The appointment of trustees, disclaimer of gifts and legal personality: fundamental principles and conceptual limits

Abstract What happens when an executor of a Will is gifted property under that Will in its capacity as trustee of an existing trust but later disclaims the gift in that capacity? What purpose is served by the executor then seeking to be appointed by the Court as trustee over the same property? These questions were presented by the unique facts in Perpetual Trustee Company Ltd v University of New South Wales 2023 NSWSC 1061. This article uses the facts and decision in Perpetual to explore fundamental principles and conceptual limits concerning: the Court’s jurisdiction(s) to appoint trustees; the proposition that a trustee can(not) hold property on trust for itself; and the disclaimer of gifts.