Belfield v Belfield

[2012] NSWCA 416

NSW Court of Appeal

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Interrogate

Catchwords

1. Family Provision and Maintenance
2. › Notional estate
3. › Prescribed transaction
4. › Property held on discretionary trusts
5. › Power to direct trustee to exercise discretionary powers
6. › Whether failure to exercise power constituted prescribed transaction
7. › Family Provision Act 1982 (NSW), ss 22, 23
1. Power of Attorney
2. › Enduring power of attorney
3. › Scope of authority
4. › Whether attorney may exercise donor's power to direct trustee of discretionary trust
5. › Whether power to direct trustee is a power held 'as a trustee'
6. › Conveyancing Act 1919 (NSW), s 163B(2)(a)
1. Trusts and Trustees
2. › Discretionary trusts
3. › Deed of appointment
4. › Power of appointor to direct trustee
5. › Distinction between holding trust powers and holding power to direct exercise of trust powers
1. Family Provision and Maintenance
2. › Appellate review
3. › Whether decision on jurisdiction and quantum reviewed by principles applicable to discretionary judgments
4. › Family Provision Act 1982 (NSW), s 9(2)

Quick Take

A power under a deed of appointment to direct a trustee of a discretionary trust to exercise its discretions and powers is not a power held 'as a trustee' within s 163B(2)(a) of the Conveyancing Act 1919, and accordingly an enduring power of attorney authorises the attorney to exercise such powers on the donor's behalf. The failure to exercise such powers can constitute a 'prescribed transaction' under s 22 of the Family Provision Act 1982, enabling designation of trust property as notional estate. Appellate review of family provision decisions on both jurisdiction and quantum is conducted in accordance with the principles applicable to discretionary judgments.