In the recent decision of Re Wilson [2025] NSWSC 1056, the Supreme Court of NSW considered whether it should exercise its wide discretion to provide advice to an independent administrator in the context of a family provision claim.
The case provides insight into the Court’s approach to advising administrators in circumstances wherein not all the beneficiaries have consented to the proposed settlement claim.
Background facts
Edward Ernest Wilson (the deceased) died on 20 November 2020 aged 86 years, leaving behind his estate, whose net value was estimated to be around $12 million.
He was survived by his four children: Raymond, Kerrie, Vicki and Donna.
On 11 July 2023, letters of administration were granted to Katelin Jane Whitley (the plaintiff).
By way of a Summons filed 17 February 2025, Suzanne Ford (‘Suzanne’), who asserted to be the biological child of the deceased, sought:
- an order pursuant to s 58(2) of the Succession Act 2006 (NSW) that time be extended for the making of her application for a family provision order; and
- an order pursuant to s 59 of the Succession Act, that provision be made for Suzanne out of the estate of the deceased.
While Kerrie, Vicki and Donna consented to the proposed orders being made, Raymond had not consented.
Accordingly, given that not all beneficiaries have consented to the settlement outcome set out in the Short Minutes of Order (SMO), the plaintiff sought judicial advice, regarding whether she could proceed with the settlement and execute the proposed SMO.
Legal principles
Section 63(1) of the Trustee Act 1925 (NSW) (Trustee Act) provides that a trustee may apply to the Court for an opinion, advice or direction on any question respecting the management or administration of the trust property.
The single jurisdictional bar to obtaining judicial advice is that the trustee must point to the existence of a question respecting the management or administration, which refers to both the manner in which trust property is managed, administered, handled, directed or controlled, and the actual carrying out of those functions.
Having satisfied the jurisdictional issue, the Court must then determine whether it should exercise its broad jurisdiction to advise and direct trustees in relation to the performance of their trusts.
As such, two issues arose for consideration:
- Does there exist a question respecting the management or administration of trust property?
- If the answer to (1) is yes, should the Court exercise its discretion to give the judicial advice sought?
The Court's decision
In relation to the first issue, the Court was satisfied that the question raised in the Summons was in relation to the “management or administration of the trust property,” and therefore falls within the parameters of section 63 of the Trustee Act, as the administrator was seeking to settle proceedings on behalf of the deceased’s estate.
In terms of the second issue, the Court agreed with the plaintiff’s submission that the direction of the Court is necessary and appropriate where the issue is significant in the context of the administration of the deceased’s estate as a whole.
Consequently, the Court found it to be appropriate to exercise discretion to provide judicial advice, as sought by the plaintiff.
Key takeaways
Since a trustee owes duties to beneficiaries of the trust, if he or she is uncertain about a particular course of action to take on behalf of beneficiaries, it should consider seeking judicial advice from the Supreme Court. This will reduce the risk of any potential claims for breach of trust.
This case ultimately demonstrates the importance of judicial advice in the context of complex family provision claims.
Further, the Court’s decision reinforces key legal principles related to trustee duties and the broad discretion of the court under section 63 of the Trustee Act.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.