WILLIAMS -v- THE PUBLIC TRUSTEE AS EXECUTOR OF THE WILL OF ALAN JAMES WILLIAMS [2026] WASC 216

[2026] WASC 216 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : WILLIAMS -v- THE PUBLIC TRUSTEE AS EXECUTOR OF THE WILL OF ALAN JAMES WILLIAMS [2026] WASC 216 CORAM : PALMER J HEARD : ON THE PAPERS DELIVERED : 2 JUNE 2026 FILE NO/S : CIV 2123 of 2024 BETWEEN : RONNICE ANN WILLIAMS First Plaintiff ALICE FAY WILLIAMS Second Plaintiff AND THE PUBLIC TRUSTEE AS EXECUTOR OF THE WILL OF ALAN JAMES WILLIAMS First Defendant KELLY O'HALLORAN AS BENEFICIARY OF THE ESTATE OF ALAN JAMES WILLIAMS Second Defendant Catchwords: Trustees Act 1962 (WA) - Application for approval of Deed of Arrangement executed by all adult beneficiaries presently entitled - Variation potentially affecting the interests of a child and unborn children - Whether arrangement is -- 1 of 15 -- [2026] WASC 216 Page 2 to the detriment of the child or unborn children Legislation: Family Provision Act 1972 (WA) Trustees Act 1962 (WA) Rules of the Supreme Court 1971 (WA) Result: Application granted Category: B Representation: Counsel: First Plaintiff : No appearance Second Plaintiff : No appearance First Defendant : No appearance Second Defendant : No appearance Solicitors: First Plaintiff : Contested Wills And Probate Lawyers Second Plaintiff : Contested Wills And Probate Lawyers First Defendant : Public Trustee Second Defendant : Andrew Lynn Lawyers Case(s) referred to in decision(s): Hamersley v Newton [2005] WASC 221 Muhling & Ors v Perpetual Trustees WA Ltd as Executor and Trustee of the Estate of Herbert Ross Andrew (Dec) [2001] WASC 225 Public Trustee as Executor of the Will of Karoline Lilly Fiedler v Fiedler [2007] WASC 296 Re Christmas' Settlement Trusts [1986] 1 Qd R 372 -- 2 of 15 -- [2026] WASC 216 PALMER J Page 3 PALMER J: Introduction 1 These reasons concern members of the family of Alan James Williams, who died on 22 September 2023. Without intending any disrespect, I will refer to them by their first names. 2 Alan left a will dated 16 August 2007 (the Will) which named the Public Trustee (the first defendant) as the executor of his estate. The Public Trustee has obtained a grant of probate for the Will. 3 The Will also created a testamentary trust of which the Public Trustee was appointed the trustee. The Will directed the Public Trustee to divide Alan's residuary estate into three equal shares and pay one third to each of his two daughters Ronnice (the first plaintiff), Alice (the second plaintiff) and Alan's sister, Kelly (the second defendant). Ronnice and Alice were to receive certain sums when they turned 21 and 30 with the remaining balance vesting when they turned 40. 4 Both Ronnice and Alice are yet to turn 40. Ronnice is currently 37. Alice is 35. 5 The Will also provided that if either Ronnice or Alice died without attaining a vested interest, the relevant portion of their bequest would pass to any children who survived them. Ronnice has a 15-year-old son, Jade. It is also possible that Ronnice and Alice will have more children before they turn 40. 6 Ronnice and Alice did not wish to wait until they turned 40 to receive the balance of their bequest. On 23 September 2024, they commenced proceedings seeking relief under the Family Provision Act 1972 (WA). Those proceedings subsequently settled at mediation on terms that Ronnice and Alice would receive a fixed lump sum immediately and not need to wait until they reached the age of 40 to receive their bequest. 7 Giving effect to such a settlement would require the revocation of the trust created by the Will. 8 By way of an Amended Originating Summons dated 19 September 2025, Ronnice and Alice seek orders pursuant to s 90 of the Trustees Act 1962 (WA) (Trustees Act) revoking the testamentary trust created by the Will and giving effect to the settlement that has been reached. -- 3 of 15 -- [2026] WASC 216 PALMER J Page 4 9 As alternate relief, the Amended Originating Summons sought the appointment of Mr Ian Blatchford, a solicitor, to represent the interests of any affected children, pursuant to O 18 r 13 of the Rules of the Supreme Court 1971 (WA) (Rules of the Supreme Court). Whether a representative should be appointed for the children 10 As I have mentioned, the Amended Originating Summons sought, as alternate relief, the appointment of a solicitor to represent the interests of any children affected. The plaintiffs had originally only sought an order that the solicitor: …be appointed pursuant to Order 18 rule 13 of the Rules of the Supreme Court 1971, to represent the interests of the children of the First and Second Plaintiff (including any unborn children) in or affected by the proceedings, such application to be supported by the affidavit of the First and Second Plaintiff's solicitor sworn and filed in the proceedings. 