Power v Ekstein [2000] NSWSC 905

New South Wales Supreme Court

CITATION : Power v Ekstein [2000] NSWSC 905 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2395 of 1998 HEARING DATE(S) : 29 August 2000 JUDGMENT DATE : 14 September 2000

Kaaren Jarmila Power (Plaintiff) PARTIES : Paul George Ekstein (First Defendant) Paul Ward-Harvey as executor of the Estate of the late Otto Ekstein (Second Defendant) JUDGMENT OF : Windeyer J at 1

Mr J C Campbell QC with him Mr D A Smallbone (Plaintiff) COUNSEL : Mr P Hallen SC with him Mr S Burchett (First Defendant) Mr D Fagan SC (Second Defendant) Holman Webb (Plaintiff) SOLICITORS : Horowitz & Bilinsky (First Defendant) Paul Ward-Harvey & Co (Second Defendant) CATCHWORDS : TRUSTS - whether distribution of trust assets by will - testator trustee of discretionary trust where powers of trustee could be exercised by will - whether testator by will effectively exercised powers that he had as trustee of a discretionary trust - whether will exercised powers of trustee to determine distribution date determine entitlements of beneficiaries and amendments to list of beneficiaries - whether power to appropriate assets to beneficiaries exercised by will - TRUSTS - whether new trustee is bound to give effect to wishes of original trustee as set out in his will - clause inserted into trust deed by amendment required the trustee to give effect to the wishes of the original trustee as far as possible as evidenced by will - whether fetter on discretion - POWERS - powers of appointment - special power exercisable by will - whether power exercised - WILLS - special power of appointment - whether exercised by will Trustee Act 1925 s85 LEGISLATION CITED : Wills Probate & Administration Act 1898 s46B(1) Thomas: Powers 1998 7/42 - 7/47 Busk v Aldam [1874] LR 19 Eq 16 CASES CITED : Kearns v Hill (1990) 21 NSWLR 107 In re Weston's Settlement [1906] 2 Ch 620 In re Knight deceased [1957] 1 Ch 441 DECISION : Paragraphs 1, 2, 3 and 4 on pages 19 and 20