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 (No. 2) [2013] NSWSC 1588

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 (No. 2) [2013] NSWSC 1588

The amended settlement was approved because it was otherwise in the best interests of the parties for the reasons given in the previous judgment and it addressed the earlier concern about portability of Wayne's capital; the remaining concern about Michelle's potential conflict if appointed Wayne's financial manager could be managed by putting the Court's reasons before the Tribunal, by possible Tribunal conditions requiring referral to the NSW Trustee and Guardian, and by liberty to apply.

Jurisdiction
Australia
Judgment Date
31 October 2013
Procedural Posture
Succession Proceedings Involving an Application for Judicial Advice by an Executor and Approval of Settlement for a Person Under Legal Incapacity / Consequential Orders; Approval of Settlement by Consent Under Civil Procedure Act 2006, S 76
Outcome
Settlement approved under Civil Procedure Act 2006, s 76; orders made by consent; statement of claim in proceedings 2013/30300 otherwise dismissed.
Legal Topics
['judicial Advice to Executor' 'approval of Settlement for Person Under Legal Incapacity' 'family Provision Settlement' 'financial Manager Conflict of Interest' 'severance of Joint Tenancy' 'extension of Time for Succession Claim']
['succession' 'equity' 'civil Procedure' 'guardianship and Financial Management'] ['judicial Advice to Executor' 'approval of Settlement for Person Under Legal Incapacity' 'family Provision Settlement' 'financial Manager Conflict of Interest' 'severance of Joint Tenancy' 'extension of Time for Succession Claim']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Succession Proceedings Involving an Application for Judicial Advice by an Executor and Approval of Settlement for a Person Under Legal Incapacity / Consequential Orders; Approval of Settlement by Consent Under Civil Procedure Act 2006, S 76

Legal Issues

  1. 1 ['Whether the amended settlement should be approved on behalf of Wayne under Civil Procedure Act 2006, s 76 because of his disability.' "Whether the settlement adequately addressed the Court's earlier concern about portability of Wayne's capital if estate realty were sold and substitute realty purchased." "Whether Michelle's possible appointment as Wayne's financial manager would create a conflict of interest in decisions about severing the joint tenancy or selling the estate realty or substitute realty, and what mechanisms could address that conflict."]

Ratio Decidendi

The amended settlement was approved because it was otherwise in the best interests of the parties for the reasons given in the previous judgment and it addressed the earlier concern about portability of Wayne's capital; the remaining concern about Michelle's potential conflict if appointed Wayne's financial manager could be managed by putting the Court's reasons before the Tribunal, by possible Tribunal conditions requiring referral to the NSW Trustee and Guardian, and by liberty to apply.

Court Disposition

Settlement approved under Civil Procedure Act 2006, s 76; orders made by consent; statement of claim in proceedings 2013/30300 otherwise dismissed.

Orders

  • ["An order pursuant to s 58(2) of the Succession Act extending the time for the bringing of the Plaintiff's claim in proceedings no 2013/114880 up to and including 15 April 2013." 'In lieu of specified provisions under the will of the late Colin Winsor McCormick, Michelle and Wayne receive the whole of estate realty...