MAKER -v- MANGAR [2025] WASC 445 (16 October 2025)

1. Section 30 Trustees Act relevantly provides:

(1) Every trustee, in respect of any property for the time being vested in him, may -

(k) appropriate any part of the property in or towards satisfaction of any legacy payable thereout, or in or towards satisfaction of any share of the trust property, (whether settled, contingent or absolute) to which any person is entitled, and for that purpose value the whole or any part of the property in accordance with section 50; but

(i) the appropriation shall not be made so as to affect adversely any specific gift; and

(ii) before any such appropriation is effectual, notice thereof shall be given to all persons of full age and full mental capacity who are interested in the appropriation, and to the parent or guardian of any infant who is interested in the appropriation, and to the person having the care and management of the estate of any person who is not of full mental capacity, and any such person may, within one calendar month after receipt of the notice, or, where the person to whom notice has been given is out of the jurisdiction, within such extended period as the Court may, on the application of the trustee or of any person interested, allow, apply to the Court to vary the appropriation, and the appropriation shall be conclusive save as otherwise directed by the Court;

...

(3) Nothing in subsection (1)(k) shall be read as requiring a trustee to give to himself, in some other capacity, notice of an appropriation; but, where a trustee would, but for this subsection, be obliged to give to himself such a notice, the appropriation is not effectual until it has been approved by the Court, on the ex parte application of the trustee or otherwise.

1. The plaintiff must obtain the approval of the Court for the proposed appropriation:

The reason for this requirement seems to be a precaution arising from the fact that the right to make such an appropriation by a trustee to himself or herself is an exception to the prohibition of a trustee from engaging in self-dealing and, consequently, may require scrutiny by the court to protect the interests of others, not only infants.[1]

1. In this case, those affected are four infants and one adult. I must be satisfied that the proposed appropriation is not adverse to the interests of any of the five children of Mr Mangar.[2]
2. There is no requirement on a s 30(1)(k) appropriation application to obtain advice from independent counsel. In this case, given that the Public Trustee has been appointed as trustee for the minor children, and based on the value of the estate and the children's entitlement, I do not consider that counsel's opinion should be ordered, although there may be situations in which it is appropriate to make such an order.
3. Mr Mangar, a registered nurse, died in a plane crash on 16 April 2022. He and Ms Maker were married in South Sudan on around 14 March 1997. They lived together from the time of their marriage. The marriage was not recognised in Australia. Mr Mangar bought the Property on around 10 August 2015 and he, Ms Maker, Makuac, Paith and Cholhok live there together. Paith and Cholhok attend local schools. Mr Mangar's other children, Arach and Athiei, do not live in the Property.
4. Ms Maker's lawyers wrote to Ms Makuei, as guardian of Arach and Athiei, on 31 October 2024 to inform her of the application. That letter was sent by registered post, but Australia Post could not confirm that the letter had reached Ms Makuei. The lawyers wrote again, delivering the letter by registered post and courier, on 28 November 2024. The letter was delivered to Ms Makuei's residential address on 2 December 2024.
5. No correspondence has been received from Makuac or Ms Makuei in response to the proposed application.
6. Ms Maker wishes to remain in the Property. Paith and Cholhok have lived there for a long time, and it is familiar to them. If they are required to move, it is likely that they would have to move out of the area which would mean that Paith, Cholhok and Ms Maker would leave their friends and community, and Cholhok may have to move schools.
7. The Property was valued by a licenced valuer on 20 February 2025, as having a market value of $615,000.
8. Ms Maker's entitlement on intestacy is:

(1) the first $472,000;

(2) interest on that amount at the rate of 5% from the date of death to the date of distribution (20 February 2025, being the date of valuation), which is a daily rate of $64.66 and a total of $67,308.49;

(3) one third of the residuary estate, being $194,581.65; and

(4) the children share the remaining two thirds equally such they are each entitled to $77,832.72.

1. Ms Maker's entitlement on distribution is $733,889.14. Ms Maker has been meeting all expenses for the Property. The value of the Property is less than her statutory entitlement. In my view, there is no disadvantage to any of the children in ordering the appropriation. There is benefit to the appropriation occurring now, rather than later, in order to take advantage of a strong property market and to allow Ms Maker, Paith and Cholhok to stay in the Property. I accept Ms Maker's submission that the potential benefit to Athiei and Arach is limited to removing the risk of achieving a lower value for the Property on the open market and avoiding the costs related to selling the Property, which may reduce their entitlements on distribution.
2. If the appropriation is approved, Ms Maker intends to finalise the administration of the estate by paying outstanding expenses of the estate and paying each beneficiary their entitlements from funds in the bank. The entitlements of the minor children will be paid to the Public Trustee to hold on trust pursuant to the s 17A Administration Act deeds.
3. I am satisfied that the proposed appropriation of the Property to Ms Maker would not be adverse to the interests of Mr Mangar's adult son and minor children.
4. For the purposes of the appropriation, the Property should be treated as having a value of $615,000 at the date of the appropriation, which shall be treated as 20 February 2025.
5. I consider it is appropriate that costs be in the administration of the estate.

1. Pursuant to s 30(1)(k) of the Trustees Act 1962 (WA), appropriation by the plaintiff, Nyanathoi Marial Maker, to herself of the property situated and known as 20A Fenwick Street, Balga, in the State of Western Australia, being all that piece of land more particularly described as Lot 1 on Strata Plan 60294 and being the whole of the land in Certificate of Title volume 2742 folio 41 (Property) in part satisfaction of her share in the estate of Johnson Makuei Mangar, late of 20A Fenwick Street, Balga (Estate) be and is approved.
2. For the purposes of the appropriation approved pursuant to order 1, the Property shall be treated as having a value of $615,000 at the date of the appropriation which shall be treated as being 20 February 2025.
3. The costs of this Application, including the costs of the valuation, shall be costs in the administration of the Estate to be paid out on a solicitor and client basis.
4. Liberty to apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Tagliaferri v Tagliaferri [2013] WASC 321 (Tagliaferri) [7] (Heenan J).