Director General, Community Services Directorate as Guardian for LN v LL
[2024] ACTSC 287
•20 September 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director General, Community Services Directorate as Guardian for LN v LL |
Citation: | [2024] ACTSC 287 |
Hearing Date: | 6-7 August 2024 |
Decision Date: | 20 September 2024 |
Before: | McWilliam J |
Decision: | (1) Pursuant to s 9(1) of the Family Provision Act 1969 (ACT), the time in which to commence a proceeding seeking family provision out of the estate of the deceased be extended to 23 August 2023. (2) Provision is to be made for LN, out of the estate of the deceased by a 100% share of the estate, clear of any estate liabilities, being distributed in favour of the plaintiff. (3) The Public Trustee and Guardian is appointed as trustee of any provision to LN made pursuant to order 2. (4) The costs of the application are to be paid out of the estate. (5) The parties have liberty to apply to the Court for further orders for the working out of orders 2 and 3. (6) If either party notifies chambers within 7 days of the making of the orders that a different costs order is sought, order 4 is stayed until further order. |
Catchwords: | SUCCESSION – FAMILY PROVISION – minor beneficiary –Public Trustee and Guardian Act 1985 (ACT), s 25 – whether Public Trustee and Guardian or private family member should be appointed to manage provision made out of estate |
Legislation Cited: | Court Procedures Rules2006 (ACT) r 1732(2) Family Provision Act 1969 (ACT) ss 8, 8(3), 9(1), 9(2), 9(4), 9A, 10 Public Trustee and Guardian Act 1985 (ACT) s 25 Wills Act 1968 (ACT) s 12A |
Cases Cited: | Bartlett v Coomber [2008] NSWCA 100 Daley v Donaldson [2022] NSWCA 96 In the Estate of Rummer [2017] ACTSC 277 Jones v Moylan (1997) 18 WAR 492 Morris v Zanki (1997) 18 WAR 260 Re Guskett (1947) VLR 212 Re L [2000] NSWSC 721 Richardson v Richardson [2022] ACTSC 363; 20 ACTLR 37 Roberts v Stern [2017] ACTSC 182 |
Parties: | Director General, Community Services Directorate as guardian for LN (Plaintiff) LL (Defendant) |
Representation: | Counsel M Pringle / L Sewell (Plaintiff) Self-represented (Defendant) |
| Solicitors Campbell & Co Lawyers (Plaintiff) Self-represented (Defendant) | |
File Number: | [redacted for privacy reasons] |
McWILLIAM J:
The application before the Court
1․The Director-General of the Community Services Directorate (Director-General) has brought an application on behalf of a young person in its care (referred to here as “LN”), whose birth mother (the deceased) has died. The application presently before the Court is for family provision to be made out of the estate of the deceased, pursuant to s 8 of the Family Provision Act 1969 (ACT) (FP Act).
2․The defendant is the executor of the deceased’s estate under the will. She is also one of the sisters of the deceased. She did not contest the plaintiff’s position that inadequate provision was made by the deceased’s will, nor did she contest that the entirety of the estate should be paid to the deceased’s son. Due to her family connection, the defendant’s name has also been anonymised as part of the measures taken to facilitate the protection of the child’s privacy in this judgment.
Issue for determination
3․Ultimately, the application for family provision was largely uncontested, save as to the identity of the trustee for the child and costs. The contested issue is whether the ACT Public Trustee and Guardian (PTG) should manage the provision to be made for the deceased’s son, or whether the defendant should be appointed to manage the interest on behalf of the deceased’s son (her nephew), to whom she remains very close. The appropriate orders to be made to dispose of the proceeding will depend upon the costs orders to be made and in particular, whether the plaintiff’s costs are to be paid out of the estate.
The Will
4․The terms of the will material to this dispute are as follows:
EXECUTOR(S) AND TRUSTEE(S)
I appoint [the defendant] in the territory of A.C.T. … to be the executor(s) and trustee(s) of my estate.
