Grant Edward Flitton passed away between 3 and 4 March 2018 without leaving a will. On 7 March 2019, letters of administration for his estate were granted to the Public Trustee and Guardian. In this crucial role, the Public Trustee and Guardian are now seeking the Court’s opinion, advice, or direction concerning estate distribution to the sole beneficiary identified under the intestacy rules outlined in the Administration and Probate Act 1929 (ACT). The significant value, of the remaining estate underscores the importance of this decision.
McWilliam AJ outlined how such applications should proceed in the Estate of Stanley George Mizon (deceased) [2021] ACTSC 240. Her Honour noted (at [31]-[34]) that these applications typically include advice from Counsel. In Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844; 10 ASTLR 251, Lindsay J elaborated on the rationale for this requirement, stating:
- a longstanding practice of the Court involves relying on a memorandum of opinion from Counsel, addressing the key questions of the application.
- without such a memorandum, the Court may need to investigate factual and legal issues that might otherwise have been clarified, potentially hindering the identification of critical problems requiring resolution.
Counsel in the application appropriately highlighted that Counsel’s advice typically accompanies judicial advice applications. In Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844; 10 ASTLR 251, Lindsay J outlined the reasoning behind this practice:
[48] While not mandated by legislation, the Court has long relied on memoranda of opinion from Counsel in relevant cases. These opinions, provided by applicants for relief under s 63, address the substantive issues for consideration, as seen in the Application of Gnitekram Marketing Pty Limited [2010] NSWSC 1328 at [17].
[49] Without a well-prepared memorandum, the Court may need to explore potential factual or legal issues that otherwise could have been clarified. A comprehensive memorandum anticipates judicial inquiries and focuses on key problems requiring resolution.
Further guidance is provided in Application of New South Wales Trustee and Guardian [2014] NSWSC 423; 12 ASTLR 513, where Kunc J stated at [3] (emphasis added):
Trustees, supported by relevant advice, must first determine their course of action and may then seek judicial confirmation of their justification. Applications for judicial advice should generally include Counsel’s opinion, addressing all known facts, relevant legal issues, and a reasoned argument supporting the trustee’s decision. It is inappropriate for trustees to seek judicial advice merely to present a problem without substantive consideration of potential solutions.
Kunc J further emphasised at [27] that such opinions significantly influence the Court’s decision. At [30], he explained (emphasis added):
The contents of the Counsel’s opinion depend on the specific issue and underlying facts. Generally, the opinion should identify and analyse all relevant facts, apply pertinent legal principles, and provide a reasoned conclusion on the trustee’s recommended course of action.
Counsel provided no formal memorandum of opinion in the Estate of Grant Edward Flitton [2024] ACTSC 410. However, Counsel’s detailed written and supplementary submissions, which contained the substance of the advice typically expected, were comprehensive. Given the comprehensiveness of the submissions, preparing a separate formal opinion was deemed an unnecessary expense.
High Court of Australia
The High Court of Australia in Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar, the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) [2008] HCA 42, several general observations concerning section 63 of the Act.
The executor or administrator is crucial in distributing the estate’s assets. They may distribute the entire estate or a portion only after fulfilling specific requirements.
First, they must issue a public notice inviting creditors and other interested parties to submit their claims against the estate within a designated timeframe.
Subsequently, the executor or administrator should meticulously consider each claim received during this period.
Furthermore, they must apply under the Births, Deaths and Marriages Registration Act 1997 to search the register for information regarding the deceased’s parents or children and any other individuals known to the executor or administrator who might be relevant to the asset distribution.
Finally, the executor or administrator must consider any pertinent information or documents obtained from the registrar-general as a result of this search under sections 64(1)(a)-(d) of the Administration and Probate Act 1929 (ACT).
Judicial advice applications checklist
The request for judicial advice must relate to the management or administration of trust property or the interpretation of the trust document. The Court will likely deny the request if it does not pertain to these issues.
An application under section 63(1) of the Act commences through a Summons typically accompanied by a Statement of Facts (instead of an affidavit)that
1. Is organised into consecutively numbered paragraphs;
2. presents the facts clearly and concisely, and
3. articulates the question, seeking opinion, advice, or direction.
4. indicates that the trustee would be permitted to take a specific course of action.
5. should be supported by a confidential legal opinion from Counsel.
6. During the preparation phase, a trustee should consider whether it would be suitable to involve the trust beneficiaries.
7. Nonetheless, a trustee does not need the approval of any beneficiaries to apply judicial advice. Specifically:
- Under section 63(4) of the Act, unless directed otherwise by the Court, it is not required to notify any individual of the application;
- Under section 63(8) of the Act, when the inquiry is about the identity of beneficiaries or their rights among themselves, the trustee must, unless directed otherwise by the Court, notify any individual whose beneficiary rights might be adversely affected by the conveyance or distribution before proceeding;
- According to section 63(9) of the Act, the notification must briefly explain the opinion, advice, or direction, along with the trustee’s intention to convey or distribute in line with it;
- Under section 63(10) of the Act, anyone asserting that the conveyance or distribution will harm their beneficiary rights may, within a timeframe set by court rules or determined by the Court, apply for any orders or directions deemed necessary, and the trustee shall refrain from making the conveyance or distribution during this period and while the application is in progress; and
- Under section 63(11), individuals served with notice of any application under this section or who receive notice in compliance with subsection (8) will be bound by the Court’s opinion, advice, or direction or by the Court’s order and directions, as if they had been involved in a hearing regarding an application of which they were a party.
Therefore, there are situations where notifying trust beneficiaries of the judicial advice request may be beneficial, whether for strategic reasons or otherwise.
Importantly, pursuing an application for judicial advice is often a more straightforward and less costly procedure than the potential risk of a trustee facing a lawsuit for breach of trust (and possibly being held liable).
In the Estate of Grant Edward Flitton [2024], ACTSC 410 the Public Trustee and Guardian sought the opinion of the Court to be determined on the papers without any counsel’s opinion or written submissions. The applicant’s solicitors responded to earlier issues raised by Mossop J’s associate via email on 30 October 2024. Upon review, two significant factual issues remain unresolved, specifically whether a partner or children survived the deceased. The available evidence includes some searches and statements recorded on the death certificate.
Partner:
The Public Trustee and Guardian proceeded on the assumption that the deceased did not survive with a partner under the Administration and Probate Act. (the Act) However, the Court did not disclose the basis for this conclusion. There is no evidence of whether the deceased was living with someone at the time of his death or had been in a relationship that might meet the definition of “partner” under s 44 of the Act. Given its importance, government record searches may not be sufficient to establish this fact based on the balance of probabilities.
Children:
Similarly, searches have been conducted to determine if the deceased had surviving children. Still, there is no evidence of the deceased’s relationship history to assess the likelihood of him having fathered children. Additionally, there is no indication of his residential history to confirm that the searches limited to the ACT and NSW registers of births were likely to reveal whether he had children elsewhere in Australia or globally.
Counsel could have identified these issues if the plaintiff had obtained their opinion. Counsel could have provided advice based on the limited evidence available. The evidentiary nature of these matters warrants drawing them to the applicant’s attention for further investigation or explanation of why they should not impede the advice sought.
Other Issues:
Additional matters require at least some submissions:
1. Statutory power: The application cites both s 97A of the Administration and Probate Act and s 63 of the Trustee Act 1925 (ACT) but does not clarify which provision should apply. Precedents suggest reliance on either power in similar cases, but no submissions address this choice.
2. Benjamin order: The nature of a Benjamin order was explained in Mizon at [18]-[22]. The current application seeks distribution without prejudice to claims by others with better entitlements. Although the applicant’s solicitor clarified that the order applies only before distribution, the wording mirrors orders in the Estate of Hansie Hart [2019] ACTSC 317, which functioned as a Benjamin order. The Court enquired as to the application’s basis.
To allow the applicant to finalise the factual foundation for the orders sought and provide an opportunity to file any submissions or Counsel’s opinion, Mossop J made the following direction:
1. The applicant is directed to file, by 31 January 2025, any further evidence, submissions, or Counsel’s opinion relevant to the application.