Question
Ernest Bright established a family trust. It is an inter vivos discretionary trust, settled by deed. The schedule to the trust deed lists Ernest, his
Ernest Bright established a family trust. It is an inter vivos discretionary trust, settled by deed. The schedule to the trust deed lists Ernest, his wife Trixie, and their adult children, Joshua (43 years), Ruby (47 years) and William (52 years) as beneficiaries. The trust is run through a company, Luminous Nominees Pty Ltd (Luminous) and commenced in 2019, with Joshua as trustee. Ernest and Trixie's solicitor, Trevor, is an appointor under the trust deed. Ernest and Trixie are the directors of Luminous. The assets of the trust generate an annual net income of approximately AU $600 000. The trust deed requires that the trustee/s distribute the net income of the trust at the end of each financial year. However, the trustee/s have an absolute discretion as to how the income is distributed. Ruby has had multiple health issues during her life and was diagnosed with breast cancer in 2017. She had a career as a psychotherapist, though had to significantly reduce her hours of work. Her annual net income is approximately AU $55 000. William's relationship with his parents is strained at times. He visits them occasionally and continues to send Trixie birthday cards and gifts. On his visits, William talks about his own life and how Ruby is faring with her various challenges. Joshua has dinner with Ernest and Trixie every Sunday evening. He has little contact with his siblings, though hears a few vague details about Ruby and William via his mother, Trixie. He is aware of Ruby's cancer diagnosis. For the years 2020-2023 the net income of the trust property was distributed as follows: July 2020: 40% to Ernest, 40% to Joshua and 20% to Trixie. July 2021: 40% to Ernest, 40% to Joshua and 20% to Trixie. July 2022: 40% to Ernest, 40% to Joshua and 20% to Trixie. Trixie died in November 2022. Ernest was well, though made the decision to relocate to a retirement village. Ernest had few needs and bank accounts holding AU 3.7 million in total. July 2023: 100% of the trust's net income was distributed to Ernest. William is frustrated as neither he, nor Ruby, have received any income since the commencement of the trust. In September 2023 William wrote to Joshua asking for a copy of the trust deed and information about the trust assets. It is February 2024, and he has not received a response. William believes that there have been serious breaches of trustee's duties. He wants to be appointed as a trustee and have Joshua removed as trustee.
In IRAC, explain if Joshuas behaviour constitute and amount to a breach of trust? - explain what his fiducary duties are and whether they were met. Please
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