11 Order 18 r 13 of the Supreme Court Rules provides: 13. Representation of interested persons who cannot be ascertained etc. (1) In any proceedings concerning — (a) the administration of the estate of a deceased person; or (b) property subject to a trust; or (c) the construction of a written instrument, including a statute or a regulation, rule or by- law made under a statute, the Court, if satisfied that it is expedient so to do, and that one or more of the conditions specified in subrule (2) are satisfied, may appoint one or more persons to represent any person (including an unborn person) or class who is or may be interested (whether presently or for any future, contingent or unascertained interest) in or affected by the proceedings. (2) The conditions for the exercise of the power conferred by subrule (1) are as follows — (a) that the person, the class or some member of the class, cannot be ascertained or cannot readily be ascertained; -- 4 of 15 -- [2026] WASC 216 PALMER J Page 5 (b) that the person, class or some member of the class, though ascertained, cannot be found; (c) that, though the person or the class and the members thereof can be ascertained and found, it appears to the Court expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) to exercise the power for the purpose of saving expense. (3) Where in any proceedings to which subrule (1) applies, the Court exercises the power conferred by that subrule, a judgment or order of the Court given or made when the person or persons appointed in exercise of that power are before the Court shall be binding on the person or class represented by the person or persons so appointed. (4) Where, in any such proceedings, a compromise is proposed and some of the persons who are interested in, or who may be affected by, the compromise are not parties to the proceedings (including unborn or unascertained persons) but — (a) there is some other person in the same interest before the Court who assents to the compromise or on whose behalf the Court sanctions the compromise; or (b) the absent persons are represented by a person appointed under subrule (1) who so assents, the Court, if satisfied that the compromise will be for the benefit of the absent persons and that it is expedient to exercise this power, may approve the compromise and order that it shall be binding on the absent persons, and they shall be bound accordingly except where the order has been obtained by fraud or non-disclosure of material facts. (emphasis added) 12 I had some reservations about whether making an order pursuant to O 18 r 13(3) was the appropriate course. I raised those reservations with the parties at a directions hearing and it was submitted that representatives had been regularly appointed under this rule in this court and a similar practice followed in other jurisdictions. I ordered the filing of written submissions to address the issue. -- 5 of 15 -- [2026] WASC 216 PALMER J Page 6 13 The submissions that were filed identified only a single case: the decision of Jenkins J in The Public Trustee as Executor of the Will of Karoline Lilly Fiedler v Fiedler.1 In that case, Jenkins J referred to an earlier decision of Heenan J in Hamersley v Newton,2 where his Honour had joined the Attorney-General as a party, so that the Attorney might make submissions on behalf of the unborn children. Her Honour indicated that she had similarly joined the Attorney-General but the Attorney had submitted that if the court considered that any unborn children required representation, it should adopt the practice used in other jurisdictions and appoint an appropriate individual to represent any unborn children.3 14 Justice Jenkins referred to a suggestion made by the Public Trustee that if the interests of unborn children needed to be represented, O 18 r 13 provided the mechanism for that to occur.4 Ultimately, her Honour considered it unnecessary to appoint a representative for the unborn children observing:5 Were it not for the willingness of counsel for the Attorney General to make submissions as amicus curiae, it would have been appropriate for me to either appoint a representative of the unborn children of the defendants or to adopt the English practice, referred to in Re Christmas' Settlement Trusts [1986] 1 Qd R 372, of requiring the plaintiff to provide to the court a written opinion by counsel instructed on behalf of the unborn beneficiaries. I have decided that it is unnecessary for me to take those steps given the helpful submissions made by counsel for the Attorney General as amicus curiae. In my view, those submissions are entirely independent of the interests of the plaintiff and other potential beneficiaries under the will. Thus, they are an adequate replacement for the submissions of a practitioner appointed to represent any unborn children or the opinion of counsel. 