GUARDIANS
I appoint my sister [the defendant] to be Guardian of my infant son [LN]
INCIDENTAL BENEFICIARIES
…
RESIDUARY ESTATE
I give the whole of my estate of what so ever kind and where so situated to my sister [the defendant] provided that she survives me.
If all of the above beneficiaries and their incidental beneficiaries predecease me, I give the residue of my estate to such of the following beneficiary or beneficiaries and if more than one then in equal shares:
My son … provided that he survives me and others of the age of 21 years.
…
TRUST FOR MINORS
The share of any beneficiary/ies be held in trust and be administered by the trustee for the purpose of support, welfare and education until he reach the age of 21.
If any of the beneficiary/ies should die prior to attaining the age noted and receiving all their share, then their share shall be held in trust and paid equally amongst their children. If there are no such children, their share shall be distributed amongst the other beneficiaries entitled to share in the residuary estate.
5․It will be apparent from the terms set out above that currently, the only provision made for the deceased’s son was as an alternative beneficiary, in the event that the defendant had died before the deceased. The deceased did not give the whole of her estate to her sister on trust for her son, although this may have been her intention and is certainly how the defendant understood her sister’s wishes, having regard to the other clauses of the will.
6․That includes the deceased filling in the section titled “Trust for Minors” on the pro forma document. However, because there was no clause which made him a beneficiary to begin with (other than in the alternative), there was no beneficial share to which the “Trust for Minors” clause could attach, depriving that clause of any operation.
7․Accordingly, no provision has been made for the deceased’s son out of the will, which was quite plainly not what the deceased intended. There may have been a simple case for rectification of the will pursuant to s 12A of the Wills Act 1968 (ACT). However, that was not the path pursued here.
Notice to potentially interested or eligible persons
8․Section 10 of the FP Act requires an application for an order under ss 8 or 9A of the FP Act to be served on each person who is an administrator of the estate of the deceased person.
9․The deceased only had one child, being the boy on whose behalf family provision is sought.
10․The deceased’s former partner and biological father was on notice of the proceedings, agreeing to be served by email. He was also given an opportunity to be heard during the hearing and subsequently in writing if he chose. On 20 August 2024, he confirmed that he seeks the entirety of the estate to be held and applied solely for his son’s benefit and does not otherwise wish to be heard in the proceeding.
11․The only other potentially interested person in the proceedings is the sister of the deceased and the defendant, who currently resides in Perth. She was served with notice of the proceeding, albeit not by the defendant. She has also confirmed that she is content for provision to be made by way of the entirety of the estate residue to be held for the benefit of the deceased’s son. Although not formally a party, she was also given the opportunity to be heard orally during the hearing in relation to the issue of the appropriate trustee and her views are set out below.
The Estate
12․The sole asset of the deceased’s estate is a one-third interest in a property located in a suburb in the inner north of Canberra, which was inherited from the deceased’s mother. The other two-thirds are owned equally by the deceased’s sisters, one of which (the defendant) currently resides in that property. The Court was informed that the modest liquid assets in the estate were absorbed in expenses incurred in obtaining the grant of probate.
13․The deceased had a superannuation fund, which was paid directly to the deceased’s sole dependant (the plaintiff) and is currently being held on trust for him by the PTG. Those monies do not form part of the estate.
The Court’s jurisdiction
14․The Court’s jurisdiction in family provision proceedings was discussed by Mossop J in Richardson v Richardson [2022] ACTSC 363; 20 ACTLR 37 (Richardson), with his Honour stating at [34] (citing Bartlett v Coomber [2008] NSWCA 100 (Bartlett)at [19] per Mason P) that the Court’s role involves more than “placing a rubber stamp on the transaction”.
15․In Richardson,Mossop J gave careful and detailed consideration to the judgments of Bartlett and Daley v Donaldson [2022] NSWCA 96. Drawing on those authorities, his Honour referred (at [39]) to the correct approach under the FP Act to be as follows:
…
(a) The statute requires certain thresholds to be met before an order can be made adjusting property interests.
