THE ESTATE OF FRANCIS DAVID COLE HAMMOND [2026] WASC 68 (10 March 2026)

1. A trustee, including an executor of a deceased estate, if in doubt about the course of action to be adopted in the course of administration of the estate or the trust, may apply to the court for its opinion, direction or advice pursuant to s 92. That section provides as follows:

92. Directions, trustee may ask Court for

(1) Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.

(2) Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the Court thinks expedient.

1. This provision permits a trustee to obtain judicial advice about the prosecution or defence of litigation, 'in recognition of both the fact that the office of trustee is ordinarily a gratuitous office and the fact that a trustee is entitled to an indemnity for all costs and expenses properly incurred in performance of the trustee's duties': Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand.[1]
2. By obtaining judicial advice, doubt as to whether it is proper for a trustee to incur the costs and expenses of prosecuting or defending litigation can be resolved. In resolving those doubts, the interests of the trust will be protected in that 'the interests of the trust will not be subordinated to the trustee's fear of personal liability for costs'.[2]
3. The principles applicable to applications under s 92 may be found in Blatchford v Laine,[3] among other authorities.[4] Such proceedings are intended to be summary in nature, involving an assessment at a preliminary level.

1. One of the executors, Mrs Baxter, has sworn a detailed affidavit in support of the present application for judicial advice. That affidavit sets out why the Residential Unit is presently in 'legal limbo' and why the executors require judicial advice. Some brief explanation is required in this regard, in broad chronological terms, which I will set out below.
2. I should make three observations at the outset. First, the application was conducted on the basis of affidavit materials with no cross-examination. Accordingly, these reasons do not record any findings of fact on contested issues. Second, Ms Medley is obviously not a party to this proceeding and has not been heard on the orders and directions sought by the executors. Third, the expressly identified, intended beneficiary of the Residential Unit under the deceased's last will has sought to be heard on this application and has filed submissions and an affidavit sworn by its solicitor. That beneficiary is 'Christ's Church Anglican Parish of Mandurah', which I will refer to for convenience as the Parish.

1. It does not appear to be in contest that Mr Hammond received substantial funds from the estate of his late mother, who died in February 2002. Mr Hammond used those funds to acquire the Residential Unit in February 2003. As an aside, he also used some of the funds to purchase a gyrocopter, sometimes referred to as an 'auto-gyro'.
2. So far as the Residential Unit is concerned, he acquired that both as an investment and also as a residence for his then wife, Mrs Maureen Hammond, and himself during the northern hemisphere winters. By all accounts, the couple used the property in this manner through until March 2011, prior to Mrs Hammond's death in May 2011.
3. Mr Hammond died some nine years later, in May 2020. For many years prior to his death, and probably since around 2015, his stepdaughter, Ms Paula Medley, has lived in the Residential Unit together with her children. Ms Medley is a sibling to one of the executors, Ms Beck. Both Ms Medley and Ms Beck are the daughters of Mrs Hammond from an earlier marriage. Mrs Hammond married Mr Hammond in 2001, and pre-deceased him, as noted above.
4. Ms Medley, or her children, continue to reside at the property.
5. Ms Medley has asserted that she has attended to the regular maintenance of the property and paid the necessary bills and expenses required, including insurance, strata fees and council rates.
6. Ms Medley asserts that representations were made to her by her mother that the property would one day be left to Ms Medley (after the passing of her mother and Mr Hammond). It therefore appears that Ms Medley contemplated, based on the representations made, that the Residential Unit would pass to her through a testamentary disposition.
7. To this end, Ms Medley lodged an absolute caveat on the title to the Residential Unit, pursuant to s 137(1) of the Transfer of Land Act 1893 (WA) (TLA). The caveat was lodged on 11 August 2020, following Mr Hammond's death, supported by a statutory declaration made by Ms Medley. Ms Medley claims an equitable estate or interest in the property by virtue of the representations made by the registered proprietors and her reliance on these representations to her detriment.
8. In contrast, and of central significance to the administration of the estate, the will made by Mr Hammond in 2019 points to a different intended treatment of the Residential Unit. In that will, Mr Hammond expressly bequeathed the property and its contents to the Parish, expressly described in the will as 'Christ's Church Anglican Parish of Mandurah'. Further, by the will, Mr Hammond expressly rejected the existence of any right or interest in the Residential Unit in favour of Ms Medley. The statements made in the will are in conflict with the representations which Ms Medley says were made by her mother at an earlier point in time.
9. Clauses 5.1 and 5.2 of the will provided as follows:
   1. Gift of Property in Australia

5.1 I give subject to inheritance tax all of my interest in [the Residential Unit], Mandurah, Western Australia, together with all the contents (other than money or securities for money) not otherwise specifically gifted by this Will or any Codicil to it (the 'Property') to CHRIST'S CHURCH ANGLICAN PARISH OF MANDURAH of [address] absolutely.

5.2 For the avoidance of doubt I wish to record that [the Residential Unit] came to me from my mother and that my late wife's daughter PAULA ELIZABETH MEDLEY has no rights or interest in it whatsoever.

1. There are other beneficiaries named in the will, including charitable beneficiaries in the United Kingdom, but only the Parish is identified as having an interest in the Residential Unit.
2. For her part, earlier in the chronology of the matter, Ms Medley had also raised doubts as to the validity of the will which was executed by Mr Hammond in 2019. Specifically, issues were raised as to the testamentary capacity of Mr Hammond. It is unclear whether those concerns have now been abandoned by Ms Medley. I therefore simply note them as part of the review of the background to this matter.

1. The executors seek judicial advice that they would be justified and acting reasonably in taking several steps from this point. Those steps are:

(a) to make application under s 138B of the TLA to initiate a lapse of the caveat;

(b) to then respond to or defend any application by Ms Medley for orders to extend the operation of the caveat; and

(c) to defend any substantive claims brought by Ms Medley.

1. Protective costs orders in the usual terms are also sought by the plaintiffs, although with a priority of sources identified for payment of those costs. Typically, it would be appropriate to make an order that the executors be indemnified for the legal costs they incur in taking steps which the court has assessed as being justified and reasonable, given the role performed by the executors.
2. The identified beneficiary of the Residential Unit under the 2019 will, being the Parish, initially objected to the court giving judicial advice in respect of the three steps identified above, and raised concerns as to the manner in which the executors have conducted themselves to date. The executors reject these criticisms.
3. Ultimately, the Parish accepted the orders could now be made, however subject to the costs orders being narrowed. I heard from both counsel this morning as to the manner in which the costs orders might be adjusted in these circumstances.
4. I am conscious that the potential dispute concerning the Residential Unit concerns a material asset of the estate, which has been expressly bequeathed to a charitable beneficiary under the last will of the deceased. It is important that the fate of the Residential Unit be resolved in a timely manner. As to the criticisms made of the executors, it is not possible to make any substantive comment or findings in this regard.
5. Having reviewed the comprehensive submissions filed by the executors, and the detailed submissions filed by the Parish, as well as the affidavit of Ms Baxter, and the two affidavits sworn by the solicitor acting for the executors, one of which is confidential and to which access has been restricted, and the affidavit of the Parish's solicitor, I consider it is appropriate today to give the judicial advice sought by the executors.
6. In my view, the court should afford the executors the necessary protection required to take the steps needed to advance the dispute to the next phase. This can be done through the application for survivorship and transmission and the lapsing notice under the TLA. If those steps lead to proceedings being brought in this court concerning the extension of the caveat, and/or substantive proceedings, the executors should have protection of an order to defend those proceedings.
7. Obviously, the executors will need to act prudently in this regard, and matters may transpire such that the appropriate party to take the active position in defending the proceedings is the Parish. That will depend on the matters as they develop. Matters may become clearer in this regard once it is known whether Ms Medley has applied to extend the caveat or has otherwise brought substantive proceedings to assert the existence of any legal or equitable rights or interests with respect to the Residential Unit.
8. There are factual matters which remain in dispute and questions as to the competing positions as to payment of costs as between the parties (and the source of payment) which I think would be premature to determine at this stage. I recognise the point advanced by counsel for the plaintiffs that the costs indemnity sought is really a forward looking question, and there is merit in the view that costs orders could be made now, in the interests of avoiding further applications. The court is also conscious that applications such as this should be conducted in a summary manner. That does not mean that the court should gloss over matters which require further assessment or which may need to mature or develop further.
9. Ultimately, I am conscious there is a need for the fate of the Residential Unit to be determined as expeditiously as possible, given the passage of time to date and bearing in mind the caveat has been in place for many years.

1. Accordingly, on balance, I made orders to the following effect at the conclusion of the hearing today.
2. First, it is appropriate pursuant to the court's powers in s 92 of the Trustees Act to declare that the executors are justified, and would be acting reasonably:

(a) in making and lodging an application for survivorship and transmission as to the ownership of the Residential Unit;

(b) in making and lodging an application pursuant to s 138B(1) of the TLA for the Registrar to serve upon Ms Medley a notice to the effect that, unless Ms Medley takes the action under s 138B(2) of the TLA within 21 days after the notice is served, her caveat will lapse;

(c) in responding to or defending any application by Ms Medley for any orders pursuant to section 138B(2) of the TLA to extend the operation of the caveat; and

(d) defending any claim or proceeding by Ms Medley as to the existence of a legal or equitable right or interest in or to all or any part of the Property or entitlement otherwise arising out of the matters connected with the subject matter of the caveat, on behalf of the Estate.

1. Second, the Executors should be at liberty to exercise any right of exoneration or indemnity otherwise available to them with respect to meeting in the first instance any costs incurred in issuing the application for survivorship, issuing the notice under s 138B of the TLA, defending any caveat proceedings brought by Ms Medley, and in defending any related proceedings brought by her. These costs will need to be adjusted in due course, by order of the court, once the order of priorities is determined for payment of the costs. This can be done once the matter further develops.
2. Third, these proceedings should be adjourned sine die for further orders as to costs to be made, once the response from Ms Medley is known and further consideration can then be given to the priorities for payment of the costs. The court can have the proceedings re-listed at short notice to enable this to occur. In making these comments, I do not suggest it was not proper or necessary for the executors to commence proceedings of this nature in some form, given the dispute as to the Residential Unit. My concern is as to the order of priorities, having regard to the submissions made by the Parish.
3. As I have indicated, the question as to the appropriateness of the executors taking an active role in the caveat proceedings or any substantive proceedings is a matter for the executors to assess in due course, particularly as to the extent of that role. This will need to be assessed having regard to the interests of the Parish. Undoubtedly, the Parish is interested in the fate of the Residential Unit given the terms of the final will of Mr Hammond. To the extent there are doubts about the extent of the role to be played by the executors in those future proceedings, further guidance can be sought from the court pursuant to the liberty to apply.

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

[1] Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 [71] (Gummow ACJ, Kirby, Hayne and Heydon JJ) (Macedonian Orthodox Community Church).

[2] Macedonian Orthodox Community Church [71] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[3] Blatchford v Laine [2018] WASC 207.

[4] A number of further principles of relevance were recorded in my recent decision in Janssen as Administrator of the Estate of Dr Jorg Dieter Krone [2026] WASC 23 [16] - [23], which I will apply in the determination of the present application.