› Appropriation of asset by executor in satisfaction of entitlement under will
Trusts and trustees
› Powers of trustees
› Trustees Act 1962 (WA) s 30(1)(k) - appropriation of property
Trusts and trustees
› Court approval
› Trustees Act 1962 (WA) s 30(3) - executor also a beneficiary
Civil procedure
› Persons under disability
› Whether appropriation adverse to interests of represented beneficiary
Quick Take
1Where an executor who is also a beneficiary proposes to appropriate estate property in satisfaction of her own entitlement under s 30(1)(k) of the Trustees Act 1962 (WA), s 30(3) provides that the appropriation is not effectual until approved by the Court.
2Where a beneficiary is a person under disability, O 70 rr 10 and 11 RSC do not apply to a s 30(3) application, but the court must still be satisfied that the appropriation is not adverse to that person's interests in any material way; it need not be satisfied that the appropriation is for that person's benefit.
3On the facts, an appropriation based on a recent licensed valuation, which allocated value equally among the residuary beneficiaries and conferred no benefit beyond their testamentary entitlements, was approved even though the will directed sale and conversion of the residue; the costs of the application and valuation were ordered out of the estate on a solicitor and client basis.
