testatrix could benefit under cl 4.1 or 4.2. The agreements and payments set out in the compromise, distribution, and administration of the Trust Fund were appropriate, given Lynette’s circumstances and all necessary parties had consented. The plaintiff's statement of claim and defendant's cross-claim were resolved by consent; orders were made accordingly and judicial advice provided under s 63 of the Trustee Act 1925 (NSW).

Parties
Plaintiff: Lynette Beverley Kepkey; Defendant: Mark Andrew Edwards
Jurisdiction
Australia
Judgment Date
05 July 2017
Procedural Posture
Equity Trusts and Trustees / Principal Judgment
Outcome
Orders made by consent
Legal Topics
Beneficiaries' Rights, Discretionary Trust, Construction of Will
Equity Trusts and Trustees Beneficiaries' Rights Discretionary Trust Construction of Will

Case Brief

Summary, issues, holding and outcome

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Parties

Lynette Beverley Kepkey

Plaintiff

Mark Andrew Edwards

Defendant

Procedural Posture

Equity Trusts and Trustees / Principal Judgment

Legal Issues

  1. 1 Whether the trust created by clause 4 of the Will could be terminated as sought by the plaintiff
  2. 2 Construction of clauses 4.1 and 4.2 as to entitlement of Lynette's children
  3. 3 Whether the agreements between the parties for the distribution of the trust fund and the conduct of the plaintiff and trustee should be approved by the Court

Ratio Decidendi

The Will was drafted in the expectation that Lynette would have no more children and that only those children of Lynette who survived the testatrix could benefit under cl 4.1 or 4.2. The agreements and payments set out in the compromise, distribution, and administration of the Trust Fund were appropriate, given Lynette’s circumstances and all necessary parties had consented. The plaintiff's statement of claim and defendant's cross-claim were resolved by consent; orders were made accordingly and judicial advice provided under s 63 of the Trustee Act 1925 (NSW).

Court Disposition

Orders made by consent

Orders

  • Order, pursuant to s 93(3) of the Trustee Act 1925 (NSW), that the Defendant's costs of and incidental to these proceedings be paid from the trust funds held by the Defendant pursuant to Clause 4 of the Will on the indemnity basis.
  • No order as to the Plaintiff's costs, to the intent that the Plaintiff will bear her own costs of the proceedings.