Di Trapani & Anor v Di Trapani & Ors [2026] QSC 20

SUPREME COURT OF QUEENSLAND CITATION: Di Trapani & another v Di Trapani & others [2026] QSC 20 PARTIES: GINA DI TRAPANI & PETER DI TRAPANI AS EXECUTORS OF THE WILL OF ELIZABETH ANNE DI TRAPANI, DECEASED (applicants) v GINA DI TRAPANI (first respondent) and PETER DI TRAPANI (second respondent) and SUZETTE DI TRAPANI (third respondent) and LINDA MCDOWELL (fourth respondent) and SAVANNAH JAYNE MCDOWELL (fifth respondent) and ALEC JAMES MCDOWELL (sixth respondent) and DI TRAPANI CONSTRUCTIONS PTY LTD ACN 009 750 690 (seventh respondent) and GLUTOLO PTY LTD ACN 010 067 795 (eighth respondent) and GLUTOLO PTY LTD ACN 010 067 795 AS TRUSTEE FOR THE MARIO DI TRAPANI DISCRETIONARY TRUST (ninth respondent) FILE NO/S: 2902 of 2025 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 2 March 2026 DELIVERED AT: Brisbane -- 1 of 18 -- 2 HEARING DATE: 12 December 2025 JUDGE: McCafferty J ORDERS: 1. The first respondent’s application is dismissed. 2. In respect of the executors’ application, the parties are to file orders by consent reflecting these reasons by 4:00 pm on 9 March 2026. Failing agreement in whole or in part, the parties are to provide their respective proposed orders together with written submissions not exceeding two pages by 4:00 pm on 9 March 2026. 3. I will hear the parties on costs. CATCHWORDS: SUCCESSION — CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS — TESTAMENTARY DISPOSITIONS GENERALLY — WHAT PROPERTY TRANSFERABLE BY WILL — where testator structured her affairs inter vivos using a discretionary family trust for which the ninth respondent is trustee — where testator’s will contains clauses purporting to gift “all my estate and interest” in various real property to her descendants — where the relevant real property is owned by the ninth respondent as trustee for the trust — whether s 33J of the Succession Act 1981 (Qld) supports a construction that would require the ninth respondent to transfer trust assets out of the trust — whether disposition of property is effective notwithstanding that testator did not own the property on death SUCCESSION — CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS — CONSTRUCTION GENERALLY — ASCERTAINMENT OF TESTATOR’S INTENTION — where testator’s will contained a clause gifting shares in ninth respondent “for the purpose of consolidating, disposal, and transfer [of] my assets” in the family trust for which the ninth respondent is trustee — nature of gift — most probable interpretation — whether gift fails SUCCESSION — CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS — PARTICULAR TESTAMENTARY DISPOSITIONS — CONDITIONS AND GIFTS OVER — CONDITIONS GENERALLY — where testator’s will contained a clause that directed the “Trustees and Directors and Shareholders” in two corporate entities not to make claims “against one another in any intercompany loans and advances” as at the date of testator’s death — whether clause enforceable Trusts Act 1973 (Qld), s 96 Succession Act 1981 (Qld), s 8, s 33C, s 33J Ireland v Retallack [2011] NSWSC 846, cited Moylan v Rickard [2010] QSC 327, cited -- 2 of 18 -- 3 National Trustees Executors & Agency Company of Australasia Ltd v O’Connor (1919) 27 CLR 60, cited Perrin v Morgan [1943] AC 399; [1943] 1 All ER 187, applied Phillips v Cayley (1889) Ch 222, cited Power v Ekstein [2000] NSWSC 905, cited Re O’Callaghan [1972] VR 248, distinguished Re Tunchon [2019] NSWSC 802, considered Roberts v Pollock [2019] QSC 184, cited Suthers v Suthers [2015] QSC 285, cited The Trust Company Limited & Anor v Zdilar & Ors [2011] QSC 5, cited Thompson v Cyati [2024] QDC 205, cited Webb v McCracken (1906) 3 CLR 1018, cited Wheatley v Lakshmanan [2022] NSWSC 583, considered WXW v KZY [2025] QSC 138, cited COUNSEL: M F Saunders (sol) for the applicant J A Sheean for the first and second respondents No appearance for the third respondent The fourth respondent appeared on her own behalf and on behalf of the fifth and sixth respondents B A Hall for the seventh respondent D Alexander for the eighth and ninth respondents SOLICITORS: GLG Legal for the applicant Thynne + Macartney for the first and second respondents Mullins for the third respondent The fourth respondent appeared on her own behalf and on behalf of the fifth and sixth respondents Macpherson Kelly for the seventh respondent HopgoodGanim Lawyers for the eighth and ninth respondents [1] These proceedings concern the will of the late Elizabeth Anne Di Trapani who died on 21 November 2023. Her last will, which was executed on 24 November 2010, was not drafted by a lawyer. It was prepared by an accountant that Mrs Di Trapani and her late husband, Mario Di Trapani, had known for some time. [2] A dispute has arisen as to certain aspects of the will. The executors, who are two of Mrs Di Trapani’s four surviving children, have applied for various declarations as to the proper construction of several clauses within the will and directions, in the nature of judicial advice, pursuant to s 96 of the Trusts Act 1973 (Qld) (the Trusts Act). Separately, one of the executors, in her capacity as a named beneficiary, has applied for a declaration as to the proper construction of a further clause of the will. Background The parties [3] Mr Di Trapani predeceased Mrs Di Trapani on 17 June 2012. The couple are survived by their four children. They are the first and second respondents (who are the -- 3 of 18 -- 4 executors and applicants), and the third and fourth respondents. The fifth and sixth respondents are two of Mrs Di Trapani’s grandchildren named in her will. They are the children of the fourth respondent. [4] The seventh respondent (Di Trapani Constructions) and eighth respondent (Glutolo) are entities through which Mr and Mrs Di Trapani operated their financial and business affairs, which included the construction of residential buildings and property development. The structure of these affairs also utilised the Mario Di Trapani Discretionary Family Trust (the Trust). Glutolo is the trustee of the Trust and, in that capacity, is the ninth respondent. The preparation of the will [5] Mrs Di Trapani’s last will was made on 24 November 2010. Mr Di Trapani made a will in near identical terms on the same day. The person responsible for preparing both wills, and who witnessed the documents, was an accountant. The accountant does not appear to have held any legal qualifications. [6] The process undertaken by Mrs Di Trapani to prepare her will is unclear. There