Application of Lewis; Estate of the late Shirley Jean Coleman [2020] NSWSC 192

Application of Lewis; Estate of the late Shirley Jean Coleman [2020] NSWSC 192

The application for judicial advice under s 63 Trustee Act was overtaken by events and unnecessary, as the s 93 procedure under the Probate and Administration Act would have been more suitable, and costs should not be paid out of the estate where the beneficiaries were unrepresented, preserving their rights to...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
04 March 2020
Procedural Posture
Application for Judicial Advice / Dismissal of Summons
Outcome
Plaintiff's summons dismissed.
Legal Topics
['judicial Advice Under Trustee Act 1925 (nsw) S 63' 'probate and Administration Act 1898 (nsw) S 93 Procedure' 'costs of Judicial Advice Application' 'executor’s Duties and Protection']
['succession' 'trusts and Trustees' 'equity' 'costs'] ['judicial Advice Under Trustee Act 1925 (nsw) S 63' 'probate and Administration Act 1898 (nsw) S 93 Procedure' 'costs of Judicial Advice Application' 'executor’s Duties and Protection']

Source-derived case record

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Procedural Posture

Application for Judicial Advice / Dismissal of Summons

Legal Issues

  1. 1 ['Whether the plaintiff should have used the Probate and Administration Act 1898 (NSW), s 93 procedure instead of applying for judicial advice under Trustee Act 1925 (NSW), s 63' 'Whether costs of the judicial advice application should be paid out of the estate when beneficiaries were not represented']

Ratio Decidendi

The application for judicial advice under s 63 Trustee Act was overtaken by events and unnecessary, as the s 93 procedure under the Probate and Administration Act would have been more suitable, and costs should not be paid out of the estate where the beneficiaries were unrepresented, preserving their rights to challenge the costs.

Court Disposition

Plaintiff's summons dismissed.

Orders

  • ["The plaintiff's summons for judicial advice is dismissed."]