Wilcox v Chapple

[2015] NSWSC 2154

Supreme Court

New South Wales

Medium Neutral Citation:	Wilcox v Chapple [2015] NSWSC 2154
Hearing dates:	18 December 2015
Date of orders:	18 December 2015
Decision date:	18 December 2015
Jurisdiction:	Equity - Family Provision List
Before:	Brereton J
Decision:	Judicial advice given.
Catchwords:	SUCCESSION – family provision – judicial advice – whether executor justified in compromising proceedings – where all parties consent to terms of compromise.
Legislation Cited:	(NSW) Succession Act 2006, ch 3 (NSW) Trustee Act 1925, s 63
Category:	Procedural and other rulings
Parties:	Robert William Wilcox (plaintiff) John Francis Chapple (defendant)
Representation:	Counsel: B Miller (plaintiff) B Skinner (defendant)   Solicitors: Garland Hawthorn Brahe Solicitors (plaintiff) Brian Maker Newnhams Solicitors (defendant)
File Number(s):	2015/241706

Judgment (ex tempore)

1. HIS HONOUR: Patricia Anne Wilcox died on 19 August 2014 leaving a will dated 30 June 2014, probate of which was granted to the defendant John Chapple, a solicitor, on 12 September 2014. The deceased's estate comprised assets largely in the form of rural properties worth in total nearly $16 million, and liabilities of about $3 million, leaving a net estate in the order of $12-$13 million.

2. By her will, she left a number of the real properties and stock, plant and equipment located on them and businesses conducted from them to her husband Trevor John Parland. She left to one of her sons, Benjamin Ian Alexander Wilcox, a specific property which she was obliged to leave him as a result of a settlement of family provision proceedings brought by him against her first husband – his father. The rest and residue was given, as to a pecuniary legacy of $250,000 to an employee, another pecuniary legacy of $250,000 to the plaintiff Robert William Wilcox Junior, and the balance to her husband Trevor and her son Ben equally.

3. By summons filed on 18 August 2015, Robert William Wilcox Junior, known as "Robbie", claims additional provision out of the estate pursuant to (NSW) Succession Act 2006, ch 3.

4. The matter was referred for mediation. At the mediation were present the plaintiff and his solicitor, the defendant-executor with his counsel and solicitor, Ben with his solicitor and Trevor. The mediation resulted in a settlement, the substance of which was that, in addition to the legacy of $250,000, Robbie would receive an additional $850,000 and the estate would not pursue against Robbie the benefit of costs orders, worth about $275,000, which had been made in earlier proceedings concerning the estate of Ian Francis Sanderson. The settlement was subject to the executor obtaining judicial advice that he would be justified in entering into it, in circumstances where Ben did not consent to the $850,000 being borne equally by his and Trevor's shares of residue, but was prepared only to suffer approximately one-third of it to be borne by his share, leaving the other two-thirds to be visited on Trevor's share.

5. By notice of motion filed on 10 December 2015, the defendant executor seeks an order joining Ben as second defendant and advice pursuant to (NSW) Trustee Act 1925, s 63, that he would be justified in compromising these proceedings upon the terms to which I have referred, including that the additional legacy of $850,000 be borne equally by the two shares of the residuary estate.

6. Although at first it appeared that Ben was opposed to this course, he has, in response to the motion for judicial advice, filed a submitting appearance and expressly indicated through a letter from his solicitors that he now consents to the order being made on the basis that the burden be borne equally by both shares of residue. In those circumstances, there is not the slightest reason to hesitate in giving the executor the advice he seeks. In any event, ordinarily a legacy of this kind, one might anticipate, would be borne by the residue before division into whatever shares it was to be divided into.

7. The Court, therefore, orders that:

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

2. The first defendant's costs of and incidental to the motion be paid out of the estate on the indemnity basis.

8. Although it might be said that the necessity for advice was occasioned by the opposition of Benjamin Wilcox, it seems to me that the ordinary course on an application for advice where a trustee considers it necessary and where the trustee is justified in seeking such advice is that the costs be borne by the estate. As it is, prudently, desired that Benjamin Wilcox be bound by the decision and as he has filed a submitting appearance, I will also order that:

1. Benjamin Ian Alexander Wilcox be joined as second defendant.

The Court notes the document entitled "Consent Orders" signed by the solicitor for the plaintiff and the solicitor for the defendant, initialled by me, dated this day and placed with the papers. By consent, the Court further orders that:

2. By way of provision for the plaintiff Robert William Wilcox from the estate of Patricia Anne Wilcox, deceased, and in lieu of the provision made for him by clause 7(b) and (c) of the will of the deceased, the plaintiff receive a lump sum legacy of $1,100,000, such legacy not to bear interest if paid within 28 days of this order, but otherwise to bear interest at the rate prescribed under Probate and Administration Act s 84A for interest on unpaid legacies to the extent that it remains outstanding.

3. The costs of the plaintiff in the fixed sum of $25,000 inclusive of GST be paid out of the estate of the deceased.

4. The costs of the first defendant on the indemnity basis be paid out of the estate of the deceased.

5. Pursuant to Succession Act, s 95, the release contained in clause 3.1(b) of the deed of settlement and release dated 18 December 2015 between the plaintiff and the defendant be approved in relation to the whole of the estate and notional estate of the deceased and the Court notes that the parties have agreed that the estate forgives all debts owed to it by the plaintiff.

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Decision last updated: 22 September 2017