Thynne v Jevny Pty Limited (No 3)

The case of Thynne v Jevny Pty Limited (No 3) was heard by the Supreme Court of New South Wales. The dispute involved a surviving spouse who was alleged to have breached various obligations arising from a memorandum of wishes, a will, and a family trust. The surviving spouse, Thynne, was accused of violating her fiduciary duties by granting a mortgage over a property that was intended to be left to the deceased's children. The court also examined whether Thynne held artworks under a licence from the deceased's children and whether she had breached any trust obligations by being a trustee of a discretionary family trust.

The legal issues before the court included the nature and scope of the obligations arising from the memorandum of wishes and whether they constituted a fiduciary duty. The court needed to determine whether Thynne had breached these obligations by mortgaging the property. Additionally, the court had to interpret the will to ascertain whether Thynne held the artworks under a licence from the deceased's children and whether her usufructuary right was akin to a life estate in realty. The court also examined the trust deed to decide whether the deceased was the appointor of the trust and whether an unexecuted document purporting to vary the trust was effective. Finally, the court considered whether Thynne was bound by estoppel by convention as to a purported amendment to the trust deed.

In its reasoning, the court found that Thynne had indeed breached her fiduciary obligations by mortgaging the property. Regarding the memorandum of wishes, the court held that the surviving spouse's obligations were not fiduciary in nature. However, the court did find that Thynne had breached her obligations by granting a mortgage over the property. With respect to the will, the court determined that Thynne held the artworks under a licence from the deceased's children and her usufructuary right was akin to a life estate in realty. Concerning the trust, the court held that the deceased was the appointor of the trust and that the unexecuted document was ineffective. The court further found that Thynne was bound by estoppel by convention as to a purported amendment to the trust deed. Lastly, the court exercised its discretion under the Trustee Act 1925 (NSW) and found that Thynne was not a de facto or shadow director of the company.

The court made several orders, including that Thynne pay the deceased's children the amount of the mortgage and interest. The court also ordered Thynne to deliver the artworks to the deceased's children. Additionally, the court made orders regarding the trust, including that the trust deed be varied to include the deceased's spouse and farming business as beneficiaries. The court further ordered that the deceased's children be appointed as trustees of the trust.