Application of Tatham [2021] NSWSC 540

Application of Tatham [2021] NSWSC 540

It is expedient in the administration of the trust estate to confer additional powers on the trustees to advance capital and income to the remaining beneficiary in advance of the ages set out in the will, as otherwise ongoing administration would significantly reduce the assets due to expenses. The discretion under s 81 of the Trustee Act 1925 (NSW) should be exercised, even though the will specifies age requirements, in order to prevent unintended waste of Ms Luke-Gladstone's bequest.

Parties
First Plaintiff: Hendra Jean Tatham; Second Plaintiff: Scott Anthony McDonald
Jurisdiction
Australia
Judgment Date
18 May 2021
Procedural Posture
Application Under Trustee Act 1925 (nsw) S 81 / Principal Judgment
Outcome
Orders made as sought: Trustees authorised to advance capital and income and incidental powers under s 81; costs to be paid from Ms Luke-Gladstone's share.
Legal Topics
Statutory Power to Confer Powers on Trustees, Advance of Capital and Income to Beneficiaries, Interpretation of Will, Expediency in Trust Administration
Equity Trusts and Trustees Statutory Power to Confer Powers on Trustees Advance of Capital and Income to Beneficiaries Interpretation of Will Expediency in Trust Administration

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Parties

Hendra Jean Tatham

First Plaintiff

Scott Anthony McDonald

Second Plaintiff

Procedural Posture

Application Under Trustee Act 1925 (nsw) S 81 / Principal Judgment

Legal Issues

  1. 1 Whether the Court should confer power on trustees to advance capital and income to a residual beneficiary in advance of age requirements stated in the will under s 81 of the Trustee Act 1925 (NSW)
  2. 2 Whether such an order is expedient in trust administration given substantial anticipated costs

Ratio Decidendi

It is expedient in the administration of the trust estate to confer additional powers on the trustees to advance capital and income to the remaining beneficiary in advance of the ages set out in the will, as otherwise ongoing administration would significantly reduce the assets due to expenses. The discretion under s 81 of the Trustee Act 1925 (NSW) should be exercised, even though the will specifies age requirements, in order to prevent unintended waste of Ms Luke-Gladstone's bequest.

Court Disposition

Orders made as sought: Trustees authorised to advance capital and income and incidental powers under s 81; costs to be paid from Ms Luke-Gladstone's share.

Orders

  • The Plaintiffs as trustees of the Will be authorised under s 81 of the Trustee Act 1925 (NSW) to make advances of capital and income to any residual beneficiary referred to in clause 5 of the Will.
  • The Plaintiffs as trustees have all such powers as are necessary and incidental to the exercise by them of the conferred power.