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[2025] NSWSC 1056
Supreme Court of NSW
2025-09-16
Bennett J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Estate of Wilson [2025] NSWSC 1056
Hearing dates: 11 September 2025
Date of orders: 16 September 2025
Decision date: 16 September 2025
Jurisdiction: Equity - Duty List
Before: Bennett J
Decision: (1) ORDER, pursuant to s 63 of the Trustee Act 1925 (NSW), that the plaintiff as administrator of the estate of the late Edward Ernest Wilson (the deceased) is justified in executing the Short Minutes of Order in the form exhibited to the Statement of Facts dated 4 September 2025 at pages 114 to 117. (2) ORDER that the plaintiff’s costs of and incidental to these judicial advice proceedings be paid out of the estate of the deceased on an indemnity basis. (3) ORDER that these orders be entered forthwith.
Catchwords: EQUITY — Trusts and trustees — Judicial advice — Matters about which advice can be given — Where administrator of deceased estate seeking judicial advice in relation to execution of short minutes of order as a step in settling family provision proceedings — Where not all beneficiaries have consented to the settlement outcome — Whether there is a question respecting the management or administration of trust property under Trustee Act 1925 (NSW), s 63 — Whether judicial advice should be granted
Legislation Cited: Trustee Act 1925 (NSW), ss 5 and 63
Uniform Civil Procedure Rules 2005 (NSW), r 54.3
Cases Cited: Application of Glenwillow Investments Pty Ltd [2023] NSWSC 1517
Hornsby v Playoust (No 2) [2005] VSC 125
In re Beddoe [1893] 1 Ch 547
McKinnon v Samuels [2000] VSC 393
Re IOOF Australia Trustees Ltd (1999) 205 LSJS 98; [1999] SASC 461
Stott v Milne (1884) 25 Ch D 710
Category: Principal judgment
Parties: Katelin Jane Whitley as administrator of the estate of the late Edward Ernest Wilson (Plaintiff)
Representation: Counsel:
D Yazdani (Plaintiff)
Solicitors:
Uther Webster & Evans Solicitors (Plaintiff)
File Number(s): 2025/00341733
Publication restriction: Nil
In her Summons filed on 5 September 2025, Katelin Jane Whitley as Administrator of the estate of the late Edward Ernest Wilson (plaintiff or administrator) seeks urgent relief by way of judicial advice. The Summons relevantly seeks the following orders:
An order pursuant to s 63 of the Trustee Act 1925 (NSW) (Trustee Act), that the plaintiff, as administrator of the estate of the late Edward Ernest Wilson (the d****eceased), is justified in executing the Short Minutes of Order (SMO) in the form exhibited to the Statement of Facts at pages 114 to 117 (the Question).
An order that the plaintiff’s costs of and incidental to these judicial advice proceedings be paid out of the estate of the deceased on an indemnity basis.
This matter initially came before me as Duty Judge on 5 September 2025, at which time I listed it for hearing on 11 September 2025.
The hearing took place on 11 September 2025 on an ex parte basis, with Mr D Yazdani appearing for the plaintiff. In making the application, the plaintiff relied on the following evidence and documents:
a Statement of Facts dated 4 September 2025 (SOF), signed by the legal representative of the plaintiff, together with its Exhibit (SOF Exhibit);
a confidential memorandum of advice of Simon Chapple SC dated 3 September 2025 (the confidential advice); and
the plaintiff’s Outline of Submissions dated 4 September 2025 (POS).
The SOF Exhibit contained all of the evidence upon which the confidential advice was based, which in turn included the evidence that has been filed to date in the substantive proceedings to which the SMO in question relates. The substantive proceedings comprise a claim for a family provision order from the estate of the late Edward Ernest Wilson, and the judicial advice sought is in relation to a step to be taken in relation to the compromise of those proceedings.
That is, the advice sought is limited to a consideration of whether the administrator would be justified in executing the SMO in the form exhibited in the SOF Exhibit. If the judicial advice sought is obtained, the next step would be for the matter to be referred to the Family Provision List Judge for the making of the final orders, as sought in the SMO.
