Bruce v Cobcroft [2017] NSWSC 1464

Bruce v Cobcroft [2017] NSWSC 1464

The Court held that, following the extinguishment of Jennifer Menzies Cobcroft's interest, it was appropriate to accelerate the remainder interests under cl 10 of the Will; judicial advice should be granted confirming the executor's proposed course, including mortgaging assets and making appropriations/details in accordance with the Deed of Family Arrangement, with appropriate protections for all beneficiaries; valuation evidence was adequate; and prior declarations/orders should be varied accordingly.

Parties
Plaintiff: Robert Ritchie Bruce; First Defendant: Nicklas William Baxter Cobcroft; Second Defendant: David Gavin Baxter Cobcroft; Third Defendant: Daisy Evelyn Cobcroft; Fourth Defendant: Jasper Nicklas William Cobcroft; Fifth Defendant: Hermione Fiona Cobcroft; Sixth Defendant: Benjamin William Baxter Cobcroft; Seventh Defendant: Amana Jane Cadwallader Cobcroft; Eighth Defendant: Teya Ellie Cobcroft; Ninth Defendant: James Duncan Rae; Tenth Defendant: Roger Audley Hann; Eleventh Defendant: Robert Ritchie Bruce
Jurisdiction
Australia
Judgment Date
27 October 2017
Procedural Posture
Application for Judicial Advice and Orders Under the Trustee Act 1925 (nsw) Equity / Final Orders Following Hearing
Outcome
Orders made granting the executor power to mortgage estate assets, appropriating assets/funds as specified, granting judicial advice confirming justification for entry into Deed of Family Arrangement, and varying prior court declarations/orders.
Legal Topics
Powers and Duties of Executors and Trustees, Judicial Advice to Trustees, Appropriation of Trust Assets, Statutory Powers of Trustees, Variation of Court Declarations
Equity Succession Law Trusts Powers and Duties of Executors and Trustees Judicial Advice to Trustees Appropriation of Trust Assets Statutory Powers of Trustees Variation of Court Declarations

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Parties

Robert Ritchie Bruce

Plaintiff

Nicklas William Baxter Cobcroft

First Defendant

David Gavin Baxter Cobcroft

Second Defendant

Daisy Evelyn Cobcroft

Third Defendant

Jasper Nicklas William Cobcroft

Fourth Defendant

Hermione Fiona Cobcroft

Fifth Defendant

Benjamin William Baxter Cobcroft

Sixth Defendant

Amana Jane Cadwallader Cobcroft

Seventh Defendant

Teya Ellie Cobcroft

Eighth Defendant

James Duncan Rae

Ninth Defendant

Roger Audley Hann

Tenth Defendant

Robert Ritchie Bruce

Eleventh Defendant

Procedural Posture

Application for Judicial Advice and Orders Under the Trustee Act 1925 (nsw) Equity / Final Orders Following Hearing

Legal Issues

  1. 1 Whether it is appropriate to distribute gifts under clause 10(c) of the Will of the deceased prior to the death of Jennifer Menzies Cobcroft
  2. 2 Whether s 46 of the Trustee Act 1925 (NSW) can be utilised to appropriate assets or set up a fund for the children beneficiaries
  3. 3 Whether the plaintiff/executor can be granted additional powers (e.g., mor tgage) under s 81 of the Trustee Act

Ratio Decidendi

The Court held that, following the extinguishment of Jennifer Menzies Cobcroft's interest, it was appropriate to accelerate the remainder interests under cl 10 of the Will; judicial advice should be granted confirming the executor's proposed course, including mortgaging assets and making appropriations/details in accordance with the Deed of Family Arrangement, with appropriate protections for all beneficiaries; valuation evidence was adequate; and prior declarations/orders should be varied accordingly.

Court Disposition

Orders made granting the executor power to mortgage estate assets, appropriating assets/funds as specified, granting judicial advice confirming justification for entry into Deed of Family Arrangement, and varying prior court declarations/orders.

Orders

  • Pursuant to s 81 of the Trustee Act 1925 (NSW), the plaintiff has power to mortgage estate assets as necessary to perform the transactions in the Deed of Family Arrangement dated on or about 30 June 2017.
  • Pursuant to s 63 of the Trustee Act 1925 (NSW), the plaintiff is justified in entering into and unconditionally performing the obligations in the Deed of Family Arrangement and administering the estate per the advice dated 20 July 2017 of Dr Christopher Birch SC and Ms Jane Taylor.