Gees v Duthie and Others

The Woodbourne Trust was created by trust deed on 17 May 2001 by founder Jean-Mary Duthie, with Craig Tingle and the first respondent (Duthie) as initial trustees. The trust was registered by the Master. On the same day, Jean-Mary executed a declaration appointing the applicant as 'protector' for purposes of clause 33 of the trust deed (dealing with amendments). On 9 July 2002, Jean-Mary individually nominated the applicant as her successor trustee under clause 4(b) of the trust deed, which she repeated in her will. The applicant is also the executor of Jean-Mary's estate. On 1 December 2020, Jean-Mary, Duthie, and Parker (current trustees) concluded an agreement to amend the trust deed. Jean-Mary died on 31 July 2023. The applicant sought appointment as a trustee based on Jean-Mary's nomination and challenged the validity of the 2020 amendment on grounds that his consent as protector was required but not obtained, and that Parker was not duly authorized as a trustee at the time. The respondents Duthie and Parker are the two remaining trustees.

• Whether the applicant should be appointed as a trustee of the Woodbourne Trust pursuant to Jean-Mary56s nomination under clause 4(b) of the trust deed
• Whether the December 2020 amendment to the trust deed was valid, specifically whether the protector56s consent was required under clause 33(a)
• Whether the second respondent (Parker) was duly authorized as a trustee at the time of the December 2020 amendment

The application was dismissed. The applicant was ordered to pay the costs of the application in his personal capacity, including the cost of counsel on Scale C. The trust's deceased estate was not ordered to bear any costs.

Where a trust deed's clause on nomination of replacement trustees vests the power of nomination in 'the Trustees' (plural), the power must be exercised by the trustees collectively in accordance with the joint action requirement of trust law, unless the trust deed clearly indicates otherwise. An individual trustee is not entitled unilaterally to nominate his or her own successor. Additionally, where a trust deed amendment clause provides for amendment during the donor's lifetime by agreement between 'the DONOR or such person ... as the Protector ... as the case may be, and the Trustees', the phrase 'as the case may be' establishes alternative methods, not cumulative requirements, meaning amendment may be by agreement between donor and trustees or between protector and trustees, not requiring both donor and protector consent.

The court agreed with the respondents' proposition that for an effective appointment of a protector by the donor during her lifetime under clause 33(a), the nomination must at least have been notified to the trustees, otherwise amendments might be agreed and implemented only to be challenged by a previously undisclosed appointment made over 20 years earlier. However, the court noted this was not strictly necessary to decide given its interpretation of clause 33(a). The court also observed that the applicant's appointment as protector on 17 May 2001 was never acted upon or communicated to the other trustees and only came to light after Jean-Mary's death.

This judgment reinforces the fundamental principle of trust law that trustees must act jointly in exercising trustee powers unless the trust deed provides otherwise. It confirms that individual trustees cannot unilaterally nominate successors where the trust deed vests nomination power in the trustees collectively. The case also clarifies the interpretation of trust amendment clauses involving protectors, establishing that 'as the case may be' language creates alternative rather than cumulative consent requirements. It further addresses the practical requirement that a protector's appointment must at least be communicated to trustees to be effective in the context of trust administration.