It will be noted this application took place ex parte. I was informed by counsel for the plaintiff that when the matter is next listed before the Family Provision List Judge for consideration of the making of the SMO (should the plaintiff be successful in obtaining the judicial advice she seeks), that all beneficiaries will be provided with notice of this listing and will have the opportunity to be heard.
I have sought to deliver this judicial advice as expeditiously as possible, having accepted the submissions of the plaintiff as to relative urgency, and to enable the matter to return to the Family Provision List for consideration of any outstanding issues and for the making of final orders when appropriate.
For the reasons set out below, I am satisfied, first, that the application before me is comfortably one which raises a question respecting the management or administration of trust property and, secondly, that I ought to give the judicial advice as sought.
“15. The Deceased died on 20 November 2020 aged 86 years. He married Sylvia Joyce Wilson (‘Sylvia’) in around 1957 and they remained married until her death on 30 December [2015].
16. The Deceased was survived by the following children:
a) Raymond Edward Wilson (‘Raymond’);
b) Kerrie Lyn Tweedie (‘Kerrie’), who was born on [XX] January 1962;
c) Vicki Ann Wilson (‘Vicki’), who was born on [XX] January 1963; and
d) Donna Maree Gow (‘Donna’), who was born on [XX] March 1960.
17. On 11 July 2023, letters of administration were granted to the plaintiff.
18. As at the date of the Deceased’s death, the nett value of the estate is estimated to be $12,279,899.22.
19. By way of a Summons filed 17 February 2025, Suzanne Ford (‘Suzanne’) seeks, inter alia:
a) an order pursuant to s. 58(2) of the Succession Act 2006 (NSW) that time be extended for the making of her application for a family provision order; and
b) an order, pursuant to s. 59 of the Succession Act, that provision be made for Suzanne out of the estate and/or notional estate of the Deceased.
20. Suzanne asserts that she is a biological child of the Deceased. … Her birth certificate predated the marriage of the Deceased and Sylvia.
21. The parties attended a mediation on 24 July 2025. At the conclusion of that mediation, a settlement was reached, which was subject to the consent of all the beneficiaries. … Kerrie, Vicki and Donna consent to the proposed orders being made. Raymond has not consented, despite being on notice of the proposed orders as well as having received an advice of counsel on 4 August 2025.”
“[11] Section 63(1) of the Trustee Act is in the following terms:
A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.
[12] There is a single jurisdictional bar to obtaining judicial advice pursuant to s 63 of the Trustee Act - the applicant must point to the existence of a question respecting the management or administration of trust property or a question respecting the interpretation of the trust instrument: Macedonian Orthodox Community Church St Petka Incorporated v His Eminance Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42, Gummow ACJ, Kirby, Hayne and Heydon JJ at [58].
[13] Section 63 of the Trustee Act operates to provide a private advice to a trustee because it gives personal protection to this trustee by operation of s 63(2): Macedonian at [64]. Section 63(2) of the Trustee Act provides:
If the trustee acts in accordance with the opinion advice or direction, the trustee shall be deemed, so far as regards the trustee’s own responsibility, to have discharged the trustee’s duty as trustee in the subject matter of the application, provided that the trustee has not been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion advice or direction.
[14] An application for judicial advice under s 63 of the Trustee Act is primarily for the purpose of enabling the trustee to be advised as to the nature or extent of their powers and duties of management or administration of the trust property rather than resolving disputed questions of construction, particularly where the respective rights of beneficiaries and creditors are concerned: Re BTA Institutional Services Australia Ltd [2009] NSWSC 1294, Brereton J at [6].
[15] The expression “management or administration of property” in s 63(1) of the Trustee Act refers to both the manner in which trust property is managed, administered, handled, directed or controlled, and the actual carrying out of those functions: Application of Gnitekram Marketing Pty Ltd [2010] NSWSC 1328, Hallen AsJ at [13].
[16] I am satisfied that the application before me is comfortably one which raises a question respecting the management or administration of trust property because it concerns whether the Trust is to be managed or administered in accordance with the Trust Deed.
