Burns v Burns

Case [2008] QSC 173

SUPREME COURT OF QUEENSLAND

CITATION:

Burns v Burns & Anor [2008] QSC 173

PARTIES:

IAN CHARLES ORMOND BURNS in his own right and as co-executor of the estate of the late MARY BURNS
(applicant)
v
DUNCAN HAMILTON ORMOND BURNS as co-executor of the estate of the late MARY BURNS and as trustee of the Adrian Ormond Burns Testamentary Trust Fund
(first respondent)
and
PUBLIC TRUSTEE OF QUEENSLAND as executor of the estate of the late ADRIAN ORMOND BURNS
(second respondent)

FILE NO:

3572 of 2008

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

24 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

7 July 2008

JUDGE:

Chesterman J

ORDER:

Application dismissed.

Order that the applicant pay the first respondent’s costs of and incidental to the application, to be assessed on the standard basis.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – DISCRETIONARY TRUSTS – where applicant applies for review under section 8 Trusts Act 1973 – where the first respondent is a trustee of a discretionary testamentary trust appointed under a will –whether the first respondent intends to inappropriately exercise discretion conferred by the will – where the applicant contends the first respondent proposes to exercise discretion that does not accord with the testatrix’s letter of instruction – whether the trustee of Adrian’s Trust has provided justification for the decisions made

Legislation
Trusts Act 1973, s8

Cases

Attorney-General for the Commonwealth v Breckler & Ors (1999) 197 CLR 83, cited

Endresz v Whitehouse [1998] VR 461, cited

Fitzwood Pty Ltd v Unique Goal Pty Ltd (in liquidation) (2001) FCA 1628, cited

House v The King (1936) 55 CLR 499

Mor Lea Professional Services Pty Ltd v Richard Walter (1999) FCR 217, cited

Re Beloved Wilkes’ Charity (1851) 42 ER 330, cited

Re Koczorowski [1974] Qd R 177, cited

Re Whitehouse [1982] Qd R 196

Tierney v King [1983] 2 Qd R 580, cited

Trustees of the Christian Brothers in Western Australia v Attorney-General (WA) [2006] WASC 191, cited

Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1997) 79 FCR 469, cited

COUNSEL:

Mr D Morgan for the applicant plaintiff
Mr C Wilson for the first and third respondents

SOLICITORS:

Crilly Lawyers for the applicant plaintiff
Messrs Gall Standfield and Smith for the first and third respondents

  1. The late Mary Burns died on 7 May 2007 leaving a will dated 22 September 2003.  She was survived by four adult sons whom it is convenient, if impolite, to designate by their Christian names –Duncan, Adrian, Roderick and Ian.  Probate of her will was granted to Duncan and Ian, the executors named in her will, on 31 July 2007.

  1. The testatrix’s will made equal provision for her four sons but did not make absolute gifts.  Rather the will established four trusts:  one, in effect, for each son, his children and grandchildren.  The trustees were, in the case of each trust, two of her sons.  The trusts were identical in terms save for…

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Details
AGLC
Burns v Burns [2008] QSC 173
Case
[2008] QSC 173
Decision Date

CaseChat Overview and Summary

In the case of Burns v Burns, the applicant sought a judicial review of the decision made by the first respondent, who is a trustee of a discretionary testamentary trust appointed under a will. The applicant argued that the first respondent intends to exercise the discretion conferred by the will in a manner that is not in accordance with the testatrix’s letter of instruction. The applicant contended that the trustee of Adrian’s Trust has not provided adequate justification for the decisions made. The dispute was heard and determined by the Supreme Court of Victoria.

The primary legal issue before the court was whether the first respondent intended to exercise the discretion conferred by the will in a manner that was not in accordance with the testatrix’s letter of instruction. The court had to consider the nature of discretionary trusts, the role of trustees in exercising their discretion, and the extent to which the trustees were bound by the testatrix’s instructions. Additionally, the court needed to determine whether the first respondent had provided sufficient justification for the decisions made.

In considering the application, the court examined the terms of the will, the letter of instruction, and the actions of the first respondent as trustee. The court concluded that the first respondent had not acted in a manner that was not in accordance with the testatrix’s letter of instruction, and that the decisions made were justified. The court found that the first respondent had properly exercised their discretion in accordance with the terms of the will and the letter of instruction. As such, the application for judicial review was dismissed.

The court ordered that the applicant pay the first respondent’s costs of and incidental to the application, to be assessed on the standard basis. This decision underscores the importance of trustees adhering to the terms of the will and any accompanying instructions, while also exercising their discretion in a manner that is consistent with their legal obligations.

Orders

Orders of the court

Application dismissed.

Order that the applicant pay the first respondent’s costs of and incidental to the application, to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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