Judicial advice for NSW trustees: what it is and when to seek it

22 August 26
Uncategorized

Judicial advice is a Supreme Court of New South Wales order confirming a trustee would be justified in taking, or not taking, a specific step. It comes from section 63 of the Trustee Act 1925 (NSW), and if you act on it honestly and with full disclosure, it shields you from personal liability for that particular decision.

That protection under section 63(2) is the whole point. Trustees carry real personal risk when they make a judgement call on trust property, and judicial advice lets a court validate that call before you act on it, rather than defend it after the fact.

Trustees typically seek judicial advice for three reasons:

  • Deciding whether to start or defend litigation, and whether to fund it from trust assets
  • Approving a settlement or distribution that could affect beneficiaries
  • Resolving doubt about how to interpret a trust deed or exercise a discretionary power

Key Takeaways

Judicial advice under section 63 of the Trustee Act 1925 (NSW) protects trustees from personal liability when they act honestly on a Supreme Court order confirming their proposed conduct.

Point Details
Statutory basis Section 63(1) and (2) of the Trustee Act 1925 (NSW) allow trustees to seek court advice and be protected when they act on it honestly.
Jurisdiction is narrow The question must concern trust property management, administration, or interpreting the trust instrument, nothing broader.
Disclosure is critical Protection under section 63(2) is lost if the advice was obtained through fraud, wilful concealment, or misrepresentation.
Costs usually come from the trust Reasonable costs of the application, and often related litigation, can typically be paid from trust funds if proportionate.
Get help early Simons George Legal advises trustees on section 63 applications and offers a free initial consultation, plus No Win, No Fee for eligible contested matters.

Table of Contents

What is judicial advice for a trustee in NSW?

Section 63(1) lets a trustee apply to the Supreme Court for an opinion, advice, or direction on a question about managing or administering trust property, or interpreting a trust instrument. The Court doesn’t rubber stamp your plan. It examines the question and issues a formal order, usually phrased along the lines that the trustee “would be justified in” taking the proposed step, or in declining to take it.

Section 63(2) is where the protection sits. Act in accordance with that advice and you’re treated as having discharged your duty on that specific matter, provided you didn’t obtain the advice through fraud, wilful concealment, or misrepresentation. Get the disclosure wrong and the shield disappears, even if the underlying decision was sound.

The Court’s role isn’t to referee every factual dispute a trust throws up. In Application of Macedonian Orthodox Community Church St Petka Inc, the Court made clear that judicial advice exists to determine what’s in the best interests of the trust estate, and it can give that advice without resolving every contested issue between the parties.

For readers wanting the deeper case law, the principles from the High Court’s Macedonian authority and the Cho-Poon line of NSWSC decisions (including Re Estate of Chow Cho-Poon) shape how far the Court will go, and where it draws the line on what section 63 can and can’t fix.

When should a trustee seek judicial advice?

Not every decision needs court sign off. Judicial advice tends to come into play in a handful of recurring situations that practitioner guidance flags repeatedly:

  • Deciding whether to commence or defend litigation on behalf of the trust
  • Approving a proposed settlement or distribution that touches beneficiary entitlements
  • Doubt over interpreting the trust instrument, or how to exercise a discretionary power
  • Proposed amendments to a trust deed
  • Contested beneficiary classes or entitlements

The jurisdictional bar is narrower than most trustees expect. Your question has to concern the management or administration of trust property, or interpreting the trust instrument. That’s it. If your dispute sits outside that scope, the Court simply won’t engage with it under section 63, and it can also decline to give advice where doing so wouldn’t serve the trust estate’s best interests, even when jurisdiction technically exists.

How do you apply for judicial advice in NSW?

Applications start with a summons filed in the Supreme Court of NSW, accompanied by a Statement of Facts that sets out the question you want answered. Keep that question tight. A precise, factual question gets a faster, clearer answer than a sprawling one, and practitioner materials consistently point to this as the single biggest lever trustees have over how quickly their matter moves.

Step-by-step judicial advice application process

Alongside the summons, the Court generally expects a memorandum or opinion from counsel addressing the legal question, proposed orders, and any affidavit material needed to support the facts. Draft the proposed order in the conventional form (“the trustee would be justified in…”) so the Court can adopt it with minimal redrafting.

Section 63 applications are often heard ex parte, meaning without formal notice to other parties, and that’s part of what makes the process faster than full litigation. But the Court retains discretion to order notice under section 63(5) to (8), particularly where a proposed course of action could affect specific beneficiaries’ interests. If you’re weighing whether a distribution decision needs to be flagged to beneficiaries before the hearing, our guide to beneficiary rights in a contested estate covers how notice obligations interact with those rights.

Full disclosure matters more here than in almost any other Supreme Court application. Leave out an inconvenient fact and you risk the entire advice being useless to you later.

What does the Court consider, and what can you actually get?

The Court’s central question is whether your proposed conduct serves the best interests of the trust estate. It also weighs fairness to beneficiaries and whether what you’re proposing is a reasonable response to the situation in front of you, drawing on the same best interests framing set out in the Macedonian decision.

Practical outcomes vary depending on your question, but reported NSWSC decisions show a consistent pattern: a declaration that the trustee would be justified in the proposed conduct, permission to draw on trust funds for related costs, and directions on whether and how notice should go to beneficiaries. Once notice has been given and the order made, it generally binds the parties who were notified.

There are real limits, though. The Court can decline to give advice even where it has jurisdiction, particularly if it decides the question doesn’t genuinely need judicial input or wouldn’t serve the estate. Courts have refused applications where the matter fell outside the scope of trust management or administration entirely, as seen in cases where the dispute was really about something else dressed up as a section 63 question. And as covered above, protection evaporates if you obtained the advice through fraud or concealment.

