BROADBENT -v- MEWS [2026] WASC 267

[2026] WASC 267 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : BROADBENT -v- MEWS [2026] WASC 267 CORAM : MASTER RUSSELL HEARD : 3 DECEMBER 2025 DELIVERED : 1 JULY 2026 FILE NO/S : TRU 15 of 2024 BETWEEN : CATHERINE ANNE BROADBENT as trustee of the JEFF MEWS WILL TRUST First Plaintiff KENNETH ROGER JAMES as trustee of the JEFF MEWS WILL TRUST Second Plaintiff AND BEVERLEY LUISE MEWS First Defendant PAUL JEFFREY MEWS Second Defendant PHILIP DAVID MEWS Third Defendant SUSAN MARIE MEWS Fourth Defendant -- 1 of 81 -- [2026] WASC 267 Page 2 Catchwords: Trusts - Trustees - Judicial advice - Trustees Act 1962 (WA) s 92 - Directions as to construction of terms of will and trust and exercise of trustees' powers and discretion - Turns on own facts Trusts - Trustees - Determination of questions arising in administration of a trust - Construction of terms of trust - Rules of the Supreme Court 1971 (WA) O 58 - Turns on own facts Wills and estates - Construction of will - Administration Act 1903 (WA) s 45 - Turns on own facts Legislation: Rules of the Supreme Court 1971 (WA) O 58 r 2, O 58 r 2(a), O 58 r 2(e), O 58 r 2(g), O 58 r 10, O 58 r 12 Trustees Act 1962 (WA) s 92, s 92(1), s 95, s 95(1) Result: Application granted in part Directions given pursuant to s 92 Trustees Act 1962 (WA) and O 58 Rules of the Supreme Court 1971 (WA) Category: B Representation: Counsel: First Plaintiff : EM Heenan SC Second Plaintiff : EM Heenan SC First Defendant : No Appearance Second Defendant : JM Healy Third Defendant : JM Healy Fourth Defendant : D Van Kempen Solicitors: First Plaintiff : Jackson McDonald Second Plaintiff : Jackson McDonald First Defendant : Cullen Macleod -- 2 of 81 -- [2026] WASC 267 Page 3 Second Defendant : Taylor Smart Third Defendant : Taylor Smart Fourth Defendant : Cicero Legal Cases referred to in decision(s): AA as executor of the estate of BB v XX [No 2] [2024] WASC 39 Allianz Australia Insurance Ltd v Delor Vue Apartments CTS39788 [2022] HCA 38; (2002) 277 CLR 445 Application of the NSW Trustee and Guardian; Estate of SGB [2015] NSWSC 398 Australian Executor Trustees Ltd v Attorney General (WA) [2015] WASC 439 Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2013] WASC 386 Blatchford v Laine [2018] WASC 207 Carlin v Hamersley Iron Pty Ltd [2003] WASCA 270 City of Belmont v Link Interiors Pty Ltd [2001] WASC 64 Equity Trustees Wealth Services Limited v The Attorney General of Western Australia [2024] WASC 324 Federal Commissioner of Taxation v Cornell (1946) 73 CLR 394 Hamersley Iron Pty Ltd v Hancock (Unreported, WASC, Library No 5195, 23 December 1983) Hardoon v Belilios [1901] AC 118 Hayes v National Heart Foundation of Australia [1976] 1 NSWLR 29 In re Atkinson (dec) [1971] VicRp 73; [1971] VR 612 In re Paradise Motor Co Ltd [1968] 1 WLR 1125 Irdi v Lang [2025] WASC 421 Jemal David Zagami (In his Capacity as Administrator of the Deceased's Estate) v James [2017] WASC 292 Lemon v Mead [2017] WASCA 215 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 Mews as co-trustee of Jeff Mews Will Trust v Mews [2025] WASC 240 Owies v JJE Nominees Pty Ltd [2022] VSCA 142 Re Birchall; Birchall v Ashton (1889) 40 Ch D 436 Re Cranstoun (deceased); Gibbs v Home of Rest for Horses [1949] Ch 523 Re Johnson [1939] 2 All ER 458 Shaw v McKean as executor of the estate of the late Ellen Mary May McKean [2023] QSC 261 Tantau v MacFarlane [2010] NSWSC 224 Townson v Tickell (1819) 3 B & Ald 31; 106 ER 575 -- 3 of 81 -- [2026] WASC 267 Page 4 Tsaknis v Lilburne [2010] WASC 152 Walsh v Adrian Cory Sloan as executor of the estate of The Late Laurette Dorothy Keddi [2019] WASCA 107 Wood (as Co-Executor and Trustee of the Will of the Deceased) v Wood [No 4] [2014] WASC 393 -- 4 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 5 MASTER RUSSELL: Introduction 1 This proceeding concerns the estate of the late Jeffrey Arthur Sydney Mews (Estate) and the Jeff Mews Will Trust (Trust) established by the deceased's will dated 17 April 2012, as amended by codicil dated 30 September 2015 (Will). 2 The plaintiffs, Catherine Anne Broadbent and Kenneth Roger James, as co-trustees of the Trust (Trustees) seek directions pursuant to s 92 of the Trustees Act 1962 (WA) and O 58 r 2(a), (e) and (g) and r 10 of the Rules of the Supreme Court 1971 (WA) (RSC) as to the construction of certain provisions of the Will and the Trust, and the exercise of the trustees' powers and discretion under the terms of the Trust. 3 Jeffrey Mews died on 26 August 2021. He was survived by his wife, Beverley Luise Mews, and three adult children, Paul Jeffrey Mews, Philip David Mews and Susan Marie Mews. Each of them is a beneficiary of the Will and the Trust and the first to fourth defendants, respectively. With no disrespect to them, as they share the same surname, I will refer to each of them by their first names. 4 The proceedings were originally commenced by Beverley and Ms Broadbent, as the executors of the Estate and trustees of the Trust. Beverley subsequently commenced separate proceedings seeking leave to bring an application under s 7(1) of the Family Provision Act 1972 (WA) out of time (Family Provision Proceedings). Ms Broadbent was a defendant in the Family Provision Proceedings in her capacity as an executor of the Estate and a trustee of the Trust. 5 An issue was raised by Paul and Philip as to whether, under the terms of the Will, Beverley and Ms Broadbent were deemed to have retired as trustees of the Trust because they were cited as a party to the Family Provision Proceedings. That issue was determined as a preliminary issue by Palmer J. 6 For the reasons set out in Mews as co-trustee of Jeff Mews Will Trust v Mews,1 Palmer J made orders on 4 July 2025 (July 2025 Orders), which included a declaration that Beverley retired from being a trustee of the Trust when she commenced the Family Provision 1 Mews as co-trustee of Jeff Mews Will Trust v Mews [2025] WASC 240 (Mews v Mews). -- 5 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 6 Proceedings and removing Beverley as a plaintiff in these proceedings in her capacity as a trustee of the Trust. 7 By Deed of Appointment of Acceding Trustee dated 10 July 2025, Ms Broadbent, who continued as a trustee, appointed Kenneth Roger James as co-trustee of the Trust in place of Beverley. 8 On 22 August 2025, orders were made by consent joining Mr James as co-trustee of the Trust as a plaintiff to the proceeding and, among other things, granting leave for the plaintiffs to file and serve an amended originating summons. 9 By the amended originating summons, which was filed on 26 August 2025 (Application), the Trustees seek directions as to the construction of the terms of the Will and the Trust and in relation to the exercise of their powers and discretion in respect of the Trust and its administration. Materials relied upon by the parties 10 The Trustees read and relied on affidavits of Beverley Luise Mews sworn and filed on 10 December 2024 (Beverley Mews Affidavit) and Catherine Anne Broadbent sworn and filed on 10 December 2024 (Broadbent Affidavit). To assist the court in determining the questions of construction raised by them, the Trustees also filed an outline of submissions on 25 September 2025 and an outline of submissions in reply on 26 November 2025. 11 Beverley has filed a notice of intention to abide the court's decision, other than in relation to costs. 12 Paul and Philip sought to read and rely on affidavits of Paul Jeffrey Mews sworn and filed on 20 March 2025 (First Paul Mews Affidavit) and 24 July 2025 (Second Paul Mews Affidavit). They also filed an outline of submissions on 24 October 2025. 13 The Trustees raised objections to the First Paul Mews Affidavit and the Second Paul Mews Affidavit, some of which were conceded.2 As a result of the concessions, the whole of the following paragraphs or, where indicated, part of the paragraph were not read and were struck out: 2 See schedule of trustees' objections to First Paul Mews Affidavit and Second Paul Mews Affidavit, included at pages 16 - 19 of the second and third defendants' outline of submissions filed on 24 October 2025. -- 6 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 7 (a) paragraphs 6, 15, 18 - 24, 28, 41 - 51, including attachments 'PJM-14' - 'PJM-18', and paragraphs 56 - 58 of the First Paul Mews Affidavit; (b) the words 'and in support of my application … conflict of interest' in paragraph 5 of the First Paul Mews Affidavit; and (c) paragraph 11 of the Second Paul Mews Affidavit. 14 The Trustees also raised objections to paragraphs 8 - 13, 16, 25 - 27, 36 - 40 and 52 - 55, including attachments 'PJM-8' - 'PJM-12', of the First Paul Mews Affidavit, and to paragraphs 4 - 10 and 12 of the Second Paul Mews Affidavit. I address those objections in the section of these reasons relating to the relevant background facts and the context in which the Application is made. 15 Susan read and relied on her affidavit sworn and filed on 28 July 2025 (Susan Mews Affidavit). She also filed an outline of submissions on 30 October 2025 in respect of questions 11 and 17 of the Application. She did not make any submissions in relation to the other questions the Trustees seek directions on. The relevant terms of the Will3 16 By clause 2 of the Will, as amended by clause 2 of the codicil, the deceased appointed Beverley, his sister Julienne Rae Wright and Ms Broadbent as executors of the Estate and as trustees of the Trust. 17 By clause 6.1 of the Will, the deceased gave the entire Estate to his executors and trustees on trust, to be known as the Jeff Mews Will Trust (the Trust), for the benefit of Beverley, Paul, Susan and Philip, on the terms and conditions set out in the Will. 18 Clause 6.3 of the Will was amended by clause 3.2 of the codicil to provide: 6.3 For the avoidance of doubt I record that my interest in the property and residence being … Halls Head is to be held as an asset of the [Trust], my wife, [Beverley], having the right to continue to use and occupy the property and residence during her lifetime, with the [Trust] bearing ownership costs. 3 A copy of the Will (including the codicil) is attached to the Beverley Mews Affidavit, 'BLM-1'. -- 7 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 8 19 Clauses 7.1 - 7.3 are in the following terms: 7 THE JEFF MEWS WILL TRUST 7.1 Subject to clause 7.2, I direct my trustees to administer the trust assets and in their entire discretion to distribute the trust income to the beneficiaries named in this will for their maintenance, benefit, advancement in life and education, so that they may continue to enjoy the same standard of living as that to which they are accustomed, and I direct my trustees to ensure that distributions of income, of capital, of advancements of capital and loans are made subject to my overriding desire and direction that adequate provision is to be made for: 7.1.1 my wife, BEVERLEY LUISE MEWS; 7.1.2 my son, PAUL JEFFREY MEWS; 7.1.3 my daughter, SUSAN MARIE MEWS; 7.1.4 my son, PHILIP DAVID MEWS; and, 7.1.5 my grandchildren. 7.2 I express the wish to my trustees that, in determining adequate provision to my wife, BEVERLEY LUISE MEWS, the trustees are, subject to their discretion, to distribute to her in each income year an amount equal to that described as the Westpac Comfortable Living Index for a couple as published from year to year by Westpac Limited. 7.3 On the youngest of my children referred to in clause 7.1 having attained the age of 40, and following the death of my wife, BEVERLEY LUISE MEWS, the capital and accrued income of the JEFF MEWS WILL TRUST may, at the discretion of my trustees, in default of their making or having made any other determination or appointment of capital or income, and otherwise subject to the conditions of this Will, be applied as follows: 7.3.1 an amount of $100,000 is to be paid to my daughter, SUSAN MARIE MEWS, as her sole property, with representation per stirpes; 7.3.2 the balance is to be divided into two equal shares, and one share shall be paid to each of my sons, PAUL JEFFREY MEWS and -- 8 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 9 PHILIP DAVID MEWS, in each case as that person's sole property. 20 The text of clauses 7 - 10 of the Will is set out in full in Annexure A to these reasons. 21 In general terms, clauses 7 - 9 of the Will contain provisions relating to the Trust, the exercise of the trustees' powers and discretion and the rights, benefits and interests of the beneficiaries. 22 Clause 10 provides for how the Will is to be interpreted, including the meaning of certain defined terms used in the Will. Clause 10.1.1 provides that clause headings are for convenience only and shall be ignored. Clauses 10.1.4 - 10.1.8 define the terms 'beneficiary', 'class of beneficiary', 'net income' or 'income', 'tax' and 'trust year'. Relevant factual background and context in which the Application is made 23 The following factual background and the context in which the Application is made is derived from the affidavits filed. I also deal in this section of the reasons with the objections raised to the First Paul Mews Affidavit and the Second Paul Mews Affidavit (together the Paul Mews Affidavits). 24 Beverley and the deceased married on 12 December 2008. Paul, Philip and Susan are the deceased's children from his first marriage.4 At the time the deceased made the Will, he was aged 76 years, Beverley was 81 years old, and Paul, Susan and Philip were aged 51 years, 49 years and 45 years, respectively. 25 Paul has three children who, as at the date of the Beverley Mews Affidavit, 10 December 2024, were aged 24, 22 and 20 years. Philip has two children who, as at 10 December 2024, were aged 12 and 10 years. Susan has no children.5 26 The deceased died on 26 August 2021. Probate was granted to Beverley, Ms Wright and Ms Broadbent on 9 November 2021,6 and the three of them were the original trustees of the Trust.7 4 Beverley Mews Affidavit [14] - [15]. 5 Beverley Mews Affidavit [16] - [18]. 6 Beverley Mews Affidavit [5], [7] - [8], 'BLM-1'. 7 Beverley Mews Affidavit [12]. -- 9 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 10 27 The statement of assets and liabilities of the Estate dated 4 November 2021 provides that, as at the date of the deceased's death, the net value of the Estate in Western Australia was $4,270,744.24, and outside Western Australia was $1,765,511.19.8 28 Administration of the Estate was completed by 30 June 2022.9 Ms Wright retired as an executor and trustee on 22 January 2024.10 29 There have been ongoing communications between the trustees of the Trust and the beneficiaries in relation to the meaning of some of the provisions of the Trust and its administration.11 30 Amongst other things, as outlined in the Beverley Mews Affidavit, Beverley and Ms Broadbent, as trustees of the Trust, adopted a position that:12 (a) clause 6 of the Will provided that the Trust is set up for the benefit (or at least principally for the benefit) of the four beneficiaries named in clause 6.1, being Beverley, Paul, Susan and Philip; and (b) under clause 7.1 of the Will, the trustees: (i) are empowered to distribute the trust income to the beneficiaries named in the Will so that they 'may continue to enjoy the same standard of living as that to which they are accustomed'; and (ii) are directed to ensure that trust distributions are made subject to the deceased's overriding desire and direction that adequate provision is made for Beverley, Paul, Susan, Philip and the deceased's grandchildren; (c) clause 7.1 is subject to clause 7.2, under which the deceased expressed the wish that, in determining adequate provision for Beverley, subject to their discretion, the trustees are to distribute to Beverley in each income year an amount equal to that described in the Westpac Comfortable Living Index for a couple as published from year to year by Westpac Limited (Westpac Index). 8 Beverley Mews Affidavit [10], 'BLM-2'. 9 Beverley Mews Affidavit [11]. 10 Beverley Mews Affidavit [13], 'BLM-3'. 11 Beverley Mews Affidavit [23]. 12 Beverley Mews Affidavit [24] - [40]; Broadbent Affidavit [5]. -- 10 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 11 31 The Trustees are uncertain as to how to reconcile the provisions of the Trust, including whether they have power to make distributions to Beverley from capital or only from income, and to advance or loan capital before the vesting day. They seek directions as to the construction of the Will and the Trust and how the capital and income of the Trust is to be treated and distributed.13 32 An issue has also arisen in relation to a payment of $100,000 made to Susan on about 22 July 2022, which is described in the Beverley Mews Affidavit as a payout of Susan's 'putative expectancy' of the amount referred to in clause 7.3.1 of the Will.14 Susan signed a document addressed to 'The Trustees of the Jeff Mews Will Trust', which is dated 13 July 2022, and states:15 I, Susan Marie Mews of … hereby acknowledge that receipt of the $100,000 from [the Trust] will be my full and final entitlement under the Will of my late Father Jeffrey Arthur Sydney Mews. My entitlement has now been fully satisfied by [the Trust]. 33 Directions are sought as to whether this had the effect of Susan irrevocably relinquishing her interest as a beneficiary of the Trust, and if so, whether a declaration made by the trustees of the Trust to distribute an amount to her in the year ending 30 June 2024 is void and of no effect. 34 A further matter in respect of which the Trustees seek directions concerns loans to the Mews Family Trust and the Mews Secondary Trust (together the Loans), which are recorded as non-current assets of the Trust in the financial statements of the Trust. 35 It is common ground that the Loans were made by the deceased during his lifetime to PDM Holdings Pty Ltd (PDM) as trustee for the Mews Family Trust and as trustee for the Mews Secondary Trust. Paul describes them as longstanding liabilities that were previously owed by each of those trusts to the deceased, which have been carried forward as journal entries into the Trust.16 Paul and Philip are the current shareholders and directors of PDM.17 13 Beverley Mews Affidavit [41] - [42]; Broadbent Affidavit [6]. 14 Beverley Mews Affidavit [43] - [46]; Broadbent Affidavit [5]. See also Susan Mews Affidavit [4] - [15], 'SMM-1'. 15 A copy of the document signed by Susan is attached to the First Paul Mews Affidavit, 'PJM-1'. 16 First Paul Mews Affidavit [29]. See also Beverley Mews Affidavit [47] - [48]. 17 Beverley Mews Affidavit [49] - [51], 'BLM-10'. -- 11 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 12 36 The total of the Loans is $2,160,871, which is said to represent approximately 37% of the net assets of the Trust.18 The directions sought by the Trustees in relation to the Loans are set out, together with the other directions sought, in the following section of these reasons. Objections to the Paul Mews Affidavits 37 Having outlined the relevant factual background and, in general terms, the directions sought, I now address the objections to the Paul Mews Affidavits. 38 In paragraphs 8 and 9 of the First Paul Mews Affidavit, Paul refers to discussions with Ms Broadbent in 2023 and 2024 about the intent of the Trust and to instructions provided by the trustees to Pario Financial Management (Pario). Paul refers in paragraphs 52 - 55 of the First Paul Mews Affidavit to a statement of advice provided to the trustees by Pario dated 17 January 2024. 39 The Trustees' objections to each of those paragraphs (8, 9 and 52 - 55), and to the admission of the statement of advice (PJM-19) are upheld. The subjective views of any of the trustees of the Trust, of the parties, Pario, or any other person as to the construction of the terms of the Will and the Trust are not relevant. As outlined in the following section of these reasons, the terms of the Will and the Trust are to be construed so as to give effect to the deceased's intention. That intention is to be ascertained from the language of the Will read in the context of the circumstances in which the Will was made. 40 The evidence sought to be adduced in paragraphs 10 - 13 of the First Paul Mews Affidavit, in which Paul states his understanding of the terms of the Will and the Trust and relating to the way in which the Trust has been administered, are also irrelevant and inadmissible for the purpose of the Application. Paragraphs 11 - 13 also contain inadmissible conclusions. I will allow paragraphs 10 - 13 to the extent that they indicate the nature of the dispute that has given rise to the Application, but not as evidence of the truth of their contents or for the purpose of determining the questions raised as to how the Will and the Trust are to be construed. That is a matter to be determined by the court on an objective basis, as outlined. 