LYSTRA ALLISON TAGLIAFERRI as Administrator of the Estate of David Eugenio Tagliaferri v LYSTRA ALLISON TAGLIAFERRI and LISA DIANNA SAWYER as Trustees for Hayley Beatrice Tagliaferri and Caitlyn Thelma Tagliaferri

[2013] WASC 321

Supreme Court of Western Australia

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For Australian Law.

1. Succession law
2. › Intestacy
3. › Appropriation of dwelling house to surviving spouse
1. Succession law
2. › Intestacy
3. › Election under Fourth Schedule of Administration Act 1903 (WA)
1. Trusts
2. › Trustees' powers
3. › Appropriation under s 30(1)(k) Trustees Act 1962 (WA)
1. Trusts
2. › Self-dealing by trustee
3. › Court approval where trustee is also beneficiary

An appropriation under s 30(1)(k) of the Trustees Act by a trustee who is also a beneficiary requires court approval under s 30(3), and where the only other beneficiaries are infants without independent representation, the court's parens patriae jurisdiction requires scrutiny of the valuation to ensure no adverse effect on the infants' interests.
An election under the Fourth Schedule of the Administration Act to have a dwelling house appropriated to the surviving spouse is a special form of appropriation still taking effect under s 30(1)(k) of the Trustees Act; the two statutory avenues are related but distinct in their procedural requirements and timing of effect.
The court need not be satisfied that the appropriation is positively beneficial to infant beneficiaries, but must be satisfied it is not adverse to their interests in any material way, applying criteria analogous to those in Patros v Patros [2007] VSC 83.

Citation[2013] WASC 321

CourtWASC

JurisdictionWestern Australia

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