By Pamela Suttor -
Key decisions
- Georgios Vasilios Sotiropoulos as executor of the estate of the late Maria Sotiropoulos v Vlasios Vasilios Sotiropoulos [2015] NSWSC 855
- Sadiq v NSW Trustee & Guardian [2015] NSWSC 716
Judicial advice
Some confusion seems to continue among practitioners as to whether judicial advice or some other remedy such as a suit for construction or rectification of the will is the appropriate remedy.
Georgios Vasilios Sotiropoulos as executor of the estate of the late Maria Sotiropoulos v Vlasios Vasilios Sotiropoulos [2015] NSWSC 855 is an instance where the Court held that judicial advice under s 63 of the Trustee Act 1925 (NSW) was not the appropriate remedy.
In this case, Robb J found the adversarial character of the proceedings was ‘far away from the summary character of the procedure envisaged under section 63 of the Trustee Act’ and that this was ‘not something that should be encouraged’ (at [13]).
His Honour referred to the significant guidance given by the High Court on the proper operation of s 63 in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42, and went on to say (at [15]):
‘It will not always be easy for a trustee to make the correct choice as to whether the more appropriate course is for the trustee to seek judicial advice under s 63 of the Trustee Act, or whether the trustee should commence proceedings to which the interested beneficiaries are joined, so that the Court is asked directly to decide the rights of the beneficiaries on the basis of evidence … All that can be said is that an application by the trustee for judicial advice is likely to be less appropriate where the trustee is an interested beneficiary, where there is a known dispute or a high likelihood of dispute between the beneficiaries, and where the facts are complex or contentious and not readily subject to being distilled into the statement of facts contemplated by s 63(3).’
