Application by John William Kellert [2017] NSWSC 897

Application by John William Kellert [2017] NSWSC 897

Given the Family Court orders, the lack of specific gift of the mausoleum space in the Will, and agreements/disclaimers among the deceased’s children, the executors are justified, by way of judicial advice, in treating the mausoleum space as subject to Family Court orders, selling or realising it, applying abatement to pay estate expenses, and dividing the net proceeds equally among five children who have not surrendered their interests.

Jurisdiction
Australia
Judgment Date
05 July 2017
Procedural Posture
Application for Judicial Advice / Hearing and Orders
Outcome
Application for judicial advice granted; orders made as per amended Summons.
Legal Topics
['judicial Advice' 'administration of Estates' 'interpretation of Trust Instrument' 'abatement of Gifts']
['equity' 'trusts and Estates'] ['judicial Advice' 'administration of Estates' 'interpretation of Trust Instrument' 'abatement of Gifts']

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Procedural Posture

Application for Judicial Advice / Hearing and Orders

Legal Issues

  1. 1 ['Whether the executors would be justified in treating the mausoleum space subject to Family Court orders.' 'Whether selling or realising the value of the mausoleum space is permissible.' 'Application of abatement to proceeds of sale for estate expenses.' 'Division of balance between eligible children.']

Ratio Decidendi

Given the Family Court orders, the lack of specific gift of the mausoleum space in the Will, and agreements/disclaimers among the deceased’s children, the executors are justified, by way of judicial advice, in treating the mausoleum space as subject to Family Court orders, selling or realising it, applying abatement to pay estate expenses, and dividing the net proceeds equally among five children who have not surrendered their interests.

Court Disposition

Application for judicial advice granted; orders made as per amended Summons.

Orders

  • ['Plaintiffs justified in treating mausoleum space per Family Court orders.' 'Plaintiffs justified in selling or realising the value of the mausoleum space.' 'Plaintiffs justified in applying abatement to proceeds as required.' 'Plaintiffs justified in dividing balance equally among Frances Maloof, Anthony Maloof,...