is no direct evidence from the accountant as to how it occurred. There are various documents in evidence purporting to give some background context to the execution of the will. These documents have been provided by the accountant. They include an email in which the accountant explains his role in the preparation of the will. In this email, the accountant suggests that he “retyped” the document from an earlier draft will – essentially to update it – and charged no fee. The accountant explains that the update occurred after a meeting held with Mr and Mrs Di Trapani on 9 November 2010. The accountant does not, however, know the identity or qualifications of the person who prepared the earlier draft. Nor did he retain a copy of the document. [7] The accountant is likely to have provided some input into the will beyond simply retyping an earlier document. An invoice sent by the accountant on 11 November 2010 contains an entry for “matters in relation to provision of assistance for new wills, discuss same and make recommendations and draft same; execution of various documents; matters in relation to company structure, family trust and income.” [8] It is not known what “recommendations” were provided by the accountant. The accountant has provided a series of handwritten file notes dated 9 November 2010, and comprising five pages, which he prepared from his discussions with Mr and Mrs Di Trapani. These notes do not contain any recommendations. There is no evidence that Mr and Mrs Di Trapani received any formal written recommendations from the accountant. [9] Nor is there any evidence that Mrs Di Trapani had the benefit of legal advice prior to executing her will. It seems unlikely that any advice was sought or received. In one of the documents provided by the accountant he considers that he was “entrusted” with Mr and Mrs Di Trapani’s wills for various reasons including that the late couple held a belief that legal disputes would be expensive and take time to resolve. The clauses in dispute [10] The relevant clauses of the will which give rise to the dispute provide: -- 4 of 18 -- 5 “8.4 I GIVE my Shareholding in Glutolo Pty. Ltd. A.C.N. 010 067 795 to the Trustees of my Will for the purpose of consolidate, disposal, and transfer or my assets in the Mario Di Trapani Discretionary Trust. … 8.6 I further instruct my Trustees and Directors and Shareholders in Di Trapani Constructions Pty. Ltd. and Glutolo Pty. Ltd., shall not make any further claims against one another in any intercompany loans and advances as at the date of my death. 8.7 I GIVE my son PETER DI TRAPANI a sum of $400,000 in cash or equivalent. 8.8 I instruct my Trustees not to make any claim on any debt owed by my son PETER DI TRAPANI for the sum up to $400,000.00 or if there is no debt as at the date of my death, a bequest in cash or equivalent a further sum of $400,000.00. 8.9 I GIVE my son PETER DI TRAPANI all my estate and interest in the shed situated at 35 Kate Street, Kedron, Brisbane for his sole use and benefit absolutely. 8.10 I GIVE all my estate and interest in Unit 2, 4 Binkar Street, Chermside, Brisbane to my Daughter, GINA LOFARO for her sole use and benefit absolutely. 8.11 I GIVE all my estate and interest in Unit 1, 4 Binkar Street, Chermside, to my Grand Daughter SAVANNAH JAYNE McDOWELL to be held in Trust until she reaches 18 years of age, for her sole use and benefit absolutely. 8.12 I GIVE all my estate and interest in Unit 3, 4 Binkar Street, Chermside, to my Grand Daughter ALEC JAMES McDOWELL to be held in Trust until he reaches 18 years of age, for her sole use and benefit absolutely. 8.13 I GIVE DEVISE AND BEQUEATH the rest and residue of my Estate both real and personal of whatsoever nature and wheresoever situate to my Executor and Trustee UPON TRUST to sell, call in and convert into monies such part of parts of my Estate shall not consist of monies and from the proceeds of such sale calling in and conversation together with my ready monies to pay my debts including bank debts in 95 Blandford Street, Grange, funeral and testamentary expenses and all duties on my Estate or arising in the consequence of my death to stand possessed of the residue (herein after referred to as ‘my residuary estate’) UPON TRUST be divided amongst my children equally; 1. Peter Di Trapani 2. Gina Lofaro 3. Suzette Di Trapani -- 5 of 18 -- 6 4. Linda McDowell … CLAUSE 10 ALLOCATION OF BURDEN TAX To the full extent permitted by law, My Executor will allocate the burden of any pay any Commonwealth or State Tax imposed in the future on the capital of My Estate, as though it were a testamentary expense. CLAUSE 11 PROFESSIONAL ADVICE I wish my Executor to obtain and consider the advice of Mr Tony Lowe of T Lowe & Co. on substantial decisions. Should my Trustees fail to reach a decision on substantial matters Mr Tony Lowe is appointed as arbitrator to the resolution.” The assets of Mrs Di Trapani and the assets of the Trust [11] When she died, Mrs Di Trapani had no substantial liabilities. Her estate comprised her home and its contents, an investment property, personal effects, cash held in various bank accounts, her shareholding in Di Trapani Constructions and Glutolo, and an unpaid entitlement owing to her from the Trust. [12] Mrs Di Trapani did not own the property in Kedron, the subject of clause 8.9 of the will (the Kedron property), and the three units in Chermside (the Chermside units), the subject of clauses 8.10, 8.11 and 8.12 of the will. Those properties were owned by Glutolo as trustee for the Trust. They comprise the main Trust assets. That was the case when Mrs Di Trapani’s will was executed. It remains the case. The Trust has liabilities of $1,156,295.63 owed to Di Trapani Constructions and approximately $120,000 owing to Mrs Di Trapani by way of unpaid entitlements to trust income. The Trust and trustee [13] The Trust was created by deed of settlement on 19 February 1979 (the Deed). The Deed appointed Glutolo as the trustee and nominated Mr Di Trapani the principal. There is nothing remarkable about the Deed. Two clauses are of some importance. The first is clause 6.01 which confers power on the trustee, in its discretion, to distribute capital before the nominated vesting date. The distribution power is not unlimited. It may only be made to the nominated “Primary Beneficiaries”. It is to be noted that an executor is not identified as a Primary Beneficiary. This is relevant because the clause does not confer a discretion to distribute to any executor. [14] The second clause is 11.05. It provides for the removal of the trustee and appointment of a new trustee in substitution. This power was exercisable by the “Principal and upon his death his legal personal representative”. In other words, the power was exercisable only by Mr Di Trapani, or upon his death his legal personal representative, Mrs Di Trapani. Clause 11.05 does not confer power upon Mrs Di Trapani’s legal personal representative to exercise it. [15] Glutolo, the trustee, was incorporated on 10 January 1979 with two ordinary shares. Upon incorporation the shares were held by Mrs Di Trapani and her husband. Mr Di -- 6 of 18 -- 7 Trapani’s share passed to Mrs Di Trapani when he died. They are now held by the executors. [16] Mrs Di Trapani and her husband were also the original directors of Glutolo. In March 1995, while Mario Di Trapani was alive, the first respondent and second respondent were made directors. They have remained directors since this time. Relevantly, the Articles of Association of Glutolo nominated the fourth schedule of the Companies Act 1961-1972 (Qld) as applicable to Glutolo. By clause 80 of this schedule any “questions arising at any meeting of directors shall be decided by a majority of votes and a determination by a majority of directors shall for all purposes be deemed a determination of the directors. In case of an equality of votes the chairman of the meeting shall have a second or casting vote.” The issues for determination [17] The executors adopt a neutral position on the application. They do not contend for a particular construction or outcome but rather have raised, to assist the court, a series of potential issues. It is the respondents who have adopted the role of adversary. Each of the respondents have advanced submissions as to potential issues raised by the executors in which they hold a particular interest.1 [18] With the benefit of those submissions, the real issues that arise which require determination are essentially these: (a) First, do clauses 8.4, 8.9, 8.10, 8.11 and 8.12 of the will require Glutolo, as trustee of the Trust, to transfer the assets of the Trust, specifically the Kedron property and the Chermside units, to either the executors or the persons named in the clauses (being the first, second, fifth and sixth respondents); (b) Secondly, does clause 10 of the will require the executors to pay any tax liabilities in respect of required transfers of assets from the Trust to individuals: (c) Thirdly, upon the proper construction of clause 8.4 of the will, how are the executors to deal with Mrs Di Trapani’s shares in Glutolo; (d) Fourthly, what are the obligations of the executors, Di Trapani Constructions and Glutolo, in respect of clause 8.6 of the will, specifically the intercompany loans and advances between the two companies; (e) Fifthly, what is the proper construction of clauses 8.7 and 8.8 of the will and, specifically, do the two sums of $400,000 merge into one combined benefit to the total value of $400,000 or are they separate benefits; (f) Sixthly, whether the executors may disregard the provisions of clause 11 of the will; and (g) Seventhly, whether on the proper construction of clause 8.13 of the will, the words “pay my debts including bank debts in 95 Blandford Street, Grange” mean a loan for which Mrs Di Trapani was, at the time of her death, a guarantor. Construction principles 1 The fourth respondent also advanced submissions on behalf of the fifth and sixth respondents. -- 7 of 18 -- 8 [19] The relevant principles of construction are well-settled. The cardinal rule of construction is that a will should be construed so as to give effect to the intention of the testator. As Lord Romer said in Perrin v Morgan2 this intention is to be “gathered from the language of the will read in the light of the circumstances in which the will was made” and the Court, in ascertaining intention, “is entitled, to use a familiar expression, to sit in the testator’s armchair.” [20] In accordance with the armchair rule, the Court is entitled to receive extrinsic evidence of the factual circumstances in which the testator made the will in order to explain the terms used and demonstrate their meaning. The rule applies both where the will is clear as to the testator’s intention and where there is ambiguity in the will.3 This is not, however, unconstrained. The Court is to have regard to the text “aided only by such facts as existed and were known to the testator at the date of the will which it is permissible to take into account in interpreting that language”4. [21] The words of the will are to be construed in their ordinary meaning and the Court “should not speculate or guess about what the maker intended but instead adopt what seems to be the most probable interpretation of the will”5. Where the usual meaning of the words used is insufficient to resolve the construction, the court may consider extrinsic evidence to resolve its meaning. The admissibility of extrinsic evidence is governed by s 33C of the Succession Act 1981 (Qld) (Succession Act). This provision applies where the language used in the will, or part of it, is: (a) meaningless; (b) ambiguous on the face of the will; or (c) ambiguous in the light of surrounding circumstances. However, as Burns J (as his Honour then was) observed in Suthers v Suthers [2015] QSC 285:6 “The provision does not prevent the admission of evidence that would otherwise be admissible in a proceeding to interpret a will, but it makes clear that the court may have regard to extrinsic evidence to help in the interpretation of language which may be characterised in one of the three ways to which I have just referred. Where the language is meaningless or ambiguous on the face of the will, such extrinsic evidence can include evidence of the testator’s intention but, where the language is considered to be ambiguous in the light of surrounding circumstances, evidence of the testator’s intention is not admissible to establish any of those circumstances.” (citations omitted) [22] Additionally, as Davis J recognised in Roberts v Pollock [2019] QSC 184, where the words of the will, considered in the light of the surrounding circumstances, make it apparent that a scheme for dealing with the estate has emerged then the will “should then be construed, if possible, to give effect to that scheme.”7 [23] In approaching the task of construction, the court should be “sensitive to the factual context of ordinary life and circumstances.”8 Where the will has been prepared by a lawyer the court is bound to construe the will as trained legal minds would do. If, however, the will has been drafted by a lay person it would “be unsound to place too 2 [1943] AC 399, 420. 