[17] Having satisfied the jurisdictional issue, the next question is whether I should exercise my discretion to give the judicial advice that is sought. The discretion is wide, and there are no express words, and no implications from the express words used in s 63 of the Trustee Act which make some discretionary factors always more significant or controlling than others, and the discretion is confined only by the subject matter, scope and purpose of the legislation: Macedonian at [59]. The best interests of the trust estate are of primary importance: Macedonian at [105], [107] and [125]. The protection of those interests is the principal purpose for the court exercising the power in s 63 of the Trustee Act, and, incidentally, the protection of a trustee acting in those interests: Re Estate of Chow Cho-Poon [2013] NSWSC 844, Lindsay J at [182].”
Legal representative means executor or administrator.
…
Trustee has a meaning corresponding with that of trust; and includes legal representative and the NSW Trustee and a trustee company.
In this, it is clear that executors and, relevantly, administrators, are able to make applications under s 63 of the Trustee Act.
In addition to s 63 of the Trustee Act, the jurisdiction of the Supreme Court to provide judicial advice to a trustee (which relevantly includes executors and administrators) is further provided for in r 54.3 of the Uniform Civil Procedure Rules 2005 (NSW).
Given the above legal principles, the following issues arise for consideration:
Does there exist a question respecting the management or administration of trust property?
If the answer to (1) is yes, should the Court exercise its discretion to give the judicial advice sought?
The plaintiff submitted that it was clear that the Question raised in the Summons was in relation to the “management or administration of the trust property” and therefore satisfies the jurisdictional issues mandated by s 63(1) of the Trustee Act. The plaintiff contended that the administrator was seeking to, inter alia, settle proceedings on behalf of the deceased’s estate, which thus falls within the parameters of s 63.
In making this submission, the plaintiff notes the Court has a broad jurisdiction and power to advise and direct trustees, executors and administrators in relation to the performance of their trusts: Hornsby v Playoust (No 2) [2005] VSC 125 at [10]. In this, the plaintiff says that the direction of the Court is necessary and appropriate in this matter, where the issue is significant in the context of the administration of the deceased’s estate as a whole.
In making the submission that consideration of the terms of a settlement of proceedings comes within the terms of s 63 of the Trustee Act (ie, that this raises a question respecting the management or administration of trust property) the plaintiff cited the cases of McKinnon v Samuels [2000] VSC 393 and Re IOOF Australia Trustees Ltd (1999) 205 LSJS 98; [1999] SASC 461.
As noted above, the expression “management or administration of property” in s 63(1) of the Trustee Act refers to both the manner in which trust property is managed, administered, handled, directed or controlled, and the actual carrying out of those functions. As part of this, the Court has a broad jurisdiction and power to advise and direct trustees, including executors and administrators.
I am satisfied that the application before me is one which raises a question respecting the management or administration of the estate of the deceased, accepting that the subject of the judicial advice forms one step in a process to settling proceedings, which in turn allows for the further administration of the estate.
The plaintiff submits that the direction of the Court is necessary and appropriate in this matter, and that the issue is significant in the context of the administration of the deceased’s estate as a whole.
It is submitted that there is sufficient material summarised in the SOF to support the conclusion that the judicial advice sought is in all the circumstances proper and that the administrator is justified in seeking the relief sought in the Summons.
Furthermore, it is submitted that the confidential advice of senior counsel supports the Court providing the requested advice.
The plaintiff says that her application for judicial advice was properly brought, and that therefore the plaintiff should be entitled to her costs of these proceedings being paid out the deceased’s estate on an indemnity basis*: In re Beddoe* [1893] 1 Ch 547 at 558; Stott v Milne (1884) 25 Ch D 710.
I accept the plaintiff’s submission that it is appropriate that her costs in seeking the judicial advice should be paid out of the estate on an indemnity basis.
For the reasons set out above, I make the following orders:
ORDER, pursuant to s 63 of the Trustee Act 1925 (NSW), that the plaintiff as administrator of the estate of the late Edward Ernest Wilson (the d****eceased) is justified in executing the Short Minutes of Order in the form exhibited to the Statement of Facts dated 4 September 2025 at pages 114 to 117.
ORDER that the plaintiff’s costs of and incidental to these judicial advice proceedings be paid out of the estate of the deceased on an indemnity basis.
ORDER that these orders be entered forthwith.
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(2008) 237 CLR 66