Deemhire Pty Limited as trustee of the Vartuli Family Trust v No Defendant

The Court approved under s 86A Trustee Act 1925 (NSW) a variation to expand the post-mortem class of income beneficiaries in a discretionary family trust from the narrower 'Eligible Beneficiaries' (Third Schedule) back to the broader 'Beneficiaries' class (Second Schedule) that had applied during the settlor/appointor's lifetime, on the basis of family harmony and the consent of all existing eligible beneficiaries. The Court declined to exercise s 86A to appoint a new appointor, to grant a general power of variation, or to create a mechanism for beneficiary removal and substitution of appointors, but indicated willingness to appoint appointors under the Court's inherent jurisdiction to secure the due execution of trusts, subject to the appointees accepting that cl 19 precludes them from receiving benefits. The judgment leaves open whether s 86A can be used to appoint an appointor, noting doubt and the absence of specific submissions, and expressly does not foreclose further applications on the unresolved issues.