Mackin v Roger Belmonte as executor of the estate of the late Doris Hilda Mackin; Kylie Ann Mackin v Roger Belmonte

[2015] NSWSC 1848

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

27 November 2015

Date of orders:

27 November 2015

Decision date:

27 November 2015

Jurisdiction:

Equity

Before:

Brereton J

Decision:

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

Catchwords:

SUCCESSION – family provision – settlement of proceedings – approval of settlement.

Category:

Principal judgment

Parties:

In proceedings 2015/172383:
Gary John Mackin (plaintiff)
Roger Belmonte as executor of the estate of the late Doris Hilda Mackin (first defendant)
Kylie Ann Mackin (second defendant)
Daniel Sean Mackin (third defendant)

  In proceedings 2014/308387:
Kylie Ann Mackin (first plaintiff)
Daniel Sean Mackin (second plaintiff)
Roger Belmonte (first defendant)

Representation:

Counsel:
L Ellison SC (plaintiff)
G George (first defendant)
M Tang (second and third defendants)

 

Solicitors:

 

In proceedings 2015/172383:
Michael Atkinson & Associates (plaintiff)
Reimer Winter Williamson (first defendant)
Gerard Malouf & Partners (second and third defendants)

  In proceedings 2014/308387:
Gerard Malouf & Partners (plaintiffs)
Reimer Winter Williamson (defendant)

File Number(s):

2015/172383; 2014/308387

Judgment (ex tempore)

1. HIS HONOUR: The proceedings presently before the Court (2015/172383) are the second set of family provision proceedings brought in respect of the estate of the deceased Doris Hilda Mackin, who left a gross estate of approximately $500,000 and net of approximately $475,000, almost all of which was reflected in real property which she owned, worth in the order of $420,000. By her will – for reasons she stated in the will, in a statutory declaration made at the time of the will, and in a letter written at the time of making the will – the deceased made no provision for her son Gary Mackin, the present plaintiff. She gave the real property to which I have referred to her daughter's son – her grandson – Michael Belmonte, who suffers from cerebral palsy, is developmentally delayed, will never be independent and requires 24-hour care for his lifetime.

2. The plaintiffs in the first proceedings (2014/308387), Kylie Mackin and Daniel Mackin, the children of the present plaintiff Gary Mackin, brought proceedings for provision out of the estate, which were settled. Pursuant to that settlement, on 17 December 2014, Hallen J by consent made orders making provision for those plaintiffs by lump sum legacies of approximately $75,000 and $57,000 respectively out of the estate. The orders did not specifically provide for how the burden of the provision would be borne, but from the size of the estate it is inevitable that they will be borne principally by the gift of the house to Michael. The operation of those orders was stayed following the commencement of the present proceedings by Gary Mackin, although an application to set aside the orders was unsuccessful.

3. The current proceedings have been settled as between the parties, for a sum of $73,500 (inclusive of costs). Inevitably, the burden of that provision will be borne by the gift to Michael. That means that what ought to have been a benefit to Michael in the order of $420,000 will be reduced to approximately $225,000.

4. While none of the plaintiffs – in either proceedings – is at all well-off, none of them suffer from the handicaps and disabilities that affect Michael. As the orders have been made in the earlier proceedings on a final basis, they are beyond recall. The question is whether I should agree, as I am asked by the parties, to make the orders in the present case. To be very frank, I do not want to do so because I think this is a case in which it is very difficult to see how the testator's discretion miscarried at all. The needs of Michael manifestly outweigh those of the competing claimants. Even though the real property – which had been adapted for his special needs – has now been sold, still his needs for lifetime care, when his parents become unable to provide it, will vastly exceed in cost the capital sum that would have been available to him if the will had been entirely undisturbed. There is much to be said for the view that this is a case in which the will ought to have been upheld.

5. The fact remains that if I do not make these orders, Gary's claim will have to go to hearing, and the estate will incur the costs of that hearing. The executor has attempted, without success, to have the proceedings summarily dismissed. In these circumstances, one can see that it ought to be reasonable for an executor to cut its losses by settling the claim. Even assuming that the estate ultimately is totally successful, it will be unable to recover its costs from Gary, because he is more or less impecunious. The case will not be straightforward, because of its involvement, as second and third defendants, of its plaintiffs in the other proceedings. The costs that will be incurred by that exercise will be not much less than the $73,000 provision in question.

6. On that basis, and with considerable misgivings and enormous reluctance, I will make orders substantially in accordance with the short minutes.

7. By consent, the Court orders that:

1. 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.

2. There be no order as to the plaintiff's costs of the proceedings to the intent that he bear his own costs.

3. The first defendant's costs of the proceedings on the indemnity basis be paid from the estate of the deceased.

4. The second and third defendants' costs fixed in the sum of $6,390 be paid from the estate of the deceased.

8. In proceedings 2014/308387, the Court orders that the defendant's solicitor be released from the undertaking contained in paragraph 3 of the short minutes referred to in the order of 17 July 2015.

9. I direct that the transcript of these remarks be taken out and provided to the parties.

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Decision last updated: 08 December 2015