An absolute and unfettered discretion conferred on a trustee may be impugned on the ground of failure to give real and genuine consideration alone, without the need to establish bad faith. The tentative suggestion in Gisborne v Gisborne and the summary adopted in Bishop and Breckler that bad faith may need to be shown for absolute discretions does not state an additional requirement beyond the Karger v Paul framework. Trustees of self-managed superannuation funds exercising a discretion as to death benefit distribution must give real and genuine consideration to the interests of all dependants; the existence of possible grounds for the exercise of discretion in the same way is no cure for a failure to do so.
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