After the death of Knut Alfred Horstfeldt the following was accepted as being his authentic will.

LAST WILL AND TESTAMENT

1. THIS WILL is made by me Knut Alfred Horstfeldt of 28 Khalin Crescent LARRAKEYAH in the Northern Territory of Australia, mine proprietor, (who was born at Nhulunbuy in the Northern Territory of Australia on 30 March 1961) which I make in the following manner.

2. I HEREBY REVOKE all former wills and testamentary dispositions heretofore made by me AND DECLARE this to be my last will and testament.

3. I APPOINT Arafura Guardians and Trustees Limited (ACN 101 237 983) to be my Executor and Trustee AND WHERE in this my will I use the expression "my Trustee" that expression shall also be taken to refer to my said Executor.

4. I DIRECT MY TRUSTEE to sell, call in, and convert into money such sufficient part of the whole of my real and personal property (that does not then consist of money at the date of my death) as may be necessary to enable my Trustee to pay all of my just debts, funeral and testamentary expenses, and any succession estate or other death duties which may become payable in respect of my estate out of my estate (if possible in a manner which shall not require any adjustment or apportionment between any of the beneficiaries under this my will or any codicil hereto) and, subject to any specific bequest, legacy, devise or direction contained herein, to stand possessed of all remaining money, real and personal property that comprises my net estate on trust to be distributed in accordance with the following contents of this my will.

5. I GIVE DEVISE AND BEQUEATH:

5.1 To my Trustee, Three Million dollars ($3,000,000) in trust for my son Jacob Albert Horstfeldt on the proviso that neither the capital nor the income may be paid to him or applied for his benefit until such time as he shall have been, and continues to be, for a period of not less than fifteen (15) years, in a legally solemnised marriage to a woman who has, during that marriage, given birth to two (2) or more children of my said son's paternity and, until then, the income is to be accumulated and added to the capital of this gift;

5.2 To my Trustee, Three Hundred Thousand dollars ($300,000.00) in trust for Agatha Louise Raymond, my former business assistant, whose help I treasured and without which I would not have been as successful in my mining ventures, however she is to share that benefit with her successors Joan Delilah Garfield and Elizabeth Muriel Wegener who did their utmost to assist me as effectively as did Agatha (and almost did but, though they were very skilled, they did not quite attain Agatha's high standards);

5.3 .......[intentionally deleted as not relevant]......;

5.4 .......[intentionally deleted as not relevant]......;

6. .......[intentionally deleted as not relevant]......;

****End of Will****

Assume that the only relevant aspect of the remaining provisions in the will was that the totality of its contents purported to dispose of all of Knut's assets, but the will did not contain any residuary gift (and that the consequence of that omission would be that the beneficiaries on intestacy would inherit the proceeds of any gift that failed).

Further assume that:

Ms Garamond, of the executor company, is the officer of the trustee company who is to carry out the trustee's work under the will. She has consulted your legal firm for advice on the administration of the estate. She informed the senior partner of the legal firm that the deceased had three sons.The other two sons, who were not mentioned in the will, were Hakon Robert Horstfeldt and Magnus George Horstfeldt.She said that they had registered a protest with her against their father's will.

They told her that the will is very unfair as it gives discriminatory preference to their younger brother Jacob. They said that the explanation was their father's prejudices.They explained that the deceased was notorious for his resentment of the fact that both of the two older brothers, Hakon and Magnus, were in same sex unions and, as a consequence, had no children nor any prospect of having any.

They told Ms Garamond that in recent years, as he grew older, Knut had been openly hostile to them. Indeed their father had frankly said to them that they would be disinherited as a penalty for failing to carry on the family line. Moreover he was also suspicious of the younger son Jacob and had openly stated that, unless he married and had children, there would be nothing for him either.

Hakon and Magnus told Ms Garamond that they had investigated the possibility of taking the issue to court and that, in the course of consulting a lawyer, they had received advice that the gifts in sub-paragraphs 5.1 and 5.2 are invalid.

Hakon and Magnus told Ms Garamond of that advice in the hope that she might agree to get independent advice on the validity of those gifts.If she were to do so and her advice coincided with theirs, they said, she might possibly concede the point and settle out of court to save them the difficulty of taking legal proceedings.

Proceed on the assumptions that you are one of the lawyers employed in the legal firm to which these matters have been referred. Your work involves contributing to the efforts of a team that deals with cases handled by the senior partner. As leader of the team, the senior partner has asked you to write a report for the information of the team. He has specified that your report is to provide an analysis of how the principles of the law of trusts apply to the facts of each problem (or why they do not apply, if that is the case).

Your report is required for the guidance of the entire team and must take into account that the other members of the team, and particularly the senior partner, are not lawyers who practise in the field of trusts. For that reason you must not assume any knowledge of trusts on their part. Moreover it is the custom of the team to debate each other's work. For that purpose you must give definitive authority for any propositions contained in your report in case the other members wish to verify what you say.

So far as is practical, you should restrict your report to how the law of trusts applies to the assumed facts. Avoid formulating analyses based on the laws of Tort, Consumer Protection, Criminal law, Family Law, Human Rights, Anti-Discrimination, Contract, Property, Partnership and similar fields or any statutory law. Do not venture into those other fields of law as other members of the legal team have been assigned to consider how other components of law apply to the case.

Of course any principles and doctrines which are not strictly within the scope of the law of trusts but have nonetheless been examined incidentally in your study of the trusts unit at Charles Darwin University may be used and treated as though they are part of the law of trusts. In general, analyse and address the problems raised by the following TWO (2) questions in the same way in which you have been required to do in the course work of this unit LWZ211 Trusts throughout the semester.

Task 1

On the basis of the assumed facts, and in accordance with the foregoing terms of reference, write the report necessary to provide the team with an analysis, from the perspective of the law of trusts, of the issues, principles and possible outcomes of the validity or invalidity of the gift contained in sub-paragraph 5.1 of the will.

In writing the report take into account the position, interests and likely arguments of the named beneficiary of the gift. Review and comment on to whom the subject of the gift might go if it were found to be invalid. Review and comment on the meaning of the gift if it were found to be valid and, in particular, discuss how the trustee of the gift must administer the gift to give effect to that meaning.

Task 2.

On the basis of the assumed facts, and in accordance with the foregoing terms of reference, write the report necessary to provide the team with an analysis, from the perspective of the law of trusts, of the issues, principles and possible outcomes of the validity or invalidity of the gift contained in sub-paragraph 5.2 of the will.

In writing the report take into account the position, interests and likely arguments of the named beneficiaries of the gift. Review and comment on to whom the subject of the gift might go if it were found to be invalid. Review and comment on the meaning of the gift if it were found to be valid and, in particular, discuss how the gift must be administered to give effect to that meaning.