3 The Trust Company Limited & Anor v Zdilar & Ors [2011] QSC 5 at [21]. 4 King v Perpetual Trustee Co Ltd (1955) 94 CLR 70 at 79. 5 WXW v KZY [2025] QSC 138 at [59]. 6 At [5]. 7 At [47]. 8 Moylan v Rickard [2010] QSC 327 at [34], citing Re Willis [1996] 2 Qd R 664 at 667. -- 8 of 18 -- 9 much reliance on the precise meaning of particular words or phrases contained in it” because “[to adopt] such a method of interpretation would … be of no real assistance in ascertaining the real intention of the testator.”9 [24] There are other legal principles, including provisions of the Succession Act, relevant to some of the issues raised. They are most conveniently dealt with by reference to the issues to which they relate. First issue: is Glutolo required to transfer assets out of the Trust? [25] Clause 8.4 of the will purports to give to the trustees, the first and second respondents, Mrs Di Trapani’s shareholding in Glutolo to enable the trustees to deal with “my assets” in the Trust. Section 8 of the Succession Act identifies the property that may be disposed of by will. It includes, by s 8(1), “property to which the person is entitled at the time of the person’s death” and, by s 8(3), “property to which the person’s personal representative becomes entitled, in the person’s capacity as personal representative, after the person’s death”. A person may not however, as s 8(5) makes plain, “dispose by will of property of which the person is trustee at the time of the person’s death.” [26] The immediate issue with this is that Mrs Di Trapani did not own any assets in the Trust. All assets of the Trust, including the Chermside property and Kedron units, were always, and continue to be, held by Glutolo as trustee for the Trust. [27] The fourth respondent (and therefore the fifth and sixth respondents) contend that the language of clause 8.4 is unambiguous. The clause contains a clear direction to “exercise the Testator’s powers of appointment to appoint those assets to her estate”. [28] This matter is not that straightforward. The critical question raised by the first issue is whether Mrs Di Trapani possessed the property the subject of the specific gift at the time of death, or, consistent with what is set out below, has validly exercised a power over the property. [29] To address this issue, the executors and Glutolo have raised the potential application of s 33J of the Succession Act which provides: “33J What a general disposition of property includes (1) A general disposition of all of the testator’s property— (a) includes any property over which the testator has a general power of appointment exercisable by will; and (b) operates as an exercise of the power of appointment. (2) A general disposition of all of the testator’s property of a particular description— 9 National Trustees Executors & Agency Company of Australasia Ltd v O’Connor (1919) 27 CLR 60 at 68 (Rich J). -- 9 of 18 -- 10 (a) includes any property of that description over which the testator has a general power of appointment exercisable by will; and (b) operates as an exercise of the power of appointment. (3) A general disposition of the residue of the testator’s property— (a) includes any property over which the testator has a general power of appointment exercisable by will; and (b) operates as an exercise of the power of appointment. (4) A general disposition of the residue of the testator’s property of a particular description— (a) includes any property of that description over which the testator has a general power of appointment exercisable by will; and (b) operates as an exercise of the power of appointment. (5) Subsection (1), (2), (3) or (4) does not apply if a contrary intention appears in the will.” [30] Section 33J appears within Division 5 of the Succession Act which is headed “Interpretation of wills”. That is relevant because, as Glutolo submits, s 33J does not confer a power on an executor to exercise. What the provision does is to operate as an exercise of a power that was previously exercisable by the executor. This is clear from the wording of the provision. It is also apparent from its legislative history. Section 33J replaced and “essentially restates” what was formerly s 28(d) of the Succession Act,10 which provided that “a general disposition of all the testator’s property or all the testator’s property of a particular kind includes property or that kind of property over which the testator had a general power of appointment exercisable by will and operates as an execution of the power”.11 In my view, that is the correct interpretation of s 33J. [31] Mrs Di Trapani did not have a general power of appointment over the assets of the Trust. Any power over the assets of the Trust was exercisable by the trustee, Glutolo, not Mrs Di Trapani.12 [32] The exercise of any power by Glutolo, as the trustee, could not be done by Mrs Di Trapani unilaterally. Expressed another way, Glutolo, as trustee, could not unilaterally make a decision through Mrs Di Trapani.13 Glutolo could only act through its directors, of which immediately prior to Mrs Di Trapani’s death there were three. 10 Explanatory Notes, Succession Amendment Bill 2005 (Qld) 17. 11 Section 28(d) was modelled upon s 27 of the Wills Act 1867 (UK). The object of that provision “was not to enable persons to appoint by will, but to make a general disposition in a will operate as an exercise of a power to appoint by will in any manner the testator thinks fit, though the testator does not expressly shew that he has an intention to execute that power”: Phillips v Cayley (1889) Ch 222 at 232. 12 Cf. Power v Ekstein [2000] NSWSC 905 at [5], [18]-[19], [27] and [29]. 