18 Beverley Mews Affidavit [52]. -- 12 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 13 41 As to the other paragraphs of and attachments to the Paul Mews Affidavits to which objection has been taken, I have determined that: 1. Paragraph 16 of the First Paul Mews Affidavit should be and is allowed. It is introductory to paragraph 17, to which no objection is taken. 2. Paragraphs 25 - 27 of the First Paul Mews Affidavit, which refer to financial statements of the Trust and Paul's belief they contain errors, are not admissible primarily because they are not relevant to the matters the court is asked to determine in the Application. 3. Paragraphs 36 - 40 of and attachments 'PJM-8' to 'PJM-12' to the First Paul Mews Affidavit concerning and attaching copies of the communications between the solicitors for the trustees of the Trust and for Paul and Philip are also irrelevant for the purpose of the Application. Their relevance is limited to indicating the nature of the dispute that has arisen in relation to the Loans, which are the subject of questions 12 - 15 in the directions sought. 4. Paragraphs 4 and 5 of the Second Paul Mews Affidavit refer to the further questions raised by the July 2025 Orders (questions 17 and 18) and are allowed for that limited purpose. However, they are no more than introductory to the following paragraphs 6 to 10 relating to the payment of $100,000 to Susan. Of those, paragraphs 6 - 8 are irrelevant and inadmissible for the purpose of the Application as they do no more than refer to the subjective views of one of the trustees of the Trust and the position adopted by the trustees. 5. Paragraph 9 is not evidence. It sets out the further directions sought pursuant to the July 2025 Orders. 6. Paragraph 10 of the Second Paul Mews Affidavit refers to and attaches a copy of the trustees' 2024/2025 distribution resolution ('PJM-21'), which is dated 28 June 2025 and signed by Ms Broadbent as sole trustee of the Trust at that time. I allow the Trustees' objection to paragraph 10 and attachment 'PJM-21' on the grounds of relevance. The resolutions made by any of the trustees or how they have administered the Trust are not relevant to the matters the court is asked to determine or give directions on for the purpose of the Application. -- 13 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 14 7. Paragraph 12 of the Second Paul Mews Affidavit refers to a request made by Paul for an updated valuation of the assets of the Trust. He says he has requested that information be provided to the court because it is relevant to whether the questions sought to be determined arise for determination. He does not elaborate as to whether he is referring to any questions in particular or to all of them. In any event, I do not consider a valuation of the assets of the Trust is required for the purpose of the directions sought or that the fact a request has been made and refused is relevant. As such, the objection to paragraph 12 of the Second Paul Mews Affidavit is upheld. The directions sought and questions of construction to be determined 42 The Trustees seek the following directions as to the construction of the terms of the Will and the Trust and the exercise of the trustees' powers and discretion under the terms of the Trust. Directions sought as to the construction of the terms of the Will and the Trust 1. What is the scope of the class of beneficiaries under the Trust? 2. Does the Will establish two distinct classes of beneficiaries, namely, income beneficiaries and corpus (capital) beneficiaries? 3. If the answer to question 2 is yes, then: (a) what is the scope of the class of income beneficiaries? (b) is the class of default income beneficiaries under clause 8.6.1 of the Will narrower in scope than the broader class of income beneficiaries? (c) under what circumstances, if any, may income beneficiaries be entitled to receive capital distributions? (d) does clause 7.1 of the Will empower the trustees to advance and/or distribute capital and make loans prior to the vesting day, or does it empower the trustees only to distribute trust income? 4. Are distributions from the Trust to Beverley required to be made primarily from income, with capital being utilised only if income is insufficient? Alternatively, do the trustees have an -- 14 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 15 absolute discretion to determine whether distributions to Beverley are made from income, capital, or a combination of both? 5. In exercising their power to make trust distributions, how are the trustees to reconcile the differing standards outlined in clause 7.1 of the Will, specifically: (a) the standard of maintaining the beneficiary's accustomed standard of living; and (b) the standard of making adequate provision for the beneficiary? 6. To what extent are the trustees permitted to prioritise one of the beneficiaries listed in clause 6.1 of the Will (Named Beneficiaries) over another Named Beneficiary? Additionally, how should this prioritisation be reconciled with the directive in clause 7.1 of the Will, which requires the trustees to 'ensure the distributions of income, capital, advancements of capital, and loans are made subject to my overriding desire and direction that adequate provision be made for' the Named Beneficiaries and the deceased's grandchildren? 7. Should the reference to clause 8.2 in clause 8.7 of the Will be interpreted as a reference to clause 7.2 instead? 8. Do the trustees have the power to appoint the capital of the Trust on the vesting day? If so, to which class or subset of beneficiaries may such an appointment be made? 9. Are the beneficiaries mentioned in clauses 7.3.1 and 7.3.2 of the Will the default capital beneficiaries in the absence of an appointment by the trustees? If so, how should the phrase 'at the discretion of my trustees', as used in the third and fourth lines of clause 7.3, be interpreted? 10. Do the trustees have the power to lend trust funds to Beverley on non-commercial terms to assist her to pay a refundable accommodation deposit if and when she needs to enter into an aged care facility? -- 15 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 16 11. If a beneficiary has received their 'putative expectancy' pursuant to clause 9.15 of the Will, does this preclude them from being considered for future income distributions? Directions sought as to the exercise of a power or discretion vested in the trustees - the Loans 12. Are the trustees justified in refraining from calling in the amounts owed to the Trust by the trustees of the Mews Family Trust and the Mews Secondary Trust (together referred to as the Loans), and in not charging interest on these Loans, provided that neither Paul nor Phillip, both of whom oppose the Loans being called in, receive any income or capital distributions from the Trust prior to the vesting day? 13. Alternatively, are the trustees justified in charging interest on the Loans? 14. Are the trustees justified in negotiating repayment terms for the Loans, including repayment over an extended period or upon the occurrence of a specified event (for example, the death of Paul and/or Philip to the vesting date of the Trust)? 15. Are the trustees justified in requiring the trustees of the Mews Family Trust and the Mews Secondary Trust, as debtors, to provide security for the Loans in the form of a mortgage or charge supported by a caveat? Directions generally 16. Should the court deem it appropriate, what additional directions, if any, does the court consider necessary or expedient to address the issues arising in connection with the interpretation and administration of the Trust as identified in [1] - [15] above? Additional questions (included by order 6 of the July 2025 Orders) 17. Has Susan irrevocably relinquished her interest as a beneficiary of the Trust by signing the declaration dated 13 July 2022? 18. If yes, was the trustees' declaration to distribute an amount in the year ending 30 June 2024 to the fourth defendant void and of no effect? -- 16 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 17 Applicable principles Section 92 of the Trustees Act 43 The principles that apply to the exercise of the court's power and discretion under s 92 of the Trustees Act are well settled and were not in dispute. I set out a summary of the relevant principles, by reference to other decisions of this court in Irdi v Lang,19 which I repeat for ease of reference. 44 An administrator, executor or trustee is entitled to seek directions and judicial advice from the court in relation to any question arising in relation to any will or administration of an estate or in respect of property of an estate or trust. 45 Directions given by the court under s 92 of the Trustees Act enable a trustee to avail themselves of the protections granted by s 95(1). 46 Section 92 of the Trustees Act provides: 92. Directions, trustee may ask Court for (1) Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee. (2) Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the Court thinks expedient. 47 Section 95 provides, relevantly: 95. Trustee acting under Court's direction, protection of (1) Any trustee acting under any direction of the Court shall be deemed, so far as regards his own responsibility, to have discharged his duty as trustee in the subject-matter of the direction, notwithstanding that the order giving the direction is subsequently invalidated, overruled, set aside or otherwise rendered of no effect, or varied. … 19 Irdi v Lang [2025] WASC 421 [40] - [45]. -- 17 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 18 48 The principles that apply to the court's power and the exercise of its discretion under s 92(1) of the Trustees Act were considered by Martin CJ in Australian Executor Trustees Ltd v Attorney General (WA).20 They have also been the subject of consideration in numerous other cases in this court.21 49 As observed by Lundberg J in AA as executor of the estate of BB v XX [No 2],22 there is a jurisdictional bar under s 92 of the Trustees Act, but it is a low one. The applicant must point to a question respecting the management or administration of trust property or a question respecting the interpretation of a trust instrument. The court has a discretion as to whether to provide a direction under s 92. 50 It is well established that a trustee, including an executor or administrator of a deceased estate, if in doubt about the course of action to be adopted in the administration of an estate or trust, may apply to the court for its opinion, direction or advice pursuant to s 92 of the Trustees Act.23 RSC O 58 51 The Trustees also rely on RSC O 58 r 2(a), (e) and (g) and r 10. 52 RSC O 58 r 2 provides that executors or administrators of a deceased's estate and trustees under any deed or instrument, and any person claiming to be interested in the relief sought, may take out an originating summons returnable in chambers seeking the determination, without an administration of the estate or trust, of any of the questions or matters specified in O 58. Relevantly, the questions or matters stated in subparagraphs (a), (e) and (g) of O 58 r 2 are: (a) any questions affecting the rights or interests of the person claiming to be creditor, devisee, legatee, next of kin or cestui que trust; 20 Australian Executor Trustees Ltd v Attorney General (WA) [2015] WASC 439 [31] - [33]. 21 See for example Equity Trustees Wealth Services Limited v The Attorney General of Western Australia [2024] WASC 324 (Equity Trustees) [29] - [31] (Seaward J); AA as executor of the estate of BB v XX [No 2] [2024] WASC 39 (AA v XX [No 2]); Blatchford v Laine [2018] WASC 207 [48] - [55] (Vaughan J); Wood (as Co-Executor and Trustee of the Will of the Deceased) v Wood [No 4] [2014] WASC 393 (Wood [No 4]) [98] - [103] (Kenneth Martin J), each applying in a Western Australian context Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 (Macedonian Church) [55] - [76], [162] (Gummow ACJ, Kirby, Hayne & Heydon JJ). 22 AA v XX [No 2] [26], referring to Macedonian Church [58], [162]; Wood [No 4] [4]; Blatchford v Laine [57]. 23 AA v XX [No 2] [27], referring to Tsaknis v Lilburne [2010] WASC 152 [38] (E M Heenan J); In re Atkinson (dec) [1971] VicRp 73; [1971] VR 612, 615. -- 18 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 19 … (e) directing the executors or administrators or trustees to do or abstain from doing any particular act in their character as such executors or administrators or trustees; … (g) the determination of any question arising in the administration of the estate or trust. 53 As noted by the authors of Civil Procedure Western Australia,24 the relief that may be granted under RSC O 58 r 2 is broad, and includes the ascertainment of, relevantly, any class of beneficiaries and the determination of any question arising in the administration of the estate or trust. 54 RSC O 58 r 10 provides that any person claiming to be interested under a deed, will, or other written instrument, may apply by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested. 55 Section 25(6) of the Supreme Court Act 1935 (WA) empowers the court to make a binding declaration of right without granting consequential relief. RSC O 58 r 12 provides that the court is not bound to determine a question of construction, relevantly, pursuant to O 58 r 10, if in the opinion of the court it ought not be determined on originating summons. 56 The procedure contemplated by RSC O 58 r 10 will generally be appropriate only where an issue of construction can be resolved on the documents and without the need to rely on any evidence. If questions of disputed fact are involved, such proceedings should ordinarily be commenced by writ.25 57 Although evidence has been adduced in this Application, I am satisfied that I have power to determine most of the questions that have arisen in respect of which a determination is sought pursuant to RSC O 58 and the directions sought pursuant to s 92 of the Trustees Act. As stated later in these reasons, there are some questions that I consider 24 LexisNexis, Civil Procedure Western Australia [58.2.2]. 25 See for example Carlin v Hamersley Iron Pty Ltd [2003] WASCA 270 [46] - [47] (Miller J), referring to Hamersley Iron Pty Ltd v Hancock (Unreported, WASC, Library No 5195, 23 December 1983) [4]; Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2013] WASC 386 [28] (Hall J), referring to City of Belmont v Link Interiors Pty Ltd [2001] WASC 64 [12]. -- 19 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 20 I am unable to give any directions on and in respect of which I decline to do so. The construction of wills 58 The principles relevant to the proper construction of wills are well settled and were not in dispute. As observed by Palmer J in Mews v Mews,26 the principles were discussed by the Court of Appeal in Walsh v Adrian Cory Sloan as executor of the estate of The Late Laurett Dorothy Keddi.27 It is not necessary that I repeat them in detail. 59 Relevantly, a will must be construed so as to give effect to the testator's intention, which is to be ascertained from the language of the will read in the context of the circumstances in which the will was made. As also observed by Palmer J in Mews v Mews,28 the process was explained by Buss P in Lemon v Mead,29 as follows: A will must be so construed as to give effect to the testator's intention. The intention is to be ascertained from the language of the will read in the context of the circumstances in which the will was made. See Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, 273 - 276 (Isaacs J), 281 - 282 (Higgins J); Perrin v Morgan [1943] AC 399, 420 (Lord Romer; Lord Russell of Killowen agreeing); Brennan v Permanent Trustee Company of New South Wales Ltd [1945] HCA 17; (1945) 73 CLR 404, 415 (Dixon J). The language of the will is to be read in the sense which the testator appears to have attached to the expressions used. See Brennan (414); Borlaug v University of Western Australia [2001] WASCA 425 [15] (Olsson AUJ; Wallwork & Steytler JJ agreeing). The whole of the will has to be considered because the meaning of one part may be revealed by other parts. The language of every clause must, if possible, be construed so as to render them all harmonious. See Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109 - 110 (Gibbs J). 60 The issues raised in, and in respect of which the court's directions are sought, concern the administration of the Trust, and construction of its terms. I am satisfied that this is an appropriate case in which the court's power to give directions is enlivened in relation to most of the questions raised. For the reasons outlined, I decline to provide directions in relation to question 10 and questions 12 - 15. 26 Mews v Mews [29]. 27 Walsh v Adrian Cory Sloan as executor of the estate of The Late Laurette Dorothy Keddi [2019] WASCA 107 [23] - [24]. 28 Mews v Mews [29]. 29 Lemon v Mead [2017] WASCA 215 [151]. -- 20 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 21 The parties' submissions 61 I have considered the detailed written submissions, as supplemented at the hearing, that the parties have made to assist the court as to the proper construction of the relevant terms of the Will and the Trust and in relation to the directions sought. I do not repeat all of the submissions made. Rather, I provide a summary of the submissions or construction advanced by the parties and otherwise refer to the submissions, as necessary, in my reasons for the conclusions I have reached. Questions 1 - 3: the structure of the Trust 62 Questions 1 - 3 concern whether the Will establishes a single trust with one class of beneficiaries or separate trusts of the income and capital (corpus). 63 The Trustees, Paul and Philip, are largely in agreement that there are two classes of beneficiaries of the Trust - income beneficiaries and capital beneficiaries. However, they disagree as to the circumstances in which income beneficiaries are entitled to receive capital distributions and when distributions are to be made. Summary of the Trustees' submissions 64 In general terms, it was submitted on behalf of the Trustees that it appears that, on its proper construction, the Will structures the Trust so that: (a) the trustees of the Trust have power to make distributions of the income of the Trust to members of the 'class of beneficiaries' (clauses 7.1, 8.2, 8.3 and 8.6), which distributions may be supplemented from the capital of the Trust in certain circumstances (clauses 8.7 and 9.15); (b) upon Beverley's death, the trustees have a discretionary power under clause 7.3 to vest a fixed sum ($100,000) in Susan and split the remainder of the capital between Paul and Philip; and (c) if the trustees do not exercise the power of appointment of the capital under clause 7.3 before the automatic termination of the Trust 79 years from the date of the deceased's death, the capital of the Trust shall then vest in the persons named in clause 6.1 (clause 7.8). -- 21 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 22 65 For the detailed reasons set out in their submissions, the Trustees suggest that questions 1 - 3 be answered as follows: 1. The capital of the Trust is settled for the benefit of the four persons named in clause 6.1 of the Will (Beverley, Paul, Susan and Philip), subject to the terms and conditions set out in the Will, so that their interests in the capital are contingent upon the exercise of discretions and powers of the trustees during the term of the Trust. 2. The scope of the class of beneficiaries to whom income may be distributed or for whose benefit it may be applied or set aside pursuant to clauses 7.1, 8.2, 8.3 and 8.6 of the Will are all those persons identified in the definition of 'class of beneficiary' in clause 10.1.5. 3. The Will creates two classes of beneficiaries: corpus (capital) beneficiaries and income beneficiaries, although all corpus beneficiaries are also within the class of income beneficiaries. 4. As to the questions raised by question 3: (a) the scope of the class of income beneficiaries is all persons within the 'class of beneficiary' defined by clause 10.1.5; (b) the class of 'default income beneficiaries' under clause 8.6.1 is the same 'class of beneficiary' as otherwise entitled to consideration for distribution etc of income; (c) income beneficiaries are entitled to distributions of capital if the trustees determine that the income of the Trust is insufficient for the purposes of clause 8.2 of the Will; and (d) clause 7.1 of the Will only empowers the trustees to make distributions of the trust income to the income beneficiaries for their maintenance, benefit, advancement in life and education. Paul's and Philip's submissions 66 Subject to certain limitations, as outlined in their submissions, Paul and Philip agree with the Trustees' overarching submission that, -- 22 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 23 on its proper construction, the Will structures the Trust as outlined in [64] above and they accept that there are two distinct classes of beneficiaries under the Trust, being income and capital beneficiaries. 