Michael Victor Henley; In the Estate of Hedy Jadwiga Weinstock and Leo Arie Weinstock (No.2) [2013] NSWSC 1105

Michael Victor Henley; In the Estate of Hedy Jadwiga Weinstock and Leo Arie Weinstock (No.2) [2013] NSWSC 1105

The Court gave the judicial advice sought because the trustee requested advice on the factual assumption that the estate was ready for distribution and the risk of acting on incorrect facts was the trustee's; postponing the advice would likely create worse litigation. The Court declined to order payment of the beneficiaries' costs from the estates because their involvement advanced their own interests in semi-hostile litigation, such an order would risk further disputes, delay and depletion of the estate, and justice did not require departure from each beneficiary bearing their own costs.

Jurisdiction
Australia
Judgment Date
13 August 2013
Procedural Posture
Judicial Advice Proceedings Under Trustee Act 1925 S 63 Concerning a Trust Created Under a Will / Ex Tempore Second Judgment on Whether Judicial Advice Orders Should Be Made and on Costs
Outcome
Judicial advice orders 1, 2 and 3 were made; proposed order 4 as to the trustee's costs was not made; no order was made as to the beneficiaries' costs, so each beneficiary bears his or her own costs.
Legal Topics
['judicial Advice to Trustee' 'administration of Estate' 'in Specie Distribution of Shares' "beneficiaries' Costs" 'mediation']
['trusts' 'succession' 'civil Procedure' 'costs'] ['judicial Advice to Trustee' 'administration of Estate' 'in Specie Distribution of Shares' "beneficiaries' Costs" 'mediation']

Case Brief

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Procedural Posture

Judicial Advice Proceedings Under Trustee Act 1925 S 63 Concerning a Trust Created Under a Will / Ex Tempore Second Judgment on Whether Judicial Advice Orders Should Be Made and on Costs

Legal Issues

  1. 1 ["Whether judicial advice should be given immediately or postponed because the agreed or assumed facts about the estate's readiness for distribution might be incorrect." "Whether the beneficiaries' costs should be paid out of Hedy's and Leo's estates or borne by the beneficiaries themselves." "Whether the trustee's costs should be ordered to be costs in the administration of Hedy's estate."]

Ratio Decidendi

The Court gave the judicial advice sought because the trustee requested advice on the factual assumption that the estate was ready for distribution and the risk of acting on incorrect facts was the trustee's; postponing the advice would likely create worse litigation. The Court declined to order payment of the beneficiaries' costs from the estates because their involvement advanced their own interests in semi-hostile litigation, such an order would risk further disputes, delay and depletion of the estate, and justice did not require departure from each beneficiary bearing their own costs.

Court Disposition

Judicial advice orders 1, 2 and 3 were made; proposed order 4 as to the trustee's costs was not made; no order was made as to the beneficiaries' costs, so each beneficiary bears his or her own costs.

Orders

  • ['The plaintiff is required to make an in specie distribution of half of "A" class and half of the "B" class share capital owned by him in Zipor Pty Ltd (Zipor) in his capacity as the trustee of the estate of Hedy Jadwiga Weinstock to the beneficiary Amiram David Weinstock.' 'The plaintiff is required to convene a...