Judicial Advice

A trustee of a trust, including an executor or administrator of a deceased estate, is entitled to ask the Court what course of action he/she should take in relation to an aspect of the administration of an estate or a trust. This can often arise as a necessity, particularly to protect the trustee against future claims that he/she made the wrong decision. Basically, the trustee asks the Court a question and the Court’s answer will protect a trustee from any future claims arising from this decision provided that the trustee has acted in accordance with the Court’s advice.

In fact, it may be prudent and very important for a trustee to seek judicial advice. There are cases where the Court has held that the trustee should have applied for judicial advice and the trustees are then personally liable for costs relating to the issue or losses arising from their acts.

Similarly, beneficiaries of an estate or trust can also seek this advice from the Court. Beneficiaries can also seek orders requiring a trustee to do an act, to abstain from doing an act, to provide accounting verifying the use of estate funds, and the list goes on.

This application is made under Order 54.02 of the Supreme Court (General Civil Procedure Rules) 2015. The application can be made on any question. 

These applications are not straightforward, and the Court will need to consider a variety of factors, including whether the judicial advice ought to be given. Our expertise in the area allows us to ensure the application covers all relevant aspects of the matter and the case is presented to the Court in a clear and methodical way so that the necessary answer is obtained.

Some examples include:

1. Where an executor, administrator or trustee is uncertain about the proper interpretation of the Will – it is not uncommon for clauses in Wills to be ambiguous and unclear, leaving the trustee at a loss as to what to do. A trustee can ask the Court how the clause in the Will or trust instrument is to be interpreted;

2. Whether to defend a litigation proceeding against the estate;

3. Seeking approval for the sale of an estate asset – you may seek court approval of a sale, purchase or other transaction in relation to the estate where the sale may be contentious or disputed by a beneficiary.