Re Steiner [2013] VSC 232 (15 May 2013)

2 The deceased died on 12 November 2011. Probate of the deceased's will dated 13 October 2011 was granted to the executrices on 11 January 2012. The executrices are a cousin and a best friend, respectively, of the deceased. In the Family Court proceeding, only the cousin is the applicant, she being a blood relative of the infant beneficiary.

3 The residuary of the estate is currently valued at $1 424 546 comprising two rental properties with a total value of $1 230 000. The rental income from the two properties, after agent's fees but before tax, is approximately $3 600 per calendar month.

4 The beneficiary of the estate is the deceased's daughter, Emma Sarina Frances Lemmens-Steiner, aged four years.

5 In a statement of wishes dated the same date as her will and addressed to her executrices and appointors and trustees of the trusts established by her will, the deceased stated to whoever was the guardian of Emma that it was her wish that Emma remain in Australia because her family in Australia would support her; that if Emma did not remain in Australia the trust established by her will should pay for Emma's travel to return to Australia to spend time with her family; and that Emma be provided with a Jewish education at a private Jewish day school. The statement of wishes was expressed so as not to be binding on the persons to whom it was addressed and with a hope that her wishes would be respected.

6 Emma's father is Mr Patrick Lemmens, a Dutch and New Zealand citizen. The deceased and Mr Lemmens separated around April 2011.

7 In June 2012, Mr Lemmens commenced proceedings against the estate seeking provision of one half of the estate pursuant to Part IV of the Administration and Probate Act 1958. A mediation of that proceeding took place on 20 November 2012. The mediation was unsuccessful. Mr Lemmens' solicitors in the Part IV proceedings have since ceased to act for him. The Part IV proceeding has been adjourned sine die.

8 On 26 November 2012, the solicitors for the executrices wrote to Mr Lemmens' family law solicitors seeking certain parenting orders to formalise rights of the deceased's parents and brother to visit Emma. The proposed parenting orders contemplated Emma's living in Australia, as she was at the time.

9 On or about 6 December 2012, Mr Lemmens and Emma left Australia without notice to the executrices. They now live in the Netherlands.

10 As a consequence, the executrices instructed solicitors, Lander & Rogers, to issue the Family Court proceedings seeking Emma's return to Australia and parenting orders in relation to Emma that ensured that the parenting of Emma would be shared between Mr Lemmens and the executor cousin, Ms Nicole Brown.

11 In the Family Law proceeding, Ms Brown contends, on her own behalf and on behalf of Emma's maternal family,[2] that it is in Emma's best interests that this type of parenting order be made. The executrices argue that the objects and principles of Part VII of the Family Law Act 1975 (Cth) contain a presumption that it is in a child's best interests to have ongoing contact with his or her extended family and to enjoy his or her cultural heritage, in this case, a Jewish cultural heritage, with others of the same culture. These submissions will be considered in more detail below.

12 In the Family Court proceeding, Mr Lemmens expressed concern that the executrices would pay for the Family Court proceedings from the estate of the deceased.

13 The costs and disbursements to date incurred in the Family Court proceedings amount to $47 109.16. Lander & Rogers estimate the future costs to be between $20 000 and $80 000. The amount of $47 109.16 has already been paid out of the estate to Lander & Rogers.

14 The executrices seek approval of the payment already made from the estate to Lander & Rogers as well as of the payment of the estimated future legal costs and disbursements of the Family Court proceeding.

15 Clause 9(b) is the part of the deceased's will relevant to this application. Clause 9(b) provides:

9. Trustee Powers

My Trustees may exercise any of the following powers as well as those given by law:

...

(b) To advance and apply the whole or part of the income or capital of any share of my estate to which a beneficiary has a vested contingent or presumptive interest for his or her maintenance education advancement or benefit and my Trustees shall not be responsible to recover any moneys so paid or advanced ...[3]

16 Historically, a trustee's power of advancement, apart from statute, was limited.[4] In Victoria, the relevant legislation is ss 37 and 38 of the Trustee Act 1958. These sections empower a trustee to apply the income of any property of the trust or the capital of the trust towards the maintenance, education, advancement or benefit of the beneficiary. This power first arose in statute pursuant to s 32 of the Trustee Act 1925 (UK), but prior to this 'the power of advancement was often inserted in settlements of pure personalty'.[5]

17 As noted in the submissions made by the executrices,[6] the words 'advancement or benefit' in the statutory power are 'large words'.[7] The phrase refers to any use of the money that will improve the material situation of the beneficiary.[8] Professor Denis Ong notes, however, that the word 'advancement', when standing alone, is appropriate only to assisting the beneficiary in an early period of the beneficiary's life,[9] whereas the phrase 'advancement or benefit' is not restricted to these purposes.[10] It is important to note the distinction between the wide nature of the statutory power of advancement and the more narrow equitable concept of advancement.[11] The difference between the two was described by Viscount Radcliffe in Pilkington v Inland Revenue Commissioners ('Pilkington') as follows:

It is important, however, not to confuse the idea of 'advancement' with the idea of advancing the money out of the beneficiary's expectant interest. The two things have only a casual connection with each other. The one refers to the operation of finding money by way of anticipation of an interest not yet absolutely vested in possession or, if so vested, belonging to an infant: the other refers to the status of the beneficiary and the improvement of his situation. The power to carry out the operation of anticipating an interest is not conferred by the word 'advancement' but by those other words of the section which expressly authorise the payment or application of capital money for the benefit of a person entitled.[12]

18 Pilkington also establishes the principle that, so long as the disposition benefits the beneficiary, the disposition is not invalid merely because it incidentally benefits others.[13]

20 The executrices rely on Pilkington, in which Viscount Radcliffe stated that the term 'advancement' also refers to the phrase 'advancement or benefit' and means any use of the money that will improve the material situation of the beneficiary.[14] They contend that the commencement and maintenance of the Family Court proceedings are for Emma's advancement because they are for the purpose of securing an ongoing relationship between Emma and her maternal family.

21 The executrices emphasised the importance of Emma's Jewish identity and culture and the deceased's wish that Emma attend a private Jewish day school. They argue that contact with Emma's maternal family is an important part of her Jewish education. They therefore suggest that the expenditure of funds for the purpose of securing Emma's ongoing relationship with her maternal family may be categorised as expenditure towards her education and, therefore, a proper exercise of the power pursuant to cl 9(b) of the deceased's will.

22 The executrices submit that, in the context of applying trust funds for the benefit of minor beneficiaries, the term 'benefit' is a very broad word.[15] The executrices focussed in particular on the following passage of Viscount Radcliffe in Pilkington:

It was always recognised that these added words ['or otherwise for his or her benefit'] were 'large words' (see Jessel MR in In re Breeds' Will) and indeed in another case (Lowther v Bentinck) the same judge spoke of preferment and advancement as being 'both large words' but of 'benefit' as being the 'largest of all'.[16]

23 The executrices emphasised that the term 'benefit' is used in a large sense to mean 'any benefit not comprised within the expressions "maintenance" or "advancement"'.[17]

24 They submit that, if the Court doubts that it has power to order the payment of the Family Court proceedings out of the estate under the 'advancement' or 'education' criteria of cl 9(b), then the power must lie under the 'benefit' criteria. The executrices submit that the expenditure of funds to pay for Family Court proceedings to ensure that Emma has an ongoing relationship with her maternal family is in her best interests and is for her advancement, education and benefit and is, therefore, within power.

25 The executrices did not make any positive submissions about the term 'maintenance' in support of their case. Instead, at footnote 12 of their submissions, they stated that 'maintenance' has a more 'conservative' definition and refers primarily to payments of living expenses, such as housing, food and clothing. The executrices therefore acknowledge that they make no submissions on the question whether maintenance is the source of the executrices' power.

26 The position of the executrices is supported by commentary in Jacobs' Law of Trusts in Australia, where the differences between the concepts of maintenance and advancement were discussed:

The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement.

An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary.[18]

27 The executrices conceded that they could find no authority where a clause such as cl 9(b) was used as a basis for funding a family law proceeding.[19] They did submit that there were a number of cases that expanded upon the term 'benefit'. Counsel for the executrices submitted that '[b]enefit has a very broad meaning and entitles the trustees to legitimately spend trust funds for anything they consider to be reasonably for the benefit of the beneficiary'.[20] The executrices submitted further that 'there really is no limitation on the benefit power provided it is in some way rationalisable as being for the benefit of the child.'[21] The executrices further submitted that the facts of this application are not on the fringes of the rule at all.[22]

28 The following cases may illuminate the meaning of the phrase 'advancement or benefit'.

29 In Re White, Smith J expanded on the meaning of benefit, his Honour noting that the term must be 'construed very widely'.[23]

30 The following cases have permitted the capital or income of a trust to be applied pursuant to the power of advancement or benefit:

1. to pay the beneficiary's debts: Lowther v Bentinck (1874) LR 19 Eq 166; Perpetual Trustee Co Ltd v Smith [1906] NSWStRp 75; (1906) 6 SR (NSW) 542;
2. to pay for a house in which the beneficiaries may live: Re Lesser [1947] VicLawRp 52; [1947] VLR 366;

1. to pay the beneficiary so that he might take a holiday from studying owing to ill health: Re Dick; Dick v Dick [1940] VicLawRp 28; [1940] VLR 166;

1. to renovate a house so that the children might have their own bedrooms (despite also recognising that a capital gain will benefit the registered proprietors): Re Smith [2013] NSWSC 47;
2. charitable donations due to a moral obligation of a wealthy beneficiary; it was a benefit because the payment would be made out of the capital of the trust and not out of his own resources: Re Clore's Settlement Trusts [1966] 2 All ER 272; and
3. payments out of an estate to purchase a house for a widowed mother with a young child were held to benefit the child because the mother could devote more time to raising the child and would be under less pressure to service the mortgage: Re Gerbich [2001] NZHC 1165; [2002] 2 NZLR 791.

31 The following scenarios were also noted by counsel for the applicants but no case references or citations were supplied:

1. purchasing an outfit; and
2. furnishing a house.

32 None of these cases directly supports the position of the executrices in the present case. They do demonstrate, and this was emphasised by counsel for the applicants, the diversity of matters that could be said to benefit the child or infant beneficiary of a trust.

33 The case of McEvilly v Barnsley ('McEvilly') approved the payment of legal costs for a related proceeding out of an estate on the basis that it would benefit the beneficiary.[24]

34 In McEvilly v Barnsley, the plaintiff, Mr McEvilly, who was the only son of the deceased and was self-represented, claimed orders and directions with respect to the administration of trusts contained in his deceased mother's will. The judgment contains a long factual history. The plaintiff claimed orders making provision for the plaintiff's maintenance, education and benefit or advancement in life pursuant to paras 3 and 5(d) of the deceased's will. At the time of the application, the plaintiff, a former doctor, was imprisoned for serious drug offences.

35 The plaintiff applied to the Court for an order approving the trustees' expenditure of funds out of the estate to fund a paternity suit in order to determine whether a child named Cassandra, who was a potential beneficiary under the deceased's will, was his daughter. The plaintiff was not concerned at that stage with initiating a custody dispute in relation to Cassandra.[25] The plaintiff also applied for an order approving funding for the cost of his special leave application to the High Court, in relation to an unsuccessful appeal from one of his criminal convictions.

36 The deceased's will established a discretionary trust pursuant to cls 3 and 4 of her will. The will contained the following provisions:

3. I GIVE the whole of my estate to my executors ON TRUST to pay the capital and any income arising from it to any one or more of my son RICHARD JOHN REGAN McEVILLY (called 'my Son') and my grand-children in such shares and at such times as my executors in their discretion think fit without obligation to make payment to or for the benefit of all of my Son and grandchildren to ensure equality among those to whom payments are made.

4. UNTIL the whole of the capital and any accrued income has been distributed my executors shall hold such part as remains ON TRUST -

(a) to invest it as authorized by cl 5(b);

(b) to add any undistributed income to capital for 21 years from my death (if the trust exists so long) and after that period to pay the yearly income to my Son; and

(c) to pay what remains of the capital and accrued income to my Son when he attains the age of 55 but if he dies before me or during the subsistence of this trust leaving children then those children shall take equally the gift which their father would otherwise have taken.

5. MY executors shall have the following powers:

(a) to apply for the benefit of any beneficiary as my executors think fit the whole or any part of the capital to which that beneficiary is entitled or may in future be entitled provided that on becoming absolutely entitled he shall bring into account any payments received under this clause;

...

(d) to apply for the maintenance education or benefit of any minor beneficiary as my executors think fit the whole or any part of the capital of that part of my estate to which that beneficiary is entitled or may in future be entitled;

...

37 The trustees' position was that they ought not spend trust money on a paternity suit unless they could see that it would be for the material benefit of the child.[26] Holland J refused to make any orders funding the paternity suit out of the estate. His Honour considered that the costs of the paternity suit were out of proportion to the material benefit to Cassandra under the will and that, in any event, she would have to wait until she was 18 years before becoming entitled to that benefit.[27]

38 His Honour noted an alternative solution to the paternity suit was to contact the guardian of Cassandra in order to give him or her the choice whether to take any steps to establish Cassandra's paternity. Holland J noted that the trustees would only be bound to verify the paternity of Cassandra if the trust reverted to an absolute one under cl 4(c) of the deceased's will, but his Honour was not prepared to consider this question in advance and the question would possibly never arise.[28]

39 His Honour was content, however, to permit the trustees to use trust funds to institute the plaintiff's special leave application (which he intended to file in person, unrepresented) in the High Court. His Honour left open the question whether the trustees might spend further trust funds prosecuting that application.[29]

40 In my view, McEvilly may be helpful to demonstrate that a court[30] has on occasion authorised the trustees of a discretionary testamentary trust to apply trust funds towards the institution of proceedings, but has also refused to allow expenditure on a paternity suit. Holland J commented that funding a bail application by the plaintiff out of the trust could be considered to the plaintiff's benefit:

but there could be considerable, valid, discretionary reasons for rejecting the idea. It would be a matter entirely in the discretion of the defendants upon a consideration of all the relevant circumstances.[31]

41 On the other hand, there are a number of significant features distinguishing McEvilly from the application in this proceeding:

1. In McEvilly the application was brought by the beneficiary and the trustees were parties to the proceeding so that the interests of both the beneficiary and the trustees were represented. In the proceeding before me, the application is brought by the executrices of the estate and there is no person in the proceeding to advance the interests of Emma, the residuary infant beneficiary. In usual circumstances, the person to represent Emma's interests in such a proceeding would be her father, Mr Lemmens. As stated above,[32] Mr Lemmens has already expressed his concern that the executrices would pay for the Family Court proceedings out of the estate of the deceased.
2. In McEvilly, the plaintiff was an adult child beneficiary and was capable of asserting his interests.

1. In my view, the relevance of McEvilly is limited by his Honour's lack of discussion of the meaning of 'benefit' and his emphasis instead on the discretion that the trustees hold to make decisions about the meaning of 'benefit'.

42 Having said that, in my view, McEvilly could be said to be authority for the approach that all the relevant circumstances of a case should be considered before approving expenditure by trustees, in particular, whether the expenditure is 'out of all proportion' to the material benefit to the beneficiary is a relevant factor for a court to take into account.

43 In an application pursuant to r 54.02(2)(c)(i), it is important to take into account the role of this Court, as follows:

the court's role is not to consider the wisdom of the trustee's exercise of discretion but to grant the trustee's application for an order approving the trustee's agreement to the compromise, if the court is satisfied of the propriety of the application. That involves considering whether:

(a) the trustee's decision to agree to the compromise was within power;

(b) there was any impropriety in the trustee's decision;

(c) the trustee exercised its discretion in good faith; and

(d) the trustee gave fair consideration to the relevant issues.[33]

44 It is clear that the trustees of the testamentary trust set up by the deceased's will have broad powers to apply trust funds for the maintenance, education, advancement or benefit of the infant beneficiary. Equally, it is clear that the authorities support the view that 'benefit' is a broad concept and that its meaning has been considered judicially in a variety of circumstances.

Is the Payment of Legal Costs a Proper Exercise of the Power Conferred by Cl 9(b) of the Will?

45 For the following reasons, I am not satisfied that the executrices gave fair consideration to the issues relevant to the exercise of their discretion and I am not, therefore, satisfied of the propriety of the application.

46 Arguments can be made both in favour of and against the payment of the costs of the Family Court proceedings, both past and in the future, out of the estate, on the basis of what is in Emma's interests.

47 On the facts of this application, the costs, both paid and estimated to be paid, of funding the Family Court proceeding may be said to be not 'out of all proportion' to the material benefit that Emma might receive and the process in the Family Court proceeding may be said to be for her benefit because a neutral third party will consider all of the circumstances of Emma's situation.

48 However, it is impossible for this Court to assess what the Family Court might determine would be in Emma's best interests as a means of determining the present application.

49 On any view, however, the Family Court proceeding will result in the dissipation of the assets of the estate, which, in turn, will probably reduce the value of the testamentary trust that was established for Emma's material benefit.

50 If the executrices' costs of the Family Court proceeding were funded out of the estate and Mr Lemmens defended that proceeding, it is foreseeable that he would argue that his costs should also be funded from the estate, maintaining that the process of defending that application was for Emma's benefit.

51 If the costs of the Family Court proceeding were to exceed the funds on deposit, this would likely result in one of the properties being sold, which, in turn, would diminish the income stream for Emma's testamentary trust.

52 There are, in my view, a number of other relevant considerations that should be taken in to account in the determination of this application:

1. Emma is an infant beneficiary and still very young.
2. The Court has not had the advantage of hearing any submissions on behalf of Emma.

