Application by Paul Andrew Brown as executor to estate of the late Joseph Kostyorz [2017] NSWSC 1774

Supreme Court New South Wales

Medium Neutral Citation: Application by Paul Andrew Brown as executor to estate of the late Joseph Kostyorz [2017] NSWSC 1774 Hearing dates: 11 December 2017 Decision date: 11 December 2017 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Pursuant to section 63 of the Trustee Act 1925 (NSW), I give the plaintiff, as executor and trustee of the estate of the late Joseph Kosytorz, judicial advice to the following effect: (a) that he would be justified in entering into the proposed settlement of the proceedings commenced in this Court by Mrs Domaradzka, including making the family provision order contemplated by that proposed settlement and including an interest component at the rate specified in s 84A of the Probate and Administration Act 1893 (NSW) if the settlement amount is not paid within three months; (b) that the executor would be justified in amending the summons in these proceedings to join as defendants each of Maria Costa and Andrew Domaradzka in order to have the Court determine as a matter of construction whether or not Erika and Andrew Cahill have validly exercised the right of election contained in clause 8 of the 2014 Will by way of their email dated 18 November 2015, and, if so, to determine the date upon which the valuations of the said property should be made for the purposes of clause 8 of the 2014 Will. (2) I give leave for the plaintiff to file and serve an amended summons in accordance with the above judicial advice joining the said residuary beneficiaries as defendants by 25 January 2018 (the defendants). (3) I direct that the defendants file and serve any written submissions on the two issues of construction by 22 February 2018 and that if the defendants seek to be heard on those submissions they notify the plaintiff accordingly. Otherwise, the issues of construction will be dealt with on the papers. (4) I list the matter for directions on 1 March 2018 on the basis that that directions hearing will be vacated if the defendants do not seek to be heard orally on any submissions they choose to file. (5) I order that costs of the proceedings seeking judicial advice be paid out of the estate of Joseph Kosytorz deceased on the indemnity basis. Catchwords: JUDICIAL ADVICE – Trustee Act 1925 (NSW) s 63 – Whether executor justified in entering into proposed settlement – Whether executor justified in commencing construction suit to determine whether beneficiaries have validly exercised a right of election to purchase part of the property forming the residuary estate as contemplated by a will and to determine date upon which valuations of that property should be made Legislation Cited: Civil Procedure Act 2005 (NSW) Probate and Administration Act 1893 (NSW), s 84A Succession Act 2006 (NSW) Trustee Act 1925 (NSW), ss 45, 63 Cases Cited: Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; [2004] HCA 7 Ashton v Pratt [2013] NSWCA 400 Hughes v NM Superannuation Pty Limited (1993) 29 NSWLR 653 Texts Cited: JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006) Category: Principal judgment Parties: Paul Andrew Brown as executor of the estate of Joseph Kosytorz (Plaintiff) Representation: Counsel: R W Tregenza (Plaintiff)