By Darryl Browne -
Key decisions
- Re Estate Miletic; Strbik v Strbik [2023] NSWSC 371 (Will construction)
- FC v SC (No. 2) [2023] NSWSC 376 (Protected estate)
- Legal Services Commissioner v Pennisi [2023] QCAT 118 (Best practice)
- Lim v Lim [2023] NSWCA 84 (Testamentary capacity)
- Williams v Williams [2023] QSC 90 (SMSF)
- World Elder Abuse Awareness Day
Construction of a discretionary trust provision in a will
Joseph Miletic’s will appointed his daughter Josie Strbik as his executor. In the event that his wife predeceased him (which she did), he gave his assets to his children, Josie and Pauline (‘the Primary Beneficiaries’) in equal shares ‘subject to clause 6’. Clause 6 was titled ‘Discretionary trust for primary beneficiaries’ and it contained these relevant provisions:
‘6.1 My Executor shall set up a fund for each Primary Beneficiary comprising that Primary Beneficiary’s share of my estate; …
6.3 If so directed by any Primary Beneficiary who is not under a disability, my Executor shall, from time to time: …
6.3.2 pay to the Primary Beneficiary all or any part of the Primary Beneficiary’s Fund for the Primary Beneficiary’s own use.
6.4 My Executor may, in relation to each Primary Beneficiary’s Fund, exercise any powers given by law or by this Will and may, in addition: …
6.4.2 establish and record a category or categories of the Primary Beneficiary’s Fund’s income or capital, having distinctive characteristics, and deal separately with the whole or part of the income or capital of a category so that it may be paid to, or used to the benefit of any one or more of the children or grandchildren of the Primary Beneficiary, exclusive to the other or others; …
6.5 Subject to clauses 6.2, 6.6 and 6.7, when all living children of the Primary Beneficiary have attained the age of 21 years (the distribution date) my Executor shall divide the Fund or the balance of it equally among them without regard to payments previously made to or in respect of those children…’
