Michelle Cooper v Ian Anthony McCormack as executor of the estate of the late Colin Windsor McCormick Wayne McCormick v Ian Anthony McCormick as Executor of the estate of the late Colin Windsor McCormick [2013] NSWSC 1207

Supreme Court New South Wales

Medium Neutral Citation: Michelle Cooper v Ian Anthony McCormack as executor of the estate of the late Colin Windsor McCormick Wayne McCormick v Ian Anthony McCormick as Executor of the estate of the late Colin Windsor McCormick [2013] NSWSC 1207 Hearing dates: 16 August 2013 Decision date: 28 August 2013 Jurisdiction: Equity Division Before: Slattery J Decision: The advice of the Court is that the executor would not be justified in accepting the settlement offer. Catchwords: SUCCESSION - application for judicial advice by an executor under Trustee Act 1925 s 63 - proceedings against estate commenced by son and daughter of the deceased - son has intellectual disability and daughter is currently his primary carer - deceased's will provided a life tenancy in the deceased's property for his son subject to a right of limited occupation for his daughter - deceased's previous will gave the property to plaintiffs in equal shares - plaintiffs seek declaration that the executor holds the estate on constructive trust for them as tenants in common in equal shares - trust said to arise from conversations sister had with her parents before their death - in the alternative plaintiffs seek provisions out of the estate pursuant to Succession Act 2006 - plaintiffs made joint offer of compromise under which property passes to them as joint tenants and that joint tenancy cannot be severed during their lifetime - executor concerned that the offer does not sufficiently protect brother's future interests - small estate - significant legal costs of the proceedings incurred - executor's duties to uphold the will and compromise claims - executor not justified in accepting the offer in this form. Legislation Cited: Conveyancing Act 1919, s 66G Family Provision Act 1982 Succession Act 2006 Cases Cited: Application of Ferdinando Scali [2010] NSWSC 1254 Bartlett v Coomber [2008] NSWCA 100 In the Will of W.F. Lanfear (Deceased) (1940) 57 WN (NSW) McMahon v McMahon [1985] NSWSC (Unreported, Young J, 2 August 1985) Vasiljev v Public Trustee [1974] 2 NSWLR 497 Category: Principal judgment Parties: Plaintiff (2013/30300): Michelle Cooper Plaintiff (2013/114880): Wayne McCormick Defendant (2013/114880, 2013/30300): Ian Anthony McCormack as executor of the estate of the late Colin Windsor McCormick Representation: Counsel: Plaintiff (2013/114880): S K Hill Plaintiff (2013/30300): L Ellison SC Defendant: D Liebhold (2013/114880, 2013/30300) Solicitors: File Number(s): 2013/114880, 2013/30300