Application of Lord and Lord [2024] NSWSC 317

Application of Lord and Lord [2024] NSWSC 317

The plaintiffs were justified in selling the Lamont Crescent property because the elder children's entitlements had vested and they had requested payment, the executors had power to sell estate property to satisfy those entitlements, the estate lacked sufficient cash after the Hub 24 fund was paid directly to beneficiaries rather than to the estate, and the prior notation concerning appropriation of the Lamont Crescent property was not an enforceable order and was based on facts that did not occur.

Jurisdiction
Australia
Judgment Date
28 March 2024
Procedural Posture
Application for Judicial Advice Pursuant to S 63 of the Trustee Act 1925 (nsw) / Summons Filed 7 December 2023; Application Determined on 28 March 2024
Outcome
Application granted; judicial advice given that the plaintiffs are justified in selling the Lamont Crescent property, with costs payable out of the estate on the indemnity basis.
Legal Topics
['judicial Advice' 'administration of Deceased Estate' "executors' Powers of Sale" 'family Provision Orders' 'contingent Beneficiaries']
['succession' 'trusts and Trustees' 'equity'] ['judicial Advice' 'administration of Deceased Estate' "executors' Powers of Sale" 'family Provision Orders' 'contingent Beneficiaries']

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Procedural Posture

Application for Judicial Advice Pursuant to S 63 of the Trustee Act 1925 (nsw) / Summons Filed 7 December 2023; Application Determined on 28 March 2024

Legal Issues

  1. 1 ['Whether the executor trustees were justified in selling the Lamont Crescent property notwithstanding the notation in the family provision orders made in Equity proceedings 2019/00246124.' 'If not, whether the executor trustees were justified in mortgaging the Lamont Crescent property to secure a capital amount to pay out the entitlements of the elder children.']

Ratio Decidendi

The plaintiffs were justified in selling the Lamont Crescent property because the elder children's entitlements had vested and they had requested payment, the executors had power to sell estate property to satisfy those entitlements, the estate lacked sufficient cash after the Hub 24 fund was paid directly to beneficiaries rather than to the estate, and the prior notation concerning appropriation of the Lamont Crescent property was not an enforceable order and was based on facts that did not occur.

Court Disposition

Application granted; judicial advice given that the plaintiffs are justified in selling the Lamont Crescent property, with costs payable out of the estate on the indemnity basis.

Orders

  • ['The plaintiffs are justified in selling the estate realty situated at and known as 18 Lamont Crescent, West Wyalong (folio identifier 1008/753135), notwithstanding the notation in the family provision orders made in Equity proceedings 2019/00246124.' 'The costs of the application be paid out of the estate of the...