Judicial Advice for Trustees

Trustees who are in doubt about the proper construction and operation of the terms of a trust may seek ‘judicial advice’ under section 63 of the Trustee Act 1925 NSW. 

This section can be used to provide ‘private’ advice to a trustee in the sense that a primary function of the section is to give personal protection to the trustee in relation to their administration of the trust. 

In Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844, Lindsay J considered such an application for judicial advice in relation to a testamentary trust- in particular regarding whether the class of beneficiaries referred to in the trust had closed. His honour noted that in such applications the Court would typically be assisted by being informed about any competing views of the beneficiaries of the trust or other parties (if any) who may be affected by the proceedings; and by being provided with a well-considered memorandum of opinion from counsel setting out an analysis of the problem to be solved. His Honour ultimately found that the trustees would be justified in administering the estate on the basis that the subject gift had vested, in interest and possession, for all beneficiaries.