13 Thompson v Cyati [2024] QDC 205 at [43]-[44]. -- 10 of 18 -- 11 Any decision of Glutolo, as trustee, was required to be decided by a majority of the directors. The only action Mrs Di Trapani could have taken was to replace the trustee. That power was exercisable by her, under clause 11.05 of the Trust Deed, upon Mr Di Trapani’s death as his legal personal representative. It could not be exercised after Mrs Di Trapani’s death. Mrs Di Trapani did not ever exercise the power. [33] But even accepting that Mrs Di Trapani did not exercise the power under clause 11.05, in considering the potential application of s 33J, it is also relevant that the provision refers to “general powers” of appointment. A general power is “a term of art”; it is a “power unlimited as to its objects”.14 In the present context, Glutolo, as trustee, does not have a general power of appointment over the assets of the Trust. The power conferred by the Trust Deed on Glutolo as trustee is not unlimited as to its objects. It is limited to, and only exercisable in accordance with, the terms of the Trust Deed. The only power to distribute trust assets (or capital) prior to the vesting date is contained in clause 6.01 of the Trust Deed. This clause is not a general power. It confers a discretion on the trustee to, amongst other things, pay out of the capital of the Trust money to any of the primary beneficiaries. The estate of Mrs Di Trapani is not a primary beneficiary and nor are the executors of her estate. In follows in my view that s 33J of the Succession Act does not support a construction of clauses 8.4, 8.9, 8.10, and 8.11 which requires Glutolo to transfer trust assets out of the Trust to either the executors or the persons named as beneficiaries in the clauses. [34] In considering the operation of the clauses of the will dealing with Trust property, Glutolo has also referred to the decision of Gowans J in Re O’Callaghan [1972] VR 248. This decision supports, as a principle, that a disposition of property under a will may be effective notwithstanding that the testator did not own the property on death in the following circumstances:15 “ … where a testator conveys to his executor a direction to reduce into possession an asset not owned by the testator and the executor is armed by the testator with the power to get it in, he is bound to do so, and to deal with it by way of disposition in the way that the testator directs.” [35] There is no appellate authority which has considered Re O’Callaghan. There are some examples of it being followed at first instance.16 Whether it was correctly decided has also been raised, but not determined, in at least one other first instance decision.17 [36] The most recent consideration of the principle took place in Wheatley v Lakshmanan [2022] NSWSC 583. There, a clause of a will purported to transfer a property, owned by a company in which the testator owned 100% of the shares, to a beneficiary. Ward CJ in Eq (as her Honour then was) considered that the gift failed, offering the following reasons: “[221] The difficulty I have with the construction argument put forward by Alexis is that there is no express provision in the Will directing the executor to exercise powers available to the deceased, as shareholder of Wheatley Investments, to cause the transfer of The Entrance Road Property to Alexis (or 14 Webb v McCracken (1906) 3 CLR 1018 at 1023. 15 [1972] VR 248 at 256. 16 Ireland v Retallack [2011] NSWSC 846. 17 Wheatley v Lakshmanan [2022] NSWSC 583. -- 11 of 18 -- 12 to the estate such that it would then be available to satisfy the gift to Alexis); and while the powers conferred by cl 9(b) (albeit on the ‘trustee’ in respect of ‘assets in the estate’) and cl 5 are in broad terms, they nevertheless do not readily contemplate the exercise of powers of management of a company (Wheatley Investments) in which the deceased owned shares. [222] True it is that, in a (perhaps convoluted) way, the deceased as sole shareholder of Wheatley Investments could have executed control over the company in the sense that the deceased could have caused the removal of the second director (Erin) and replaced her with a director who would accede to the deceased’s wish that The Entrance Road Property be transferred (either into the deceased’s own name or directly to Alexis) but the deceased did not do so. [223] Therefore, it is difficult to see that, by reason of the fact that Erin is in the position (as executor) of shareholder of Wheatley Investments, the deceased has relevantly ‘armed’ Erin with the power to get in the asset not owned by the testator (The Entrance Road Property) to be dealt with by way of testamentary disposition as the deceased had intended. [224] There is force in the submission by the defendants that the Will should not be construed in a fashion that would or might place the directors of Wheatley Investments in a position where their statutory duties as directors are in conflict with the deceased’s intentions. Further, there is force to the submission made by the defendants that Alexis’ submissions conflate ownership with management or day-to-day conduct of the company. [225] Thus, I do not consider that cl 4 of the Will constitutes an effective gift of the real property situated at The Entrance Road. It is not necessary in those circumstances to delve into the question of whether the line of authority relied on in Ireland v Retallack was correctly decided. [226] Nor do I consider that there is a basis to say that the gift can be construed as a gift of shares (by reference to the principle in Hendry). The terminology of cl 4 makes clear that what is intended is a gift of the property named therein. The deceased’s earlier Wills make clear that the deceased understood there was a distinction between real property and shares (as did the correspondence in which the deceased, before her death, was contemplating ‘separating the companies’).” [37] Her Honour’s reasoning is relevant here. Mrs Di Trapani’s will does not contain an express provision directing the executors to exercise powers available to her with respect to the property of the Trust. As I have already observed, Mrs Di Trapani had no such powers to transfer the property to the estate. Any powers exercisable over Trust property were exercisable by the trustee, not Mrs Di Trapani. While she was alive Mrs Di Trapani had power to remove the trustee (under clause 11.05) but she did not ever exercise this power. [38] The mere fact that the executors remain directors of Glutolo does not mean they were “armed” by Mrs Di Trapani with the power to transfer Trust assets to the estate. The executors have been directors of Glutolo since March 1995. The executors have held the majority voting rights in Glutolo since Mr Di Trapani’s death in 2012. Mrs Di -- 12 of 18 -- 13 Trapani’s death did not arm the executors with any power to “get in” assets of the Trust to enable them to be disposed of as directed. [39] Moreover, the “gift” of the shareholding in Glutolo, in clause 8.4, did not carry with it management of the trustee. It is the directorship of the