Mews as Co-Trustee of Jeff Mews Will Trust v Mews - [2025] WASC 240

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MEWS AS CO-TRUSTEE OF JEFF MEWS WILL TRUST -v- MEWS [2025] WASC 240
CORAM:   PALMER J
HEARD:   9 JUNE 2025
DELIVERED          :   20 JUNE 2025
FILE NO/S:   TRU 15 of 2024
BETWEEN:   BEVERLEY LUISE MEWS AS CO-TRUSTEE OF JEFF MEWS WILL TRUST
First Plaintiff
CATHERINE ANNE BROADBENT AS CO-TRUSTEE OF JEFF MEWS WILL TRUST
Second Plaintiff
AND
BEVERLEY LUISE MEWS
First Defendant
PAUL JEFFREY MEWS
Second Defendant
PHILIP DAVID MEWS
Third Defendant
SUSAN MARIE MEWS
Fourth Defendant

Catchwords:

Succession - Wills - Proper construction of clause in will regarding the circumstances in which trustees retire - Determination of preliminary question

Legislation:

Family Provision Act 1972 (WA)
Trustees Act 1962 (WA)

Result:

Preliminary question determined

Representation:

Counsel:

First Plaintiff	:	Mr A Hershowitz
Second Plaintiff	:	Mr A Hershowitz
First Defendant	:	No appearance
Second Defendant	:	Mr J Healy
Third Defendant	:	Mr J Healy
Fourth Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Jackson McDonald
Second Plaintiff	:	Jackson McDonald
First Defendant	:	No appearance
Second Defendant	:	Taylor Smart Lawyers & Notaries
Third Defendant	:	Taylor Smart Lawyers & Notaries
Fourth Defendant	:	No appearance

Case(s) referred to in decision(s):

Lemon v Mead [2017] WASCA 215
Walsh v Adrian Cory Sloan as executor of the estate of The Late Laurette Dorothy Keddi [2019] WASCA 107
Woodley v Woodley [No 2] [2017] WASC 94

PALMER J:

Introduction

The plaintiffs are the executors of the estate of Jeffrey Arthur Sydney Mews (the Estate) and the trustees of the Jeff Mews Will Trust (Trust), a trust establish by the will of Jeffrey Arthur Sydney Mews (the Will). The defendants are the beneficiaries of the Will and Trust.
Most of the parties to these proceedings share the same surname: Mews. Without intending any disrespect, I will refer to the members of the Mews family by their first names.
The first plaintiff (Beverley) is also named as the first defendant in these proceedings. This is because in addition to being an executor of the Estate and a trustee of the Trust, she is also a beneficiary of the Will and Trust.
On 10 December 2024, the plaintiffs commenced these proceedings, seeking directions pursuant to s 92 of the Trustees Act 1962 (WA) (Trustees Act) regarding the administration of the Trust and the proper construction of certain provisions of the Will.
On 20 December 2024, Beverley (in her personal capacity) commenced separate proceedings in this Court seeking leave under s 7(2)(b) of the Family Provision Act 1972 (WA) (Family Provision Act) to bring an application pursuant to s 7(1) of the Family Provision Act out of time (the Family Provision Proceedings).
In the Family Provision Proceedings, Beverley is named both as plaintiff (in her personal capacity) and as a defendant in her capacity as an executor of the Estate and a trustee of the Trust. The second plaintiff (Catherine Broadbent) is also named as a defendant in the same capacities.
A controversy has now arisen between the plaintiffs on the one hand, and the second and third defendants (Paul and Philip) on the other, about whether the plaintiffs remain the trustees of the Trust.
This issue arises because cl 9.20.3 of the Will provides that a trustee of the Trust will be deemed to have retired as a trustee if they are cited as an applicant or as a respondent in legal proceedings either in the Family Court, the Federal Court, the Supreme Court or 'otherwise'. The fact that the plaintiffs are named as parties in these proceedings and the Family Provision Proceedings raises the possibility that they have been removed as trustees pursuant to cl 9.20.3.
The precise operation of the clause is subject to doubt, however. This is because, amongst other matters, cl 9.1.15 of the Will expressly empowers a trustee to institute and defend legal proceedings. There is an obvious tension between the operation of this clause and cl 9.20.3.
The present controversy calls into question the plaintiffs' standing to maintain these proceedings. On 29 April 2025, Forrester J ordered the determination of a preliminary question intended to resolve this issue.
The determination of that preliminary question was listed before me. The first (Beverley, in her private capacity) and fourth (Susan) defendants did not seek to be heard and were excused.
For the reasons that follow, I consider that on the proper construction of cl 9.20.3 of the Will, Beverley had retired as a trustee of the Trust but Catherine Broadbent remains a trustee of the Trust.

