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Key decisions

  • EWT [2020] NSWCATGD 98
  • In the Estate of Carluen [2022] NTSC 80
  • Case 810873 (concerning N M Superannuation Pty Ltd)
  • Case 802546 (concerning Retail Employees Superannuation Pty Ltd)
  • Moloney v Hayward [2022] SASC 79
  • Jung Estate v Jung Estate (2022) BCSC 1298
  • Estate of the late Genevieve Bryan [2022] NSWSC 965
  • Re Sambucco [2022] VSC 699
  • Estate of Philip Mack (Deceased) [2022] NSWSC 1629
  • Capaldo v Gretsas [2022] SASC 117
  • Mulroe v Mulroe [2022] NSWSC 1459

An attorney’s fiduciary duties apply irrespective of ‘good intentions’

In EWT [2020] NSWCATGD 98, the attorneys breached their fiduciary duties by:

  • understating the principal’s assets to Centrelink to secure a full pension but, as a result, limiting accommodation places for the principal in aged care;
  • holding the principal’s inheritance in bank accounts in the attorney’s names thereby exposing the principal’s assets to the attorney’s risk of personal creditworthiness,
  • holding part of the principal’s assets in a foreign currency thereby exposing the principal’s assets to risks involved with currency fluctuations; and
  • debiting the attorney’s travel expenses from the principal’s bank account, action described by the Tribunal as ‘unjustified’.

The Tribunal described the foregoing actions of the attorney as ‘a generally benevolent and paternalistic lack of rigour, informed by a tacit assumption that certain standards which the law demands of fiduciaries generally do not apply to the attorneys because of their good intentions’ (at [24]). The Tribunal appointed a financial manager of EWT’s estate thereby suspending the power of attorney.

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