Wilcox v Chapple [2015] NSWSC 2154

Wilcox v Chapple [2015] NSWSC 2154

Because the proposed compromise was consented to by the relevant parties, including Benjamin Ian Alexander Wilcox after filing a submitting appearance, and because an additional legacy would ordinarily be borne by the residue before division, the executor was justified in consenting to the compromise on terms that the plaintiff receive an additional legacy of $850,000 borne equally by the residuary shares.

Jurisdiction
Australia
Judgment Date
18 December 2015
Procedural Posture
Family Provision Proceedings and Application for Judicial Advice / Notice of Motion for Joinder and Judicial Advice; Consent Orders
Outcome
Judicial advice given; Benjamin Ian Alexander Wilcox joined as second defendant; consent orders made.
Legal Topics
['family Provision' 'judicial Advice to Executor' 'compromise of Proceedings' 'estate Costs' 'release of Claims Against Estate and Notional Estate']
['succession' 'equity' 'trusts'] ['family Provision' 'judicial Advice to Executor' 'compromise of Proceedings' 'estate Costs' 'release of Claims Against Estate and Notional Estate']

Case Brief

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Procedural Posture

Family Provision Proceedings and Application for Judicial Advice / Notice of Motion for Joinder and Judicial Advice; Consent Orders

Legal Issues

  1. 1 ['Whether the executor would be justified in compromising the family provision proceedings on the proposed terms.' 'Whether the additional legacy of $850,000 should be borne equally by the two shares of the residuary estate.' 'Whether Benjamin Ian Alexander Wilcox should be joined as second defendant so as to be bound by the decision.' 'Whether the release contained in the deed of settlement and release should be approved under Succession Act, s 95.']

Ratio Decidendi

Because the proposed compromise was consented to by the relevant parties, including Benjamin Ian Alexander Wilcox after filing a submitting appearance, and because an additional legacy would ordinarily be borne by the residue before division, the executor was justified in consenting to the compromise on terms that the plaintiff receive an additional legacy of $850,000 borne equally by the residuary shares.

Court Disposition

Judicial advice given; Benjamin Ian Alexander Wilcox joined as second defendant; consent orders made.

Orders

  • ['Pursuant to Trustee Act, s 63, the first defendant executor would be justified in consenting to orders in the substantive proceedings that the plaintiff receive, by way of provision out of the estate and in addition to the provision made under the will, an additional legacy of $850,000, such legacy to be borne by...