Blenkinsop v Herbert

(2017) 51 WAR 264; [2017] WASCA 87

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Equity and Trusts
2. › Discretionary trusts
3. › Guardian or protector
4. › Discretionary powers of trustee subject to requirement of consent of guardian
5. › Nature of guardian's powers
6. › Whether guardian's powers are fiduciary or personal
7. › Factors relevant to construction of trust deed
1. Equity and Trusts
2. › Discretionary trusts
3. › Guardian or protector
4. › Court's power to remove guardian
5. › Whether removal would constitute impermissible alteration of trust
6. › Distinction between executing and altering a trust
1. Equity and Trusts
2. › Discretionary trusts
3. › Court's supervisory jurisdiction
4. › Inherent jurisdiction to supervise administration of trusts
5. › Scope of power to remove office holders other than trustees
1. Practice and Procedure
2. › Costs
3. › Trusts
4. › Appeal by beneficiary concerning construction of trust instrument
5. › Whether unsuccessful appellant's costs should be paid from trust property
6. › Circumstances warranting relaxation of general rule

Quick Take

Where a discretionary family trust confers on a guardian (who is also a beneficiary) a power to consent to or veto the trustee's exercise of discretionary powers, those powers are likely to be personal rather than fiduciary, particularly where: the powers are permissive veto powers rather than active dispositive powers; the guardian is a beneficiary; the trust deed does not provide protective provisions for the guardian equivalent to those for the trustee; and the guardian can resign without mechanism for replacement. Such powers remain subject to the doctrine of fraud on the power and an implied obligation of good faith. The question of whether the court's inherent jurisdiction extends to removal of a non-fiduciary guardian was left open.