Estate of Wilson - [2025] NSWSC 1056

Supreme Court

New South Wales

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

JUDGMENT

Introduction and procedural background

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 deceased), 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 1056
Decision Date: 16 September 2025

CaseChat Overview and Summary

In the case of the Estate of Wilson, the dispute involved an administrator of a deceased estate seeking judicial advice to execute short minutes of order as part of the settlement of family provision proceedings. The matter was before the court to determine whether the administrator could proceed with the settlement without the consent of all beneficiaries. The central issue before the court was whether the question of the administration of trust property was one respecting the management or administration of trust property under section 63 of the Trustee Act 1925 (NSW), and whether judicial advice should be granted in such circumstances.

The court examined the legislative intent behind section 63, which provides that trustees or personal representatives may seek advice from the court on matters relating to the management or administration of trust property. The court considered whether the administrator's request for advice to execute the minutes of order was within the scope of section 63, even in the context of family provision proceedings where not all beneficiaries had consented to the proposed settlement. The court noted that the absence of consent from some beneficiaries did not necessarily preclude the administrator from seeking advice on the execution of the minutes of order as a procedural step in the settlement process.

Ultimately, the court found that the administrator's request for judicial advice was indeed a matter respecting the administration of trust property under section 63 of the Trustee Act. The court concluded that the absence of consent from all beneficiaries did not deprive the administrator of the right to seek advice on the execution of the minutes of order as a procedural step in the settlement process. The court granted the administrator's application for judicial advice, enabling the settlement to proceed.

The court's decision in the Estate of Wilson provides clarity on the scope of judicial advice available to administrators in the context of family provision proceedings. The court's ruling that the administrator could seek advice on the execution of the minutes of order, despite the lack of consent from all beneficiaries, underscores the importance of procedural steps in the settlement process. This case serves as a useful guide for administrators and trustees seeking judicial advice in similar circumstances.

Orders