Hull & Hull LLP Estate, Trust and Capacity Law Breakfast Series
Yesterday’s Breakfast Series was very informative (and the breakfast is always a nice treat!).
Suzana Popovic-Montag started off the seminar with an instructive talk on trust issues in an estates context. Her discussion of leading and recent case-law examining a trustee’s discretion to encroach on capital, including Gisborne v. Gisborne (1877), 2 A.C. 300 (H.L.) and Fox v. Fox Estate, included the following observations:
- the Court will not interfere with the exercise of a trustee’s discretion to encroach on capital in the absence of mala fides
- the term mala fides should be interpreted with some flexibility
- mala fides is more than just a category of fraud; it includes any act by an executor which is based on matters/considerations “extraneous” to the purposes of the testator
- the question as to the extent of a beneficiary’s personal resources should, at first instance, be irrelevant
Suzana gleaned from her review of the authorities that the Court’s overwhelming view seems to allow for the broad exercise of discretion on an unfettered basis (presuming the Will provides for it) and the Court will only reluctantly limit that discretion.
Craig Vander Zee followed with an interesting discussion on the removal and/or replacement of a trustee, and Ian Hull spoke about various estate law remedies applicable to estate administrations. Their papers contain a thorough consideration of these topics that I unfortunately do not have sufficient space in this blog to touch upon.
Have a great weekend!