A trustee in doubt about whether to take a particular course of
action may want to consider making an application to the Supreme
Court for judicial advice.
In New South Wales, s 63(1) of the Trustee Act 1925 (the Act)
provides:
A trustee may apply to the Court for an opinion advice or
direction on any question respecting the management or
administration of the trust property, or respecting the
interpretation of the trust instrument.
The advantage to a trustee in obtaining judicial advice under s
63 of the Act is that, if the trustee acts in accordance with the
advice, then under s 63(2), the trustee will be deemed to have
discharged its duty as trustee in the subject matter of the
application (and therefore, cannot be guilty of breach of trust),
provided it has not been guilty of any fraud or wilful concealment
or misrepresentation in obtaining the judicial advice.
