Dawson v Dawson [2019] NSWSC 826

In 2005 Dad and his wife, D1, established a super fund. 

They were the trustees and beneficiaries of the fund.  Before Dad’s death his son from a previous marriage, P, was appointed as trustee in his place. P was also Dad’s financial manager and guardian, and held his Power of Attorney.  

In 2015 Dad died. His executor was D2.  

In 2018 D1 and D2 entered into a deed apparently confirming D2’s replacement of P as trustee of the fund with retrospective and apparently automatic effect from the date of Dad’s death: [28].  

The Court had to consider (i) whether P was appointed trustee in his personal capacity or as Dad’s attorney, (ii) whether P’s appointment ceased on Dad’s death, and (iii) whether D2 was validly appointed as P’s replacement trustee: [6].  

Re (i) and (ii): P was appointed in his personal capacity, not pursuant to the PoA meaning his appointment did not end on Dad’s death: [75].  Re (iii): the appointment and removal of a trustee must be in accordance with the trust deed. 

In this case P’s purported removal and D2’s purported appointment was not: [105].  

The judgment considered other juicy issues such as s17A of the SIS Act and quia timet injunctions, but hopefully the above is enough to get your day started.