KARAS -v- PUBLIC TRUSTEE [2026] WASC 171

[2026] WASC 171 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : KARAS -v- PUBLIC TRUSTEE [2026] WASC 171 CORAM : MASTER RUSSELL HEARD : ON THE PAPERS DELIVERED : 4 MAY 2026 FILE NO/S : CIV 1214 of 2026 BETWEEN : EDMUND DAVID KARAS as executor and trustee of the estate of TERESA KARAS Plaintiff AND PUBLIC TRUSTEE as plenary administrator of the Estate of KAMILA EVE KARAS First Defendant EDMUND DAVID KARAS Second Defendant Catchwords: Administration of estates - Appropriation of an asset by trustee in satisfaction of entitlement under will - Trustees Act 1962 (WA) s 30(1)(k) - Court's approval required pursuant to Trustees Act 1962 (WA) s 30(3) where trustee is also a beneficiary - Effect on other beneficiary - Person under disability - Turns on own facts Legislation: Trustees Act 1962 (WA) s 30(1)(k), s 30(3) -- 1 of 8 -- [2026] WASC 171 Page 2 Result: Application granted Appropriation of property by trustee approved Category: B Representation: Counsel: Plaintiff : No appearance First Defendant : No appearance Second Defendant : No appearance Solicitors: Plaintiff : Irdi Legal First Defendant : Public Trustee Second Defendant : No appearance Case(s) referred to in decision(s): Tagliaferri v Tagliaferri [2013] WASC 321 -- 2 of 8 -- [2026] WASC 171 MASTER RUSSELL Page 3 MASTER RUSSELL: Overview 1 The plaintiff, Edmund David Karas, is the executor and trustee of the estate of his late mother, Teresa Karas, who died on 29 April 2024 leaving a will dated 11 October 2019. Probate was granted to Mr Karas on 22 July 2024. 2 The deceased was survived by her two adult children, the plaintiff and his sister, Kamila Eve Karas. 3 With no disrespect to the deceased or to Edmund or Kamila, as they share the same surname, I will refer to them by their first names. 4 The Public Trustee was appointed as plenary administrator of Kamila's estate by the State Administrative Tribunal on 18 March 2021 and is the first defendant in that capacity. Mr Karas is the second defendant in his capacity as a beneficiary of the estate, although has not entered an appearance as he does not seek to be heard in that capacity. 5 By her will, Teresa gave 60% of the residue of her estate to Edmund and the other 40% to Kamila to be held on trust for her by the Public Trustee. 6 The estate comprises the former family home in Kewdale, Western Australia, as identified in the affidavit sworn in support of the application (Kewdale Property), which is valued at $925,000, and cash at bank of approximately $256,000. The net value of the estate after estimated estate fees is $1,167,394.75. 7 Edmund seeks orders to appropriate to himself the whole of the Kewdale Property in full satisfaction of his share of the residue of the estate. This is on the basis that he will pay the balance of Kamila's share that is not covered by the cash at bank from his own funds. 8 Such an appropriation may be made by Edmund as trustee pursuant to s 30(1)(k) of the Trustees Act 1962 (WA). As he has a personal interest in addition to his interest as executor and trustee, the court's approval is required under s 30(3) of the Trustees Act. 9 Edmund's application is supported by the Public Trustee. The parties have each filed submissions and agree that the application be determined on the papers. -- 3 of 8 -- [2026] WASC 171 MASTER RUSSELL Page 4 10 I have considered the affidavits and submissions filed and determined the application on the papers. For the following reasons, I am satisfied that the appropriation of the Kewdale Property by Edmund to himself in satisfaction of his entitlement under the will should be approved. Materials relied on 11 Edmund relies on an outline of submissions filed on 23 March 2026 and an affidavit sworn by him on 19 February 2026 (Karas Affidavit). 12 The Public Trustee relies on an outline of submissions filed on 1 February 2026 and an affidavit of Rhiarne Bruce affirmed on 31 March 2026 (Bruce Affidavit). Applicable principles 13 Section 30 of the Trustees Act relevantly provides: 30. Property, miscellaneous powers as to (1) Every trustee, in respect of any property for the time being vested in him, may — … (k) appropriate any part of the property in or towards satisfaction of any legacy payable thereout, or in or towards satisfaction of any share of the trust property, (whether settled, contingent or absolute) to which any person is entitled, and for that purpose value the whole or any part of the property in accordance with section 50; but — (i) the appropriation shall not be made so as to affect adversely any specific gift; and (ii) before any such appropriation is effectual, notice thereof shall be given to all persons of full age and full mental capacity who are interested in the appropriation, and to the parent or guardian of any infant who is interested in the appropriation, and to the person having the care and management of the estate of any -- 4 of 8 -- [2026] WASC 171 MASTER RUSSELL Page 5 person who is not of full mental capacity, and any such person may, within one calendar month after receipt of the notice, or, where the person to whom notice has been given is out of the jurisdiction, within such extended period as the Court may, on the application of the trustee or of any person interested, allow, apply to the Court to vary the appropriation, and the appropriation shall be conclusive save as otherwise directed by the Court; … (3) Nothing in subsection (1)(k) shall be read as requiring a trustee to give to himself, in some other capacity, notice of an appropriation; but, where a trustee would, but for this subsection, be obliged to give to himself such a notice, the appropriation is not effectual until it has been approved by the Court, on the ex parte application of the trustee or otherwise. 