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Deceased Estates Blog

Western Australian Law as at date of publication

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Advice given by court to legal personal representatives

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The Trustees Act (section 92(1)), the Administration Act (section 45), the Supreme Court Act (section 16(1)(d)(i)) and the Rules of the Supreme Court of Western Australia (Order 58) to differing extents all provide legislative bases for an executor or administrator of a deceased estate to seek the court’s advice regarding an estate matter.

The general rule with respect to at least a section 92(1) Trustees Act application is that a trustee/legal personal representative is entitled to take the opinion of the court at first instance and that the trustees costs of that application are paid out of the trust fund/estate fund as between solicitor and client [Australian Incentive Plan Pty Ltd v Attorney General for Victoria (No 2) [2010] VSC 564].

This type of application may be used for example, where litigation is imminent and the court’s advice is sought as to whether the legal personal representative is justified in commencing or defending those proceedings.

Section 45 Administration Act applications commonly seek the opinion of the court regarding the meaning of some of the terms of a will.

Valid as at 10/5/13

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