The relevant terms of the Will

Clause 2.1 of the Will appoints the plaintiffs as the executors of the Estate.
Clause 3 of the Will provides that the executors would have various powers.
The same clause also deals with the resolution of disputes. Clause 3.4 provides that any deadlock or dispute between the executors and any beneficiary under the Will about the meaning of the Will, or the administration of the Estate under the Will, shall be submitted to arbitration.
Clause 3.6 of the Will provides that under no circumstances shall the executors or any beneficiary make the decision of the arbitrator the subject of any legal proceedings.
By cl 6.1 of the Will, Mr Jeff Mews bequeathed the Estate to the executors and trustees to be the subject of the Trust for the benefit of Beverley, Paul, Susan and Philip.
Clause 7 of the Will includes various provisions concerning the Trust.
Clause 7.2 records that Mr Jeff Mews' wish that in determining adequate provision to Beverley, the trustees would, subject to their discretion, distribute to her in each income year an amount equal to that described as the Westpac Comfortable Living Index for a couple as published from year to year by Westpac Limited.
Clause 7.3 of the Will provides that after Beverley's death and once the youngest of Paul, Susan and Philip have turned 40, the trustees of the Trust might, at their discretion, pay Susan $100,000 and divide the balance of the Estate between Paul and Philip.
Clause 7.7 provides that any decision of the trustees 'in terms of clause 7' shall not be open to challenge or be capable of being set aside by a beneficiary or by anyone acting on behalf of, or at the suit of a beneficiary.
Clause 9 of the Will includes various provisions concerning the trustees.
Clause 9.1 provides that the trustees would have certain powers. Clause 9.1.15 provides that the trustees have the power to institute or defend legal proceedings or to submit any claim, matter or dispute to arbitration.
Clause 9 also addresses disputes that might arise. Clause 9.6 provides that if any deadlock, dispute or difference arises between the trustees, it shall be resolved by arbitration. Clause 9.8 provides that any decision by the trustees shall be final and may not be challenged under any circumstances by the beneficiaries or anyone else.
Clause 9.16 of the Will provides that the rights or interests to which a beneficiary may become entitled under the Will are entirely discretionary and are not property interests or financial resources of a beneficiary for the purposes of the Family Law Act.
Clause 9.17 of the Will provides that the contingent rights or benefits to which a beneficiary may become entitled by the terms of the Will and any expectant interest, shall be determined and forfeited if the beneficiary:
(a)is declared insolvent;
(b)surrenders or assigns his or her estate for the benefit of creditors;
(c)purports to assign, transfer, pledge, hypothecate or alienate any of his or her rights, benefits or expectant interest which may arise by the terms of the Will; or
(d)if a creditor of a beneficiary attempts to attach or to sell under Legal process or causes any rights, benefit or interest to be attached or sold.
Clause 9 also contains cl 9.20.3 which provides as follows:
9.20 If a trustee or appointor:
9.20.1 is unable to pay his or her debts as and when they fall due;
9.20.2 dies, resigns, is declared insolvent or enters into a composition with his or her creditors, is removed by order of the Court, departs from Australia permanently or becomes a resident of another country;
9.20.3 is cited as an applicant or as respondent in legal proceedings, either in the Family Court, the Federal Court, the Supreme Court or otherwise,
such person shall be deemed to have retired from office for all purposes from the day preceding the occurrence of such event.