(b) Those thresholds must be met even where there is agreement compromising a claim.
(c) The fact of an agreement is a very significant matter for the court in determining whether to make orders in accordance with that agreement, even where one party to the agreement opposes giving effect to it.
(d) That is particularly so where the parties to the agreement were represented by a solicitor and counsel at the time that the agreement was entered into.
(e) The significance of the agreement arises because:
(i) settlements of such proceedings are to be encouraged as a matter of policy; and
(ii) the parties, rather than the court, will have the best knowledge of the facts of the case and the interests of the parties.
(f) The orders proposed by an agreement must be assessed in light of the fact that:
(i) it has been reached without a trial in circumstances that relieve the parties from the risks and costs of proceeding further with their dispute; and
(ii) a range of outcomes are possible having regard to the evaluative nature of the judgment required by the FP Act and the range of judicial officers who may hear the case.
(g) The circumstances in which agreements to compromise a claim will not be implemented by orders of the court are not closed. However, if the proposed orders lie outside the range of possible outcomes, that may indicate that the compromise is for a purpose extraneous to those of the Act and should not be implemented.
(h) Where one party opposes the making of orders in accordance with a previously made compromise agreement, that will require the court to consider the underlying facts to a greater extent, in order to ascertain whether there would be some injustice in giving effect to the agreement. But mere opposition from a party that previously entered such an agreement is insufficient to require trial of the action or indicate that it is unjust to give effect to the agreement.
16․I have set out the applicable legal principles to explain the Court’s approach here, and why the Court still needs to consider the substance of the application, even though the defendant did not contest a 100% adjustment by way of provision for the deceased’s son.
17․Further, as to the last of those matters, there was a previous compromise agreement, by which the Director-General initially consented to the defendant remaining trustee of the provision made of the plaintiff. However, due to the subsequent course taken in the proceedings, that agreement between the parties broke down and the matter proceeded to trial. The Director-General’s position as to the appropriate trustee to manage the provision made for LN has now changed and it was submitted at the hearing that the PTG should manage any amount that is ordered, together with the superannuation monies that the PTG is already managing for the plaintiff.
Extension of Time
18․As a preliminary matter, the plaintiff was out of time to bring the application. However, the application to extend time was unopposed by the defendant.
19․Section 9(1) of the FP Act requires that family provision proceedings must be commenced within six months of the date of probate being granted. In this case, probate was granted on 16 January 2019, and the present application was made on 23 August 2023. The application is therefore some years outside of the statutory time limit.
20․The power to extend time under s 9(2) of the FP Act is discretionary, and an extension may be granted on any conditions the Supreme Court thinks fit. Section 9(4) prevents an application being made if the estate has been distributed, but that is not the case here.
21․The plaintiff bears the onus of showing sufficient cause for an extension of time to be granted: Roberts v Stern [2017] ACTSC 182 at [12]. It is necessary to satisfy the Court that the circumstances are such as to make it unjust for the plaintiff to be penalised for bringing an application for family provision out of time. As the plaintiff is seeking an indulgence, the application for an extension of time should be made promptly: Re Guskett (1947) VLR 212 at 214 per Herring CJ.
22․In the present case, as there was no opposition to leave being granted, the affidavit evidence explaining what occurred and the timing of the application was ultimately not read. It suffices in those circumstances to record that I accept that it would be unjust for the plaintiff, a minor who is dependent upon others to act on his behalf, to be penalised in respect of the late application. The Court will extend the time in which to make an application for family provision.
Legislative Framework
23․Section 8 of the FP Act provides for the Court to make provision out of the estate as it thinks fit to be made. It relevantly provides:
8Family provision orders
(1)On application by a person entitled, under section 7, to apply for provision out of the estate of a deceased person, the Supreme Court may order that the provision as that court thinks fit be made for the applicant out of the estate.
