James v Douglas

[2016] NSWCA 178

NSW Court of Appeal

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Interrogate

Catchwords

1. Wills and Estates
2. › Construction of will
3. › Testamentary trusts
4. › Power to appoint and remove trustees
5. › Whether power to appoint 'replacement' trustee includes anterior power of removal of original trustees
6. › Whether words may be supplied by implication to give effect to testator's intention
7. › Succession Act 2006 (NSW), s 32
1. Wills and Estates
2. › Construction of will
3. › Testamentary trusts
4. › Appointor's powers
5. › Distinction between power to appoint replacement trustee and power to remove existing trustee
6. › Necessary implication from terms of will
1. Costs
2. › Indemnity costs
3. › Proceedings concerning construction of testamentary trust
4. › Whether 'probate exception' applies to trust construction proceedings
5. › Whether conduct involved 'relevant delinquency' justifying indemnity costs
6. › Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.25
1. Costs
2. › Trust litigation
3. › Categories of trust litigation
4. › Whether proceedings adversarial in substance
5. › Whether trustee entitled to indemnity from trust assets
6. › Uniform Civil Procedure Rules 2005 (NSW), r 42.25(2)

Quick Take

A power to appoint a 'replacement' trustee does not necessarily include an anterior power to remove the trustee being replaced; the scope of such a power depends on the language and context of the instrument. Where a will confers separate powers to appoint and to remove, with the removal power limited to persons previously appointed under the power to appoint, the power does not extend to removal of original trustees named in the will. The 'probate exception' to the general costs rule does not apply to proceedings concerning the construction of powers conferred in relation to a testamentary trust where the proceedings are not a contested suit for probate.