The preliminary question to be determined

The orders made by Forrester J on 29 April 2025 provided for the determination of two preliminary questions and for the first of those questions to be determined separately, first. The first question (which was heard before me) was in the following terms:
The Preliminary Questions:
As to the proper construction of the terms of the Jeff Mews Will Trust (the Will Trust), which was established under the last will and testament dated 17/04/2012 and one codicil dated 30/09/2015 (together the Will) of Jeffrey Arthur Sydney Mews late of 10/99 Alexander Drive, Dianella, Western Australia who died on 26/08/2021:
First Preliminary Question:
2.1 On the proper construction of clause 9.20.3 of the Will, are the plaintiffs deemed to have retired from office as trustees of the Will Trust from the day preceding:
(a)the day on which these proceedings were commenced; and/or
(b)the day on which Beverley Luise Mews commenced the proceedings the subject of CIV 2502 of 2024 under which:
… Beverley Luise Mews is:
(i)plaintiff in her personal capacity;
(ii)first named first defendant in her capacity as co-executor of the Will;
(iii)first named second defendant in her capacity as co-trustee of the Will Trust; and
… Catherine Anne Broadbent is:
(i)third named first defendant in her capacity as co-executor of the Will; and
(ii)second named second defendant in her capacity co-trustee of the Will Trust.

How wills are construed

The legal principles relevant to the proper construction of wills are well settled and were not the subject of dispute before me. They were discussed by the Court of Appeal in Walsh v Adrian Cory Sloan as executor of the estate of The Late Laurette Dorothy Keddi.[1] Although I do not propose to repeat what the Court of Appeal has said, it is relevant to note that a will must be construed so as to give effect to the testator's intention. This process was explained by Buss P in Lemon v Mead[2] as follows:
A will must be so construed as to give effect to the testator's intention. The intention is to be ascertained from the language of the will read in the context of the circumstances in which the will was made. See Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, 273 - 276 (Isaacs J), 281 - 282 (Higgins J); Perrin v Morgan [1943] AC 399, 420 (Lord Romer; Lord Russell of Killowen agreeing); Brennan v Permanent Trustee Company of New South WalesLtd [1945] HCA 17; (1945) 73 CLR 404, 415 (Dixon J). The language of the will is to be read in the sense which the testator appears to have attached to the expressions used. See Brennan (414); Borlaug v University of Western Australia [2001] WASCA 425 [15] (Olsson AUJ; Wallwork & Steytler JJ agreeing). The whole of the will has to be considered because the meaning of one part may be revealed by other parts. The language of every clause must, if possible, be construed so as to render them all harmonious. See Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109 - 110 (Gibbs J).
[1] Walsh v Adrian Cory Sloan as executor of the estate of The Late Laurette Dorothy Keddi [2019] WASCA 107 [23] - [34].
[2] Lemon v Mead [2017] WASCA 215 [151].

