Estate of Wilson

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:

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:

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.

The background facts can be briefly stated and are taken from the SOF as summarised in [15]-[21] of the POS:

These facts make clear the reason the plaintiff has taken the step of seeking judicial advice, being that not all beneficiaries have consented to the settlement outcome, which has been set out in the proposed SMO. As noted above, to the extent there is a beneficiary who has not consented to the settlement outcome to date, that beneficiary will have the further opportunity to be heard on the issue before the Court makes any order (see paragraph 6 above).

The applicable legal principles in relation to judicial are well settled. Those principles are briefly stated by McGrath J in Application of Glenwillow Investments Pty Ltd [2023] NSWSC 1517 at [11]-[17], which I gratefully adopt:

Relevantly, s 5 of the Trustee Act contains the following definitions:

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:

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.

Having regard to all of the circumstances, including the facts set out in the SOF and SOF Exhibit, together with the confidential advice, I am satisfied that I ought to exercise the discretion of the Court and provide judicial advice as sought. In this, I am satisfied that it will be in the best interests of the deceased’s estate for this advice to be provided.

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: