Mackin v Roger Belmonte as executor of the estate of the late Doris Hilda Mackin; Kylie Ann Mackin v Roger Belmonte [2015] NSWSC 1848

Mackin v Roger Belmonte as executor of the estate of the late Doris Hilda Mackin; Kylie Ann Mackin v Roger Belmonte [2015] NSWSC 1848

Although the judge considered that the deceased's will may well have been upheld because Michael Belmonte's needs manifestly outweighed those of the competing claimants, the Court approved the settlement because refusal would require Gary John Mackin's claim to proceed to hearing, causing the estate to incur costs likely to be not much less than the agreed provision and unlikely to be recoverable from Gary. It was therefore reasonable for the executor to settle the claim.

Jurisdiction
Australia
Judgment Date
27 November 2015
Procedural Posture
Family Provision Proceedings / Settlement Approval and Consent Orders
Outcome
Settlement approved; order for provision by way of payment of legacy to plaintiff.
Legal Topics
['family Provision' 'settlement of Proceedings' 'approval of Settlement' 'provision From Deceased Estate' 'costs']
['succession' 'equity'] ['family Provision' 'settlement of Proceedings' 'approval of Settlement' 'provision From Deceased Estate' 'costs']

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Procedural Posture

Family Provision Proceedings / Settlement Approval and Consent Orders

Legal Issues

  1. 1 ["Whether the Court should approve the settlement of Gary John Mackin's family provision proceedings and make consent orders for provision from the estate of Doris Hilda Mackin." 'Whether the burden of further provision from the estate should be accepted despite the effect on the testamentary gift intended for Michael Belmonte.']

Ratio Decidendi

Although the judge considered that the deceased's will may well have been upheld because Michael Belmonte's needs manifestly outweighed those of the competing claimants, the Court approved the settlement because refusal would require Gary John Mackin's claim to proceed to hearing, causing the estate to incur costs likely to be not much less than the agreed provision and unlikely to be recoverable from Gary. It was therefore reasonable for the executor to settle the claim.

Court Disposition

Settlement approved; order for provision by way of payment of legacy to plaintiff.

Orders

  • ['By way of provision for the plaintiff Gary John Mackin from the estate of Doris Hilda Mackin, the plaintiff receive a lump sum legacy of $73,500.' "There be no order as to the plaintiff's costs of the proceedings to the intent that he bear his own costs." "The first defendant's costs of the proceedings on the...