trustee company that decides the management of the Trust. Clause 8.4 could not, and on its proper construction did not, provide a direction to the trustee. That could not be done by Mrs Di Trapani. It could only be done by the trustee. The executors in their executorial capacities are not beneficiaries of the Trust. Glutolo cannot therefore distribute assets to the executors as beneficiaries. There is no provision of the Trust Deed that permits this.18 [40] In my view, the circumstances identified by Gowans J in Re O’Callaghan are not satisfied (although that decision is not, of course, binding on this Court in any event). It follows that clause 8.4 does not operate as, or such as to require, the assets of the Trust to be distributed in accordance with clauses 8.9, 8.10, 8.11 and 8.12. This has three further consequences in terms of the construction of the will. First, clause 8.4 of the will has no effect in relation to the Trust and imposes no obligation on Glutolo as trustee. Secondly, the purported gifts in clauses 8.9, 8.10, 8.11 and 8.12 of the will fail. Thirdly, the term “my estate” used throughout the will, including in clauses 8.13 and 10, does not include assets owned by the Trust. Second issue: what is the impact of clause 10 of the will? [41] My findings with respect to the operation of clause 8.4 mean that in practical terms the second issue does not arise. The only other potential taxation matter raised during the hearing was whether the executors are required to pay any taxation liabilities of Glutolo as a result of the operation of Part III, Division 7A of the Income Tax Assessment Act 1936 (Cth). Glutolo’s position is that it does not consider it has any historical, current or expected taxation liabilities, whether in its own right or as trustee of the Trust. In these circumstances, there is no basis upon which a declaration can properly be made. Nor is there any utility or proper basis in fact to make any directions under s 96 of the Trusts Act. Third issue: how are the executors to deal with Mrs Di Trapani’s shares in Glutolo? [42] Mrs Di Trapani’s shares in Glutolo must be disposed of as part of the administration of the estate. The executors seek clarification as to the “correct outcome in relation to [Mrs Di Trapani’s] shareholding” in Glutolo. They raise four possibilities: (i) the gift fails; (ii) the gift creates a trust with no objects; (iii) the gift is a personal gift to the trustees in their personal capacities; or (iv) the gift is a conditional gift. [43] The wording of clause 8.4 contemplates that the shares are to be gifted to the first respondent and second respondent “for the purpose of consolidating, disposal, and transfer or [sic] my assets” in the Trust. That does not necessarily connote an ongoing continuity of the Trust. But it cannot, for the reasons I have explained, be exercised to give effect to the gifts the subject of clauses 8.9, 8.10, 8.11 and 8.12. [44] That these gifts failed does not, however, mean that Mrs Di Trapani did not intend for the Trust to continue to be administered. It is not for the court to speculate about what the testator intended but rather adopt what seems to be the most probable 18 cf Power v Ekstein [2000] NSWSC 905 at [5], [18]-[19], [27] and [29]. -- 13 of 18 -- 14 interpretation of the will. The most probable interpretation of clause 8.4 is that Mrs Di Trapani wished for the first and second respondents to continue to operate Glutolo as trustee. This interpretation is consistent with how the Trust had operated prior to Mrs Di Trapani’s death and the fact that the first and second respondents were directors since 1995, well before the will was executed. The fact that Mrs Di Trapani did not exercise the power under clause 11.05 to change the trustee is consistent with an intention on the part of Mrs Di Trapani for the first and second respondents to operate Glutolo as trustee. [45] It follows that the gift of shares in clause 8.4 was a gift beneficially to the first and second respondents. It may be accepted that Mrs Di Trapani had certain wishes with respect to the operation of the Trust. That, however, is a matter for Glutolo as trustee. It cannot compel Glutolo to transfer assets. Fourth issue: what obligations arise under clause 8.6 of the will? [46] The executors seek advice or directions as to the application of clause 8.6. Clause 8.6 is couched in language which directs the “Trustees and Directors and Shareholders” in Di Trapani Constructions and Glutolo not to make claims “against one another in any intercompany loans and advances” as at the date of Mrs Di Trapani’s death. The only loans between the two entities are recorded in the last financial records of the Trust. The financial records, which are for the year ended 30 June 2024, record as a liability of the Trust unsecured loans owed to Di Trapani Constructions totalling $1,156,295.63. [47] The only submissions advanced as to clause 8.6 were made by Di Trapani Constructions, Glutolo and the fourth respondent. For Di Trapani Constructions it was submitted that it is beyond the capacity of Mrs Di Trapani to “require distinct corporate entities to forgive loans between each other and, for the Court to construe the clause as having this effect, would be to lift the corporate veil.” It was contended that clause 8.6 ought to be given its “plain meaning” and as such that it is an unenforceable wish. [48] For Glutolo it was submitted that the proper construction of clause 8.6 requires Di Trapani Constructions to forgive the debt. It was contended that the clause contains an explicit direction to the second respondent, as the company’s sole director, not to call on the loan. It was further contended that upon Mrs Di Trapani’s death the second respondent “was armed with management control of [Di Trapani Constructions] and was thus empowered to forgive the debt, as directed by the Will.” Glutolo accepted that this submission was a “challenging” one to make in view of the authorities considered under the first issue and which Glutolo invited the court to follow. The fourth respondent also advanced oral submissions with respect to this clause. Those submissions were, in substance, the same as Glutolo and focused upon the words of the will as providing for a clear and forcible command to forgive loans. [49] The parties were unable to identify any authorities which had considered a similar issue. However, both Glutolo and Di Trapani Constructions accepted that the legal principles relevant to the