Re Estate Schwartz, Deceased; Application of Gellert; Gellert v Bentwood and Schwartz

The applicants, Gellert and Bentwood, sought advice and direction from the Court regarding the administration of a discretionary trust created by the will of Schwartz. Schwartz, who died intestate, left a discretionary trust in his will, which provided for the distribution of his estate to certain beneficiaries. The executors of the estate, Gellert and Bentwood, were unable to reach a consensus on how to administer the trust, leading to the application for judicial advice and direction. The Court was required to determine whether it could provide advice or direction to the trustees on the administration of the discretionary trust.

The legal issues before the Court included whether the Court had the jurisdiction to provide advice or direction to the trustees and whether the Court could make a partial administration order in the circumstances of this case. The Court had to consider the operation of the forfeiture rule and the relevant provisions of the Uniform Civil Procedure Rules 2005 NSW and the Trustee Act 1925 NSW. The Court also had to consider the nature of the discretionary trust, its creation and effect, and the trustees' obligations under the will.

The Court held that it had jurisdiction to provide advice and direction to the trustees in the administration of the discretionary trust. The Court noted that the Uniform Civil Procedure Rules 2005 NSW and the Trustee Act 1925 NSW provided for the Court to make a partial administration order in certain circumstances. The Court found that the forfeiture rule did not apply in this case, and that the trustees were not entitled to a direction that the beneficiaries must share equally in the trust fund. The Court held that it could make a partial administration order, directing the trustees to distribute the trust fund to the beneficiaries in accordance with the terms of the will.

The Court made a partial administration order, directing the trustees to distribute the trust fund to the beneficiaries in accordance with the terms of the will. The Court noted that the trustees were not entitled to a direction that the beneficiaries must share equally in the trust fund, and that the beneficiaries were not entitled to a direction that the trustees must distribute the trust fund equally. The Court held that the trustees were entitled to be guided by the Court's advice in the administration of the trust, and that the beneficiaries were entitled to be informed of the Court's advice.