Application of Doolan [2023] NSWSC 320

Application of Doolan [2023] NSWSC 320

On the facts disclosed or assumed, the risk of a claim against the deceased’s estate for professional negligence stemming from his legal practice is remote. The executors have no notice of any such claim, the relevant period for which professional liability was not capped occurred at least 15 years prior, the deceased was a careful practitioner with no claim history, and the proportion of matters at risk is very small. Therefore, having regard to the statutory and equitable protections, and given the absence of any known claim or concrete risk, the executors are justified in distributing the entirety of the estate without retaining any amount by way of provision or security.

Parties
First Plaintiff / Executor of the Estate of the Late John Andrew Barkus: Paul Andrew Doolan; Second Plaintiff / Executor of the Estate of the Late John Andrew Barkus: Victoria Anne Ball
Jurisdiction
Australia
Judgment Date
05 April 2023
Procedural Posture
Application for Judicial Advice Under Trustee Act 1925 (nsw) S 63 / Principal Judgment
Outcome
Plaintiffs (executors) advised and directed that they would be justified in distributing the entirety of the estate of the late John Barkus without retention for potential contingent liabilities. Plaintiffs’ costs ordered to be paid out of the estate on the indemnity basis.
Legal Topics
Judicial Advice to Executors, Distribution of Estate, Contingent Liabilities, Professional Indemnity Insurance, Executor's Protection, Statutory Construction, Family Law Financial Agreements
Equity Succession Law Trusts and Estates Judicial Advice to Executors Distribution of Estate Contingent Liabilities Professional Indemnity Insurance Executor's Protection +2 more

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Parties

Paul Andrew Doolan

First Plaintiff / Executor of the Estate of the Late John Andrew Barkus

Victoria Anne Ball

Second Plaintiff / Executor of the Estate of the Late John Andrew Barkus

Procedural Posture

Application for Judicial Advice Under Trustee Act 1925 (nsw) S 63 / Principal Judgment

Legal Issues

  1. 1 Whether the executors would be justified in distributing the entirety of the deceased's estate without retaining any amount by way of provision or security notwithstanding potential contingent liabilities arising from the deceased's legal practice or other claims
  2. 2 What constitutes 'notice' of a claim within the meaning of s 92 Probate and Administration Act 1898 (NSW) and s 63(2) Trustee Act 1925 (NSW)
  3. 3 Obligations of executors with respect to contingent liabilities

Ratio Decidendi

On the facts disclosed or assumed, the risk of a claim against the deceased’s estate for professional negligence stemming from his legal practice is remote. The executors have no notice of any such claim, the relevant period for which professional liability was not capped occurred at least 15 years prior, the deceased was a careful practitioner with no claim history, and the proportion of matters at risk is very small. Therefore, having regard to the statutory and equitable protections, and given the absence of any known claim or concrete risk, the executors are justified in distributing the entirety of the estate without retaining any amount by way of provision or security.

Court Disposition

Plaintiffs (executors) advised and directed that they would be justified in distributing the entirety of the estate of the late John Barkus without retention for potential contingent liabilities. Plaintiffs’ costs ordered to be paid out of the estate on the indemnity basis.

Orders

  • Pursuant to s 63 Trustee Act 1925 (NSW), the Court advises and directs that the plaintiffs would be justified in distributing the entirety of the estate of the late John Barkus without retaining any amount by way of provision or security, notwithstanding potential contingent liability arising from the deceased’s...
  • Plaintiffs’ costs of and incidental to the application for judicial advice, calculated on the indemnity basis, be paid out of the estate.