first issue were also relevant to the meaning of clause 8.6. [50] Counsel for Di Trapani Constructions referred me to the decision of Ward CJ in Eq (as her Honour then was) in Re Tunchon [2019] NSWSC 802. One of the issues in that case was whether the executors were justified in releasing a debt owing by the -- 14 of 18 -- 15 deceased to a company of which he was a director and sole shareholder of at the time of his death. Her Honour found, in substance, that the deceased did not arm the executors with control of the company other than by the fact that his shareholding formed part of his estate and with the shares came control of the company.19 [51] In my view, a similar conclusion arises here. While Mrs Di Trapani purported to gift her shares in Di Trapani Constructions to the second respondent, she did not, with this action, arm the second respondent with control of Di Trapani Constructions. The second respondent has been a director of Di Trapani Constructions since 29 October 1992. Prior to her death Mrs Di Trapani was also a director, so the pair had between them control over the company affairs. It follows that clause 8.6 is unenforceable. It contains a wish or desire of Mrs Di Trapani that she was incapable of giving effect to in accordance with the principles identified in my consideration of the first issue. [52] Issue was also taken with a loan that is owing from the Trust to Mrs Di Trapani in the amount of $122,664.46. Counsel for Glutolo contended that this, too, is embraced by clause 8.6 and that the reference to “intercompany loans” was a “patent misdescription” that was in fact intended to encompass all loans owing by the Trust upon Mrs Di Trapani’s death. I reject that submission. The wording of clause 8.6 is unambiguous. There is nothing in the language of the clause to support the proposition that it was intended to deal with matters other than those involving the two corporate entities. Fifth issue: what is the proper construction of clauses 8.7 and 8.8 of the will? [53] The second respondent contended that clauses 8.7 and 8.8 are separately numbered and that, as a matter of construction, they should be seen as dealing with separate gifts or issues (rather than being read together as conferring one combined benefit of $400,000). [54] In the alternative, the second respondent submitted that if clauses 8.7 and 8.8 are to be read together then their overall effect is as follows: (a) First, the second respondent is to receive a gift under clause 8.7 of $400,000; (b) Secondly, for the purposes of clause 8.8: (i) if there is a debt owed by the second respondent at the date of Mrs Di Trapani’s death, the debt is to be forgiven; or (ii) if there is not a debt owed by the second respondent at the date of Mrs Di Trapani’s death, the second respondent is to receive a “further” sum of $400,000. [55] The second respondent emphasised the word “further” in clause 8.8 as a term that cannot be ignored and therefore must have some work to do. On this construction the second respondent contends that if there is no debt owed he is to receive $800,000. [56] The fourth respondent submitted that the combined effect of clauses 8.7 and 8.8 is that the second respondent is to receive, in total, a benefit of $400,000. She submitted that the interconnectedness of the clauses demonstrates an intention to grant a single 19 At [109]. -- 15 of 18 -- 16 $400,000 entitlement to be satisfied by either a cash legacy (if no debt exists) or by debt extinguishment (if a debt exists). [57] In support of this construction, the fourth respondent referred to the accountant’s notes of his conversation with Mr and Mrs Di Trapani dated 9 November 2010 and produced shortly before the will was executed. Within these notes, under the heading “Summary” and appearing next to the second respondent’s name, there is reference to 25 Kate Street with the figure of “700” under the heading “K”, which I take to be a reference to $700,000. Beneath this annotation are the words “loan” together with the words “forgiven” and “or cash”, with “$400k” next to them. That, the fourth respondent contended, is consistent with the second respondent receiving a single gift of $400,000. [58] The accountant who produced the notes has not provided an affidavit. That is not to suggest that he could have provided any meaningful evidence of events which occurred over 15 years ago, but simply that it is unhelpful to seek to rely on a third party’s notes of a conversation without context. Whatever is contained in the accountant’s notes does not appear to have been provided to or otherwise formally communicated to Mr and Mrs Di Trapani. In the absence of a better understanding of what precisely the notes represent, it is difficult to rely upon them (either under the “armchair rule” or, if the statutory conditions are satisfied, under s 33C of the Succession Act) in determining intention for these purposes. [59] This difficulty is illustrated by other matters contained within the accountant’s notes which the second respondent and fourth respondent did not refer to. For example, on the summary page, next to the figures of “700k” and “400k” are two further figures “1,100” and “400”. Further, on the third page of the document next to the second respondent’s name under a column headed “initial estate” appears the figure “1,100”, and under a separate column “final estate” appears the figure “400”. These entries might appear consistent with the second respondent receiving two sums of $400,000. It is unproductive to speculate what significance these additional entries have. This is particularly so in circumstances where they are not notes produced by a third party and no party has sought to advance submissions on their significance, if any. [60] In any event, the second respondent has not invited the court to have regard to the accountant’s notes because, in his submission, clauses 8.7 and 8.8 are clear on their face. I accept this submission. It follows that it is unnecessary to have recourse to the accountant’s notes to determine what Mrs Di Trapani meant by clauses 8.7 and 8.8. [61] The clauses are capable of being construed by a consideration of the language used. There is no reason to read the clauses together. The mere fact that the clauses both refer to a sum of $400,000 is not itself a reason to read them together. In their plain meaning, the clauses deal with separate subject matter. Clause 8.7 is a gift to the second respondent of $400,000. Clause 8.8 is a direction to