The proper construction of cl 9.20.3

Clause 9.20.3 of the Will provides that a trustee who is cited as an applicant or respondent in legal proceedings, either in the Family Court, the Federal Court, the Supreme Court or otherwise shall be deemed to have retired from the day preceding the occurrence of such event.
The word 'cite' is defined in the Shorter Oxford English Dictionary, fifth edition,[3] to mean:
Summon officially before a court of (usu. Ecclesiastical) law.
[3] Oxford University Press, 2002.
Although the use of the word 'cite' may not have been particularly apposite, the intention evident in cl 9.20.3 is that a trustee will be removed if that trustee is named as a party in legal proceedings in the Supreme Court (amongst other jurisdictions).
It was common ground between the parties who appeared before me that the testator cannot have intended cl 9.20.3 to be given its literal effect. Various reasons were advanced for this, but one of them is that cl 9.1.15 provides that the trustees have the power to institute or defend legal proceedings.
If cl 9.20.3 had the effect that a trustee is removed if they are named as a party in any legal proceedings in a court, the trustees would be unable to exercise the power conferred by cl 9.1.15 insofar as the power extends to instituting or defending court proceedings. In order to institute or defend any such proceedings, the trustees would necessarily need to be named as a party to those proceedings.
It was common ground between the parties who appeared before me that cl 9.20.3 must be read down to give effect to cl 9.1.15. The written submissions filed by both parties submitted that properly construed, cl 9.20.3 was only engaged by legal proceedings involving certain issues. The submissions sought to discern, from an analysis of the terms of the Will, the issues in any litigation that might engage cl 9.20.3.
The second and third defendants attached significance to the potential for conflict to arise between the members of the Mews family. They submitted that the potential for conflict could be seen in the fact that any distribution could not take place until after Beverley died and that Susan would receive a different distribution to Paul and Phillip.[4]
[4] Transcript of the Special Appointment hearing dated 9 June 2025, ts 20 - 21.
The second and third defendants referred to an observation made by Pritchard J, in Woodley v Woodley [No 2],[5] that a deceased can be expected to have known about the potential for personal and family conflicts and might have chosen an executor with this in mind.[6]
[5] Woodley v Woodley [No 2] [2017] WASC 94 [55].
[6] Second and Third Defendants' Outline of Submissions dated 7 May 2025 (Second and Third Defendants' Submissions), pars 14, 22.
The second and third defendants argued that cl 9.20.3 was an expression of the common law principle that a party should not be both a plaintiff and a defendant in the same action. They drew an analogy with the position in an insolvency context and submitted that a conflict in that context is often resolved through the appointment of a special purpose liquidator.[7]
[7] Second and Third Defendants' Submissions, par 12.
Further, they argued that cl 9.20.3 can also be seen as a manifestation of the conflict of interest rule which sees the potential for a conflict of interest to arise where there is a divergence between the interests of a person who is a beneficiary and the duties of that person as trustee (e.g where a beneficiary is making a claim on the estate of which that same person is trustee).[8]
[8] Second and Third Defendants' Submissions, par 13.
The second and third defendants submitted that the institution of the Family Provision Proceedings would mean that the conduct of the trustees, including the decisions that they have made, would be the subject of detailed review and analysis in the context of the resolution of that claim. It was submitted that given this, cl 9.20.3 of the Will had the effect of removing both of the plaintiffs as trustees when the Family Provision Proceedings were instituted.[9]
[9] Second and Third Defendants' Submissions, pars 20, 23 - 24.
In considering the intention evident in cl 9.20.3, the starting point is the text of the provision. That text provides little support for the second and third defendants' construction.
The clause is not expressed as being limited to litigation that raises any particular issues. The text of the clause makes no mention of either of the types of conflict that the second and third defendants have submitted that the clause was intended to address. The language used in the clause suggests that it was intended to apply to litigation with any subject matter in the relevant court.
As the parties have submitted however, proper effect must be given to cl 9.1.15. Two other matters are also relevant to the proper construction of cl 9.20.3. First, cl 2.1 of the Will appointed each of the trustees an executor of the Estate as well. Secondly, cl 6 and cl 7 make Beverley a beneficiary of the Trust. I will return to these matters shortly.
It seems to me that the intent evident when cl .1, cl 6, cl 7, cl 9.1.15 and cl 9.20.3 are read together, is that a trustee will be removed when they have been named as a party to legal proceedings in the Supreme Court, unless they have been named as a party in their capacity as executor of the Estate, or trustee of the Trust, or as a necessary defendant to such proceedings.
Such a construction is necessary to give proper effect to cl 9.1.15. That that clause conferred a power on the trustees to institute or defend proceedings reveals that the testator intended the power to be used. This suggests that cl 9.20.3 was not intended to apply to litigation where the trustees were exercising the powers conferred on them by cl 9.1.15. Otherwise, the trustees could never use those powers as they would inevitably be named as a party to any proceedings that they instituted or defended.
Although cl 9.1.15 relates to the capacity of a trustee to bring and defend proceedings and not the capacity of an executor to do so, there will be many situations in which a person would be properly named in both their capacity as executor and trustee in the same proceedings. The Family Provision Proceedings are an example of such proceedings.
If naming a person in both capacities in the same proceedings meant they were removed as a trustee, a trustee would be unable to exercise the power conferred on them by cl 9.1.15 in such proceedings. For example, if the fact that Ms Broadbent was named in both capacities in the Family Provision Proceedings meant she was removed as a trustee, she would be unable to defend the proceedings in her capacity as trustee, despite the express power conferred on her by cl 9.1.15 to do so. She would, however, remain an executor and be able to defend the proceedings in that capacity. This cannot have been what was intended.
Further, that the testator conferred on Beverley the power to institute proceedings in her capacity as trustee reveals that he did not intend her to be removed as a trustee merely because she was named as a necessary defendant.
If the fact that Beverley was named as a necessary defendant to a proceeding had the capacity to remove her as a trustee, then her ability to institute proceedings in her capacity as trustee would be significantly impaired, if not curtailed entirely. This is because as a beneficiary, Beverley would necessarily be named as a defendant in any proceedings affecting the Trust. The present proceedings are an example of such proceedings. Beverley is both the first plaintiff and the first defendant.
Giving effect to cl 9.1.15 therefore also requires that the naming of a person as a necessary defendant to proceedings does not remove that person as a trustee.
In my view, the construction of cl 9.20.3 advanced by the second and third defendants would involve a different restriction on the operation of cl 9.20.3 than that required to give proper effect to cl 9.1.15. I am not persuaded that that construction reflects the intention of the testator because it does not seem to have any adequate foundation in the text of the Will.