14 The nature of a trustee's or personal representative's statutory power of appropriation, the operation of s 30(1)(k) of the Trustees Act, and the principles that apply to an application for the court's approval pursuant to s 30(3) were considered by EM Heenan J in Tagliaferri v Tagliaferri.1 I have applied the relevant principles in my determination of the application. It is not necessary for me to repeat them. 15 In this case, one of the beneficiaries, Kamila, is a represented person and, as such, a person under disability as that term is defined in O 70 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC). The provisions of O 70 r 10 and r 11 RSC do not apply to an application under s 30(3) of the Trustees Act. However, the underlying principles of the court's role in scrutinising and protecting the interests of persons under a disability remain. It is not necessary for the court to be satisfied that the appropriation proposed is for Kamila's benefit, but I must be satisfied that it is not adverse to her interests in any material way.2 1 Tagliaferri v Tagliaferri [2013] WASC 321 (Tagliaferri). 2 Tagliaferri [6] - [11], [51]. -- 5 of 8 -- [2026] WASC 171 MASTER RUSSELL Page 6 Relevant factual background 16 The following relevant factual background and the context in which the application is made is derived from the uncontested evidence in the Karas Affidavit. 17 As noted, Teresa died on 29 April 20243 leaving a will dated 11 October 2019, appointing Edmund as executor and trustee. A copy of the will and grant of probate is attached to the Karas Affidavit.4 18 By cl 5 of her will, Teresa left the residue of her estate to Edmund and Kamila as tenants in common in the following shares: (a) sixty percent (60%) to Edmund; and (b) forty percent (40%) to Kamila. 19 Kamila's share under the will is to be held on trust by the Public Trustee.5 20 On 18 March 2021, orders were made by the State Administrative Tribunal appointing the Public Trustee as plenary administrator of Kamila's estate.6 21 The statement of assets and liabilities filed for the purpose of the probate application estimated the net value of the estate at the date of Teresa's death to be $814,208.7 This includes the Kewdale Property with an estimated value of $530,000 and cash at bank of $284,208. 22 The Kewdale Property was valued most recently on 19 November 2025, shortly before the application was filed, at $925,000.8 23 As at the date of the Karas Affidavit, 19 February 2026, the approximate value of the estate is $1,167,394.75.9 Edmund's estimated entitlement (60%) is $700,436.85 and Kamila's (40%) is $466,957.90.10 These amounts may vary depending on the amount required to settle any estate expenses. 3 Karas Affidavit [4], 'EDK-2'. 4 Karas Affidavit [1], [5], [6], 'EDK-1'. 5 Karas Affidavit [11], 'EDK-1', cl 5.3. 6 Karas Affidavit [12], 'EDK-3'; Bruce Affidavit [3], 'RB1'. 7 Karas Affidavit [15], 'EDK-4'. 8 Karas Affidavit [17], 'EDK-6'. 9 Karas Affidavit [18]. 10 Karas Affidavit [19]. -- 6 of 8 -- [2026] WASC 171 MASTER RUSSELL Page 7 24 On 21 January 2026, Edmund's solicitors gave notice of the proposed appropriation to the Public Trustee as plenary administrator of Kamila's estate.11 On 6 February 2026, the Public Trustee, in that capacity, provided its written consent to the proposed appropriation.12 25 The Kewdale Property has been the family home for many years. Teresa and her late husband (Edmund's and Kamila's father) lived there for over 20 years. Edmund lived in the family home for 15 years and has since returned and now resides there. Since Teresa's death, he has paid all rates and utilities for the Kewdale Property from his own funds.13 He would like the Kewdale Property to remain in the family and to continue living there as his permanent residence.14 Determination 26 Appropriation of the Kewdale Property to Edmund will allow the property to stay in the family. It would otherwise have to be sold, and the costs associated with its sale would reduce the amount available for distribution to both Edmund and Kamila. 27 If the appropriation of the Kewdale Property to him is approved, Edmund has undertaken that, after payment of any remaining estate expenses, he will pay the shortfall of Kamila's 40% share from his own funds so that her full entitlement may be paid to the Public Trustee to be held on trust for her as provided in the will.15 28 As such, I am satisfied that the proposed appropriation of the Kewdale Property to Edmund would not be adverse to Kamila's interests. She will still receive her full entitlement under the will, with the shortfall being funded by Edmund in his personal capacity. 29 A valuation of the Kewdale Property has been provided by a licensed valuer, which provides a market value of $925,000 as at 19 November 2025. Given the proximity of the valuation to the date of the application, I consider it unlikely there would be any material variation in the value. 30 For the purposes of the appropriation, the Kewdale Property should be treated as having a value of $925,000 at the date of the appropriation, which shall be treated as 19 November 2025. 11 Karas Affidavit [22], 'EDK-7'. 12 Karas Affidavit [23], 'EDK-8'. 13 Karas Affidavit [24] - [29], 'EDK-9'. 14 Karas Affidavit [30] - [31]. 15 Karas Affidavit [32] - [33]. -- 7 of 8 -- [2026] WASC 171 MASTER RUSSELL Page 8 31 I consider it is appropriate that the costs of the application, including the valuation, be in the administration of the estate to be paid on a solicitor and client basis. Conclusion and orders 32 For these reasons, I make the following orders: 1. Pursuant to s 30(1)(k) and s 30(3) of the Trustees Act 1962 (WA), appropriation by the plaintiff, Edmund David Karas, to himself of the property situate and known as [Address and title information redacted] (Property) in satisfaction of his share of the residue of the estate of Teresa Karas, late of [redacted] (Estate) is approved by the Court. 2. For the purposes of the appropriation approved pursuant to order 1, the Property shall be treated as having a value of $925,000 at the date of the appropriation, which shall be treated as being 19 November 2025. 3. The costs of the Application, including the costs of the valuation of the Property, shall be costs in the administration of the Estate, to be paid out of the Estate on a solicitor and client basis. 4. Liberty to apply. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SC Associate to Master Russell 4 MAY 2026 -- 8 of 8 --