(2)The Supreme Court shall only make an order under subsection (1) if satisfied, in consideration of the criteria set out in subsection (3), that as at the date of the order, adequate provision for the proper maintenance, education or advancement in life of the applicant is not available—
(a)under the will of the deceased; or
…
24․There are a number of considerations that are required to be taken into account set out in s 8(3) of the FP Act. They include matters such as character and conduct of the person applying for provision, financial and non-financial contributions, welfare contributions, financial resources of the person, capacity for employment, financial needs, and any responsibilities the person has to support others.
25․Because the person applying for provision here is a young person (an infant at law), a number of the statutory considerations do not apply or do not carry much weight. However, to the extent that they do apply, they all point to a 100 percent adjustment being made to the terms of the will in favour of LN, being the sole person for whom the deceased had a moral obligation to provide. He has clear financial needs due to his age and family circumstances. He also has conditions pertaining to his health that may well increase his needs in the future. It has properly been accepted by the defendant as the executor (the proper contradictor) that ‘adequate provision’ has not been made for the proper maintenance, education or advancement in life of the deceased’s son. There being no opposition to that aspect of the application, it is appropriate to make the order for adjustment sought.
The identity of the trustee
26․The dispute concerns the identity of the trustee to manage the distribution of the estate that will be made to the deceased’s son, at least until he comes of age. It is possible that management will be required after that point, although that question does not yet arise.
The Court’s power and the applicable legal principles
27․Section 25 of the Public Trustee and Guardian Act 1985 (ACT) (PTG Act) concerns the payment of monies on behalf of a person under disability. The relevant sub-section is s 25(1), the material parts of which are as follows:
(1)Where, in the proceedings, it is adjudged or ordered, or it is agreed, that money... be paid to a person under disability (whether or not that person is a party to a cause or matter), the money –
(a)shall be paid into court; and
(b)shall, unless the court otherwise directs, be paid out to the public trustee and guardian.
28․The question is thus whether the Court should ‘otherwise direct’, so as to cause the settlement monies to be paid to a different trustee. The statutory power coexists with the parens patriae jurisdiction of the Court and is to be exercised in accordance with the principles applicable to that jurisdiction: Singh v Calvary Hospital (No 2) [2009] ACTSC 57; 3 ACTLR 247 (Singh) at [11].
29․The paramount consideration when exercising such jurisdiction is what is in the interests of the plaintiff who is under a disability: Singh at [14]. In Singh,Refshauge J made the point at [25] that the reference in s 25 of the PTG Act to the funds being paid to the Public Trustee was no more than a predisposition. In the same paragraph, his Honour cited Morris v Zanki (1997) 18 WAR 260 (Morris), where it was stated at 286 (emphasis added):
The court has a duty to consider the future management of the verdict moneys and it has a discretion. The governing consideration is “what is best to be done for the [person under the disability]”. The discretion must be exercised judicially. It cannot be determined arbitrarily. Where the court is asked to exercise the power to place funds with a private trustee rather than the Public Trustee the judge must examine all of the circumstances and decide what is in the best interests of the person for whose benefit the funds are to be held. This will, of necessity, require a consideration of available options and alternatives. But this is not to say that a pre-disposition towards the Public Trustee is an impermissible fetter on the discretion. It serves a number of purposes. It indicates that the onus is on the person seeking the exercise of the discretion in his or her favour to establish grounds on which the order should be made. It means that if no application is made or if no good reason is shown for preferring a private trustee, the Public Trustee will assume the role. We have chosen the adjective “good” (in relation to the reasons that are advanced in support of the application) quite deliberately. We would avoid other possible descriptions such as “cogent” or “special” or “exceptional”.