67 It was submitted on behalf of Paul and Philip, in effect, that the starting point in construing the terms of the Trust should be to look at the intent of the deceased for setting up the Trust, in the circumstances where the deceased and Beverley married later in life and the deceased had three adult children and grandchildren. 68 The position advanced on their behalf is that there are clear delineations between income beneficiaries and capital beneficiaries, referring to clauses 7.8, 8.3.3 and 8.5. Rather than Beverley being entitled to the capital, as suggested by the Trustees, the position advanced by Paul and Philip is that Beverley is solely an income beneficiary, and the deceased's intention was that she be adequately provided for on the basis that the right to the distribution of the capital be deferred until after her death. 69 Paul and Philip submit that, consistent with this, the trustees have an obligation to preserve the capital of the Trust to ensure that there are sufficient assets to generate income to enable annual payments to be made to Beverley for the duration of her lifetime in accordance with the benchmark for her adequate provision, being the Westpac Index, as chosen by the deceased. 70 Paul and Philip suggest that the trustees should use income to make distributions to Beverley up to that amount and, whilst the trustees have a right to realise capital, they should only use capital if the income of the Trust is not sufficient to make adequate provision to Beverley in line with the Westpac Index. 71 They say that the trustees have power to make distributions of the income of the Trust to members of the 'class of income beneficiaries' and that capital should not be used to make distributions to income beneficiaries, except to the limited extent of ensuring that Beverley receives an amount equal to the Westpac Index. Paul and Philip refer to what they describe as an overriding objective in clause 9.1.8 that the capital of the Trust (from which the trust income is derived) be protected. 72 The position advanced on Paul's and Philip's behalf is that the trustees do not have an absolute discretion to determine whether distributions to Beverley are made from income or capital, or a -- 23 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 24 combination of both. They say that to read clause 8.2.1 too widely would mean that there would be no clear separation between the income and capital beneficiaries. That would have the consequence that Beverley could obtain a benefit beyond the scope and intent of the Trust to the detriment of the deceased's children and grandchildren. 73 They say that, in distinction to Beverley, the deceased's children do not have the same right to distributions of income on a yearly basis from the Trust. No benchmark for their adequate provision is specified. It was submitted that the obvious intent of the deceased was that his children's entitlement to the Estate would be deferred until a time after Beverley's passing, except where there is some reason to warrant the trustees making an earlier distribution to them. Rather, they submit the intention was that following Beverley's passing, the capital and accrued income of the Trust was to be distributed as provided in clause 7.3, by paying $100,000 to Susan and the balance to be split equally between Paul and Philip. 74 Paul and Philip suggest that questions 1 - 3 be answered as follows: 1. There are separate classes of income beneficiaries and corpus (capital) beneficiaries. Beverley is an income beneficiary. 2. Yes. 3. Question 3: (a) The trustees have the power to make distributions of the income of the Trust to members of the 'class of income beneficiaries', who are Beverley, Paul, Philip, Susan and the deceased's grandchildren. (b) No. There is only one class of income beneficiaries. (c) To the extent necessary to provide Beverley adequate provision in an annual amount equal to the Westpac Index, her distribution may be supplemented from the capital of the Trust. The trustees should make distributions from income first before accessing capital to make any distribution to Beverley. (d) No. Capital should not be used to make distributions to income beneficiaries, save to the limited extent of -- 24 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 25 ensuring that Beverley receives an annual amount equal to the Westpac Index. The construction of the terms of the Will and the Trust 75 It is uncontroversial that, in determining the proper construction of the relevant terms of the Will and the Trust, it is necessary to look at the language of the Will read in the context of the circumstances in which the Will was made to ascertain the deceased's intention. As outlined and referred to by Paul and Philip, the deceased and Beverley married later in their lives, in 2008. When he made the Will, the deceased was 76 years old and Beverley was 81 years old, and the deceased had three adult children and five grandchildren. 76 In considering questions 1 - 3, the other questions, and the proper construction of the Will and the relevant provisions, I have considered the specific clauses referred to, having regard to the circumstances in which the deceased made the Will and the Will as a whole, to ascertain the deceased's intention. As there is a degree of overlap in some of the questions I am asked to consider, issues relevant to answering the other questions are also canvassed in this section of the reasons. 77 As observed by the Trustees, clause 6.1 of the Will provides that the trustees are to hold the deceased's 'entire estate' (the capital as at the date of his death) on trust for the benefit of Beverley, Paul, Philip and Susan on the terms and conditions set out in the Will. The terms and conditions set out in the Will provide for how the trustees are to hold the capital and the trustees' powers and discretion in administering the Trust for the benefit of the beneficiaries. 78 By clause 7.1, the deceased directs the trustees to administer the trust assets and in their entire discretion to distribute the trust income to the 'beneficiaries named in the Will' for their maintenance, benefit and advancement in life and education, so that they may continue to enjoy the same standard of living as that to which they are accustomed. The beneficiaries named in clause 7.1 of the Will are Beverley, Paul, Susan, Philip and the deceased's grandchildren. Clause 7.1 also directs the trustees to ensure that distributions of income, of capital, of advancements of capital and loans are made subject to the deceased's overriding desire and direction that adequate provision is to be made for Beverley, Paul, Susan, Philip and the deceased's grandchildren. 79 Beverley, Paul, Susan and Philip are not expressly described as beneficiaries in clause 6.1 of the Will. However, as noted, by that -- 25 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 26 clause, the deceased gave the capital of the Estate to them to be held in the Trust, on the terms and conditions set out in the Will. Clause 10.1.4 defines 'beneficiary' (and it follows from clause 10.1.2, 'beneficiaries'), as including any member of the class of beneficiary. 'Class of beneficiary' is defined in clause 10.1.5 as follows: 10.1.5 'class of beneficiary' means the class of persons comprising – 10.1.5.1 the beneficiaries specified by name in clause 6 of this Will; 10.1.5.2 the children, grandchildren and great grandchildren of the specified beneficiaries; 10.1.5.3 the trustee of any trust, including the trustee of any superannuation fund, whether now existing or to be settled at a later date, of which a beneficiary, discretionary object or member under such trust is a beneficiary under this Will, and, where the provisions of such secondary trust require a vesting in interest of the trust property prior to the terminating date, the beneficiaries under it are such as not to cause this Will to breach any rule or law against perpetuities, and includes the trustee of any trust in which the trustee of this trust or of such secondary trust holds a share, a unit of entitlement or has an interest, whether vested or contingent; 10.1.5.4 any company which now or before the terminating date in respect of any beneficiary is incorporated in Australia, of which a director or a person who beneficially owns a share in such company carrying a right to vote at general meetings is a beneficiary by reason of clause 10.1.5.1, and includes a company in which the trustee of this Trust or of any secondary trust holds a share, either legally or beneficially, or is a director; 80 Beverley, Paul, Susan and Philip are the beneficiaries specified by name in clause 6 of the Will, as provided in clause 10.1.5.1. 81 The language of clause 7.1, 'to administer the trust assets and in their entire discretion to distribute the trust income to the beneficiaries named in this will for their maintenance, benefit, advancement in life and education …' is such as to give the trustees a wide discretion. As submitted by the Trustees, the discretionary power of distribution -- 26 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 27 provided for in clause 7.1 is expressed only in respect of the distribution of trust income, not capital, and for the maintenance, benefit, advancement in life and education of the beneficiaries named in the Will. 82 The subsequent direction in the following sentence of clause 7.1, 'to ensure that distributions of income, of capital, advancements of capital and loans are made subject to' the deceased's overriding desire 'and direction' that adequate provision is made for Beverley, Paul, Susan, Philip and the deceased's grandchildren, qualifies the exercise of the trustees' power to distribute the trust income. 83 I accept the submissions made on behalf of the Trustees to the effect that the reference to 'the beneficiaries named in this will' in clause 7.1, and to whom income is to be distributed, is expressly defined to be broader than (but include) the persons for whose benefit the capital of the Estate as at the date of the deceased's death is settled under clause 6.1. 84 Having regard to the definition of 'beneficiary' in clause 10.1.4, which includes any member of the 'class of beneficiary', as defined in clause 10.1.5, the Will creates a broad class of beneficiaries eligible, at the 'entire discretion' of the trustees, to receive distributions of income from the Trust. However, I agree, and it appears to be accepted, that it is only the beneficiaries named in clause 6.1 of the Will, for whose benefit the capital is held on trust, subject to the terms of the Will. 85 As observed on behalf of the Trustees, distinction between entitlements to the income and capital of the Trust is reinforced by clauses 9.1.1, 9.1.6, 9.3, 9.4 and 9.12 of the Will, which empower the trustees to decide what property held by them is income and what is capital, to determine whether and what expenses should be paid out of income and out of capital, to apportion the income and capital derived from assets between the beneficiaries and the trustees' expenses against the capital or income as they deem fit, and to decide what money represents capital and what represents income. 86 The directions in clause 7.1 of the Will are expressed as being subject to clause 7.2. There is a distinct change of the language used in clause 7.2. Rather than directing the trustees in clause 7.2, it says 'I express the wish to my trustees that, in determining adequate provision to [Beverley], the trustees are, subject to their discretion, to -- 27 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 28 distribute to her in each income year an amount equal to that described as the [Westpac Index]'. 87 I accept the submission made by the Trustees that, by expressing this as a wish, the deceased did not intend it to be binding on the trustees. It will depend on the context, but a reference to a 'wish' in a will is generally precatory (not intended to be binding).30 If the deceased had intended to make it clear that he required the trustees to make distributions to Beverley in an amount equal to the Westpac Index, and that they had an obligation to do so, he would have stated that he directed them to do so, as he did in other clauses of the Will, rather than expressing it as a wish. This is reinforced by the addition of the words 'subject to their discretion' which, in my view, are indicative of an intention that, the deceased wished for Beverley to receive an amount equal to the Westpac Index each year but that it would be a matter for the trustees' discretion if that amount adequately provided for her. 88 As such, I consider that the deceased intended that the trustees distribute an amount to Beverley each year to provide adequate provision for her maintenance, benefit and advancement in life so that she may continue to enjoy the same standard of living as that to which she was accustomed during the deceased's lifetime and, in determining how much to distribute to her, to use the Westpac Index as a benchmark to evaluate the amount required to adequately provide for Beverley. In my view, the trustees have a discretion to distribute a different amount to Beverley than provided by the Westpac Index, but the amount distributed to her should be such as to adequately provide for her. How much that will be will depend upon an assessment of Beverley's needs and the standard of living she enjoyed during the deceased's lifetime. 89 The deceased also provided, by clause 6.3, as amended by clause 3.2 of the codicil, that his interest in the property and residence specified in Halls Head is to be held as an asset of the Trust, and that Beverley have the right to continue to use and occupy that property and residence for her lifetime, with the Trust bearing the ownership costs. It is evident that the deceased intended that Beverley be adequately provided for and continue to reside in the Halls Head property during her lifetime. 30 See for example Hayes v National Heart Foundation of Australia [1976] 1 NSWLR 29, 32 (Needham J); Re Johnson [1939] 2 All ER 458, 460. -- 28 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 29 90 For these reasons, in my view, the intention manifested is that Beverley be adequately provided for during her lifetime by way of payments to her in each income year in an amount equal to the Westpac Index or such other amount as, in their discretion, the trustees consider adequate for the stated purposes. 91 I agree with the submission made by Paul and Philip to the effect that no benchmark is stated in relation to them or Susan (or the deceased's grandchildren) as to any amount to be paid to them in each income year, and that the Will does not provide that the trustees must make an annual distribution to those beneficiaries. 92 However, I do not agree that the deceased's children's entitlement to the Estate is deferred by clause 7.3 until a time after Beverley's passing, unless an earlier distribution is warranted, as proposed by Paul and Philip. Rather, the trustees have a discretion to distribute income to them and the other beneficiaries each year. This construction is supported by provisions in clause 8, which sets out how the trustees are to deal with the trust income, and I consider in further detail later in these reasons. 93 The construction advanced on behalf of Paul and Philip is inconsistent with the express language of clause 7.3 and the deceased's overriding direction in clause 7.1 that adequate provision be made for, relevantly, Paul, Susan, Philip and the deceased's grandchildren so that they may continue to enjoy the same standard of living as that they had been accustomed to during the deceased's lifetime. I also note that, whilst that part of clause 7.1 uses the words 'my overriding desire and direction', it is expressed in stronger terms than just expressing a wish or desire. Here, 'desire' is immediately followed by 'and direction'. In addition to saying what his desire is, the deceased directs that adequate provision be made for those beneficiaries. 94 In my view, the Trust provides that distributions of income may be made to those described in the definition of 'class of beneficiary' in clause 10.1.5 of the Will, including those specified in clause 6.1, as provided in clause 10.1.5.1, and their children, grandchildren and great grandchildren, as provided in clause 10.1.5.2. Distributions of income may also be made: (a) to a trustee of a trust of which one of those beneficiaries is a beneficiary, discretionary object or member, as provided in clause 10.1.5.3; and -- 29 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 30 (b) to a company incorporated in Australia of which one of those beneficiaries is a director or voting shareholder, as provided in clause 10.1.5.4. 95 Such entities are, of course, not natural persons or beneficiaries in respect of whom adequate provision or standard of living may be assessed. Rather, I consider the Will provides that distributions may be made to such entities for the benefit of one or more of the income beneficiaries who are natural persons and who are beneficiaries of a trust or a director and voting shareholder of a company. 96 As with Beverley, an assessment will need to be made by the trustees as to what adequate provision is in respect of each of the other income beneficiaries in the exercise of their discretionary power to make distributions of income and, where required, to balance the needs of the beneficiaries and the deceased's express provision to make an annual income distribution to Beverley and to retain the family home as an asset of the Trust for Beverley to reside in. 97 Clause 7.3 is not stated in mandatory terms, as suggested on behalf of Paul and Philip, that on Beverley's passing the capital and accrued income of the Trust is to be distributed as provided in that clause, by paying $100,000 to Susan and the balance to be split equally between Paul and Philip. 98 The trustees are not required by the language used in clause 7.3 to make such distributions of the capital and accrued income upon Beverley's passing. Rather, by clause 7.3, the deceased expressed his intention that if, after Beverley dies, each of Paul, Susan and Philip have reached 40 years of age, the trustees may, at their discretion, pay $100,000 of the capital and accrued income of the Trust to Susan and the balance equally between Paul and Philip. This is expressed as being 'in default of [the trustees] making or having made any other determination or appointment of capital or income, and otherwise subject to the conditions of this Will'. 99 As submitted by the Trustees, the effect of vesting all of the accrued income and capital of the Trust, as provided in clause 7.3, would be to terminate the trust of the income, as there would be no remaining capital from which income could be derived. There may be circumstances in which the trustees determine not to exercise their discretionary power to vest the capital under clause 7.3. For example, if they considered that one or more of the income beneficiaries still -- 30 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 31 required distribution of income for their maintenance, benefit, advancement in life or education, as provided in clause 7.1 of the Will. 100 By clause 7.7 of the Will, the deceased directs that any decision of the trustees under clause 7 shall not be open to challenge. This reinforces the deceased's intention as to the breadth of the trustees' discretion. 101 The construction Paul and Philip contend for is also inconsistent with clause 7.8, by which the deceased directs, to comply with the rule against perpetuities, that the Trust shall terminate automatically on a date no more than 79 years from the date of his death (the vesting date) and the capital held on trust shall vest in the beneficiaries not later than that date, if it has not already vested under clauses 7.1 to 7.6. This reinforces that the trustees are not required to vest the capital and accrued income in Susan, Paul and Philip under clause 7.3. It provides a termination date of the Trust and a date when the capital will vest in the beneficiaries, if it has not already vested by that time, including by an exercise of the trustees' discretion under clause 7.3. 102 I return now to clause 8. Clause 8.1 directs the trustees to deal with the 'net income' of the Trust on or before the last day of each trust year in one or more of the ways set out in clause 8. As noted by the Trustees, although some parts of clause 8 refer to 'income' and others to 'net income', there appears to be no difference intended between those terms given the definition in clause 10.1.6, and none that is relevant to the questions the subject of the Application. 103 Clause 8.2 contains the powers the trustees have in relation to the trust income in each trust year. It provides that, in each trust year, the trustees may: (a) pay to, apply for the benefit of, or set aside for any one or more of the beneficiaries the whole or any part of the net income of the trust fund (clause 8.2.1); (b) determine to accumulate the whole or any part of such income (clause 8.2.2); (c) set aside any amount as a provision to pay any tax with which the trustees may be assessed or may have been assessed in respect of any such income, whether distributed under clause 8.2 or not (clause 8.2.3); or -- 31 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 32 (d) determine the allocation of any franking credit, tax rebate or tax credit in respect of any or all beneficiaries (clause 8.2.4). 104 Clause 8.3 empowers the trustees, at any time, to create separate accounts for different types of sources of income, credit such income to such accounts, and determine the amount, proportions and manner in which they shall pay, set aside or apply the income from such accounts to the benefit of any, or all, or some of the beneficiaries, whether or not those beneficiaries would otherwise be regarded as income or corpus (capital) beneficiaries. 105 I accept the Trustees' submission that, by clause 8.2.1 and clause 8.3, the trustees have power to capitalise income for the benefit of an income beneficiary by setting it aside for their benefit even if that income beneficiary is not otherwise entitled to the capital. Clause 8.3 expressly recognises the different categories of, and the division between, 'income' and 'corpus' (capital) beneficiaries. Also, as I address later in these reasons, clause 8.7 provides for a discretion to apply capital for certain purposes where the trustees determine the income of the Trust is insufficient. 106 By clause 8.5, without limiting the trustees' powers in (relevantly) clause 8.2, the trustees may, in their discretion, pay out of a beneficiary's share of the corpus (capital) that would otherwise pass to that beneficiary upon them becoming absolutely entitled to an asset of the Trust, any tax or duty attributable to a capital gain which arises upon the beneficiary becoming absolutely entitled to the trust asset. This clause operates only in respect of the 'corpus' (capital) beneficiaries and only when one of them becomes absolutely entitled to part of the capital of the Trust. 107 Clause 8.6 provides that if, in any trust year, the trustees have not made an effective distribution or accumulation of income, they are deemed to hold all of the income for that trust year that has not otherwise been paid or applied, set aside, or they have determined to accumulate under clause 8.2 on trust for the beneficiaries as tenants in common in equal shares. 108 Clause 8.7 provides that if the trustees determine that the trust income is insufficient for the purposes of clause 8.2, they may use the whole or part of the capital of the Trust to give effect to the purposes of clauses 8.2 - 8.6, as they deem necessary. A direction is sought (by question 7) as to whether the reference in clause 8.2 in clause 8.7 of -- 32 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 33 the Will should be read as a reference to clause 7.2. I do not consider that it should, for the reasons set out later in these reasons in relation to question 7. 109 Clause 8.8 expressly gives the trustees the widest possible discretion and the utmost flexibility in relation to the matters dealt with in clause 8 of the Will. The deceased also expresses his will and re-iterates his direction that the beneficiaries should continue to be able to live in the way of life to which they have become accustomed during his lifetime, and to exercise their discretion under the Will with that direction in mind. Of course, the trustees' discretion is not without bounds. They must act in good faith, responsibly and reasonably.31 However, the language of this and other clauses of the Will express an intention that the trustees have a wide discretion. 110 Clause 9 of the Will concerns the trustees' powers, including expressing in clause 9.1 extensive powers of the trustees in addition to those conferred by law or under the Trustees Act. I consider relevant provisions in clause 9 as they arise in determining the questions upon which directions are sought. Answers to questions 1 - 3 111 As set out earlier in these reasons, the Trustees and Paul and Philip have set out their suggested responses to the questions raised in their respective minutes of proposed orders. 112 They agree that there are two separate classes of beneficiaries. As outlined, separate classes of beneficiaries of the income and of the capital of the Trust are described in clauses 8.3.3 and 8.5, which respectively refer to 'income or corpus beneficiaries' and 'a beneficiary entitled to corpus'. There is no dispute that the term 'corpus' refers to beneficiaries entitled to the capital of the Trust. As submitted on behalf of the Trustees, support for there being separate trusts of the capital and of the income is also found in clause 7.8, which refers to the 'trusts' (plural) created under the Will. 113 The parties have taken different approaches in their minutes of proposed orders and suggestions as to how the questions should be answered. The Trustees have taken a more fulsome approach. The responses suggested by Paul and Philip are, generally, much shorter and to the point. 31 See Owies v JJE Nominees Pty Ltd [2022] VSCA 142 (Owies) [81] - [82] (Kyrou, Niall & Walker JJA). -- 33 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 34 114 To provide directions to the Trustees to aide them in the administration of the Trust, I have determined that the questions should be answered in more fulsome terms, as proposed by the Trustees, although not, in each case, in the specific terms proposed by them. 115 Based on the construction of the terms of the Will and the Trust, as outlined, I have determined that questions 1 - 3 should be answered collectively, as follows. The orders to be made will be expressed so as to make the meaning of the capitalised terms and the full names of those specifically referred to, where applicable, clear. 1. The capital of the Trust is settled for the benefit of the four persons named in clause 6.1 of the Will, being Beverley Luise Mews (Beverley), Paul Jeffrey Mews (Paul), Susan Marie Mews (Susan) and Philip David Mews (Philip) (together the Capital Beneficiaries), subject to the terms and conditions set out in the Will. The interest of the Capital Beneficiaries in the capital of the Trust is contingent upon the exercise of the trustees' powers and discretions during the term of the Trust. 2. The Will establishes two separate classes of beneficiaries, being corpus (capital) beneficiaries and income beneficiaries. 3. The class of capital beneficiaries are those named in clause 6.1 of the Will, being Beverley, Paul, Susan and Philip, defined in [1] above as the Capital Beneficiaries. 4. The scope of the class of income beneficiaries is the beneficiaries named in the Will to whom income may be distributed or for whose benefit income may be applied or set aside pursuant to clauses 7.1, 8.2. 8.3 and 8.6 of the Will. The beneficiaries named in the Will are Beverley, Paul, Susan, Philip and the deceased's grandchildren. Distributions of income may be made to those described in the definition of 'class of beneficiary' in clause 10.1.5 of the Will, including the Capital Beneficiaries, as provided in clause 10.1.5.1, and their children, grandchildren and great grandchildren, as provided in clause 10.1.5.2 (Income Beneficiaries). Distributions of income may also be made to a trustee of a trust of which an Income Beneficiary is a beneficiary, discretionary object or member, as provided in clause 10.1.5.3, and to a company incorporated in Australia of which an Income Beneficiary is a director or voting shareholder, as provided in clause 10.1.5.4. -- 34 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 35 5. There is only one class of income beneficiaries. The class of income beneficiaries under clause 8.6.1 of the Will is not narrower in scope than the class of income beneficiaries. The beneficiaries under clause 8.6.1 are those defined as the Income Beneficiaries in [4] above. 6. If the trustees determine that the income of the Trust is insufficient for the purposes of making a distribution to an Income Beneficiary, the trustees have a discretionary power under clause 8.7 to use the whole or part of the capital of the Trust as they deem necessary. 7. Clause 7.1 of the Will only empowers the trustees to make distributions of trust income to the Income Beneficiaries for their maintenance, advancement in life and education. The direction in clause 7.1 to ensure that distributions of income, of capital, of advancements of capital and loans is to ensure that any such distributions, advancements or loans are made subject to the deceased's overriding desire and direction that adequate provision be made for Beverley, Paul, Susan, Philip and the deceased's grandchildren. Question 4 - distributions to Beverley 116 Question 4 asks whether: 1. Distributions from the Trust to Beverley are required to be made primarily from income, with capital being utilised only if income is insufficient. 2. Alternatively, the trustees have an absolute discretion to determine whether distributions to Beverley are made from income, capital, or a combination of both? 117 For the reasons outlined in their submissions, the Trustees suggest that question 4 be answered as follows: 1. In determining what, if any, distributions of income should be made to Beverley, the trustees have power under clause 8.7 of the Will to supplement payment of the income of the Trust pursuant to clause 8.2.1 with a distribution of capital if they determine that the income is insufficient for that purpose. 2. The trustees' discretionary power under clause 8.7 of the Will may be exercised 'in the widest possible manner and with the -- 35 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 36 utmost flexibility', with the purpose of allowing Beverley to continue to live in the way of life to which she was accustomed during the deceased's lifetime. 118 Paul and Philip propose the first part of question 4 should simply be answered as 'Yes'. 119 In relation to the alternative question, Paul and Philip suggest the answer is 'No. There is no such discretion, clause 7.1 is directed to the distribution of trust income'. Answer to question 4 120 I have considered the submissions made and the construction of the relevant terms of the Will and the Trust, as outlined earlier in these reasons. The answer to question 7 is also relevant. For the reasons stated in response to question 7, in my view, the reference to clause 8.2 in clause 8.7 of the Will, should be read as it is stated, as a reference to clause 8.2, not to clause 7.2. 121 As set out in relation to question 7, clause 8.2 of the Will sets out the powers the trustees have in relation to the trust income in each trust year. This includes the power to make distributions of income to the income beneficiaries. It empowers the trustees, amongst the other things stated, to pay, apply to the benefit of, or set aside for one or more of the beneficiaries, the whole or any part of the net income of the Trust fund (clause 8.2.1). 122 In relation to distributions to Beverley, if the trustees determine that there is insufficient income to distribute an amount to Beverley that is sufficient to provide adequate provision for her, using the Westpac Index as a guide, they have a discretion under clause 8.7 to distribute capital to Beverley to make up any shortfall. 123 As observed by the Trustees, and stated earlier in these reasons, clause 8.8 provides that the trustees may exercise that discretion (and their discretion in relation to other matters dealt with in clause 8) in the widest possible manner and with the utmost flexibility so that, relevantly, Beverley shall continue to be able to live in the way of life to which she was accustomed during the deceased's lifetime. 124 For these reasons, question 4 should be answered as follows: 1. If the trustees determine that there is insufficient income to distribute an amount to Beverley in a trust year that is sufficient -- 36 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 37 to provide adequate provision for her, using the Westpac Index as a guide, they have a discretion under clause 8.7 of the Will to apply an amount from the capital of the Trust to make up any shortfall. 2. The trustees may exercise their discretionary power under clause 8.7 of the Will in the widest possible manner and with the utmost flexibility, for the purpose of allowing Beverley to continue to live in the way of life to which she was accustomed during the deceased's lifetime. Question 5 - the standard in clause 7.1 of the Will 125 The directions sought and the question raised in question 5 is: In exercising their power to make trust distributions, how are the trustees to reconcile the differing standards outlined in clause 7.1 of the Will, specifically: (a) the standard of maintaining the beneficiary's accustomed standard of living; and (b) the standard of making adequate provision for the beneficiary? Trustees' submissions 126 The Trustees submit that the deceased's expression in the second part of clause 7.1, of his 'overriding desire and direction that adequate provision is to be made' for Beverley, Paul, Susan, Philip and the deceased's grandchildren, does not appear to be at odds with his direction in the earlier part of clause 7.1 directing the trustees, in their entire discretion, to distribute the trust income to the beneficiaries so that they may continue to enjoy the same standard of living they were accustomed to during the deceased's lifetime. 127 The only exception to this is that clause 10.1.5.2 provides that the class of income beneficiaries includes great-grandchildren and great-great-grandchildren of the deceased, and clause 10.1.5.3 includes trustees of eligible trusts. As submitted on behalf of the Trustees, it is not apparent that there are currently any great-grandchildren or great-great-grandchildren of the deceased. It does not seem likely that adequate provision or a standard of living could be measured, or is intended to apply, in the case of a trustee of an eligible trust. The same applies in relation to any company that a beneficiary is a director or shareholder of, as referred to in clause 10.1.5.4. -- 37 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 38 128 For present purposes, the Trustees suggest that question 5 may be answered by giving supremacy, so far as any inconsistency arises, to the direction to distribute the trust income so that the income beneficiaries are able to continue to live in the way of life or enjoy the same standard of living to which they were accustomed during the deceased's lifetime. If that standard of living is less than what is required for a beneficiary's adequate provision, then it would appear to be within the permissible exercise of the trustees' discretion to make a greater distribution to ensure the provision is adequate. 129 The Trustees suggest that question 5 be answered as follows: 1. In the first instance, the trustees in determining whether and how to exercise their power to make distributions to the income beneficiaries should have regard to what is necessary for the potential recipient to continue to live in the way of life and enjoy the same standard of living to which they were accustomed during the deceased's lifetime. 2. If that standard of living is less than what is required for the recipient's 'adequate provision', then it is within the permissible exercise of the trustees' discretion to make a greater distribution to ensure the provision is adequate. Paul's and Philip's submissions 130 In addition to their submissions as to the construction of clauses 7.1 and 7.2 of the Will, Paul and Philip submit that including the Westpac Index as a benchmark for Beverley's adequate provision was to ensure that the distribution of income to Beverley is not at large. They say that the limitation of the annual amount to be paid to Beverley is important because the Trust is structured so that the capital would be maintained and protected so that it could ultimately be distributed to Paul, Susan and Philip upon Beverley's death. 131 They also placed importance on the inclusion of the Westpac Index as a benchmark because they say Beverley had an inherent conflict of interest in making an assessment as to her adequate provision as a trustee of the Trust and the risk of a conflict between the beneficiaries about the exercise of the trustees' discretion to make distributions. 132 It was submitted on behalf of Paul and Philip that there would need to be exceptional circumstances for the trustees to make a -- 38 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 39 distribution to Beverley in excess of an amount equal to the Westpac Index. In oral submissions, it was accepted that there is no reference in clause 7.2 or any other provision of the Will to exceptional circumstances. Instead, it was suggested that there would need to be some other reason to depart from the Westpac Index. 133 Paul and Philip suggest that question 5 be answered as follows: 1. Properly construed these descriptions are synonyms and are referencing the standard to be set to make adequate provision. 2. In the specific context of Beverley, her standard or adequate provision is set at an annual amount equal to the Westpac Index. Answer to question 5 134 In my view, the intention expressed by the deceased in clause 7.1 of the Will, having regard to clause 7.2 and the deceased's will expressed in clause 8.8, is that adequate provision be made for each of the beneficiaries, to be assessed by reference to what is necessary for them to continue to enjoy the same standard of living to which they were accustomed during the deceased's lifetime. 135 In relation to Beverley, as stated earlier in these reasons, I consider that the deceased intended that distributions be made to her in each income year, and that the trustees use the Westpac Index as a benchmark to determine the amount required to adequately provide for Beverley. The trustees have a discretion to distribute a different amount to Beverley than provided by the Westpac Index if that is insufficient to adequately provide for her, but the amount distributed to Beverley each year should be such as is necessary to allow her to continue to enjoy the standard of living she enjoyed during the deceased's lifetime. 136 As such, I have determined that question 5 should be answered as follows: 1. In determining whether and how the trustees are to exercise their power to make distributions to the Income Beneficiaries, the standard to be applied is to make adequate provision for the beneficiary, which is to be assessed by reference to what is necessary for them to continue to enjoy the same standard of living to which they were accustomed during the deceased's lifetime. -- 39 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 40 2. In relation to Beverley, the trustees are to distribute an amount to her in each income year, using the Westpac Index as a benchmark to determine the amount required to adequately provide for her. The trustees have a discretion to distribute a different amount to Beverley than provided by the Westpac Index, if that amount is not sufficient to allow Beverley to continue to enjoy the standard of living she enjoyed during the deceased's lifetime. Question 6 - prioritisation of the persons named in clause 6.1 137 Question 6 asks to what extent are the trustees permitted to prioritise one of the beneficiaries listed in clause 6.1 of the Will (Named Beneficiaries) over another Named Beneficiary? Additionally, how should this prioritisation be reconciled with the directive in clause 7.1 of the Will, which requires the trustees to 'ensure the distributions of income, capital, advancements of capital, and loans are made subject to my overriding desire and direction that adequate provision be made for' the Named Beneficiaries and the deceased's grandchildren? Trustees' submissions 138 The Trustees submit that if the court accepts that there are two classes of beneficiaries: capital (corpus) beneficiaries and income beneficiaries, then there is no basis for the trustees to prioritise capital beneficiaries over income beneficiaries when exercising their discretion to distribute, apply or set aside the income of the Trust merely because an income beneficiary is also a corpus beneficiary. They say this is clear from the stipulations in clauses 7.1 and 8.8. 139 By reference to Owies,32 the Trustees submit that, although the trustees' discretionary power to decide to whom the trust income should be distributed is expressed in very wide terms, it is not likely to be unbounded. Rather, before making a decision as to how to distribute the income, the trustees would be required to inform themselves of matters relevant to that income, and to make the decision on a real and genuine consideration in accordance with the purposes for which the discretion was conferred. 32 Owies [81] - [98]. -- 40 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 41 140 The Trustees suggest that question 6 be answered as follows: 1. There is no basis for the trustees to prioritise corpus beneficiaries over income beneficiaries when exercising their discretion to distribute, apply or set aside the income of the Trust merely because an income beneficiary is also a corpus beneficiary. Paul's and Philip's submissions 141 Paul and Philip agree that there are two classes of beneficiaries, being income beneficiaries and capital beneficiaries. They say there is no need for the trustees to prioritise capital beneficiaries over income beneficiaries. They say the requirement to pay Beverley an amount equal to the Westpac Index needs to be prioritised by the trustees over any other beneficiaries. 142 Paul and Philip suggest that question 6 be answered as follows: 1. Clause 6.1 has no relevance to the operation of the Trust. The Trust is to be administered for the benefit of the beneficiaries described in clause 7.1. The adequate provision payment from income to Beverley is to be prioritised by the trustees over any other beneficiary. Answer to question 6 143 As referred to earlier in these reasons, clause 8.3 empowers the trustees, at any time, to create separate accounts for different types of sources of income, credit such income to such accounts, and determine the amount, proportions and manner in which they shall pay, set aside or apply the income from such accounts to the benefit of any, or all, or some of the beneficiaries, whether or not those beneficiaries would otherwise be regarded as income or corpus (capital) beneficiaries. 144 On the construction of the relevant terms of the Will and the Trust, as outlined earlier in these reasons, including clause 8.3, question 6 should be answered as suggested by the Trustees, as follows, except that I have used the defined terms 'Capital Beneficiaries' and 'Income Beneficiaries', as included in the answers to questions 1 - 3: 1. There is no basis for the trustees to prioritise the Capital Beneficiaries over the Income Beneficiaries when exercising their discretion to distribute, apply or set aside the income of the -- 41 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 42 Trust merely because an Income Beneficiary is also a Capital Beneficiary. Question 7 - the reference to clause 8.2 in clause 8.7 145 Question 7 asks whether the reference to clause 8.2 in clause 8.7 of the Will should be interpreted as a reference to clause 7.2 instead? 146 As noted earlier in these reasons, clause 8 sets out how the trustees are to deal with the trust income. Clause 8.7 provides: 8.7 Should my trustees determine that the income of the Trust is insufficient for the purposes of clause 8.2, then the whole or that part of the capital of the Trust as they deem necessary may be applied for giving effect to the purposes of clause 8.2 to 8.6. 147 Beverley deposes in the Beverley Mews Affidavit, and Ms Broadbent confirms in the Broadbent Affidavit, that Beverley and Ms Broadbent, when co-trustees of the Trust, had adopted a position that the reference to clause 8.2 in clause 8.7 was a typographical error and should instead refer to clause 7.2.33 However, the Trustees are uncertain as to how the clause should be construed and seek a direction as to whether clause 8.7 of the Will should be read as if the reference to clause 8.2 were a reference to clause 7.2. 148 In the submissions made on behalf of the Trustees in the Application, a different approach was taken to that expressed by Beverley in the First Beverley Mews Affidavit. It was submitted that there is no reason to interpret the reference in clause 8.2 in clause 8.7 of the Will as a reference to clause 7.2. 149 Paul and Philip stated in their written submissions that they agree with the construction of these clauses as submitted on behalf of the Trustees. However, their minute of proposed orders say this question should be answered 'Yes' and they made brief submissions in support of that position at the hearing. Their position is, in effect, that clauses 8.7 and 8.8 should be read in context. They say that the power to access capital is not a power to be exercised at large, but in favour of Beverley so that she receives at least the amount of the Westpac Index. It was submitted that such a construction is consistent with clause 9.1.8, which commends the trustees to preserve the capital of the Trust so that income may be generated year on year. 33 First Beverley Mews Affidavit [37]; Broadbent Affidavit [5] - [6]. -- 42 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 43 150 The position taken by Paul and Philip in relation to question 7 conflicts with that taken in relation to question 8. In respect of the latter, they state that they agree with the Trustees' construction and response to question 8. The Trustees' submissions in relation question 8 include, amongst others, that the capital of the Trust may have been depleted by exercise of the trustees' discretion under clause 8.7 to apply capital as they deem necessary to give effect to the purposes of clauses 8.2 - 8.6, where they have determined that the income is insufficient for the purposes of clause 8.2. 151 I agree that, as submitted on behalf of the Trustees, the reference in clause 8.7 to clause 8.2 is correct. It is consistent with the subsequent reference in the clause to clauses 8.2 - 8.6 and harmonious with the substance of clause 8.8 and the scheme of clause 8 generally. 152 Clause 8.2 sets out the powers the trustees have in relation to the trust income in each trust year. This includes the power to make distributions of income to the income beneficiaries. It empowers the trustees, amongst the other things stated: (a) to pay, apply to the benefit of, or set aside for one or more of the beneficiaries, the whole or any part of the net income of the Trust fund (clause 8.2.1); or (b) set aside an amount for provision to pay any tax which may be payable in respect of any net income of the Trust fund, whether distributed under clause 8.2 or not (clause 8.2.3). 153 The provisions in clause 8 as a whole are in broad terms and concern the trustees' powers in relation to income generally and all of the beneficiaries. This is evident from the references in clause 8.2 to 'any one or more of the beneficiaries' and 'any or all beneficiaries' and in clause 8.3 to 'any', 'all' or 'any one or more, to the exclusion of other, beneficiaries, whether or not such beneficiaries would otherwise be regarded as being income or corpus beneficiaries'. There is nothing to indicate that clause 8.7 is directed only to Beverley, such that the reference to clause 8.2 be read as clause 7.2. 154 The discretionary power in clause 8.7 is not in terms that indicate the trustees may only have recourse to the capital for the purposes of making up an income distribution to Beverley equal to the Westpac Index. It is intended to apply to allow the trustees to have recourse to some or all of the capital of the Trust, for the purposes set out in -- 43 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 44 clause 8.2, which includes distributions to all beneficiaries, and to give effect to the purposes in clauses 8.2 - 8.6. 155 As noted, clause 8.8 provides the trustees with the widest possible discretion and utmost flexibility and empowers the trustees to exercise their discretion with the deceased's direction that the 'beneficiaries' (not only Beverley) should continue to be able to live in the way of life to which they have become accustomed during the deceased's lifetime. Answer to question 7 156 For these reasons, question 7 should be answered as follows: 1. The reference to 'clause 8.2' in clause 8.7 of the Will should be read as a reference to clause 8.2, not to clause 7.2. Question 8 - power to appoint the capital on the vesting day 157 Question 8 asks whether the trustees have the power to appoint the capital of the Trust on the vesting day? If so, to which class or subset of beneficiaries may such an appointment be made? 158 This question is not in issue between the parties. Paul and Philip agree with the construction of these clauses as submitted on behalf of the Trustees. 159 I accept the Trustees' submissions in relation to the construction of these clauses, as follows: 1. By clause 6.1 of the Will, the Trust is declared, pursuant to which the capital of the deceased's estate is to be held on trust for the benefit of Beverley, Paul, Susan and Philip on the terms and conditions set out in the Will. 2. Clause 7.8 provides that, on the date 79 years from the date of the deceased's death, the trusts of income and capital created under the Will automatically terminate. Upon that termination, the capital will vest in the beneficiaries named in clause 6.1 for whose benefit the estate has been held. 3. Whether there is any remaining capital to vest on the date 79 years after the deceased's death will depend on how the trustees have exercised their powers and discretions and the distributions made, having regard to the deceased's directions that adequate provision is made for them. -- 44 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 45 4. The capital may, for example, have been depleted by exercise of the trustees' discretion under clause 8.7 to apply the whole or part of the Trust as they deem necessary to give effect to the purposes of clauses 8.2 - 8.6, if they have determined that the income is insufficient for the purposes of clause 8.2. 5. The capital may also be depleted before the automatic termination of the Trust pursuant to clause 7.8 if the trustees exercise their discretionary power under clause 7.3 and apply the capital by paying $100,000 to Susan and dividing the balance equally between Paul and Philip. 6. By clause 7.4, if any of Susan, Paul or Philip have died before the trustees exercise the discretionary power in clause 7.3, that power may be exercised in favour of their children, if any. Both parties accept, as do I, that the reference in clause 7.4 to clause 7.2 should be read as a reference to clause 7.3. 7. The trustees may decide not to exercise their discretion to vest the entire remaining capital of the Trust under clause 7.3. For example, if they consider that a beneficiary or beneficiaries of the income trust still require distributions of income to maintain the standard of living to which they were accustomed during the deceased's lifetime. 8. As the interests to which each of the capital beneficiaries may become entitled under the terms of the Will are contingent on the exercise of the trustees' discretions, they are not vested or immediately proprietary interests in the capital of the Trust. As provided by clause 9.16: 9.16 The rights, benefits or interests to which a beneficiary may become entitled by the terms of this Will are entirely contingent on the exercise of a discretion by my trustees, are not property interests or financial resources of a beneficiary for the purposes of the Family Law Act or otherwise, do not constitute an immediate fixed right of present or future enjoyment, and shall – 9.16.1 not be capable of being exercised or claimed in any way by anybody other than the beneficiary; 9.16.2 be personal to him or her; -- 45 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 46 9.16.3 not be capable of being assigned, transferred, pledged, hypothecated or alienated, or of being attached at the instance of any creditor. Answer to question 8 160 Other than some relatively minor modifications, as set out below, question 8 should be answered substantially as proposed on behalf of the Trustees, with which Paul and Philip agree, as follows: 1. The reference to 'clause 7.2' in clause 7.4 of the Will should be read as a reference to clause 7.3. 2. Upon the death of Beverley, the trustees have a discretionary power under clause 7.3 of the Will to vest the amount of $100,000 in Susan, as stated in clause 7.3.1, and the balance of the capital in Paul and Philip in equal shares, as stated in clause 7.3.2. 3. The trustees are not obliged to exercise the discretion to vest the entire capital of the Trust for which clause 7.3 provides when Beverley dies. 4. If the trustees do not exercise the power of appointment of the capital under clause 7.3 of the Will before the automatic termination of the Trust 79 years from the date of the deceased's death then, pursuant to clause 7.8, the capital of the Trust shall then vest in the persons named in clause 6.1. 161 In the answer to question 8 provided in the Trustees' minute of proposed orders, with which Paul and Philip agreed, the words '(or their estates)' were included in the last paragraph of the suggested answer so that it read: If the trustees do not exercise the power of appointment of the capital under cl 7.3 of the Will before the automatic termination of the trust 79 years from the date of the deceased's death then pursuant to clause 7.8 the capital of the trust shall then vest in the persons named (or their estates) in clause 6.1. 162 I sought clarification from those parties as to the basis upon which it was proposed that the words '(or their estates)' be included. They each responded to the effect that those words were included because the Trust may endure for 79 years before it terminates and the capital would then vest under clause 7.8, when it is likely one or more of those named in clause 6.1 will have died. -- 46 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 47 163 As outlined earlier in these reasons, clauses 7.4 and 7.5 provide for what is to happen to the share of those beneficiaries in the capital if they die before the capital is appointed. The Trustees, Paul and Philip have confirmed that words '(or their estates)' do not affect the substantive issues between the parties. The Trustees stated that they do not press for their inclusion. The inclusion of those words would not, in my view, accurately reflect the proper construction of the Will. For that reason, I have not included them in the answer I have given to question 8. Question 9 - are the beneficiaries mentioned in clauses 7.3.1 and 7.3.2 the default capital beneficiaries in the absence of an appointment by the trustees? 164 Question 9 asks whether the beneficiaries mentioned in clauses 7.3.1 and 7.3.2 of the Will the default capital beneficiaries in the absence of an appointment by the trustees? If so, how should the phrase 'at the discretion of my trustees', as used in the third and fourth lines of clause 7.3, be interpreted? 165 In their written submissions, Paul and Philip stated that question 9 is not in issue between the parties and that they agree with the construction of these clauses as submitted on behalf of the Trustees. However, that is not the position advanced by them in their minute of proposed orders. Paul and Philip suggest that the answer to question 9 should be 'Yes'. 166 Clarification was sought in respect of this. Paul and Philip have said that by their proposed answer of 'Yes' they are restating the power in clause 8.7. They say that the discretion cannot be used to make Beverley a 'side-winded' income beneficiary or to overcome the clear intention of the deceased that adequate provision for Beverley would be an amount equal to the Westpac Index. 167 The Trustees' position is that, for the reasons submitted by them in relation to question 8, the beneficiaries mentioned in clauses 7.3.1 and 7.3.2 are not the 'default' capital beneficiaries in the absence of an appointment of the capital by the trustees. If the trustees do not exercise a power to appoint the capital, then the capital will vest pursuant to clause 7.8 on the date 79 years after the date of death of the deceased in the beneficiaries named in clause 6.1. -- 47 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 48 Answer to question 9 168 In my view, and consistently with the construction of clause 7.3, as outlined earlier in these reasons, I have determined that question 9 should be answered in similar terms to those suggested by the Trustees, as follows: 1. The beneficiaries referred to in clauses 7.3.1 and 7.3.2 of the Will are not the default capital beneficiaries in the absence of an appointment by the trustees. If the trustees do not exercise a power to appoint the capital of the Trust, then the capital will vest in the Capital Beneficiaries named in clause 6.1 pursuant to clause 7.8 on the date 79 years after the date of death of the deceased. 169 The same issue arose in relation to the inclusion of the words '(or their estates)' in the Trustees' suggested answer to question 9. For the same reasons as outlined in relation to question 8, those words have been excluded in the answer I have given. Question 10 - do the trustees have power to lend trust funds to Beverley on non-commercial terms to assist her to pay a refundable accommodation deposit? 170 Question 10 asks whether the trustees have the power to lend trust funds to Beverley on non-commercial terms to assist her to pay a refundable accommodation deposit (RAD) if and when she needs to enter into an aged care facility? 171 In general terms, a RAD is a lump sum amount paid to an aged care home upon a person entering care. 172 For the reasons outlined, the Trustees suggest this question should be answered as follows: 1. The trustees' power pursuant to clause 9.15 of the Will to advance to an income beneficiary part of the capital of the Trust, in an amount not exceeding the amount the beneficiary is expected by the trustees to be distributed from the income of the Trust during that beneficiary's lifetime, where the trustees deem that doing so is advisable for the maintenance or education of, or to assist the beneficiary in any professional or business venture, or otherwise for the benefit of the beneficiary. -- 48 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 49 2. Any amount advanced by the trustees to a beneficiary pursuant to clause 9.15 of the Will is to be repaid by the beneficiary from distributions of income made by the trustees to that beneficiary during their lifetime. 3. If an amount advanced by the trustees to a beneficiary pursuant to clause 9.15 of the Will has not been repaid by the beneficiary at the time of their death, the remaining balance is a debt due and payable by their estate to the trustees. 173 Paul and Philip disagree. They say the answer to question 10 is 'No'. Trustees' submissions 174 The Trustees' submissions are essentially as follows: 1. The trustees' power under clause 9.1.8 to invest trust funds does not appear to encompass a loan on non-commercial terms, given the deceased's commendation to obtain a 'fair and adequate return and protect the capital against changes in the value of money'. 2. By clause 9.15, the trustees have a discretionary power to 'advance' to a beneficiary an amount not exceeding that beneficiary's 'putative expectancy' in respect of the 'trust estate'. In using the term 'beneficiary', it includes all those included in the class of beneficiary as defined in clause 10.1.5, as outlined. 3. Clause 9.15 is to be interpreted as empowering the trustees to advance capital to income beneficiaries, although the capital beneficiaries referred to in clause 6.1 of the Will are also entitled to distributions of income. This follows from the words in the second sentence of clause 9.15, which state that 'any advance of capital to the beneficiary shall be deducted from the expectancy he or she would ultimately have received, and the division of income shall consequently [be] adjusted until the time that beneficiary's remaining entitlement to capital is satisfied by distribution of a beneficiary's share or the remaining entitlement to such share or part of such share'. 