15 In Re Christmas' Settlement Trusts,6 McPherson J observed:7 At least in a case where such a large amount of money is involved, it seems to me to be desirable that the more recent English practice should be followed in that respect. Furthermore, current English practice now requires the provision of a written opinion by counsel instructed on behalf of unborn beneficiaries: see Practice Direction [1976] 1 WLR 884. That corresponds with the practice followed in Queensland in 1 Public Trustee as Executor of the Will of Karoline Lilly Fiedler v Fiedler [2007] WASC 296 (Fiedler). 2 Hamersley v Newton [2005] WASC 221[15] - [16] (Hamersley v Newton). 3 Fiedler [4] - [6]. 4 Fiedler [7]. 5 Fiedler [9]. 6 Re Christmas' Settlement Trusts [1986] 1 Qd R 372 (Re Christmas' Settlement Trusts). 7 Re Christmas' Settlement Trusts, 375. -- 6 of 15 -- [2026] WASC 216 PALMER J Page 7 relation to compromises of infants' claims for damages for personal injury: see Madden v. Hough [1969] QWN 7. Again, that procedure has not been followed in the present case. 16 While I considered that it was necessary for the children's interests to be considered and addressed independently, my view was that the preferable course in this case was for an opinion to be obtained from independent counsel. This corresponds with the practice followed in this court where claims made by a person under a disability (including infancy) are compromised.8 It is also consistent with the observations made by Jenkins J in Fiedler and McPherson J in Re Christmas' Settlement Trusts. 17 For this reason, I invited the plaintiffs to obtain the opinion of independent counsel which they did. I did not then consider it necessary to appoint a representative to represent the interests of any children affected, or to consider whether making an order pursuant to O 18 r 13(3) was appropriate. The circumstances in which the application has been made The terms of the will 18 The Public Trustee was appointed both executor and trustee of Alan's Will by cl 2 of the Will.9 19 The testamentary trust was established by cl 3.10 20 The direction to pay funds to Ronnice and Alice was addressed in cl 3(1) and cl (2). Clause 3(1)(a) provided as follows:11 SUBJECT TO the payment of my just debts funeral and testamentary expenses I GIVE the whole of my real and personal estate to my Trustee UPON TRUST for division into three equal parts for distribution as follows: (1) as to one of those parts: (a) firstly, to pay the sum of TEN THOUSAND DOLLARS ($10,000) to my daughter RONNICE ANN WILLIAMS ('RONNICE') if she survives me and attains the age of twenty one years but if she fails to 8 O 70 r 10 Rules of the Supreme Court. 9 See clause 1. Affidavit of Ronnice Willians in Support of Originating Summons Affirmed 14 October 2024 (Ronnice’s Affidavit), Attachment “RAW-1”, page 16. 10 Ronnice’s Affidavit, Attachment “RAW-1”, page 16-17. 11 Ronnice’s Affidavit, Attachment “RAW-1”, page 16. -- 7 of 15 -- [2026] WASC 216 PALMER J Page 8 attain a vested interest therein leaving children who survive the survivor of both me sand their mother then those children shall take equally the share which their mother would otherwise have taken PROVIDED HOWEVER that if all of them RONNICE and the children of RONNICE fail to attain a vested interest therein then for equal division per capita between those of my daughter ALICE FAY WILLIAMS ('ALICE') and my sister KELLY ANN O'HALLORAN ('KELLY') who survive me but if either of them ALICE and KELLY do not survive me leaving children who survive me then those children shall take equally the share which their mother would otherwise have taken; (b) secondly, to pay the sum of THIRTY THOUSAND DOLLARS ($30,000) to RONNICE if she survives me and attains the age of thirty years but if she fails to attain a vested interest therein leaving children who survive the survivor of both me and their mother then those children shall take equally the share which their mother would otherwise have taken PROVIDED HOWEVER that if all of them RONNICE and the children of RONNICE fail to attain a vested interest therein then for equal division per capita between those of ALICE and KELLY who survive me but if either of them ALICE and KELLY do not survive me leaving children who survive me then those children shall take equally the share which their mother would otherwise have taken; and (c) thirdly, as to the balance then remaining to RONNICE if she survives me and attains the age of forty years but if she fails to attain a vested interest therein leaving children who survive the survivor of both me and their mother then those children shall take equally the share which their mother would otherwise have taken PROVIDED HOWEVER that if all of them RONNICE and the children of RONNICE fail to attain a vested interest therein then for equal division per capita between those of ALICE and KELLY who survive me but if either of them ALICE and KELLY do not survive me leaving children who survive me then those children shall take equally the share which their mother would otherwise have taken; 21 Clause 3(2) was in the same terms, other than that the references to Ronnice and Alice were reversed.12 12 Ronnice’s Affidavit, Attachment “RAW-1”, page 17. -- 8 of 15 -- [2026] WASC 216 PALMER J Page 9 22 The payment to Kelly was addressed in cl 3(1)(c). That clause was in different terms to cl 3(1) and cl 3(2) in that it did not provide for any deferred payment. 23 The Will was very short. Other than the clauses I have mentioned, the Will otherwise only contained two other clauses. Clause 4 sought to exclude certain sections of the Trustees Act. Clause 5 directed that Alan's body be cremated.13 24 Both Ronnice and Alice have received $40,000.00 from the deceased estate having attained the ages of 21 and 30 years old.14 The estate 25 The net value of the estate was $1,313,642.17, being assets in the sum of $1,317,778.28 less liabilities in the sum of $4,136.11.15 26 A statement provided by the Public Trustee reveals that most of Alan's assets have been realised and converted into cash.16 ASSET DESCRIPTION VALUE Funds held by Public Trustee $717,278.28 Property at 16 Mildmay Street, Balga $600,000.00 Furniture and Personal Effects $500.00 TOTAL $1,317,778.28 LIABILITIES VALUE Mobile Services $337.57 Outstanding utility and rates $499.54 Funeral Expenses $3,299.00 TOTAL $4,136.11 13 Ronnice’s Affidavit, Attachment “RAW-1”, page 17. 14 Affidavit of Laura Elizabeth Monk Affirmed 21 February 2025 (Monk Affidavit) [11]. 15 Ronnice’s Affidavit [14]. 16 Ronnice’s Affidavit [15]. -- 9 of 15 -- [2026] WASC 216 PALMER J Page 10 The circumstances of Ronnice and Jade 27 Ronnice was born on 29 October 1988.17 She is currently 37, will turn 38 this year and will turn 40 on 29 October 2028. 28 Ronnice has been receiving a disability support pension since 2012 and has approximately $30,900.00 in assets and no liabilities.18 She currently has a monthly deficit of approximately $480.00 which she has met through savings. 19 29 Jade is Ronnice's only son. He was born on 19 April 2009.20 He is 17. 30 Jade's father passed away in 2020.21 31 Ronnice does not own a house and would like to use her inheritance to buy one for herself and her son to give them stability. They currently live in community housing.22 The circumstances of Alice 32 Alice was born on 18 April 1991.23 She is 35. She will turn 40 on 18 April 2031. 33 Alice has been employed as a truck driver since 2022. She has assets of $110,000.00 and liabilities of $74,200.00. She has a monthly income of $8,700.00 and expenses of $8,200.00.24 34 Alice does not own a house and would also like to buy one.25 35 Alice is currently single but is looking to settle down and start a family and is considering having children within two to three years (from October 2024). 26 17 Ronnice’s Affidavit [11(a)]. 18 Ronnice’s Affidavit [33] - [35]. 19 Ronnice’s Affidavit [37]. 20 Ronnice’s Affidavit [32]. 21 Ronnice’s Affidavit [32]. 22 Ronnice’s Affidavit [41]. 23 Affidavit of Alice Fay Williams in Support of Originating Summons Affirmed 22 October 2024 (Alice’s Affidavit) [11(b)]. 24 Alice’s Affidavit [44] - [47]. 25 Alice’s Affidavit [49]. 26 Alice’s Affidavit [50]. -- 10 of 15 -- [2026] WASC 216 PALMER J Page 11 The settlement 36 As I have mentioned, the proceedings commenced by Ronnice and Alice have been settled on terms that Kelly shall receive a fixed sum of $215,000.00 and the balance of the estate shall be equally divided between Ronnice and Alice.27 When orders will be made under s 90 of the Trustees Act 37 Section 90(1) of the Trustees Act relevantly provides that: (1) Without limiting any other powers of the Court, it is hereby declared that, where any property is held on trusts arising under any will, settlement or other disposition …, the Court may, if it thinks fit, by order approve on behalf of – (a) any person having, directly or indirectly, an interest, whether vested or contingent, under the trusts who, by reason of infancy or other incapacity, is incapable of assenting; or … (c) any unborn or unknown person; or … any arrangement (by whomever proposed, and whether or not there is any other person beneficially interested who is capable of assenting thereto) varying or revoking all or any of the trusts, or enlarging the powers of the trustees of managing or administering any of the property subject to the trusts. 