Some of the beneficiaries hear about the arguments

Assignment Help Business Law and Ethics

Reference no: EM13146624

The relevant Australian statute law and case law (UK or Australian only) to be applied and concluded. The relevant statute here is the Trusts Act 1973 (Qld).

Looking for help in working towards answering this question. Needs about 800 - 1000 words.

QUESTION 1:

Two friends, "A" and "B" established a trust for 150 named beneficiaries who were their classmates. The fund had $150 000 of funds.

Q: Is it a fixed or discretionary trust? Are the three 'Cs' present? Cases applicable?

The deed names both friends as trustees. "A" can appoint trustees. "A" died tragically, leaving "B" as sole trustee. "B" appointed another trustee who was bankrupt.

Q: Can he do this because he is not an appointer? No provision under Trusts Act saying a bankrupt can't be a trustee, but they can be removed based on being unfit (s 12(1)(e) or incapable s 12(1)(f) also Miller v Cameron).

"B" wanted to resign from being a trustee because he wanted to go surfing more often. The deed does not have provisions for resignation. "B" phoned the new trustee and asked, but his request was refused. "B" wants to remove the new trustee now.

Q: Surfing not a valid reason to resign. How can "B resign"? Can new trustee be removed because "B" is angry? Section 10 of the Trusts Act? Section 12, the named trustees may be removed and replaced, by the appointer (but "A" is dead) or court (s 80(1) or (2) Trusts Act.

Some of the beneficiaries hear about the arguments between "B" and the new trustee. They want to ensure the trust is administered correctly.

Q: What can the beneficiaries do? Check ss 10, 12 and 80 of Trusts Act? Can beneficiaries force "B" and new trustee to administer?

QUESTION 2:

"A" died tragically in a car accident last week. You have been instructed to act by "D", "As" widow and the executor and trustee of his will. "As" will, drafted by his solicitor, provides, inter alia:

FIRST "D" MUST PAY ALL BILLS ETC BEFORE BECOMING TRUSTEE.

I give, devise and bequeath all my real and personal property to my trustee upon trust as follows:

(a) As to $250,000 for my friend "K" and I hope that she will share some of this money with her son "M";

PRECATORY LANGUAGE; NOT CONDITIONAL. DOESN'T HAVE TO SHARE.

(b) As to 5,000 XYZ Ltd shares for my niece "S";

PROBS W SHARES; WHICH 5000 SHARES OF THE 50000 BELOW? HUNTER V MOSS?

WHICH FIVE BLOCKS? WHICH NEW DEVELOPMENT? VOID FOR UNCERTAINTY?

(d) As to the rest and residue of my estate for my wife "D" absolutely.

PROBS OKAY IF ALL IDENTIFIABLE?

"D" has told you that her searches and inquiries have revealed the following:

1. "As" assets include several residential and commercial properties, including the 'new' development; a valuable share portfolio, including 50,000 XYZ Ltd shares; and a cash management account with a balance of $8 million. The 'new' development contains 10 blocks which have been listed for sale at $250,000 each and no blocks have yet been sold. "S", the niece, is 15 years old.

ON TRUST FOR "S" TILL 18. DON'T KNOW.........

2. In January this year, "A" donated $75,000 to AT Pty Ltd (AT). AT received donations on behalf of persons who wanted to benefit artistic organisations and purposes. All donations were tax deductible, subject to a ruling by the Taxation Commissioner that the donations were to be transferred voluntarily and made unconditionally. When "A" made his donation, he expressed a preference that the money be applied towards the Milton Choir. "A" has claimed and has been granted a tax deduction for his donation. AT has recently been placed into liquidation. The Choir has not received any money from AT.

CAN SIMON MAKE A PREFERENCE? IS TAX DEDUCTION VOID? IS $75K ON TRUST BY AT FOR SIMON'S ESTATE? COULD IT BE A RESULTING TRUST?

3. In February this year, "A" decided to sell his collection of Elvis Presley memorabilia. As luck would have it, 'Elvis Lives', an Elvis Presley impersonator, was touring nearby at the time. Simon gave his collection to Elvis Lives to sell in the foyer at his concerts. The entire collection sold out at the first concert and Elvis Lives paid the $100,000 proceeds into his tour account, along with the ticket sales for his concerts and the proceeds of another collection of Elvis Presley memorabilia owned by 007, (which had been sold at another concert). Elvis Lives had agreed to pay the sales proceeds to "A" and 007 at the end of his concert tour. Elvis's tour finished last month, but the sale proceeds have not yet been paid. Elvis Lives was declared bankrupt yesterday!

IS $100K HELD ON TRUST FOR "A" and "007"? TRACING? ANY PROPERTY BOUGHT BY ELVIS - DOESN'T SAY; ACCOUNT OF PROFITS...? CONSTRUTIVE TRUST?

"D" has sought your advice in relation to the administration of "As" estate and the distribution of the assets. Please advise "D"

Reference no: EM13146624

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