Where a court has already found that executors acted properly in defending third-party claims, a trustee in bankruptcy should be directed to indemnify the executors for their ongoing costs of defending that finding on appeal, and a 'not frivolous' standard is insufficient to displace the prior judicial determination. However, where executors face a beneficiaries dispute alleging misconduct and no judicial assessment of propriety has been made, the general position is that costs do not come out of the estate, and executors should obtain judicial advice under s 63 of the Trustee Act 1925 (NSW) before incurring costs.
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