4. The second reference to capital, in the phrase 'until the time that beneficiary's remaining entitlement to capital is satisfied' is to be construed as referring to the capital loaned by the advance to -- 49 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 50 the beneficiary rather than an entitlement to the capital of the Trust. The Trustees say that such a construction is supported by the use of the word 'remaining', which they say refers to the remaining amount owed by the beneficiary who has received a loan from the capital. 5. The 'putative expectancy' should be read as referring to the share of the income or capital, as applicable, that the beneficiary would generally be expected to receive. Read in that way, the second part of clause 9.15 provides in effect that an income beneficiary who has been advanced a loan from the capital of the Trust will repay the loan from the distributions of income they otherwise would have received until the amount of capital they were loaned ('the balance owing or 'remaining entitlement to capital' which they were advanced) has been repaid ('satisfied') from distributions of that beneficiary's entitlement to income. 6. In the oral submissions made on behalf of the Trustees, they gave an example that, if a beneficiary were to die before the advance or loan had been satisfied by distributions to the beneficiary, if they are a capital beneficiary, it would be satisfied from their share of the capital they would be entitled to. If the beneficiary is not a capital beneficiary, the unsatisfied amount of the advance or loan would be a debt owed to the trustees by their estate. 7. That none of the beneficiaries have a fixed interest or entitlement under the Will is reinforced by clause 9.16, which provides that the rights, benefits and interests to which a beneficiary may become entitled by the terms of the Will are entirely contingent in the exercise of the trustees' discretion. 8. The Trustees note that clause 9.15 does not provide for any interest to be paid by a beneficiary to whom an advance from the capital of the Trust is made. They say it appears reasonably clear that, as Beverley is an income beneficiary, an advance to her for the purpose of paying a RAD if and when she needs to enter into an aged care facility would be for her maintenance or otherwise for her benefit. As such, they say it would be within the power under clause 9.15 to loan or advance funds to Beverley without the imposition of interest or other 'commercial terms' to pay a RAD, if required. -- 50 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 51 Paul's and Philip's submissions 175 Paul and Philip say that there is no proper basis to construe the Will as permitting a distribution to enable a RAD to be paid on Beverley's behalf on non-commercial terms or at all. They say that the question itself provides the answer by reason of its reference to 'non-commercial terms'. Their submissions may be summarised as follows: 1. A 'non-commercial' payment is entirely inconsistent with clause 9.1.8 which directs the trustees to ensure the capital of the Trust is protected and that a 'fair and adequate return' is obtained. 2. By reference to the Australian Government's website https://www.myagedcare.gov.au, Paul and Philip set out the circumstances in which a RAD is payable. In summary, they say that: (a) there is no obligation for a resident to make any payment towards the RAD. A resident can choose not to pay the RAD in full (or only partly) and make a daily accommodation payment (DAP) towards any unpaid RAD; (b) if a RAD is paid in full as a lump sum, then no DAP will be payable by an aged care resident; (c) on moving into an aged care facility, a person will need to make a decision as to whether to pay the RAD in full, make a partial RAD payment or not make any contribution to the RAD; (d) any amount of the RAD that is left unpaid will incur a DAP, which is calculated as the outstanding RAD amount multiplied by the maximum permissible interest rate; and (e) once paid, a RAD may not be able to be withdrawn unless the aged care resident leaves the aged care facility or passes away (when it would be returned to their estate without interest). 3. The say that an assessment as to whether an individual is better off paying the RAD or the DAP is complicated, and the -- 51 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 52 information required to make such an assessment has not been put before the court. Nor is there any information as to why Beverley would be looking to the trustees to fund a RAD. There is no cause for the trustees to seek directions about whether a RAD payment should be made. 4. To lend Beverley trust funds for a RAD would go against the clear structure of the Will Trust and the deceased's intention, which they say was that Beverley be purely an income beneficiary. 5. It is not correct for the trustees to state that a RAD can be characterised as an advance of the income Beverley would be expected to receive. Such cannot be accurately predicted because the Westpac Index is calculated on an annual basis. The value of the RAD payment is likely to far exceed any future entitlement that Beverley will obtain under her annual distributions in accordance with the Westpac Index. 6. The provision of a loan or an advance to Beverley does not make sense because it would reduce the capital to be used to generate income to make the annual payments to her in accordance with the Westpac Index. Further, if interest was to be charged by the trustees on the loan (presumably on less than commercial terms), additional distributions would be required to be made to Beverley to enable her to service such repayments. 176 In response to the last of Paul's and Philip's submissions, the Trustees submitted that it would be open to the trustees to appropriate some of a distribution of income to a beneficiary to whom an advance is made under clause 9.15 to payment of the loan, and some of it to be paid by way of actual income. Answer to question 10 177 There is no evidence to suggest that there is any requirement for Beverley to enter into an aged care facility, at this stage, or as to the need for a RAD to be paid and in what amount. 178 The question posed is whether the trustees have power to lend trust funds to Beverley on non-commercial terms to assist her to pay a RAD if and when she does enter an aged care facility. There is no express provision in the Will to this effect. -- 52 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 53 179 Whilst clause 9.15 provides the trustees with a discretionary power to advance an amount not exceeding a beneficiary's putative expectancy in respect of the trust estate to a beneficiary, the circumstances in which the power should be exercised are limited. The trustees may advance such an amount to a beneficiary in circumstances where they deem it advisable for, relevantly, the beneficiary's maintenance or otherwise for their benefit. 180 As such, the trustees' power to advance capital to Beverley (whether as an income beneficiary or as a capital beneficiary), is only enlivened if the trustees deem it advisable. Whether payment of a RAD is advisable (or necessary) for Beverley's maintenance or otherwise for her benefit, will depend on the circumstances. The nature and extent of the trustees' powers and the exercise of any such power in such circumstances is likely to involve questions beyond the interpretation of clause 9.15 and the Trust more generally. Financial advice may also be required. 181 Regard should also be had to the direction in clause 7.1 for the trustees to ensure that any advancement of capital or loans are made subject to the deceased's overriding direction that adequate provision is to be made not only for Beverley but also for Paul, Susan, Philip and the deceased's grandchildren. 182 Whether the trustees could rely on clause 9.15 (or any other provision) as a source of power to make a loan for the specific purpose of assisting Beverley with funding a RAD is a question that should properly be considered having regard to the actual circumstances and the needs of the other beneficiaries, at the time. It is not a question that I consider I can properly give a direction on in the general terms sought and in a factual vacuum. 183 For these reasons, I decline to give directions in relation to question 10. Question 11 - if a beneficiary has received their 'putative expectancy' pursuant to clause 9.1.5 of the Will, does this preclude them from being considered for future income distributions? 184 Question 11 asks if a beneficiary has received their 'putative expectancy' pursuant to clause 9.15 of the Will, does this preclude them from being considered for future income distributions? -- 53 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 54 Trustees' submissions 185 The Trustees suggest that question 11 should be answered as follows: 1. Receipt by a beneficiary of an advance pursuant to clause 9.15 of the Will does not disentitle them to future distributions of income from the Trust, save that such distribution should be used to discharge the beneficiary's debt to the trustees. 186 They made the following submissions: 1. If clause 9.15 is construed as submitted by them in respect of question 10, the effect of clause 9.15 is that an income beneficiary to whom an advance from the capital of the Trust has been made must continue to be distributed income because it is from such distributions that the advance is repaid by the beneficiary. 2. It is not the intent of clause 9.15 to permanently disqualify an income beneficiary from any future distributions of income, because it expressly provides that the future division of income will be adjusted only 'until the time that the beneficiary's remaining entitlement to capital is satisfied' - that is, until the advance is repaid - by distribution of the beneficiary's share. 3. Clause 9.1.12 expressly empowers the trustees to give time for the payment of a debt. There is no reason such power should not extend to a debt arising under clause 9.15. 4. The trustees are also directed by clause 9.11.1 to regulate the affairs of the Trust so as to ensure the assets are administered in the manner most conducive to the interests of the beneficiaries. 5. Given the above powers, it appears open to the trustees to give time for the repayment of an advance made under clause 9.15 by not allocating all of a distribution in a given year of income to a beneficiary to whom such an advance has been paid to the repayment of the advance, but to actually give some or all of the income to the beneficiary. Paul's and Philip's submissions 1. In relation to question 11, leaving to one side the proper construction and legal effect of the document signed by Susan -- 54 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 55 dated 13 July 2022, Paul and Philip agree that the trustees have the right to advance income to qualified beneficiaries (including the capital beneficiaries). 2. Otherwise, they simply say that the question should be answered 'Yes'. Susan's submissions 187 Susan joins with the Trustees on the proper construction of clause 9.15 and suggests the answer to question 11 is 'No'. Amongst other things concerning the construction of clauses 7.1, 7.2 and 7.3, it was submitted on Susan's behalf that: 1. If the court accepts that the proper construction of clause 9.15 is to permit the trustees to make an advance or loan from the capital of the Trust to an income beneficiary, with any such advance or loan to be satisfied by deductions from future distributions of income to the relevant beneficiary, the relevant beneficiary must continue to be considered for income distributions to repay the advance or loan. 2. A construction of clause 9.15 that could preclude a beneficiary from being considered for further income distributions at the sole discretion of the trustees would be incompatible with the deceased's overriding desire and direction expressed in clause 7.1. For example, the trustees could determine to pay any income beneficiary $1.00 (an amount not exceeding that beneficiary's putative expectancy) and by doing so, unilaterally preclude that beneficiary from being considered for a lifetime of income distributions. This would defeat the object of the Trust to provide for the maintenance, support, advancement in life and education of the beneficiaries named in the Will so that they may continue to enjoy the same standard of living as that to which they have become accustomed. Answer to question 11 188 I have considered the parties' submissions. For the reasons submitted on behalf of the Trustees, with which Susan joined and which I accept, question 11 should be answered as follows: 1. Receipt by a beneficiary of their 'putative expectancy' pursuant to clause 9.15 of the Will, does not preclude them from being -- 55 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 56 considered for or receiving future distributions of income from the Trust. 2. Distributions of income to a beneficiary who has received their 'putative expectancy' or a part of it are to be applied towards discharging the beneficiary's debt to the trustees in respect of the amount advanced. Questions 12 - 15: the loans to the Mews Family Trust and the Mews Secondary Trust 189 Questions 12 - 15 concern the Loans. The questions raised and in respect of which directions are sought are as follows: 12. Are the trustees justified in refraining from calling in the amounts owed to the Trust by the trustees of the Mews Family Trust and the Mews Secondary Trust (together referred to as the Loans), and in not charging interest on these Loans, provided that neither Paul nor Phillip, both of whom oppose the Loans being called in, receive any income or capital distributions from the Trust prior to the vesting day? 13. Alternatively, are the trustees justified in charging interest on the Loans? 14. Are the trustees justified in negotiating repayment terms for the Loans, including repayment over an extended period or upon the occurrence of a specified event (for example, the death of Paul and/or Philip to the vesting date of the Trust)? 15. Are the trustees justified in requiring the trustees of the Mews Family Trust and the Mews Secondary Trust, as debtors, to provide security for the Loans in the form of a mortgage or charge supported by a caveat? 190 As stated on behalf of the Trustees, the Loans are not an advance or loan made by the trustees pursuant to clause 9.15. They were loans made by the deceased during his lifetime to the Mews Family Trust and the Mews Secondary Trust, the trustee of which, PDM, is a company of which the deceased and Beverley were formerly directors and shareholders, and of which Paul and Philip are now the directors and shareholders. 191 As also stated by the Trustees, the executors of the Estate did not call in payment of the Loans as debts owed to the Estate. -- 56 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 57 Instead, it appears that they elected to treat them as debts owed to the Estate, as part of the residue settled on trust by clause 6.1 of the Will. The Loans are recorded in the Trust accounts as non-current assets of the Trust. Trustees' submissions 192 The Trustees do not suggest any particular course in relation to questions 12 - 15 concerning the Loans. They are evidently concerned that the Loans make up a significant percentage of the capital of the Trust, which is presently not generating any income. They seek directions as to ways in which they may be able to address this. 193 The Trustees refer to the Loans as investments of the deceased, which may be retained, sold or converted into another asset under the power conferred by clause 9.1.7 of the Will. They also refer to the commendation in clause 9.1.8 for the trustees to derive at least sufficient return from them to protect the capital of the Trust against changes in the value of money (inflation). They suggest this would include charging interest on the capital of the Loans. 194 The Trustees also refer to: (a) clause 9.1.12, which empowers the trustees to release or compound any debts owing to the deceased or the Estate and to give time for payment of debts, with or without taking security; and (b) clause 9.11.1, which directs the trustees to regulate the affairs of the Trust so as to ensure that assets are administered in the manner most conducive to the interests of the beneficiaries. 195 The Trustees acknowledge that calling in the Loans would likely prejudice Paul and Philip and may cause financial hardship to the trustee company, PDM, of which they are both directors and shareholders. However, they submit that the Loans represent a significant percentage of the capital of the Trust, presently generate no income, and no repayments are being made in respect of them. 196 The Trustees submit that clause 9.11.1 would appear to countenance them not calling in the Loans in order to administer the Trust in a manner conducive to Paul's and Philip's interests. However, as the Trustees observe, the directive in clause 9.11.1 is to administer -- 57 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 58 the Trust in the manner most conducive to the interests of all of the beneficiaries, not just some. Paul's and Philip's submissions 197 Paul's and Philip's position is that questions 12 - 15 do not properly arise for consideration in the Application. They say that there is no evidence that the trustees expect that they will require additional capital to generate the income necessary to continue to make the adequate provision payments to Beverley according to the Westpac Index. Nor is there any evidence, such as independent valuation evidence in relation to the Trust, to indicate or support any need to demand repayment of the Loans. 198 Paul's and Philip's submissions are to the following effect: 1. Paul and Philip were appointed as directors of PDM on 1 February 2022, when Beverley ceased as a director, and the deceased ceased as a director of PDM upon his death. The Loans were not advanced by the trustees but by the deceased to PDM as trustee for the Mews Family Trust and the Mews Secondary Trust when the deceased and Beverley were in control of PDM. 2. As a matter of objective context it can be accepted that the deceased was aware the Loans were in existence at the time of his death, and he did not make any provision for them to be specifically dealt with in his Will. There is no provision in the Will that the Loans were to be repaid on his death or that interest was to be charged on them. 3. There is no evidence that interest was ever charged on the Loans. The choice made by the deceased was to leave the Loans and related trusts 'in play' until such time as Beverley passed away and the capital could be distributed to the beneficiaries. 4. It would not be reasonable for the trustees to contend that the Loans need to be repaid or that commercial rates of interest be charged on them in the circumstances where: (a) at no time prior to the deceased's death was any interest charged on the Loans; (b) there are sufficient other assets to generate income to enable payments to be made to Beverley in accordance -- 58 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 59 with the Westpac Index, such that and neither repayment of nor the charging of interest on the Loans is necessary; (c) there would be catastrophic financial consequences to each of Paul and Philip if the Loans were required to be repaid; (d) the trustees hold security in respect to the repayment of the Loans because there is a putative expectancy of a future distribution of capital to them following Beverley's death; and (e) the ordinary way these matters are dealt with is that, at the time of distribution to the capital beneficiaries, a book entry is made as opposed to any need for repayment of the Loans through a cash payment. 5. Paul and Philip say that the status quo as to the Loans which were in existence at the time the deceased died, and the subsequent establishment of the Trust, should prevail. There is no justifiable reason to change the deceased's practice of not charging interest on the Loans. 6. The consequence of the status quo remaining is that, upon Beverley's death, the Trust will be able to vest and distributions of capital and income will be made in the most tax effective way, which is likely to see the Loans repaid in full at that time, which would not cause any taxable event for the beneficiaries and was clearly inferred as the deceased's intention in the Will. The flexibility for the trustees to make such a distribution is also consistent with their obligation to manage the Trust to ensure the 'possible incidence of tax is legitimately minimised' (clause 9.11.2). Determination in relation to questions 12 - 15 199 It is not disputed that the Loans are longstanding liabilities that were previously owed by PDM as trustee for the Mews Family Trust and the Mews Secondary Trust to the deceased. As noted, following the deceased's passing, the Loans have been recorded as non-current assets of the Estate. 