Order 54 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) allows an executor to seek judicial advice. This advice concerns estate administration. Executors can also seek advice on the interpretation of will provisions. This can be done without commencing an administration suit. To obtain advice, the executor must file a formal application with the court. The application must be accompanied by supporting documents. These include a copy of the will and any required affidavits. The court usually processes these applications within a few months. Nonetheless, the timeframes depend on the court’s workload. It also depends on the complexity of the matter.
Rule 54.02 provides a solution for trustees or executors. It allows them to obtain the Court’s guidance on administrative matters or the interpretation of wills and trusts. This process avoids the expense and delay of a full administration suit. The High Court analysed the UK laws in Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand & Anor [2008] HCA 42. The Court examined the original UK legislation noting that the original law was intended to guide trustees efficiently. This decision by the High Court provided clarity. It affirmed the legislation’s purpose. The purpose is to give trustees a practical and affordable means. It allowed them to seek the Court of Chancery’s advice, thereby reducing the need for litigation.
This summary procedure allows for the efficient and affordable resolution of questions about estate or trust administration. Additionally, the High Court highlights that it serves as an exception to the Court’s usual role. Usually, the Court adjudicates disputes between opposing parties. Instead, it provides ‘private advice’ to protect trustees or executors concerning their intended actions.
The High Court in Macedonian Orthodox Community Church clarified that there are no inherent restrictions on the Court’s power. The Court can give such advice. Rule 54.02(1) permits applications for any relief available in an administration proceeding, and Rule 54.02(2) mentions purposes like approving an executor’s sale of property explicitly.
Both parties in the appeal agreed with Justice Crockett’s 1972 statement in Re Green. The Court’s role is not to judge whether executors’ proposed actions are wise. Instead, it is to determine if they have the authority to act as proposed. The Court also assesses whether exercising that power in the suggested manner would be improper. Trustees must always remember their duty to safeguard the trust’s interests when initiating or defending legal actions. If concerns arise about personal liability for costs, trustees should seek judicial advice or consider resigning.
The Court has the discretion to authorise or deny proposed actions. Because of this, appeals are not rehearings. Instead, they follow the principles set out in House v The King [1936] HCA 40. These principles highlight two key aspects. First, an appellate court can interfere with a discretionary decision only if it is satisfied that there is a mistake. The mistake must relate to law or fact by the decision-maker. This includes failing to consider a relevant factor or considering an irrelevant factor. Second, the decision made must be so unreasonable that no reasonable decision-maker can have come to it. The High Court highlighted the need for appellate restraint. It warned that overturning discretionary decisions unnecessarily lead to prolonged litigation. This would result in disproportionate legal expenses and delays in resolving disputes.
In this context, the Court of Appeal considered two grounds of appeal:
Ground 1: Late-filed Affidavit
Mrs Morris served on 4 December 2012, for the scheduled hearing on 11 December. Her solicitors communicated with the trial judge’s associate between 7 and 13 December. The affidavit in question was received after 6:00 pm on 13 December. The hearing was scheduled for 10:30 am the next day. Mrs Morris’ counsel conceded they did not serve the affidavit in accordance with Court procedures. However, they argued the Court should have admitted it since it caused no irreparable prejudice to the executors.
Appellate courts rarely interfere with procedural decisions of this nature. The trial judge properly objected to the late affidavit, as responding would have caused delays. Mrs Morris’ legal team could have sought an adjournment if the affidavit was critical, accepting any associated costs. As the respondent requested no adjournment, claims of procedural unfairness are unfounded.
Ground 2: Substantive Error of Law
This ground claimed that the judge erred by failing to consider the affidavit’s contents. However, due to the procedural ruling, the deponent’s testimony wasn’t admitted, and the judge wasn’t obligated to believe it.
Application for Judicial Advice
The plaintiff seeks guidance on interpreting clauses 4 and 5 of the deceased’s will. They want to know if the named beneficiary, Mr Kyle Stuart Jackson, exists. The plaintiff contends that Mr Jackson does not exist. She submits that the estate should be distributed without regard to his interest. The gift-over clause should apply to make her the beneficiary of the residuary estate.
The status of the gift to Kyle Stuart Jackson
Whether the gift in clause 4 of the Will takes effect depends on whether Kyle Stuart Jackson exists. It also depends on whether he cannot be found. It also depends on whether no such person exists as contemplated by the deceased. This distinction is significant, as the deceased never met Mr Jackson and their relationship was exclusively online. Despite extensive efforts, the plaintiff made but failed to verify Mr Jackson’s identity. The attempts used the contact details provided by the deceased and by those claiming to be him. Requests for video communication were ignored or refused, and communication was limited to email. Attempts to obtain identifying information were met with silence or false details. On one occasion, someone claiming to be Mr Jackson sent an email. It included an image of a United States passport. The passport was in the name Kyle Stuart Jackson. The email also provided a Pennsylvania address.