1. Whilst the deceased expressed her wishes as to Emma's future, these wishes are not binding.

1. It is apparent that the deceased contemplated that Emma might not remain in Australia and it is also apparent that those wishes could still be met if Emma remained in the Netherlands with her father.
2. Mr Lemmens is now Emma's sole custodian and, as her father and custodian, it is primarily for him to determine how he wishes to raise her and where he wishes to raise her.
3. If shared parenting orders were made, this could require Emma's father to return to Australia to live and raise Emma here. It is not known what effect that would have on Mr Lemmens.

53 The power to apply money for the 'advancement or benefit' of a beneficiary extends to any use of money that will improve the material situation of the beneficiary. McEvilly is authority for the proposition that the payment of legal costs for a legal proceeding can, in certain circumstances, be a valid exercise of that power.

54 In this application, for the reasons set out in paragraphs [45] to [52] above, it is not possible to ascertain whether the advancement of money for the payment of the Family Court proceedings will materially benefit the beneficiary.

55 Since I am not satisfied that the executrices gave fair consideration to the issues relevant to the exercise of their power and it is not possible to ascertain whether that exercise will materially benefit the beneficiary, I dismiss the application and I shall hear the parties as to costs.

[2] That is, the deceased's parents and brother.

[4] J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006) 541.

[5] Denis Ong, Trusts Law in Australia (4th ed, Federation Press, 2012) 309. See also Pilkington v Inland Revenue Commissioners [1964] AC 612, 630 (Viscount Radcliffe). Note that Australian statutes, with the exception of South Australia, confer the power of advancement with respect to all forms of trust property, so that the power is not limited to personal chattels.

[6] See below paragraph [22].

[7] Re Breeds' Will (1875) 1 Ch D 226, 228.

[8] Pilkington v Inland Revenue Commissioners [1964] AC 612, 635 (Viscount Radcliffe).

[9] Denis Ong, Trusts Law in Australia (4th ed, Federation Press, 2012) 309-10, citing Re Kershaw's Trusts (1868) LR 6 Eq 322, 323 (Malins V-C); Molyneux v Fletcher [1898] 1 QB 648, 653 (Kennedy J).

[10] Denis Ong, Trusts Law in Australia (4th ed, Federation Press, 2012) 309. See also Pilkington v Inland Revenue Commissioners [1964] AC 612, 634 (Viscount Radcliffe).

[11] See Denis Ong, Trusts Law in Australia (Federation Press, 4th ed, 2012) 309-12.

[12] [1964] AC 612, 635.

[14] See Outline of Submissions for the Applicants dated 4 April 2013, [13]-[15].

[15] The executrices referred to Re Heyworth's Interest [1956] Ch 364; Re Halsted's Will Trusts [1937] 2 All ER 570; Re Ropner's Settlement [1956] 3 All ER 332; Re Newton (1936) 53 WN (NSW) 117.

[16] [1964] AC 612, 634 (citations omitted).

[17] Outline of Submissions for the Applicants dated 4 April 2013, [19] citing Public Trustee v Larkman [1999] WASCA 93; [1999] 21 WAR 295, 306 [31].

[18] J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006) 542.

[19] Transcript of Proceedings, Re Steiner (Supreme Court of Victoria, McMillan J, 28 March 2013) 16.

[21] Transcript of Proceedings, Re Steiner (Supreme Court of Victoria, McMillan J, 5 April 2013) 34-5.

[23] [1959] VicRp 86; [1959] VR 661, 665, citing Re Heyworth's Interest [1956] Ch 364; Re Halsted's Will Trusts [1937] 2 All ER 570; Re Ropner's Settlement [1956] 3 All ER 332; Re Newton (1936) 53 WN (NSW) 117.

[24] (Unreported, Supreme Court of New South Wales, Holland J, 29 September 1982). An appeal from this decision to the New South Wales Court of Appeal was unsuccessful. See McEvilly v Barnsley (Unreported, New South Wales Court of Appeal, Hutley, Glass and Mahoney JJA, 3 April 1984).

[25] (Unreported, Supreme Court of New South Wales, Holland J, 29 September 1982) 30.

[27] Under the discretionary trust, the trustees had determined to pay $500 to each grandchild. See ibid 35.

[29] The plaintiff told the Court that, once initiated, his intention was to fund his special leave application through legal aid. See ibid 27-8.

[30] It is acknowledged, however, that it is the judgment of a single judge of the Supreme Court of New South Wales in an unreported decision.

[31] McEvilly v Barnsley (Unreported, Supreme Court of New South Wales, Holland J, 29 September 1982) 29.

[32] See above paragraph [12].

[33] Exxonmobil Superannuation Plan Pty Ltd v Esso Australia Pty Ltd [2010] VSC 357; (2010) 29 VR 356, 375 [87] (Habersberger J).