In the plaintiffs' written submissions,[10] the plaintiffs advanced a construction of the Will different to that which I have discussed above. As the plaintiffs adopted the construction discussed above at the hearing, however, it is unnecessary for me to say anything further about that construction.
[10] Plaintiffs' Outline of Submission for Special Appointment dated 26 May 2025.

Conclusion and the answer to the preliminary question

Given my conclusion about the proper construction of cl 9.20.3, I do not consider that either Beverley, or Catherine Broadbent, were removed as trustees as a result of the commencement of these proceedings.
These proceedings were commenced by the plaintiffs, in their capacity as trustees of the Trust, to obtain directions under the Trustees Act. The proceedings were commenced by them exercising the powers conferred on them under cl 9.1.15 of the Will. While Beverley was also named as a defendant in these proceedings, that was because she was a necessary defendant.
I consider that cl 9.20.3 was engaged to remove Beverley as a trustee of the Trust when she was named as the plaintiff in the Family Provision Proceedings. This is because she was named as plaintiff in a private capacity and not in her capacity as executor of the Estate, or trustee of the Trust, or as a necessary defendant to such proceedings.
I do not consider that cl 9.20.3 was engaged by the fact that Beverley and Catherine Broadbent were named as defendants in the Family Provision Proceedings. Insofar as they were named as defendants in their capacity as trustees, their participation in those proceedings was a discharge of the power conferred on them by cl 9.1.15 to defend proceedings. I do not consider that the fact that they were also named as defendants in their capacity as executors results in any different consequence.
The answers to the first preliminary question are therefore that:
(a)neither of the plaintiffs retired from being trustees of the Trust by commencing these proceedings; and
(b)Beverley retired from being a trustee of the Trust when she commenced the Family Provision Proceedings. Catherine Broadbent did not.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CN
Associate to the Judge
20 JUNE 2025