Estate of the late Connie Wai Fong Wong [2021] NSWSC 967

Supreme Court New South Wales

Medium Neutral Citation: Estate of the late Connie Wai Fong Wong [2021] NSWSC 967 Hearing dates: 9 July 2021 Decision date: 09 July 2021 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Order pursuant to s 63 of the Trustee Act 1925 (NSW), that the plaintiffs and any current trustees of the Education Fund referred to in clause 8.1 of the Will dated 15 December 1999 of the late Connie Wai Fong Wong are justified in proceeding to administer the Education Fund on the basis that: a. the constitution of the Education Fund said to be set out as an annexure to the said Will was not annexed and does not exist. b. other clauses of the said Will sufficiently constitute the Education Fund, namely, clauses 2.1, 2.2, 3.1, 3.2, 8.1, 8.2 and 9. c. clause 3.2(j) of the said Will empowers the trustees to reimburse the beneficiaries of the Education Fund, or their parents or guardians, for fees already paid for school and university education, provided that there is some proper proof of expenditure. 2. Note that Anthony Joseph Gagliano has, by consent signed and dated 18 March 2021, consented to act as the third trustee of the Education Fund created under the Will dated 15 December 1999 of Connie Wai Fong Wong if so required by the Court. 3. Order pursuant to s 70 of the Trustee Act 1925 (NSW), that Anthony Joseph Gagliano be appointed as a new trustee of the Education Fund created under the Will dated 15 December 1999 of the late Connie Wai Fong Wong in substitution for Sai Ki Yeung on the basis that it is expedient for such appointment. 4. Grant liberty to Sai Ki Yeung to make application for variation of the above order in the event that Mr Yeung is able to perform the duties and functions of a trustee of the Education Fund created by the Will dated 15 December 1999 of the late Connie Wai Fong Wong. 5. Order the plaintiff's costs of the summons be paid out of the Education Fund created by the Will dated 15 December 1999 of the late Connie Wai Fong Wong on the indemnity basis. 6. Note that the liberty to apply granted to Mr Yeung does not operate to preclude the current trustees, including Mr Gagliano, who has been appointed in substitution of Mr Yeung, from proceeding to administer the Education Fund established by the Will dated 15 December 1999 of the late Connie Wai Fong Wong in the ordinary course. Catchwords: SUCCESSION — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 — Substitution of trustee, Trustee Act 1925 (NSW), s 70 Legislation Cited: Trustee Act 1925 (NSW), ss 63, 70 Cases Cited: In re Richards (1931) 31 SR (NSW) Langston v Langston (1834) 6 ER 1128 Texts Cited: Heydon, JD and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) Category: Principal judgment Parties: Sandra Fong (First Plaintiff) Keith Chi Kit Wong (Second Plaintiff) Sai Ki Yeung (Third Plaintiff) Representation: Counsel: M Meek SC (Plaintiffs)