Visevic v Kashian [2017] NSWSC 578

Visevic v Kashian [2017] NSWSC 578

The plaintiff would be justified in accepting the defendants' offer because the outcome of any costs application if the defendants withdrew was uncertain, acceptance would practically end the proceedings, avoid the risk of the defendants succeeding on a s 8 Succession Act argument or obtaining costs, and avoid further irrecoverable costs to the estate.

Jurisdiction
Australia
Judgment Date
12 May 2017
Procedural Posture
Application for Judicial Advice by Executor Pendent Lite in Probate Proceedings / Notice of Motion Filed 13 April 2017, Heard on the Papers
Outcome
Advice given that the plaintiff would be justified in compromising the proceedings on the proposed basis.
Legal Topics
['judicial Advice' "executor's Compromise of Probate Proceedings" 'caveat Against Grant of Probate' 'informal Will Under S 8 of the Succession Act 2006 (nsw)' 'no Order as to Costs']
['trusts and Trustees' 'succession' 'probate' 'costs'] ['judicial Advice' "executor's Compromise of Probate Proceedings" 'caveat Against Grant of Probate' 'informal Will Under S 8 of the Succession Act 2006 (nsw)' 'no Order as to Costs']

Case Brief

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Procedural Posture

Application for Judicial Advice by Executor Pendent Lite in Probate Proceedings / Notice of Motion Filed 13 April 2017, Heard on the Papers

Legal Issues

  1. 1 ["Whether the plaintiff, as executor of the will, would be justified in accepting the defendants' offer to withdraw from the probate proceedings and lift the caveat on the basis that each party bear their own costs." 'What costs consequences might follow if the defendants simply withdrew from proceedings without a compromise.' 'Whether accepting the offer would reasonably protect the estate from further costs and litigation risk, including any argument under s 8 of the Succession Act 2006 (NSW).']

Ratio Decidendi

The plaintiff would be justified in accepting the defendants' offer because the outcome of any costs application if the defendants withdrew was uncertain, acceptance would practically end the proceedings, avoid the risk of the defendants succeeding on a s 8 Succession Act argument or obtaining costs, and avoid further irrecoverable costs to the estate.

Court Disposition

Advice given that the plaintiff would be justified in compromising the proceedings on the proposed basis.

Orders

  • ['Pursuant to s 63 of the Trustee Act, I advise the plaintiff that she would be justified in compromising these proceedings on the basis that the defendants withdraw their opposition to the grant of probate in respect of the will of the late Alexander McDougall dated 10 March 2014, and on the basis that there be no...