Perpetual Trustee Company Ltd (No 3) [2017] NSWSC 1216

Perpetual Trustee Company Ltd (No 3) [2017] NSWSC 1216

On the proper construction of cl 7 of the will, the Trustee must distribute the Foundation's 44 per cent share of net income within three months of 30 June unless, by 30 September, it positively forms the opinion that the Foundation will not in the future apply the funds for the stated charitable purpose. The will did not permit deferral merely because the Trustee lacked sufficient information or was not satisfied that the Foundation would apply the funds for that purpose, and the 9 August 2017 letter did not justify the conclusion that the Foundation would not in the future apply the funds for the purpose.

Jurisdiction
Australia
Judgment Date
12 September 2017
Procedural Posture
Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) Concerning a Charitable Trust in a Will / Remitter After Court of Appeal for Further Consideration
Outcome
Judicial advice given in part; alternative advice sought by the Trustee declined.
Legal Topics
['judicial Advice' 'construction of Will' 'charitable Purpose' 'trustee Opinion Under Proviso' 'distribution of Trust Income']
['trusts and Trustees' 'equity' 'charitable Trusts' 'succession'] ['judicial Advice' 'construction of Will' 'charitable Purpose' 'trustee Opinion Under Proviso' 'distribution of Trust Income']

Case Brief

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Procedural Posture

Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) Concerning a Charitable Trust in a Will / Remitter After Court of Appeal for Further Consideration

Legal Issues

  1. 1 ['Whether the phrase "shall not apply" in the proviso to cll 7(a) to (d) of the will means "shall not, in the future, apply".' 'Whether the Trustee was obliged to distribute 44 per cent of the net income of The Eric Storm Charitable Trust for the years ended 30 June 2014, 2015 and 2016 to the Foundation despite not being satisfied that the funds would be applied for the relevant charitable purpose.' 'Whether the Trustee was obliged to distribute 44 per cent of the net income for the year ended 30 June 2017 by 30 September 2017 unless it positively formed the Proviso Opinion before that date.' 'Whether the Trustee could defer consideration of the Proviso Opinion because it considered it lacked sufficient information.' 'Whether the 9 August 2017 letter justified the Trustee forming the opinion that the Foundation would not in the future apply the funds for the relevant charitable purpose.']

Ratio Decidendi

On the proper construction of cl 7 of the will, the Trustee must distribute the Foundation's 44 per cent share of net income within three months of 30 June unless, by 30 September, it positively forms the opinion that the Foundation will not in the future apply the funds for the stated charitable purpose. The will did not permit deferral merely because the Trustee lacked sufficient information or was not satisfied that the Foundation would apply the funds for that purpose, and the 9 August 2017 letter did not justify the conclusion that the Foundation would not in the future apply the funds for the purpose.

Court Disposition

Judicial advice given in part; alternative advice sought by the Trustee declined.

Orders

  • ['Advice given that on the proper construction of the will of the late Eric Storm, the phrase "shall not apply" in the proviso to cll 7(a) to (d) of the will means "shall not, in the future, apply".' 'Advice given that the Trustee would be justified in concluding that it is obliged to apply 44 per cent of the net...