30․There are a number of factors the Court should consider in working out what is in LN’s best interests. Before the Court will appoint a particular private trustee, the Court should consider:
(a)Whether there is sufficient evidence of the structural and financial security of the trustee: Singh at [42];
(b)Whether there are appropriate safeguards in place to protect the contents of the fund, the investment strategy and the probity of the trustees and their dealings. This can generally be satisfied by the fact that trustee companies recognised by the relevant legislation are subject to such safeguards: Singh at [44], citing Jones v Moylan (1997) 18 WAR 492 (Jones)at 496. This may include ensuring that the proposed trust deed appropriately protects the long-term interests of the plaintiff: Singh at [48];
(c)That the trustee nominated has thought through how to invest the funds: Singh at [43], drawing from Re L [2000] NSWSC 721. In an appropriate case, this might form part of an assessment of the comparative skills, investment strategies and experience of the likely appointees: Singh at [45];
(d)The express wishes of the litigation guardian and other family members: Morris at 286 and 294; and Jones at 501; and
(e)The likely relationship between the trustee and the family or other caregivers: Singh at [45].
Parties’ submissions
31․The defendant’s position was that as the guardian appointed by her sister under the will and the relative with ongoing connection to LN and significant involvement in his life, she should be the person appointed to manage any fund on his behalf, including the superannuation amount that is currently held by the trustee.
32․Further submissions made in support of her position included the following:
(a)She had cared for LN and was better placed to act in his best interests;
(b)She had never done acted contrary to what she believed were the deceased’s interests with regard to LN;
(c)She was not only the appointed guardian under the will but stood in loco parentis as indicated by the fact that she had bequeathed her entire estate to LN;
(d)She had demonstrated her commitment to ensuring LN received the maximum funds available by paying all costs associated with maintaining and living in the property and not claiming any portion of those costs from the estate.
33․It was submitted that the PTG would charge fees which she would not charge, and that would deplete the funds available for LN. She was not impressed with how the PTG had managed the superannuation monies to date, and had concerns that the PTG would whittle away the fund in the longer term.
34․The defendant was also concerned about LN not having access to any substantive funds before he turns 21, which may prevent him from accessing the education he needs to gain employment once he is of legal age. It may be inferred from that submission that the proper education and advancement of LN – being the purpose for which provision was sought under the FP Act – might be defeated if the fund were not used at the appropriate time of LN’s development.
35․The deceased’s other sister was heard in relation to this issue. She owns the other one-third interest in the property. Her view was that she had a long-term hope that the two remaining sisters and their nephew (LN) would be able to jointly retain the property and develop it at a later stage. If that was not possible, then she accepted that it was preferable for an independent person to be appointed as trustee.
36․The Director-General’s position was that an independent person was preferable, most significantly because the defendant also had a share in the very asset that LN would receive under the will. There was the potential for an immediate conflict of interest as soon as the proceedings were determined, given that the real property in the estate may need to be sold.
37․The Director-General submitted:
(a)The PTG will act solely in LN’s interests,
(b)The PTG already holds the superannuation funds in trust which are not the subject of any part of this proceeding (such that if a different trustee were to be appointed, LN would have different trustees managing benefits for him).
(c)The PTG is a professional trustee, able to manage and invest funds with a government guarantee;
(d)The PTG is not an ongoing institution, ensuring continuity of management.
38․The Director-General further relied on a statement made in an earlier judgment [redacted for privacy reasons] that it is “only in the rarest of circumstances” that the Court will approve the payment of large sums of cash to a relative of an infant or disabled person.
Consideration
39․Starting with that last submission, the statement made in the earlier judgment [redacted for privacy reasons] was made without reference to any authority. It runs contrary to what is set out at appellate level in the extract from Morris set out above. As Morris emphasised, exceptional (or rare) circumstances are not required before a private trustee may be appointed. In light of established authority to the contrary, the observation relied upon is plainly wrong and I reject the Director-General’s submission to the extent that reliance was placed upon that proposition.
40․Otherwise, the Director-General’s submissions are persuasive. Having considered the submissions and the evidence before the Court, I consider that the PTG is the appropriate person to be appointed to manage the fund, for the following reasons.
41․First, as will be explained below, subject to any different costs order being made, the costs of the application will be ordered to be paid out of the estate. Given the estate now includes only the one-third interest in property, the practical consequence is that such interest in the property may need to be sold to pay the legal costs.
