Marinko v Patrick Bernard O'Sullivan and Ralph Adrian Wilson as executors of the will of Rose Margaret Marinko

Dion Marinko filed a claim under the Family Provision Act 1972 (WA) against the executors of the will of Rose Margaret Marinko, seeking provision from her estate on the basis that the will did not make adequate provision for his proper maintenance, support, education, and advancement in life. The executors, Patrick Bernard O'Sullivan and Ralph Adrian Wilson, sought directions under s 92 of the Trustees Act 1962 (WA) as to whether they were justified in actively defending the claim, including compromising it. The executors argued that they should be permitted to gather information and seek counsel's opinion on the merits of the claim under the protection of a direction under s 92 of the Act. The plaintiff opposed the application, but the court found that the jurisdiction under s 92 was enlivened and that a direction should be given. The court held that the executors were justified in actively defending the claim, including compromising it, up to but not including entering the matter for trial. The court's direction was limited to that point in order to enable the executors to gather information and seek counsel's opinion on the merits of the claim under the protection of a direction under s 92 of the Act. The court's direction also contemplated that the executors may seek further advice or direction at a point when they consider they have sufficient information to make that appropriate.

The court allowed the application and directed that the executors were justified in actively defending the plaintiff's claim, including compromising the matter, up to but not including entering the matter for trial. The executors' costs of and incidental to this application were to be paid by the estate on an indemnity basis.