NSW Trustee Act 1925

In NSW a Trustee can apply to the Court for its opinion, advice or direction pursuant to Section 63 of the Trustee Act 1925.

The summons for judicial advice does not usually join a defendant although all persons interested such as beneficiaries are bound by the opinion.

In contrast a summons for construction of the trust instrument stems from the inherent jurisdiction. It is a partial administration proceeding.

While a trustee may be a plaintiff in such proceedings they may also be initiated by a beneficiary or a creditor. The beneficiaries may be represented by one person representing each class.

The objective of Section 63 is to enable trustees to be advised as to the nature or extent of their powers and duties of the administration of the Trust.

Where a question of construction arises a more suitable procedure is to proceed by summons joining the defendants and supported by affidavit rather than by way of a summons for judicial advice.

The Court may appoint new trustees by the exercise of either the Courts inherent jurisdiction or under its statutory powers pursuant to Section 70 of the Trustee Act 1925.

Where a beneficiaries seek other relief in addition to the appointment of a new trustee, the Court may order accordingly{ In the will of Tunstall [1921] VLR 559}

An application for the appointment of a new trustee is made by summons supported by affidavit evidence. A vesting order is also usually required since the trust property does not vest in a new trustee automatically.

The Court has the power to excuse breaches of trust where the trustee is deemed to have acted honestly and reasonably under Section 85 of the Trustee Act 1925.

Proceedings concerning the execution of trusts is assigned to the Equity Division of the Court under Section 53 of the Supreme Court Act 1970.

Court procedures are covered by the Uniform Civil Procedure Rules 2005.

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