42․In that event, the potential for conflicts of interest (namely between what is in the defendant’s interest and what is in LN’s interest) are likely to arise immediately. Examples include the timing of the sale and the likely necessity for the defendant to move out of the property either prior to or upon the property being sold, the steps taken to prepare the property for sale, and the price at which the property is to be sold (to the extent that the defendant may seek to buy out the interest that will be transferred to the PTG on behalf of LN). An independent trustee is preferable to avoid conflicts of interest arising.
43․Second, because the defendant is a private individual, not subject to statutory regulation, appointing her as trustee of the fund for LN would not provide the fund with the statutory safeguards that attach to professional fund managers (including statutory compliance obligations). The evidence did not suggest that the defendant was otherwise someone with professional skills in financial management, or with knowledge of the records required to be kept, or tax and investment strategies available. She could obviously obtain those services to assist her to perform the role of trustee, but there was nothing in the evidence to indicate that such services were being contemplated. Even if it were assumed that the defendant acting responsibly would seek all relevant legal and financial advice, that would come at a cost (either to the trust fund or to the defendant herself) and the trustee’s responsibilities would still remain with her.
44․Conversely, although the PTG does charge a fee, it is proportionate to the quantum of funds being managed and the PTG has both professional obligations (including the keeping of proper records), and statutory safeguards such as the government guarantee, being insurance in the event of negligent mismanagement of the fund.
45․Third, LN’s current circumstances are not such that a high degree of intervention or management is required (the funds are not required for daily care and medical expenses), a matter which might have been relevant in considering the ease to which funds may be accessed by LN.
46․Finally, as canvassed with the defendant during the hearing, having the PTG manage the money and the purposes for which it is provided to LN frees her to be the loving aunt and enjoy a relationship with her nephew that is not at risk of friction over money. There is a risk that after he reaches the age of maturity, LN may later disagree with any particular spending choices which the defendant did or did not make in what she thought were LN’s best interests at the time. An independent financial manager may protect the defendant from that risk of conflict and litigation in the future.
47․For all those reasons, in the circumstances of this case, the PTG is the appropriate trustee to manage the provision to be made out of the estate for LN.
Costs
48․The Director-General has achieved substantive success on LN’s behalf in the relief that was sought. The usual outcome is that the plaintiff would be entitled to his costs out of the estate. Any costs payable by the defendant in that regard are payable in her capacity as executor of the estate, not in a personal capacity and are ordinarily to be paid out of the estate: r 1732(2) of the Court Procedures Rules2006 (ACT).
49․The defendant was critical of the Director-General in bringing the application at all, submitting that she had communicated her position from the outset that the estate was to be held on trust entirely for LN. She submitted that it was entirely unnecessary for the Director-General to bring the proceeding and that the costs of the proceeding should not be paid out of the estate.
50․As the discussion in Richardson explains, and particularly in this case where a minor’s interest is concerned, the Court has a supervisory jurisdiction and some form of proceeding was necessary whether by way of rectification or the course of family provision pursued by the Director-General, because the will did not include LN as a beneficiary. The Court here is determining only where the liability lies and not the quantum of the costs incurred, which the Court was informed were regrettably substantial, relative to the size of the estate.
51․Otherwise, the principles that apply in the present case are set out in
In the Estate of Rummer [2017] ACTSC 277 (Rummer) at [127]-[130]:127. Costs are in the discretion of the Court: r 1721 of the Court Procedures Rules 2006 (ACT) (Rules). However, pursuant to r 1732 of the Rules, unless the Court otherwise orders, a party who sues or is sued as a trustee is entitled to have the costs of the proceedings that are not paid by someone else paid out of the fund held by the trustee, assessed on a solicitor and client basis.
