Where executors face removal proceedings and seek private judicial advice under s 92 of the Trustees Act 1962 (WA) to justify defending those proceedings at the estate's expense, the court will decline to provide an affirmative answer (and thereby deny s 95 protection) where the materials are unsatisfactory and the grievances raised against the executors are serious and plausible. The practice of providing sealed counsel's opinions to the court in s 92 applications is regarded as anachronistic in Western Australia and conceptually offensive to procedural fairness, though the court reluctantly had regard to such an opinion in this case. Executor-solicitors whose firms act for multiple estate entities with conflicting interests face heightened scrutiny on removal applications.
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