200 The Will makes no reference to the Loans. It appears that, historically, PDM and the relevant trusts were controlled by the -- 59 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 60 deceased, who was a director of PDM together with Beverley. The deceased was a director of PDM from 15 February 1982 until he died. Beverley was appointed as a director of PDM on 27 May 2009 and ceased to be a director on 1 February 2022. Paul and Philip were appointed as directors on that date.34 201 Paul refers in the First Paul Mews Affidavit to handwritten balance sheets and statements of income and expenditure for the Mews Family Trust for 30 June 2019, 30 June 2020 and 30 June 2021, which he says are in the deceased's handwriting, and show a loan to the deceased as a liability and do not record any interest paid for the loans outstanding to the deceased.35 He makes similar observations for the same period in relation to the Mews Secondary Trust.36 202 Beverley deposes that, to the best of her knowledge and belief, no interest was previously charged on the Loans.37 I take this to be a reference to before the deceased passed away and when she was a director of PDM. 203 However, there is no other information or any evidence before the court as to the terms of the Loans, whether any repayments are required or when or in what circumstances they are repayable. The nature and terms of the loan are a relevant consideration as to what action the trustees may take in relation to them. 204 In the absence of such information, I do not consider that I can, or that it would be appropriate for me to give directions as to whether the trustees would be justified in taking any of the action contemplated in questions 12 - 15. As such, I decline to give directions in relation to the matters raised in questions 12 - 15. Question 16 - additional directions 205 No additional directions or orders are sought by the Trustees, and the parties agree that none of the questions raised require any additional directions. 34 Beverley Mews Affidavit [50] - [51], 'BLM-10'. 35 First Paul Mews Affidavit [30] - [31], 'PJM-4', 'PJM-5'. 36 First Paul Mews Affidavit [32] - [33], 'PJM-6', 'PJM-7'. 37 Beverley Mews Affidavit [53]. -- 60 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 61 Questions 17 and 18 - Susan's declaration dated 13 July 2022 and subsequent distributions of income 206 Questions 17 and 18 concern the document signed by Susan dated 13 July 2022 and subsequent distributions of income to her. They are as follows: 17. Has Susan irrevocably relinquished her interest as a beneficiary of the Trust by signing her declaration dated 13 July 2022? 18. If yes, was the trustees' declaration to distribute an amount in the year ending 30 June 2024 to Susan void and of no effect? 207 As outlined by the Trustees and deposed to by Beverley in the Beverley Mews Affidavit and confirmed by Ms Broadbent, the trustees advanced $100,000 from the capital of the Trust to Susan under the apparent understanding that this was Susan's 'putative expectancy' under clause 7.3.1 of the Will.38 208 The $100,000 advanced to Susan was deposited into her bank account on 22 July 2022.39 Sometime after she received the $100,000, Susan signed the document, which was already dated 13 July 2022. 209 The document is addressed to the trustees of the Trust and states:40 Dear Trustees I, Susan Marie Mills of [address] hereby acknowledge that receipt of the $100,000 from The Jeff Mews Will Trust will be my full and final entitlement under the Will of my late Father Jeffrey Arthur Sydney Mews. My entitlement has now been fully satisfied by The Jeff Mews Will Trust. [signed] SM Mews… 210 Subsequently, on 28 June 2024, the trustees resolved to distribute 50% of the net income (if any) of the Trust for the year ending 30 June 2024 to Susan and 50% to Beverley.41 211 Paul and Philip contend that the advance of $100,000 to Susan disqualifies her from receiving distributions of income and the trustees' 38 Beverley Mews Affidavit [43]; Broadbent Affidavit [5]. 39 Susan Mews Affidavit [11], 'SMM-1'. 40 Susan Mews Affidavit [10] - [12]. See First Paul Mews Affidavit, 'PJM-1'. 41 Beverley Mews Affidavit [21(f)], 'BLM-9'; Broadbent Affidavit [5]. -- 61 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 62 declaration to distribute an amount to Susan in the year ending 30 June 2024 is void and of no effect.42 Trustees' submissions 212 The Trustees' submissions in relation to questions 17 and 18 may be summarised as follows: 1. If the court accepts the construction of clause 9.15 of the Will, as outlined in their submissions, then it appears that the trustees were mistaken insofar as they believed that Susan's 'putative expectancy' for the purposes of that clause was the $100,000 to which she might become entitled if they exercised the power under clause 7.3 of the Will because: (a) for the reasons submitted, the 'putative expectancy' of a beneficiary with which clause 9.15 is concerned is an income beneficiary's expected distributions of income, not an expectation to the capital of the Trust; and (b) in any event, clause 7.3 merely creates a discretionary power which the trustees may or may not exercise and, in the absence of the exercise of such power, Susan may be expected to receive one quarter of the capital of the Trust upon its termination by clause 7.8. 2. In signing the document dated 13 July 2022 acknowledging the receipt of the $100,000 advanced to her was her full and final entitlement under the Will, Susan appears to have been operating under a mistake. If the Trustees' construction of clause 9.15 is accepted, the payment to Susan was an advance to her from the capital of the Trust which can be repaid from future distributions of the income of the Trust in her favour. 3. For the reasons submitted in respect of question 11, the advance made by the trustees to Susan does not disqualify her from future distributions of income. To the contrary, distributions of income must continue to be made to her to repay the advance. It follows that the trustees' declaration to distribute 50% of the income of the Trust for the year ended 30 June 2025 to Susan Mews is not void or of no effect. 42 First Paul Mews Affidavit [14]. -- 62 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 63 4. It is not apparent that the trustees or anyone else have acted or relied in any way upon the document signed by Susan. In those circumstances, it is not apparent that the statement has any legal effect,43 especially if it was mistaken and if the court accepts the Trustees' construction of clause 9.15 of the Will. Paul's and Philip's submissions 213 Paul's and Philip's relevant submissions in relation to questions 17 and 18 may be summarised as follows. 1. Paul and Philip submit that, as a beneficiary of the Trust, Susan had a beneficial interest in the trust fund, which she was entitled to relinquish.44 They say that the document Susan signed is clear and unequivocal. No application has been made by the trustees or Susan to set it aside. 2. The court is entitled to take the document at face value, and answer both question 17 and question 18, 'Yes' because Susan had already relinquished her entitlement as a beneficiary of the Trust when she signed the document dated 13 July 2022, and she had no ongoing beneficial interest in the Trust. 3. It is not correct to say there has been no change of position by anyone. Upon Susan signing the document dated 13 July 2022, she relinquished her beneficial interest in the Trust, and Paul and Philip as the remaining beneficiaries acquired the beneficial interest which Susan previously held in the Trust fund. Any cancellation of that relinquishment or the reinstatement of Susan's interest will directly affect Paul's and Philip's rights and interests. However, other than referring to their increased shares, they do not say how, if at all, they have changed their position in reliance on any relinquishment by Susan of her interest in the Trust. 4. Paul and Philip say that an application for directions by the Trustees is not the proper forum for a contested hearing about whether Susan is entitled to withdraw her relinquishment of her entitlements under the Trust and whether there has been any change of position. 43 Referring generally to Allianz Australia Insurance Ltd v Delor Vue Apartments CTS39788 [2022] HCA 38; (2022) 277 CLR 445. 44 Referring to Hardoon v Belilios [1901] AC 118, 123; Re Cranstoun (deceased); Gibbs v Home of Rest for Horses [1949] Ch 523. -- 63 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 64 Susan's submissions 214 Susan agrees that this application is not the forum for any dispute as to whether the document she signed on 13 July 2022 should be set aside. It was submitted on Susan's behalf that there are three bases upon which the court can determine, within the scope of this Application, that the document and the 'declaration' contained in it is not an effective disclaimer, and direct the Trustees to approach it in that way. I note that, although, the term 'declaration' is used in the question and was used in the submissions made, it is not expressed as a declaration. 215 Susan's submissions, as refined at the hearing, may be summarised, as follows: 1. If the court accepts any one of the three reasons as to why the 'declaration' is not effective, then the issue of change of position raised by Paul and Philip does not arise. 2. In respect of the first of those reasons, Susan joins with the Trustees' submissions to the effect that if the 'declaration' is underpinned by the trustees' erroneous interpretation, and communication of such to Susan, the 'disclaimer' is not effective. She submits that, if the court accepts that the proper construction of clause 9.15 empowers the trustees to make loans to income beneficiaries from the capital of the Trust, repayable from future income distributions, it is apparent that the trustees were mistaken about its effect when Susan was provided with the document. 3. The second reason is that because the preconditions of clause 7.3 had not been met when the document was signed by Susan, she had no entitlement at that time that was capable of her accepting as her full and final entitlement. 4. The third reason it was submitted that the 'disclaimer' may be deemed ineffective is that Susan did not possess the required knowledge as to what her interest was at that time and what she was acknowledging full and final settlement of. In this regard counsel referred to Tantau v MacFarlane,45 in which the court said, in effect, in cases where there was no effective disclaimer where there was insufficient knowledge or appreciation of the terms of the gift, there is no effective disclaimer in the first place. 45 Tantau v MacFarlane [2010] NSWSC 224 [108]. -- 64 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 65 216 For the reasons outlined on Susan's behalf, and which I consider further below, it was suggested that the answer to question 17 is 'No'. As such, Susan did not address question 18 in her submissions. Answer to questions 17 and 18 217 I do not consider it is necessary for there to be a contested hearing in relation to whether the statement made by Susan in the document dated 13 July 2022 had the effect of her irrevocably relinquishing her interest as a beneficiary of the Trust. 218 Although the word 'disclaimer' has been used in the submissions, the document signed by Susan does not use that word and is not expressed in terms which, in my view, state in clear and unequivocal terms that Susan absolutely rejects or relinquishes her rights or entitlements as a beneficiary of the Trust. What is stated is that she acknowledges that receipt of the $100,000 from the Trust will be her full and final settlement under the Will and that her entitlement has been fully satisfied by the Trust. 219 The words used are consistent with her evidence as to her understanding, as an unrepresented lay person at the time and based on what she was told by one of the executors and trustees, that she was entitled to a payment of $100,000 and was also a beneficiary of a trust under the terms of the Will. Also, the words used are also consistent with the trustees' understanding, at the time, that the $100,000 had been paid to Susan in satisfaction of Susan's entitlement under clause 7.3.1 of the Will. 220 For the reasons I have set out earlier, the rights, benefits and interests to which a beneficiary may become entitled by the terms of the Will are entirely contingent on the exercise of the trustees' discretion. The $100,000 that Susan was acknowledging receipt of was paid to her by the trustees on the understanding it represented her 'putative expectancy' under clause 7.3.1 of the Will. 221 The trustees' discretionary power to pay that amount to Susan under clause 7.3.1 does not arise until after Beverley's death. The trustees have a discretionary power under clause 9.15 to advance capital to an income beneficiary. As determined in relation to question 11, receipt of an advance by a beneficiary of their 'putative expectancy' pursuant to clause 9.15 of the Will, does not preclude them from being considered for or receiving future distributions of income from the Trust. Distributions of income to such a beneficiary are to be -- 65 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 66 applied towards discharging the beneficiary's debt to the trustees in respect of the amount advanced. 222 It is correct to say that a beneficiary of a gift (or entitlement in distribution) cannot be forced to accept it and may refuse to accept or disclaim the gift or entitlement.46 By extension the same may be said in relation to an interest in a testamentary trust. 223 Allanson J considered the principles relating to disclaimer in Jemal David Zagami (In his Capacity as Administrator of the Deceased's Estate) v James.47 Although that case concerned disclaimer of an interest in an intestate estate, the principles referred to apply to a gift or benefit conferred by will. In Zagami v James,48 Allanson J referred to an article by Associate Professor Neville Crago, which says (relevantly):49 An effective disclaimer must constitute an absolute rejection of the gift. It must evince a final and non-negotiable refusal to accept the property which the donor proffers. It must be 'simple': it must not purport to do anything other than disclaim … A disclaimer must not purport to dispose of the property in some other way, such as by release. It must not purport to operate so as to change the terms of the gift. … A gift cannot be disclaimed subject to some qualification sought to be imposed by the donee, such as disclaimer only for a period of time. … 224 The principles outlined by Associate Professor Crago are discerned from longstanding authority to the effect that to be effective, a disclaimer must be pre-emptory, constitute an absolute rejection of the gift or interest, evince a final and non-negotiable refusal to accept it. It must be communicated to the executor or administrator, as applicable. There is no formal requirement for communication. A beneficiary may disclaim the benefit pursuant to a will or on intestacy by any effective means, including by deed or other writing, orally or by conduct.50 However, its terms must be clear and unequivocal. 46 Jemal David Zagami (In his Capacity as Administrator of the Deceased's Estate) v James [2017] WASC 292 (Zagami v James) [18]. See also Federal Commissioner of Taxation v Cornell (1946) 73 CLR 394, 401 - 402 (Latham CJ). 47 Zagami v James [18] - [20], [22] - [23]. 48 Zagami v James [22]. 49 Neville Crago, Principles of Disclaimer of Gifts (1999) 28(1) UWA LR 65, 78. 50 See Zagami v James [23] referring to Application of the NSW Trustee and Guardian; Estate of SGB [2015] NSWSC 398 [20]. See also Shaw v McKean as executor of the estate of the late Ellen Mary May McKean [2023] QSC 261 [26]; In re Paradise Motor Co Ltd [1968] 1 WLR 1125, 1141 - 1142; Re Birchall; -- 66 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 67 225 The document signed by Susan is not clear and unequivocal and does not, on its express terms, operate as an effective disclaimer or relinquishment of Susan's interest as a beneficiary of the Trust. In the context it was made it communicates her understanding at the time that she was accepting payment of $100,000 in settlement of her entitlement under the terms of the Will, not disclaiming any interest in her entitlement to payments of income from the Trust. 226 Also relevant is what is communicated to the trustees. The document was prepared by the trustees for Susan to sign. It was the trustees' understanding that what was being acknowledged was receipt of Susan's entitlement to the capital of the Trust, which was then thought to arise under clause 7.3.1. There was no such entitlement at the time the document was signed by Susan. As such, Susan did not, by signing the document, irrevocably relinquish her interest as a beneficiary of the Trust. 227 There is no dispute between the parties that this is not the occasion to determine whether the document signed by Susan should be set aside. No order or direction has been sought to the effect that it should be. 228 For these reasons, question 17 should be answered as follows: 1. Susan has not irrevocably relinquished her interest as a beneficiary of the Trust by signing the document dated 13 July 2022. 229 Given the answer to question 17, question 18 does not arise for determination. Conclusion and orders 230 For these reasons, I will give directions and make orders as outlined in response to questions 1 - 9, 11 and 16 - 17, and I decline to give directions in relation to questions 10 and 12 - 15. Question 18 does not arise for determination. 231 I will hear from the parties in relation to any orders as to costs, if such are not agreed. Birchall v Ashton (1889) 40 Ch D 436 (Re Birchall); Townson v Tickell (1819) 3 B & Ald 31; (1819) 106 ER 575. -- 67 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 68 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SC Associate to Master Russell 1 JULY 2026 -- 68 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 69 ANNEXURE A 7 THE JEFF MEWS WILL TRUST 7.1 Subject to clause 7.2, I direct my trustees to administer the trust assets and in their entire discretion to distribute the trust income to the beneficiaries named in this will for their maintenance, benefit, advancement in life and education, so that they may continue to enjoy the same standard of living as that to which they are accustomed, and I direct my trustees to ensure that distributions of income, of capital, of advancements of capital and loans are made subject to my overriding desire and direction that adequate provision is to be made for: 7.1.1 my wife, BEVERLEY LUISE MEWS; 7.1.2 my son, PAUL JEFFREY MEWS; 7.1.3 my daughter, SUSAN MARIE MEWS; 7.1.4 my son, PHILIP DAVID MEWS; and, 7.1.5 my grandchildren. 7.2 I express the wish to my trustees that, in determining adequate provision to my wife, BEVERLEY LUISE MEWS, the trustees are, subject to their discretion, to distribute to her in each income year an amount equal to that described as the Westpac Comfortable Living Index for a couple as published from year to year by Westpac Limited. 7.3 On the youngest of my children referred to in clause 7.1 having attained the age of 40, and following the death of my wife, BEVERLEY LUISE MEWS, the capital and accrued income of the JEFF MEWS WILL TRUST may, at the discretion of my trustees, in default of their making or having made any other determination or appointment of capital or income, and otherwise subject to the conditions of this Will, be applied as follows: 7.3.1 an amount of $100,000 is to be paid to my daughter, SUSAN MARIE MEWS, as her sole property, with representation per stirpes; 7.3.2 the balance is to be divided into two equal shares, and one share shall be paid to each of my sons, PAUL JEFFREY MEWS and -- 69 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 70 PHILIP DAVID MEWS, in each case as that person's sole property. 7.4 If a beneficiary referred to in clause 7.1 does not survive me, or dies before becoming entitled to receive the share determined pursuant to a decision of the trustees under clause 7.2, then I direct that the share to which that beneficiary would have been entitled shall be held by my trustees on trust for the benefit of that beneficiary's children, with representation per stirpes. 