forgive a debt, if any, that may be owed by the second respondent up to the amount of $400,000. In the event there is no debt, the second respondent is to receive “in cash or equivalent” a “further sum” of $400,000. I accept the second respondent’s submission that as a matter of construction the use of the words “further sum” should not be ignored. In the context of clause 8.8 they mean an additional sum of $400,000 in the event that there is no debt owed by the second respondent. Sixth issue: whether the executors may disregard clause 11 of the will? -- 16 of 18 -- 17 [62] The executors have sought a direction that clause 11 of the will be disregarded. No respondent contended to the contrary. Clause 11 expresses a wish for the executors to obtain and consider the advice of the accountant responsible for drafting the will and purports to appoint the accountant as an arbitrator in the event that Mrs Di Trapani’s “Trustees fail to reach a decision on substantial matters.” The accountant has been provided with notice that the executors are seeking the order. [63] The power to make the direction sought is conferred by s 96 of the Trusts Act. This provision confers a discretion. In considering the appropriateness of exercising the discretion the court is concerned with determining what ought be done in the best interests of the estate. The executors submit that it is appropriate for the discretion to be exercised for the following reasons: (a) the clause, in effect, operates as an ouster of the jurisdiction of the Supreme Court of Queensland which would be invalid; (b) the accountant referred to within the clause is no longer retained by the estate; and (c) the requirements of the clause are unnecessary or inappropriate. [64] Each of these reasons (and there are likely others) are, in my view, compelling reasons why clause 11 should be ignored. Accordingly, and in the absence of any submission to the contrary, it is appropriate that an order be made that the executors are justified in disregarding the provisions of clause 11 of the will. Seventh issue: what is the proper construction of clause 8.13 of the will? [65] The final issue for consideration is the first respondent’s application. It concerns clause 8.13 of the will, specifically, what is meant by the words “my debts including bank debts in 95 Blandford Street, Grange” (the Grange property). [66] In support of her application, the first respondent invites the court to consider the background to the acquisition of the Grange property. She identifies that the property was initially purchased as vacant land by the first respondent, Mrs Di Trapani and Mr Di Trapani as joint tenants in October 2007. Mr Di Trapani subsequently constructed a house on the land. [67] According to the first respondent, her one-third share of the costs associated with the land and build was approximately $180,000. The first respondent says that she paid this sum to her parents. To do so, she obtained a loan from a bank. This in fact occurred and a loan was obtained with the first respondent and her parents listed as borrowers. In 2019, after Mr Di Trapani had died, the loan was refinanced into the first respondent’s name only. Mrs Di Trapani became a guarantor of the loan. She was no longer a borrower. [68] The first respondent submits that the words in clause 8.13 are “ambiguous” such that s 33C of the Succession Act is engaged and that the accountant’s notes assist in discerning Mrs Di Trapani’s intention. Those notes, the first respondent contends, refer in two places to the sum of $200,000 being owed by the first respondent to a bank and that the debt is to be paid by the estate or assets which would comprise Mrs Di Trapani’s estate. -- 17 of 18 -- 18 [69] The first respondent did not identify which subsection of s 33C was engaged. The reference to ambiguity must be taken to mean that the first respondent contends that clause 8.13 is either “ambiguous on the face of the will” s 33C(1)(b); or “ambiguous in the light of surrounding circumstances”, s 33C(1)(c). Evidence of a testator’s intention is only admissible if the clause is ambiguous on the face of the will. As s 33C(2) makes clear, evidence of intention is not admissible to establish the circumstances mentioned in s33C(1)(c). It must therefore be the first respondent’s contention that clause 8.13 is ambiguous on the face of the will. [70] I do not consider that clause 8.13 is ambiguous on the face of the will. Clause 8.13 is capable of being construed by a consideration of the usual meaning of the words used in the light of the circumstances in which the will was made. There is no need nor basis to have recourse to the types of evidence made admissible by s 33C to determine Mrs Di Trapani’s intention. [71] The words “my debts including bank debts” must be considered in the context of events as they existed at the time the will was executed. Of course, under the “armchair rule”, the court may consider Mrs Di Trapani’s circumstances when she made the will. Those circumstances were that she and Mr Di Trapani were in fact joint borrowers of funds with the first respondent. Those borrowed funds were owing to the bank. At the time the will was executed, Mrs Di Trapani did in fact have a debt owing to a bank, being the loan or Mrs Di Trapani’s share of it. That circumstance changed in 2019 when the loan was refinanced. After that occurred, Mrs Di Trapani no longer had any bank debt in the Grange property. There was nothing that was owed or owing by her to the bank. [72] It follows, in my view, that on the proper construction of clause 8.13 of the will the words “pay my debts including bank debts” in the Grange property do not include any loan for which Mrs Di Trapani was merely a guarantor. Conclusion [73] The first respondent’s application is dismissed. As for the executors’ application, it sought a wide range of orders and directions. The neutral position that the executors adopted at the hearing has resulted in a narrowing of the issues and therefore various aspects of the relief sought by the executors have become unnecessary. In the circumstances, I propose to make orders that the parties are to agree a form of order reflecting these reasons and provide it to my Associate by 4:00 pm on 9 March 2026. If orders cannot be agreed the parties are to provide a draft order with their respective positions and submissions, limited to two pages, by the same deadline. [74] I shall hear the parties on the question of costs. -- 18 of 18 --