38 Section 90(2) of the Trustees Act relevantly provides that: … the Court shall not approve an arrangement on behalf of any person if the arrangement is to his detriment; and, in determining whether any such arrangement is to the detriment of a person, the Court may have regard to all the benefits that may accrue to him directly or indirectly in consequence of the arrangement, including the welfare and honour of the family to which he belongs. 39 Section 90(4) of the Trustees Act relevantly provides that: Any rearrangement approved by the Court under subsection (1) is binding on all persons on whose behalf it was so approved, and thereafter the trusts as so rearranged shall take effect accordingly. 27 Monk Affidavit [16]. -- 11 of 15 -- [2026] WASC 216 PALMER J Page 12 40 The function of the court and nature of the power under s 90 was explained by Hasluck J in Muhling v Herbert Ross Andrew (Dec),28 as follows:29 It is clear that the power to approve conferred by s 90(1) is discretionary. In essence, the power of the Court is to give its consent or approval on behalf of those beneficiaries or potential beneficiaries, infants, unborn and ascertained persons who, by reason of those and other disabilities, are incapable of consenting. The process is one in which the Court, in effect, joins with beneficiaries who are sui juris and entitled to the trust property so that they may exercise their proprietary rights to modify the intention of a testator: Palmer v McAllister (1991) 4 WAR 206. A function of the Court on an application of this nature is to act as a substitute for the persons who are incapable, either because they lack capacity or because they are not born, to signify their consent. The proposal for variation is to be considered as a whole and, although the application may be designed to interfere with or modify the intention of the settlor, if there is no detriment likely to accrue to any person contingently interested and all interests will best be served by carrying into effect the proposed modification, then the application will be approved: Faye & Ors v Faye & Ors [1973] WAR 66. Where, whilst the scheme proposed would be generally beneficial, there is a risk of detriment to the person or class of persons in respect of whom the Court's approval is sought, the Court may have regard to the degree of risk and, if it is a risk that an adult would be prepared to take to achieve the benefits to be derived from the scheme of rearrangement, then the Court may take that risk on behalf of the person or persons for whom its approval is sought: Re Cohen's Will Trusts [1959] 3 All ER 523. 41 This statement of principle was referred to with apparent approval by Jenkins J in Fiedler,30 and Seaward J (as she then was) in Harris v The Public Trustee as executor and trustee of the estate of Joseph Pennington.31 42 In Fiedler,32 Jenkins J observed that before a court may approve an arrangement under s 90(1)(c) of the Trustees Act the court must be satisfied of the following matters: 28 Muhling & Ors v Perpetual Trustees WA Ltd as Executor and Trustee of the Estate of Herbert Ross Andrew (Dec) [2001] WASC 225 (Muhling). 29 Muhling [25] - [27]. 30 Fiedler [32]. 31 Harris v The Public Trustee as executor and trustee of the estate of Joseph Pennington [2025] WASC 128 (Harris) [34]. 32 Fiedler [21]. See also Harris [29] and [34]. -- 12 of 15 -- [2026] WASC 216 PALMER J Page 13 (a) that property is held on trust arising under (relevantly) a will; (b) the arrangement seeks to vary or revoke all or any of the trusts; and (c) the arrangement must not be to the detriment of any unborn children. 43 With regard to the third of those matters, her Honour observed that the question of whether the proposed arrangement is to the detriment of any unborn children requires contrasting the position of such children if the arrangement is not approved with their position if it is.33 44 Justice Seaward followed the same approach in Harris.34 45 I respectfully agree with that approach and have adopted it in determining the present application. Whether orders should be made in this case 46 The first two requirements of s 90(1)(c) of the Trustees Act are satisfied. The Public Trustee holds Alan's estate on trust under the testamentary trust established by the Will. This application seeks orders varying the terms of that trust. 