7.5 If a beneficiary entitled to receive a share dies without leaving children, or if the trusts affecting any other beneficiary's share determine otherwise than by absolute vesting, then that portion shall be shared equally amongst the other shares of which the trusts have not determined otherwise than by absolute vesting. 7.6 The trustees shall be entitled, entirely at their discretion, to anticipate the date on which the Trust terminates, or is to terminate either in respect of any particular beneficiary or generally, or postpone for a period, not exceeding fifteen years, the date on which the Trust would otherwise have terminated in respect of a beneficiary, its issue or otherwise, and whether in respect of capital, income or otherwise, while having regard to the best interests of the beneficiary in question. 7.7 I direct that any decision of my trustees in terms of clause 7 shall not be open to challenge, nor shall it be capable of being set aside by a beneficiary or by anyone acting on behalf of, or at the suit of a beneficiary. 7.8 I direct that in order to comply with the Rule against Perpetuities, the trusts created under this Will shall terminate automatically on a date being not more than 79 years from the date of my death, and the estate or interest created in terms of this Will shall vest in the beneficiaries as determined under this Will in possession and enjoyment not later than that date, if not earlier under clause 7.1 to 7.6 inclusive. 8. SPECIAL CONDITIONS APPLICABLE TO THE TRUST INCOME 8.1 On or before the last day of each trust year, the trustees shall deal with the net income of the trust fund in one or more of the ways set out in clause 8 of this will. -- 70 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 71 8.2 In each trust year, the trustees may – 8.2.1 pay to, apply for the benefit of, or set aside for any one or more of the beneficiaries the whole or any part of the net income of the trust fund; 8.2.2 determine to accumulate the whole or any part of such income; 8.2.3 set aside any amount as a provision to pay any tax with which the trustees may be assessed or may have been assessed in respect of any such income, whether distributed under clause 8.2 or not; or 8.2.4 determine the allocation of any franking credit, tax rebate or tax credit in respect of any or all beneficiaries. 8.3 The trustees may at any time – 8.3.l create a separate account in respect of any type or source of income; 8.3.2 on receipt of any income, credit the amount so received to that account; 8.3.3 in each accounting period determine – 8.3.3.l the amount; 8.3.3.2 the proportions; and, 8.3.3.3 the manner in which, they shall pay, set aside or apply any or all of the income from that account, to or for the benefit of – 8.3.3.4 any; 8.3.3.5 all; or, 8.3.3.6 any one or more, to the exclusion of other, beneficiaries, whether or not such beneficiaries would otherwise be regarded, for the purposes of this Will, as being income or corpus beneficiaries; -- 71 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 72 8.3.3.7 the income or account against which expenditure or losses incurred in deriving any such income paid into such account is to be set off. 8.4 Any amount paid, applied or set aside under clause 8.3 is deemed, for all purposes, to be paid, applied or set aside from that account only. 8.5 Without limiting the powers set out in clause 8.2 to clause 8.4, the trustees may, in their discretion, pay out of the share of corpus which would otherwise pass to a beneficiary entitled to corpus upon his becoming absolutely entitled as against the trustees to any asset forming part of the trust fund, any tax or duty attributable to a capital gain as determined under Part 3 of ITAA 1997, which arises upon such beneficiary becoming absolutely entitled to such asset as against the trustees. 8.6 If, in any trust year, the trustees fail to make an effective distribution or accumulation of income, the trustees are deemed – 8.6.1 to hold all of the income in respect of that trust year, which the trustees have not otherwise paid or applied, set aside or determined to accumulate under clause 8.2 on trust for the beneficiaries and, if more than one, in equal shares as tenants in common absolutely; and 8.6.2 to have made a determination to that effect on the last day of the accounting period in respect of which such income arises. 8.7 Should my trustees determine that the income of the Trust is insufficient for the purposes of clause 8.2, then the whole or that part of the capital of the Trust as they deem necessary may be applied for giving effect to the purposes of clause 8.2 to 8.6. 8.8 My trustees may exercise their discretion in relation to the matters dealt with under clause 8 in the widest possible manner and with the utmost flexibility. It is my will that the beneficiaries should continue to be able to live in the way of life to which they have become accustomed during my lifetime, and my trustees are empowered to exercise their discretion under this Will with that direction in mind. -- 72 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 73 9 POWERS OF TRUSTEES 9.1 My trustees shall have the following powers in addition to the powers conferred by law or under the Trustees Act (Western Australia) – 9.1.1 To decide whether money or assets held or received by them in respect of the Trust are to be treated as 'capital' or 'income' for the purposes of the Trust, and to make apportionments in the trust accounts for those purposes. 9.1.2 To apply any of the money or assets held by them in respect of the Trust in making payment of any tax levied on the Trust or on any beneficiary under the Trust. 9.1.3 To determine in relation to any beneficiary whether and to what extent a net capital gain that would otherwise form part of the net income of the trust fund be set aside and held for distribution either at a later time or to a different beneficiary in order to make a choice for the purposes of s 115-230 of ITAA 1997. 9.1.4 To decide to whom any assets or money which are to be paid or handed over by them to or for the benefit of any beneficiary shall be so paid or handed over, in which case – 9.1.4.1 an acquittance signed by any person selected by the trustees to whom any assets or money are so paid or handed over shall be a complete and valid discharge; 9.1.4.2 any payment due to a beneficiary under the age of 21 years may be made to the beneficiary's parent or guardian or may be applied by my trustees in payment for the benefit of or on behalf of the beneficiary. 9.1.5 To pay in cash, or distribute in specie, or pay in cash and distribute in specie the income or capital of the Trust. In the case of a distribution in specie, my trustees shall be entitled to place a value which they deem fit on the assets so distributed. -- 73 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 74 9.1.6 To determine annually whether the expenses incurred in the administration of the trust should be paid out of the income derived from the capital of the Trust or out of the capital itself, or should be brought to account against the income and against the capital in whatever proportions they deem fit. 9.1.7 To retain any investments held by me at the date of my death or to sell and convert the whole or any portion of my estate and effects into cash or other assets, either by public sale or private treaty. 9.1.8 To invest any funds arising, either in the winding up of my estate or in the administration of the Trust, in fixed property, securities, shares, debentures, stocks or any investment of any kind. I commend to my trustees that they should endeavour as far as possible to secure a wide spread of investments in any type of asset which they regard as sound, with a view to obtaining a well balanced portfolio that will give a fair and adequate return and protect the capital against changes in the value of money. 9.1.9 To vary investments and to re-invest, having regard to the possible incidence of tax. 9.1.10 To borrow money, either alone or jointly with another, from any person, firm or company, either bearing or free of interest, and on such terms and conditions and for such purposes as they may decide, to secure the repayment of any such money or other indebtedness of the trustees by mortgage, charge or other security over the whole or any part of the Trust Fund as the trustees may decide, and to borrow money required by them for the purpose of conducting the affairs of my estate or for the payment of estate, succession or other duties, or the payment of any debts of my estate, and may mortgage or charge any of the assets in my estate. 9.1.11 To sell any assets owned by me to any company for shares or debentures in that company, with power, on the re-construction of that company, to accept shares or debentures in a new company in lieu of those previously held. In relation to any business in which I may have been interested during my life time, my trustees may carry on or discontinue the whole or portion of it or diminish the capital employed in it, and generally act in relation to it as if they were the absolute owners of it. -- 74 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 75 9.1.12 To release or compound any debts owing to me or my estate and to give time for the payment of debts, with or without taking security. 9.1.13 To carry on business of any kind anywhere in the world and, in relation to any such business, to appoint any person including any one or more of themselves to act as manager, servant or agent in relation to any business which I may have been interested at the time of my death, on terms and conditions to be determined by them, whether at a salary or otherwise. 9.1.14 In the administration of the Trust, instead of acting personally, to employ professional advisors, agents or employees at the expense of the Trust, as they may think necessary. 9.1.15 To institute or defend legal proceedings or to submit any claim, matter or dispute to arbitration. 9.1.16 To provide such financial assistance as my Trustees consider necessary to any person who acts as guardian of my children, my grandchildren or any one or more of them, so that such guardian is not financially worse off in performing his or her function as guardian. 9.2 In exercising any of the powers vested in them, my trustees shall be entitled to deal with all or any of the assets of the Trust, either separately from or collectively with all or any other assets. 9.3 If my trustees deal with the assets of the Trust collectively, they shall be entitled to apportion the income or capital derived from those assets between the beneficiaries in the manner and in the proportions which they deem fit. 9.4 All expenses incurred by my trustees in carrying out the provisions of the Trust shall be apportioned by them against the capital or income of the Trust in the manner and in the proportions which they deem fit. 9.5 If there are more than two trustees, the decision of my trustees shall be by a simple majority. 9.6 If a deadlock, dispute or difference arises between my trustees, then it shall be decided in a manner agreed upon by my trustees and, failing agreement, by arbitration in accordance with clause 3.4 of this Will. 9.7 The costs of an arbitration incurred in terms of clause 9.6 shall be treated as an expense in administering the Trust, and shall be paid from the assets of the Trust under administration. -- 75 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 76 9.8 Any decision by my trustees – 9.8.1 shall be final; 9.8.2 may not be challenged under any circumstances whatsoever – 9.8.2.1 by the beneficiaries; or 9.8.2.2 by anyone else. 9.9 My trustees shall not be answerable for, nor liable to make good any loss of capital or income sustained by the Trust as a result of any depreciation in value or loss resulting from any investment made by them, unless the loss is attributable to dishonesty or the wilful commission by the trustees of an act known by them or, in the case of a single trustee, of an act known by him to be a breach of trust. 9.10 I direct that my trustees are not to regard themselves as confined to what are known as 'trustee securities' in making any investment envisaged by the Trustees Act. 9.11 I direct that my trustees shall regulate the affairs of the Trust so as to ensure that – 9.11.1 assets are invested and administered in the manner most conducive to the interests of the beneficiaries; and, 9.11.2 the possible incidence of tax is legitimately minimised. 9.12 In case of doubt, my trustees shall have the power to decide what money represents capital and what money represents income. 9.13 In regard to realty or immovable property my trustees shall have power – 9.13.1 to manage·and superintend the management of it, with power to repair, alter, erect, pull down and re-build houses and other buildings and structures; 9.13.2 to sell and transfer such property; 9.13.3 to exploit or deal with any mineral rights; 9.13.4 to improve; 9.13.5 to sub-divide; 9.13.6 to lease all or any portion of such property; -- 76 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 77 9.13.7 to eject any tenant; and, 9.13.8 generally, to deal with or dispose of property in a proper and due course of management as if they were beneficially entitled to it. 9.14 My trustees shall receive as remuneration – 9.14.1 the reimbursement of the reasonable expenses incurred by them; and 9.14.2 payment of their fees for any work performed or services rendered in connection with my estate or in the administration of the Trust by any trustee in his professional capacity, together with reimbursement of disbursements incurred in the administration of this Trust. 9.15 Should my trustees deem it advisable for the maintenance or education of, or to assist a beneficiary in any professional or business venture, or otherwise for the benefit of a beneficiary, they may advance to the beneficiary an amount not exceeding that beneficiary's putative expectancy in respect of the trust estate under this Will Trust. In that event, any advance of capital to the beneficiary shall be deducted from the expectancy he or she would ultimately have received, and the division of income shall be consequently adjusted until the time that beneficiary's remaining entitlement to capital is satisfied by distribution of a beneficiary's share or the remaining entitlement to such share or part of such share. 9.16 The rights, benefits or interests to which a beneficiary may become entitled by the terms of this Will are entirely contingent on the exercise of a discretion by my trustees, are not property interests or financial resources of a beneficiary for the purposes of the Family Law Act or otherwise, do not constitute an immediate fixed right of present or future enjoyment, and shall – 9.16.1 not be capable of being exercised or claimed in any way by anybody other than the beneficiary; 9.16.2 be personal to him or her; 9.16.3 not be capable of being assigned, transferred, pledged, hypothecated or alienated, or of being attached at the instance of any creditor. 9.17 The contingent rights or benefits to which a beneficiary may become entitled by the terms of this Will, and any expectant interest shall be determined and forfeited if the beneficiary – -- 77 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 78 9.17.1 is declared insolvent; 9.17.2 surrenders or assigns his or her estate for the benefit of creditors; 9.17.3 purports to assign, transfer, pledge, hypothecate or alienate any of his or her rights, benefits or expectant interest which may arise by the terms of this Will; or 9.17.4 if a creditor of a beneficiary attempts to attach or to sell under legal process or causes any rights, benefit or interest to be attached or sold. 9.18 If a beneficiary is deemed by clause 9.16 or 9.17 to forfeit his or her contingent rights, benefits or interests, such beneficiary shall be deemed to be deceased. The trustees may, if they so choose, and in their discretion, from time to time pay out of the Trust (or without notice, cease to pay) to the dependants of such beneficiary in question the amount or amounts which they may consider necessary for the support of that beneficiary's dependants. 9.19 Any bequest or contingent future benefit to which a beneficiary may become entitled shall be his or her exclusive property. It shall not – 9.19.1 vest in any joint estate which arises on the marriage of such beneficiary; 9.19.2 be subject to the power of such beneficiary's spouse; or 9.19.3 form part of any community of property. 9.20 If a trustee or appointor: 9.20.1 is unable to pay his or her debts as and when they fall due; 9.20.2 dies, resigns, is declared insolvent or enters into a composition with his or her creditors, is removed by order of Court, departs from Australia permanently or becomes a resident of another country; 9.20.3 is cited as an applicant or as respondent in legal proceedings, either in the Family Court, the Federal Court, the Supreme Court or otherwise, such person shall be deemed to have retired from such office for all purposes from the day preceding the occurrence of such event. -- 78 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 79 9.21 My trustees may delegate all or any of their powers. 9.22 Generally, for giving effect to the purposes of my Will and of the Trust created in terms of it, my trustees shall have all ancillary powers which they may require, and in relation to my affairs they may exercise their discretion and generally act as they could in relation to their own affairs. 10 INTERPRETATION 10.1 In the interpretation of this Will – 10.1.1 clause headings are for convenience only and shall be ignored; 10.1.2 an expression which denotes the singular includes the plural and vice versa; 10.1.3 an expression which denotes the masculine gender includes the feminine and neuter genders, and vice versa; 10.1.4 'beneficiary' includes any member of the class of beneficiary; 10.1.5 'class of beneficiary' means the class of persons comprising – 10.1.5.1 the beneficiaries specified by name in clause 6 of this Will; 10.1.5.2 the children, grandchildren and great grandchildren of the specified beneficiaries; 10.1.5.3 the trustee of any trust, including the trustee of any superannuation fund, whether now existing or to be settled at a later date, of which a beneficiary, discretionary object or member under such trust is a beneficiary under this Will, and, where the provisions of such secondary trust require a vesting in interest of the trust property prior to the terminating date, the beneficiaries under it are such as not to cause this Will to breach any rule or law against perpetuities, and includes the trustee of any trust in which the trustee of this trust or of such secondary trust holds a share, a -- 79 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 80 unit of entitlement or has an interest, whether vested or contingent; 10.1.5.4 any company which now or before the terminating date in respect of any beneficiary is incorporated in Australia, of which a director or a person who beneficially owns a share in such company carrying a right to vote at general meetings is a beneficiary by reason of clause 10.1.5.1, and includes a company in which the trustee of this Trust or of any secondary trust holds a share, either legally or beneficially, or is a director; 10.1.6 'net income' or 'income' means profit determined according to generally accepted accounting principles and, unless the context requires otherwise, and without limiting the generality of the expressions used, but without in any way limiting the trustee's discretion to segregate and to exclude net capital gains from the distributable accounting income of the trust fund, 'net income' and 'income' are deemed to include – 10.1.6.1 a net capital gain determined under Part 3 of ITAA 1997; 10.1.6.2 the assessable amount of a dividend which has been franked under Part 3.6 of ITAA 1997, and includes any imputation credit or tax rebate. 10.1.7 'Tax' means any tax on income, including tax on net capital gains, domestic or other withholding tax, fringe benefits tax, consumption tax, GST, provisional tax, additional tax, penalty tax, stamp duty, fine for late payment, tax on deposit or withdrawal of funds from any account or any other tax or imposition payable to a government or government instrumentality; -- 80 of 81 -- [2026] WASC 267 MASTER RUSSELL Page 81 10.1.8 'Trust year'– 10.1.8.1 the period commencing on the date of my death and expiring on 30 June next following; 10.1.8.2 each period commencing on 1 July in one year and expiring on 30 June in the next year; and, 10.1.8.3 the period preceding the terminating date as determined under clause 8 in respect of any beneficiary, or the issue of any beneficiary, as the context may require, and ending on such terminating date in respect of such beneficiary or beneficiaries. -- 81 of 81 --