The email correspondence was irregular and inconsistent, at one point accusing the plaintiff’s solicitors of acting “behind my back.” Kyle Jackson did not execute draft renunciation documents. Although the plaintiff served the originating process by email. They also sent the documents by post to the Pennsylvania address provided. Kyle Jackson did not appear. He also did not participate in the proceedings.
Goulden AsJ found that the passport image provided to the plaintiff’s solicitors was fraudulent. The photograph did not meet United States Department of State requirements. Additionally, the validity period was shorter than that of genuine US passports. Additionally, the private investigator retained by the plaintiff did not find any birth record. There was no record for a person named Kyle Stuart Jackson. His date of birth did not match the one on the passport. Investigations also confirmed that no person named Kyle Jackson resides at, or has ever resided at, the Pennsylvania address provided. Furthermore, a cheque found among the deceased’s effects, made payable to Kyle Jackson, was not valid.
Goulden AsJ is satisfied based on the evidence. The person described in clause 4 of the Will as Kyle Stuart Jackson does not exist. This is not as understood by the deceased, if at all.
Proper construction of the Will in the absence of Mr Jackson.
Clause 4 of the Will shows that the deceased intended to leave the residuary estate. He wanted to leave it to the person he believed was Kyle Stuart Jackson. He made the Will in contemplation of marriage. The evidence establishes that no such person exists as the deceased understood. As no beneficiary meets the description in clause 4, the gift fails. Thus, distribution of the estate without regard to that gift occurs. Clause five applies. Clause 5 states that if Mr Jackson “fails to survive” the deceased, the residuary estate passes to Kaye Moseley. Ordinarily, a gift over clause takes effect only if the specified contingency occurs. The term “survive” presupposes the existence of a real person who remains alive after the testator’s death. Since Mr Jackson never existed, he cannot be said to have “failed to survive” the deceased. Therefore, the express contingency in clause five did not occur.
The Court may extend a gift over by applying orthodox principles of Will construction. This extension includes the rule in Jones v Westcomb. This applies where it is clear from the Will and admissible surrounding circumstances. It must be evident that the testator intended the gift over to operate if the contingency occurred. Here, the Will shows a clear intention to avoid intestacy and to deal comprehensively with the residuary estate. Clause 5 is the only gift over provision. It aligns with the deceased’s established pattern of favouring the plaintiff. The plaintiff was the principal beneficiary under prior wills.
The Court considered the language of the Will. It reviewed the deceased’s earlier testamentary dispositions. It noted the absence of any alternative gift over. The Court was satisfied that the deceased intended the plaintiff to get the residue if Mr Jackson did not. This applies whether Mr Jackson could not receive it due to death or non-existence. By necessary implication, the contingency of Mr Jackson’s never existing falls within the scope of clause 5. As a result, the gift over operates in favour of the plaintiff, avoiding intestacy.
The construction of a Will always depends on its specific facts. The rule application in Jones v Westcomb extends a gift-over clause in comparable circumstances. In The Trust Company Limited v Gibson, the Queensland Supreme Court examined a Will. The Will included a gift-over to take effect if the primary beneficiary “predeceased me or didn’t survive me”. In that case, the primary beneficiary did not die; instead, she disclaimed her entitlement. The Court held that the testator’s evident purpose was to avoid an intestacy. This was necessary if the primary gift did not take effect. A disclaimer produced the same practical outcome as the contingency the testator sought to guard against.
In this case, the issue is not the disclaimer but the beneficiary’s nonexistence. Nevertheless, both situations involve similar legal reasoning to prevent intestacy. In each case, the testator intended to guarantee that distribution of the residuary estate would follow their broader testamentary plan. This was preferred rather than letting it be left to intestacy due to an unforeseen event. The key similarity is the Court’s approach to honoring the testator’s intention. It focuses on benefiting a second-in-line beneficiary if the primary gift fails. This applies regardless of the reason for that failure.
As a result, the Court applied the rule in Jones v Westcomb. It construed the gift-over clause as implicitly covering the event of disclaimer. The language of the Will revealed a clear intention to prevent intestacy. This was to apply if the primary beneficiary did not take the gift. Thus, the Court treated the disclaimer as falling within the scope of the contingency. On the evidence in the current case, the same reasoning applies to the deceased’s Will. Given the failure of the gift in cl 4, Goulden AsJ did not need to consider the issue of disclaimer.
Conclusion
The Court advises the Plaintiff:
(a) is entitled to distribute the estate without further regard for Mr Jackson’s interest as the gift under cl 4 of the Will has failed;
(b) is entitled to distribute the residue of the estate to herself according to cl 5 of the Will.
(c) Costs of and incidental to this application be paid and retained out of the estate on a trustee basis.