47 The question then is whether I consider that the proposed settlement is to the detriment of any children. To resolve this question, it is useful to contrast the position if the arrangement is not approved, with the position if it is. 48 I will start with the position if the arrangement is approved. 49 The proposed arrangement would see the amount to be received by each of Ronnice and Alice increased and the payment of that amount accelerated, so that it would be received immediately. I am prepared to assume that the mother would use the money received in a manner that would benefit any child or unborn child. 50 Both Ronnice and Alice indicated that they would be interested in purchasing a home. Any child or unborn child would benefit from the opportunity to live in such a home. 33 Fiedler [34] - [44]. 34 Harris [34]. -- 13 of 15 -- [2026] WASC 216 PALMER J Page 14 51 The receipt of the money would also provide additional immediately available funds that could be used to support that child. Those funds would also enhance the welfare of the child's family. This benefit would be significant because neither Ronnice nor Alice are in a strong financial position. 52 The arrangement would also result in the end of the family provision litigation. The resolution of that dispute without further litigation would enhance the 'honour of the family', in that it would promote familial harmony. The resolution of the dispute would also avoid any further expenditure on legal fees that might deplete either the limited financial resources of the unborn child's parent, or the estate. 53 While the accelerated payment would result in Jade or any unborn child losing any prospect of directly inheriting from Alan, whether this is likely to cause any detriment must be considered. 54 Under the terms of the Will, Jade and any unborn child would only stand to directly inherit from Alan if their mother died before the trust vested when she turned 40. In the case of any unborn child, the child would also need to be born before their mother turned 40. Ronnice is 37, so that would be in the next three years. Alice is 35 so that would be in the next five years. 55 There is no evidence before me that either Ronnice or Alice is currently pregnant. 56 Alice has indicated an interest in 'settling down' and starting a family. Even if she wishes to settle down and start a family it might take time for her to do so. 57 There is no evidence before me that Ronnice intends to have another child in the next three years, although she has also not said that she will not. 58 It is then relevant to consider the likelihood that either Ronnice or Alice would die before they turned 40. Both are relatively young. There is no evidence before me to suggest that either suffers from a medical condition that might result in their death before they turn 40. 59 Further, if either Ronnice or Alice were to die, it might be likely that any children would benefit from their estate, so that they would indirectly inherit from Alan in any event, although the evidence before me does not allow me to reach a concluded view about this. -- 14 of 15 -- [2026] WASC 216 PALMER J Page 15 60 Turning then to the position if the arrangement is not approved. 61 If the arrangement is not approved, then any child or unborn child's mother would not inherit until she turned 40. This would mean that the child would be deprived of the benefit they might receive from their mother having those funds to support them in the meantime. 62 The child's family might be similarly disadvantaged and it might be that both Ronnice and Alice would be unable to purchase a house in which their family might live. 63 The family provision litigation might continue. The need to pay legal fees might be likely to deplete either the resources of the child's parents or the estate. 64 The child's right to inherit directly from Alan if their mother dies before they turned 40 would be preserved. As I have already discussed, however, that right would only have any value, if their mother died before they turned 40. 65 Given all of these matters, I do not consider that any child or unborn child would suffer any detriment from the approval of the arrangement. I am fortified in my conclusion by the fact that counsel has independently concluded that the arrangement would not cause any children detriment for broadly similar reasons. Conclusion 66 Ultimately, taking all of these matters into account, I am of the view that the court should exercise its discretion to approve the arrangement. I will make the orders sought. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SK Associate to the Hon. Justice Palmer 2 JUNE 2026 -- 15 of 15 --