Visevic v Kashian [2017] NSWSC 578

Supreme Court New South Wales

Medium Neutral Citation: Visevic v Kashian [2017] NSWSC 578 Hearing dates: On the papers Decision date: 12 May 2017 Before: Stevenson J Decision: Advice given as set out at [60] Catchwords: TRUSTS AND TRUSTEES – JUDICIAL ADVICE – whether plaintiff as executor of will would be justified in consenting to defendants withdrawing from proceedings on basis of there being no order as to costs Legislation Cited: Succession Act 2006 (NSW) Trustee Act 1925 (NSW) Cases Cited: One.Tel Limited v Commissioner of Taxation (2000) 101 FCR 548; FCA 270 Re Minster for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Category: Procedural and other rulings Parties: Vera Visevic (Plaintiff/Applicant) Kegan Kashian (First Defendant) Vicki Kashian (Second Defendant) Representation: Counsel: M K Condon SC (Plaintiff/Applicant)

Solicitors: Mills Oakley Lawyers (Plaintiff/Applicant) File Number(s): SC 2016/284137

Judgment 1. The plaintiff, Ms Vera Visevic, a solicitor and partner of Mills Oakley Lawyers, is named as executor in a will of Mr Alexander McDougall made on 10 March 2014. By the will, Mr McDougall left his estate (valued at some $5 million) to five charities. Mr McDougall died on 31 January 2016. 2. In the circumstances that I describe below, on 22 September 2016, Ms Visevic commenced these proceedings seeking a grant of probate in respect of the 2014 will against the defendants, Mr Kegan and Mrs Vicki Kashian. 3. Ms Visevic was obliged to take this step because Mr and Mrs Kashian, on 9 March 2016 and again on 6 September 2016, lodged a caveat requiring that no grant of probate should be made "unless we are given the opportunity to be heard on the question of whether a declaration as to the Court's satisfaction under s 8 of the Succession Act 2006 (NSW) [("the Act")] should be made in respect of a document made by the deceased" (being a draft will that Ms Visevic arranged to have prepared on 22 January 2016, in the circumstances to which I refer below). 4. On 19 December 2016, Mr and Mrs Kashian, through their solicitor, offered (on a "without prejudice except as to costs" basis) to "withdraw from the proceedings and lift the caveat on the basis that each party bears their own costs of the proceedings to date". 5. On 23 December 2016, Ms Visevic was appointed executor of Mr McDougall's estate pendent lite. 6. Now, by notice of motion filed on 13 April 2017, Ms Visevic seeks advice, pursuant to s 63 of the Trustee Act 1925 (NSW) that she would be justified in accepting the offer referred to in [4].