128. Under r 1700, ‘trustee’ includes a personal representative of a testator individual.
129. Further, in probate and trust construction matters, unless a party has been vexatious or lacking in good faith, costs are usually allowed to all parties out of the trust fund: Elders Trustee & Executor Co Ltd v Easter [1963] WAR 36; Re Buckton [1907] 2 Ch 406 at 414-415; Kovacs v Fogarty (No 2) [2007] ACTSC 40 at [16]; Yunghanns v Candoora No 19 Pty Ltd [2000] VSC 387.
130. In what I consider to be an approach broadly consistent with that principle, in Donnolley v Clarke [2008] NSWSC 522 White J, as his Honour was then, at [38] citing, inter alia, Re Barden; Florence v Shekelton-Bardon (Unreported, Supreme Court of New South Wales, Holland J, 19 December 1983), referred to two main recognised principles of exception to the general principle that costs follow the event:
(a) If a person who makes a will or is interested in the residue has by his conduct caused the litigation to occur, the costs of a party unsuccessfully contesting the will may be ordered out of the estate.
(b) If the circumstances reasonably called for an investigation to be made before the court could properly pronounce in favour of the will, then the contesting party who fails ought not to be required to pay costs and should be left to bear his own.
52․The above principles establish that in this case, not only is the plaintiff as the successful party entitled to costs out of the deceased’s estate, but the defendant executor is also entitled to her costs being paid out of the estate. Although she is self-represented, the defendant did mention at the hearing that she had incurred costs, albeit the sum may have been modest and she may have been referring to the initial cost of applying for probate, rather than defending the present application for provision. In any event, the appropriate exercise of the costs discretion here is to order that any costs the parties have incurred in relation to this proceeding are to be paid out of the estate. Whether the executor claims any costs is best left to her.
53․The Court was made aware during oral argument that the Director-General intended to seek a different costs order against the defendant relating to the conduct of the proceedings, but it was considered appropriate to determine the dispute absent that information being put before the Court, and then permit the parties an opportunity to make further submissions on this issue. What is stated above is subject to that further opportunity being taken up.
Conclusion and Orders
54․For the above reasons, an extension of time to make the application will be granted, a 100 percent adjustment will be made in favour of LN out of the deceased’s estate, and the PTG will be appointed as the manager of that interest. However, it is appropriate that the PTG be given the opportunity to assess the best strategy to manage LN’s provision as determined by the Court.
55․Having regard to s 25 of the PTG Act, the proceeds of any sale of the one-third share of the property that forms part of the estate should be paid into Court, and then paid out to the PTG, to be held on trust and managed for the benefit of the plaintiff. However, an order for the sale of the one-third interest and payment in terms compliant with s 25 of the PTG Act might not be immediately necessary. The costs of the proceeding may be subject to further orders and in any event have not been finally quantified or assessed. An order that the property as a whole be sold is within the scope of available orders and if the PTG was appointed as trustee of LN’s interest, both sisters of the deceased indicated it would probably be their preference that an order be made to sell the property (which is why it was important to ensure that the deceased’s other sister was on notice of the application). Whether the title to the one-third interest is transferred to the PTG on behalf of LN, or the entire property is sold now and the proceeds of sale paid into Court to the extent of LN’s interest and then to the PTG, is a matter on which the parties should be given an opportunity to consult before final orders are made.
56․Accordingly, the parties will be given the opportunity to craft further orders which give effect to these reasons once the PTG is involved in the management of the fund for LN.
57․The Court therefore makes the following orders:
(1)Pursuant to s 9(1) of the Family Provision Act 1969 (ACT), the time in which to commence a proceeding seeking family provision out of the estate of the deceased be extended to 23 August 2023.
(2)Provision is to be made for LN, out of the estate of the deceased by a 100% share of the estate, clear of any estate liabilities, being distributed in favour of the plaintiff.
(3)The Public Trustee and Guardian is appointed as trustee of any provision to LN made pursuant to order 2.
(4)The costs of the application are to be paid out of the estate.
(5)The parties have liberty to apply to the Court for further orders for the working out of orders 2 and 3.
(6)If either party notifies chambers within 7 days of the making of the orders that a different costs order is sought, order 4 is stayed until further order.
| I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: |
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