//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 561
Supreme Court of NSW
2026-05-20
Kunc J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: The application of Karen Michelle McSwain; In the matter of the Estate of George Arthur Crack [2026] NSWSC 561
Hearing dates: 8 and 20 May 2026
Date of orders: 20 May 2026
Decision date: 20 May 2026
Jurisdiction: Equity
Before: Kunc J
Decision: Judicial advice given
Catchwords: SUCCESSION — Trusts and trustees — Judicial advice — No issue of principle — Trustee Act 1925 (NSW), s 6
Legislation Cited: Trustee Act 1925 (NSW)
Category: Principal judgment
Parties: Karen Michelle McSwain (First plaintiff)
Peter Thomas McSwain (Second plaintiff)
Representation: Counsel: T Catanzariti (Plaintiff)
Solicitors: Melville & Hicks (Plaintiff)
File Number(s): 2026/00189854
The plaintiff applicants are the executors of the estate of the late George Crack. They are the defendants in a family provision claim brought by Ms Deborah Weyrich against the estate. There is no dispute that Ms Weyrich, as one of Mr Crack's three children, is an eligible person to bring the claim.
This is a proper matter for judicial advice under s 63 of the Trustee Act 1925 (NSW). By an Amended Summons filed in Court today, the issue upon which advice is sought is whether the applicants, as executors and defendants to the claim, would be justified in not accepting an of settlement that has been made on behalf of Ms Weyrich by letter from her solicitors dated 12 May 2026 and then continuing to defend the claim.
The materials relied upon include a confidential memorandum of advice prepared by Ms T Catanzariti of Counsel. Ms Catanzariti is an acknowledged expert in the field of family provision law. Her advice concludes that the applicants would be justified in not accepting the offer and continuing to defend the claim.
Ms Catanzariti’s advice, in my respectful opinion, appropriately balances consideration of the issues of Ms Weyrich’s prospects of obtaining an order for provision; the obligation of the applicants as executors to uphold Mr Crack’s will; the reasons why Mr Crack structured the will in the way he did in relation to Ms Weyrich; and, the accepted obligation of the applicants to act reasonably, and to prevent waste, including to compromise reasonable claims against Mr Crack’s estate.
Having regard to Ms Catanzariti's advice and the other material before the Court, the Court is satisfied that this is an appropriate case for the advice to be given, subject only to the qualification that it should be expressed to apply only until any further offer of settlement is made on behalf of Ms Weyrich which is to substantially different effect to the offer. If such a further offer is made, the applicants will have to consider it on its merits, including the extent to which it differs from the offer.
**********