Belfield v Belfield

This case concerned an appeal from an order made by Macready AsJ in the Supreme Court of New South Wales. The appellant, an older son of the deceased, sought provision from the deceased's estate under the *Family Provision Act 1982* (NSW). The deceased had established a discretionary trust for the benefit of her younger son and his progeny, retaining significant powers to direct the trustee, alter beneficiaries, and distribute property. The appellant argued that the deceased's failure to exercise these powers to benefit him or herself constituted a "prescribed transaction" under the Act, rendering the trust property notional estate available for his claim.

The primary legal issues before the Court of Appeal were whether the deceased's failure to exercise her powers in relation to the discretionary trust constituted a "prescribed transaction" for the purposes of the *Family Provision Act 1982*, and consequently, whether the trust property could be designated as notional estate. A related issue involved the capacity of an attorney acting under an enduring power of attorney to exercise powers to direct the trustee of a discretionary trust, particularly in light of s 163B(2)(a) of the *Conveyancing Act 1919* (NSW). The court also considered the principles applicable to the review of a primary judge's decision on jurisdiction and quantum in family provision matters.

The Court of Appeal allowed the appeal, setting aside the orders of the primary judge. The court reasoned that the deceased's retained powers over the discretionary trust, including the ability to direct the trustee and alter beneficiaries, were such that her failure to exercise them in favour of the appellant or herself could be considered a "prescribed transaction" under the *Family Provision Act 1982*. The court distinguished between possessing trust powers and having the ability to direct the exercise of trust powers, finding that the attorney acting under the enduring power of attorney was capable of exercising the latter. Consequently, the court ordered that shares held by the trustee of the discretionary trust be designated as notional estate of the deceased to the extent necessary to satisfy the appellant's provision and costs. The appellant was awarded a legacy of $300,000 from this notional estate, charged against the specified shareholding, and was awarded costs of the proceedings.