WENTWORTH v WENTWORTH (Executor of the Estate of the law G N Wentworth)

The parties to this appeal were the appellant, Mr. Wentworth, and the respondent, the executor of the estate of the late G. N. Wentworth. The dispute concerned the interpretation of a clause within the deceased's will, specifically whether it created a discretionary trust or a power of appointment. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the court was to determine the true nature of the provision in the will that directed the executor to distribute the residue of the estate "amongst such of the children of my son, Geoffrey, as shall attain the age of twenty-one years, in such shares and proportions as my Executor shall in his absolute discretion think fit." This required the court to ascertain whether the language used evinced an intention to create a trust, albeit a discretionary one, or merely a power to appoint amongst a class of beneficiaries.

The Court of Appeal, applying established principles of trust law, found that the language of the will indicated an intention to create a discretionary trust. The court reasoned that the use of the phrase "in such shares and proportions as my Executor shall in his absolute discretion think fit" coupled with the direction to distribute the residue amongst a defined class of beneficiaries (the grandchildren who attained 21) demonstrated a clear intention to impose a duty on the executor to distribute the property, rather than a mere power to do so. The court distinguished this from a power of appointment, where there is no obligation to exercise the power.

The appeal was dismissed, with the Court of Appeal affirming the primary judge's finding that a discretionary trust had been created.