Estate of Marocchi (Deceased)

Before the court is an application by a summons filed on 21 November 2024 (as amended by an amended summons filed in Court today). In light of s 114Q of the Family Law Act 1975 (Cth), the names of the parties and others involved in the family law proceedings have been anonymised. The plaintiff, who is the administrator of the estate of the late David Marocchi who died intestate on 25 September 2021, applies for judicial advice under s 63 of the Trustee Act 1925 (NSW). The advice sought is whether the plaintiff would be justified in:

The court previously gave judicial advice to the plaintiff on the settlement of other legal proceedings brought against the plaintiff in accordance with prayer 1 of the summons by orders made on 3 March 2025.

The deceased was survived by M, and his three children: A and B, both of whom are minors, and another daughter by a prior de facto relationship (“C”). Without intending any disrespect, I will refer to the deceased’s children by these abbreviations.

As the deceased’s de facto relationship with M had ceased before his death, the beneficiaries of his intestate estate are his three children (A, B and C): Succession Act, s 127.

Notice of this application was provided to the three beneficiaries of the estate and also M, and they have indicated that they do not wish to be heard on the application.

The plaintiff is a solicitor with considerable experience in family law as well as wills and estates. A grant of letters of administration of the deceased’s estate in favour of the plaintiff was made by this court in February 2023. Details of the steps he has taken to determine the nature and value of the estate of the deceased and the background to the various claims against the estate are found in his affidavit sworn on 19 November 2024. In addition, the court has the benefit of advice from counsel as to the two matters on which judicial advice is sought. It is apparent from the plaintiff’s affidavit that he has encountered a number of difficulties in determining the nature and value of the estate due to the issues referred to in his affidavit, which has contributed to the delay in resolving the Family Law proceedings.

Under s 63 of the Trustee Act, a trustee may apply to the court for an opinion, advice or direction on, relevantly, any question respecting the management or administration of the trust property. The plaintiff, as the administrator of the estate, is a trustee for the purposes of s 63: Trustee Act, s 5 (definition of ‘trustee’).

An administrator of an intestate estate has the same rights and liabilities, and is accountable in the same way, as if the person was the executor of the deceased person: Probate and Administration Act 1898 (NSW), s 74A. The duties of an executor (and an administrator) include identifying and taking steps to secure the assets of the estate and consistently with this, defending the estate from claims that are defensible, including family provision claims: Munro v Munro [2017] SASC 48 at [22]-[25]; GE Dal Pont, Law of Succession (3rd ed, 2021, LexisNexis) at [12.12] and [12.25]. However, as noted by Professor Dal Pont in Law of Succession at [12.15], in defending a claim, an executor (or administrator) must exercise a judgment as to the legitimacy of the claim and make every effort to avoid costly litigation if that can be avoided.

The two matters on which judicial advice is sought concern claims against the estate.

The first, the Family Law proceedings, is a claim in proceedings for a property settlement brought by M following the breakdown of her de facto relationship with the deceased pursuant to s 90SM of the Family Law Act 1975 (Cth). The plaintiff deposes that the parties have gone to great lengths to reach agreement so that the matter can be settled prior to hearing, including six separate attempts at mediation. The matter has now been listed for a hearing of two days later this year and the pre-trial directions require the plaintiff to file and serve his affidavits and supporting documents in June 2025. The plaintiff has provided an estimate of the costs to the estate of that hearing and the costs in the matter to date.

The court has been provided with a copy of the most recent settlement offer which is one made by M’s solicitors dated 18 June 2024 (the Offer) and opinions provided to the plaintiff by Robert Lethbridge of Senior Counsel dated 16 September 2024 and by Mr Awais Ahmad of Counsel dated 26 May 2025, each of which is a confidential exhibit. I have carefully considered those opinions together with the observations made by the plaintiff in his affidavit which, taken together, explain the history of the dispute and the reasons for the position put on behalf of the estate by the Further Amended Response which was filed by the plaintiff in the Family Law proceedings. I am satisfied based on those materials that the plaintiff is justified in rejecting the Offer and in prosecuting the Further Amended Response.

The second matter on which judicial advice is sought is the continued defence of the Family Provision proceedings. This is a claim by each of M, A and B for an order that provision be made for their maintenance, education and advancement in life under s 59 of the Succession Act out of the deceased’s estate. In the case of A and B, the claim is for additional provision over and above their existing entitlement to a one-third share each. The defendants are the plaintiff and C (who is entitled to a one-third share of the estate).

The court has the benefit of an opinion provided to the plaintiff by Mr John Armfield of Counsel dated 10 February 2025, which is also a confidential exhibit, which recommends the continued defence of the proceedings for the reasons given in the opinion. The plaintiff estimates his costs of defending the proceedings, assuming the matter proceeds to trial to be between $80,000-$100,000.

The Family Provision proceedings are at an early stage and will not be capable of resolution until the Family Law proceedings have been finalised because that will remove one of the main areas of uncertainty as to the identity of the assets of the estate.

I agree with the advice of Mr Armfield referred to above that the plaintiff is justified at this time in continuing to defend the Family Provision proceedings. However, this is subject to an important qualification. I note that this court has on many occasions observed that it is important in family provision litigation for the parties to explore settlement of the dispute before hearing, eg. Bates v Cooke (No 2) [2014] NSWSC 1322 at [31]. As was observed by Hallen J in McDonald v O’Connor (No 2) [2019] NSWSC 344 at [42]:

Accordingly, the plaintiff will need regularly to address the strength or otherwise of the case brought by the plaintiffs in the Family Provision proceedings and consider the extent to which he should take an active role as a defendant in the proceedings given that the three beneficiaries of the estate are parties and can be expected to advance their own interests in the proceedings.

I accept the plaintiff’s submission that it is appropriate that his costs in seeking the judicial advice should be paid out of the estate on an indemnity basis.

For these reasons, the court will make the following orders and notations: