A trustee who commences litigation without first seeking judicial directions under s 96 of the Trusts Act 1973 (Qld) risks losing the right to indemnity from the trust estate for legal costs incurred. When determining whether to direct a trustee to continue litigation, the court considers the merits of the claim, the costs of further prosecution, the fruitfulness of the claim, fairness to all beneficiaries, and the best interests of the trust estate. Where the estate has been substantially depleted and the prospects of success are insufficient, the court will advise the trustee to discontinue.
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