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

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

The executor would not be justified in accepting the present offer because, although a settlement giving Michelle and Wayne equal shares in the property was supportable, the proposed restrictions on severance of the joint tenancy and on statutory sale placed too high a price on security and could become burdens on Wayne if he required institutional care, needed to realise capital, preferred alternative accommodation, or if he and Michelle fell out. Wayne needed capital portability and the ability, through an appropriate mechanism, to realise his interest where it was in his best interests.

Jurisdiction
Australia
Judgment Date
28 August 2013
Procedural Posture
Application for Judicial Advice by an Executor Under Trustee Act 1925 S 63 / Ex Tempore Judgment
Outcome
The advice of the Court is that the executor would not be justified in accepting the settlement offer in its present terms.
Legal Topics
['judicial Advice to Executor' 'compromise of Claims Against Estate' 'family Provision' 'constructive Trust' 'life Tenancy' 'joint Tenancy and Severance' 'statutory Sale Under Conveyancing Act 1919 S 66 G']
['succession' 'trusts and Estates' 'equity'] ['judicial Advice to Executor' 'compromise of Claims Against Estate' 'family Provision' 'constructive Trust' 'life Tenancy' 'joint Tenancy and Severance' 'statutory Sale Under Conveyancing Act 1919 S 66 G']

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Procedural Posture

Application for Judicial Advice by an Executor Under Trustee Act 1925 S 63 / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the executor would be justified in accepting the joint offer of compromise made by Michelle Cooper and Wayne McCormick to settle proceedings against the estate.' "Whether the proposed settlement sufficiently protected Wayne McCormick's future accommodation, care and capital interests." 'Whether provisions preventing severance of a joint tenancy or preventing a statutory sale application under Conveyancing Act 1919 s 66G should be accepted by the executor.']

Ratio Decidendi

The executor would not be justified in accepting the present offer because, although a settlement giving Michelle and Wayne equal shares in the property was supportable, the proposed restrictions on severance of the joint tenancy and on statutory sale placed too high a price on security and could become burdens on Wayne if he required institutional care, needed to realise capital, preferred alternative accommodation, or if he and Michelle fell out. Wayne needed capital portability and the ability, through an appropriate mechanism, to realise his interest where it was in his best interests.

Court Disposition

The advice of the Court is that the executor would not be justified in accepting the settlement offer in its present terms.

Orders

  • ['The executor would not be justified in accepting the present terms of the joint offer.' 'Clauses 7(c) and 7(d) of the current joint proposal are not acceptable to the Court.' 'Clauses 7(e) and 7(f) should be clarified to make clear that Wayne can realise his share consistently with rights under Conveyancing Act s...