Who pays for judicial advice, and how long does it take?

Reasonable costs of applying for judicial advice, and often the costs of related litigation, can generally be paid from trust funds. That’s the statutory starting point, though “reasonable” is doing real work in that sentence. Courts expect the amount drawn from trust assets to be proportionate to the trust’s value and to what’s actually at stake in the dispute. If you’re weighing how costs orders work more broadly in estate litigation, our breakdown of inheritance dispute legal costs in NSW sets out how recovery from an estate typically works.

Trustee using calculator to assess costs

Timing depends entirely on complexity. Section 63 proceedings are designed to be summary in nature, and a well-prepared application with a tight question and a solid counsel memorandum can move through in a matter of weeks. Where facts are contested or the Court orders notice to beneficiaries, expect months rather than weeks, closer to the timeline of standard litigation.

What are the risks of getting it wrong?

The duty of frankness sits at the heart of section 63. You and your lawyers have to put adverse facts in front of the Court, not just the version that supports your preferred outcome. Miss that, and you lose the protection under section 63(2) even if your original decision was reasonable.

Other risks worth knowing: an order can bind beneficiaries who received notice, but it won’t necessarily bind third parties outside that group. The Court can also refuse to give advice at all if it decides the application doesn’t serve the trust’s best interests. The practical fix is straightforward. Put the contested points and any unfavourable material into the Statement of Facts and counsel’s memorandum yourself, so the Court is deciding on the full picture rather than a curated one.

A checklist to hand your solicitor before filing

Trustees who arrive at their first meeting with this sorted out tend to move through the process faster and with fewer redrafts:

  1. Write down the exact question (or questions) you need the Court to answer
  2. Gather the trust deed and every document relevant to the disputed decision
  3. Draft a concise Statement of Facts, including any unfavourable facts
  4. Commission a written opinion from counsel addressing the legal question
  5. Prepare proposed orders in the standard “would be justified in” form
  6. Decide on a notice strategy for affected beneficiaries and estimate the costs you’ll seek from the trust

Pro Tip: The narrower and more factual your question, the faster and clearer the advice you’ll get back. A question like “was the trustee justified in accepting the $X settlement offer” moves faster than “how should this dispute be resolved.”

Cost is often the biggest reason trustees and beneficiaries hesitate before pursuing a contested estate matter. Simons George Legal offers No Win, No Fee arrangements for eligible inheritance disputes and contested estate litigation, so a legitimate claim doesn’t stall because of upfront legal fees.

Eligibility is assessed during a free initial consultation, where we look at the strength of your matter and the likely path forward, including whether a section 63 application forms part of that strategy. If your matter qualifies, we’ll talk through a written costs agreement before anything proceeds.

If cost has been holding you back, book a free case assessment and find out where you stand.

No Win, No Fee arrangements are subject to case eligibility and a written costs agreement. Liability limited by a scheme approved under Professional Standards Legislation.

Why early advice matters more than trustees think

Trustees often treat judicial advice as a last resort, something you reach for only once a dispute has already turned ugly. In practice, the trustees who come out ahead are the ones who ask the question early, before a beneficiary has lawyered up or a decision has become irreversible.

Empty coffee cup and legal folder on desk

Our work in probate, estate administration, and contested matters has shown us the same pattern again and again: a trustee who hesitates on a difficult call, worried about personal exposure, usually has a genuine section 63 question sitting right in front of them. If you’re unsure whether your situation needs court input, work through the checklist above and book a free assessment before you commit to a course of action you can’t easily unwind.

Simons George Legal handles the full spread of wills and estates work, from straightforward will drafting through to probate, estate administration, and contested estate litigation, including the kind of section 63 applications this guide covers. Where your matter is stalled by uncertainty over a proposed step, we help trustees frame the right question and prepare the documentation the Supreme Court expects.

Simple matters are handled on fixed fees so you know the cost upfront, and eligible disputes can proceed under conditional funding once we’ve assessed your case. We operate from our Bondi office and also run virtual appointments for clients across Sydney, the Eastern Suburbs, and regional NSW. Book a free 30-minute consultation to work out whether judicial advice is the right next step for your trust.

Primary sources and further reading

For direct verification, consult section 63 of the Trustee Act 1925 (NSW), the Macedonian Orthodox Community Church St Petka decision, and the Supreme Court’s own practitioner guidance on judicial advice.

This article is general information, not a substitute for advice from a qualified lawyer. Consult a qualified legal professional about your own circumstances before acting on anything here.

Sources

FAQ

Can a trustee remove all the money from a trust?

No. A trustee must act strictly within the trust deed and their fiduciary duties, and withdrawing trust funds for personal use or outside the trust’s terms is a breach that can expose the trustee to personal liability and removal.

How much does the public trustee charge in NSW?

Fees vary depending on the estate’s size and complexity and are set by the public trustee’s own schedule rather than a single fixed figure, so it’s worth comparing that cost against a private solicitor’s fixed-fee or hourly billing for similar work.

What are the possible outcomes of a judicial advice application?

The Court can declare the trustee would be justified in the proposed conduct, grant permission to use trust funds for costs, give directions on notice to beneficiaries, or decline to give advice at all if the question falls outside section 63 or wouldn’t serve the trust’s best interests.

What can trustees not do?

Trustees can’t act outside the powers given by the trust deed, mix trust property with personal assets, profit personally from their position without authorisation, or make major decisions affecting beneficiaries without proper regard to their duties, and uncertainty about any of these is exactly when judicial advice becomes worth pursuing.

Does judicial advice protect a trustee from all future claims?

No. Protection under section 63(2) applies only to the specific subject matter covered by the advice, and only where the trustee was fully frank in obtaining it, so it won’t shield a trustee from unrelated claims or from consequences of concealed facts.

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