White v Cohen
[2014] NSWSC 1901
•28 November 2014
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New South Wales |
Case Name: | White v Cohen |
Medium Neutral Citation: | [2014] NSWSC 1901 |
Hearing Date(s): | 28 November 2014 |
Date of Orders: | 28 November 2014 |
Decision Date: | 28 November 2014 |
Jurisdiction: | Equity Division |
Before: | Brereton J |
Decision: | New trustees appointed |
Catchwords: | EQUITY – trusts and trustees – removal and replacement of trustees |
Category: | Procedural and other rulings |
Parties: | Kenneth Henry White (first plaintiff) |
Representation: | Counsel: |
File Number(s): | 2014/313144 |
JUDGMENT (EX TEMPORE)
HIS HONOUR: The deceased Raymond Charles Cohen died on 20 November 1998 leaving a will dated 1 August 1978 by which he gave, devised and bequeathed his property at 17 Cooper Street, Marsfield, and its contents and effects to his executors and trustees upon trust to allow his wife Helen Audrey Cohen to reside in, use and occupy it or collect the rents and profits during her lifetime, subject to the payment of outgoings, and upon her death, to sell the same and divide two-thirds of the proceeds between his three children in equal shares, and the other third of the proceeds between his three stepchildren in equal shares. He gave, devised and bequeathed the rest and residue of his estate to his executors and trustees upon trust to pay debts, funeral and testamentary expenses, and to pay the income to his wife during her life, and upon her death to pay the balance to his three children in equal shares. He appointed his wife Helen Audrey Cohen and his son Anthony David Cohen executors and trustees of his will.
The executorial duties have apparently been completed, and the executors, to whom probate was granted on 15 August 1889, now hold the estate assets upon the trusts referred to in the will. Those assets amount to approximately $620,000, of which the Marsfield unit represents $530,000, and the balance is essentially in the form of shares.
The Marsfield property is registered vested in the names of the trustees, Helen Cohen and David Anthony Cohen, as joint tenants.
Anthony Cohen died on 18 August 2014. He left a will dated 5 June 2007, probate of which has not yet been granted but which appointed his wife Robyn Marilyn Cohen to be his executrix and trustee and (in the events which have happened) devised and bequeathed the whole of his estate both real and personal to her.
The sole surviving trustee of the deceased is therefore Helen Audrey Cohen. She was born in 1913 and is 101 years of age, suffers from advanced dementia, and is shown by the evidence of her treating GP Dr Rust, and lay observations including observations made by her tutor Mr Dean, a retired solicitor, to be incapable of administering the estate or making any decisions in that respect. It is plainly expedient that new trustees be appointed.
By summons originally filed on 24 October 2014, and since amended, the plaintiffs Kenneth Henry White (a stepson of the deceased who also holds power of attorney on behalf of Helen Cohen), Robyn Marilyn Cohen (the widow of Anthony David Cohen) apply for orders removing the surviving trustee and appointing themselves as trustees.
Pursuant to orders previously made by the Court, the surviving trustee, who was not originally joined as a party, was joined as a defendant, and Mr Dean appointed as her tutor. Having regard both to the medical evidence and Mr Dean's evidence as to her capacity, I dispensed with service of that application upon the defendant. Mr Dean, however, has been served and is present in Court, and consents to the relief sought. All the beneficiaries consent to the relief sought.
Affidavits of fitness of each of the proposed new trustees have been filed and read, and establish their fitness. They propose to sell the Marsfield unit, in order that the proceeds may be used to assist in funding the care of Helen Cohen during her lifetime.
I am therefore satisfied that it is plainly necessary to remove the surviving trustee, and expedient to appoint the plaintiffs as trustees.
The Court orders that:
(1)Helen Audrey Cohen be removed as trustee of the trusts of the will of the late Raymond Charles Cohen dated 1 August 1978 ("the trust").
(2)Kenneth Henry White of 103 Galoola Drive, Nelson Bay, and Robyn Marilyn Cohen of 20 Leinster Avenue, Killarney Heights; be appointed trustees of the trust.
(3)The property of the trust including the home unit situated as and known as unit 3/199 Waterloo Road, Marsfield, being lot 3 in strata plan 12303, vest in Kenneth Henry White of 103 Galoola Drive, Nelson Bay, and Robyn Marilyn Cohen of 20 Leinster Avenue, Killarney Heights; as such trustees.
(4)The plaintiffs' costs of the proceedings on the indemnity basis be paid out of the trust assets.
(5)The defendant's costs of the proceedings on the indemnity basis be paid out of the trust assets.
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