Doedens v Owen - [2018] SASC 12

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
DOEDENS & ORS v OWEN
[2018] SASC 12
Reasons for Decision of The Honourable Justice Nicholson
16 February 2018
SUCCESSION - INTESTACY AND DISTRIBUTION ON INTESTACY
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION
A number of issues for determination arose following the settlement of the claims by the three plaintiffs for the provision of their maintenance, education or advancement from the deceased’s intestate estate. This ruling addresses two of those issues. The first is whether the Court should grant approval to a compromise reached between the defendant and the third plaintiff who is a litigant under a disability. Should the compromise be approved by the Court, the second issue the Court is required to determine is who should be appointed to fulfil the role of trustee in accordance with the compromise.
Held:
1.       Approval to the compromise is given.
2.       The Fund the subject of the compromise is to be held in trust on terms with the third plaintiff’s daughter, Gillian Doedens, as trustee.
3.       Orders are made as set out in paragraph [48] of the judgment.
Inheritance (Family Provision) Act 1972 (SA) s 6, s 7; Administration and Probate Act 1919 (SA) s 72G; Supreme Court Civil Rules 2006 (SA) r 257, r 258; Public Trustee Act 1995 (SA) s 16; Guardianship and Administration Act 1986 (Vic) s 47, referred to.
In the Estate of Wardle (Deceased) (1979) 22 SASR 139; Elliott v Diener (1978) 21 ACTR 21; Diver v Diver & Ors [2007] VSC 146, considered.

DOEDENS & ORS v OWEN
[2018] SASC 12
Civil
NICHOLSON J
Introduction

This ruling deals with two issues arising out of the settlement of the claims by three plaintiffs for provision for their maintenance, education or advancement out of the estate of Christopher Owen who died intestate on 29 November 2015. The first issue is whether or not the Court should grant approval to a compromise reached between the defendant and the third plaintiff who is a litigant under a disability. The second issue requires the Court to determine who is to fulfil the role of trustee, necessary as part of the implementation of the compromise, in the event that the Court were to give its approval. A third issue concerns the question of costs but this will be dealt with in later reasons and after hearing further argument.
John Owen is the third plaintiff in these proceedings. He is the father of the deceased and has brought an application pursuant to s 6(i) and s 7 of the Inheritance (Family Provision) Act 1972 (SA) for his further maintenance, education or advancement to be provided for out of his son’s estate.
The defendant to the application is Larysa Owen, the wife of the deceased and the holder of letters of administration with respect to the deceased’s intestate estate. There are no children of the marriage and thus, in accordance with s 72G of the Administration and Probate Act 1919 (SA), the whole of the deceased’s estate passes to the defendant subject to any application pursuant to the Inheritance (Family Provision) Act succeeding. This is so notwithstanding that, quite some years before the deceased died, he and the defendant had formally separated and entered into a binding financial arrangement but without ever divorcing. It was to be an aspect of the defendant’s case at trial that she and the deceased had for some time been reconciled and had resumed a close relationship although not living together.
The first plaintiff in these proceedings was Gillian Doedens, the sister of the deceased and daughter of the second and third plaintiffs. Her claim for provision out of the estate was settled on 10 August 2017 in the amount of $650,000 with costs to be met by the estate. After having allowed for provision of that sum (but not any costs) the balance of the estate remaining is said to be in the order of $1.4 million.
The second plaintiff was Marion Owen, the deceased’s mother. Regrettably, she passed away on 1 February 2018, some 11 days before the trial of this matter had been listed to commence. The second plaintiff’s claim for provision out of the estate, arguably, survived her death to a limited extent, in accordance with the decision of Zelling J in In the Estate of Wardle (Deceased).[1]In any event, the second plaintiff’s claim was settled on 8 February 2018 on the basis that her estate is to be paid a legacy of $12,500 with the costs of the second plaintiff’s claim reserved to the trial judge.
[1] (1979) 22 SASR 139. See also Read v Nicholls [2004] VSC 66 (Nettle J as his Honour then was). Some interstate authorities suggest to the contrary, eg McEvoy v Public Trustee (1989) 16 NSWLR 92 (Powell J).
All of the plaintiffs reside in Queensland. The defendant resides in Adelaide.
The first issue
On 9 February 2018, being the Friday before the trial was due to commence the following Monday, the third plaintiff’s claim settled.
The essence of the proposed settlement is that the sum of $80,000 would be paid out of the estate to be held on trust for the third plaintiff with the trustee to hold the funds, and to manage and distribute capital and interest on behalf of and for the benefit of the third plaintiff. It is a term of the proposed compromise that the question of costs with respect to the third plaintiff’s claim be resolved by the Court. It is a further term that any balance of the fund remaining at the death of the third plaintiff is to revert to the defendant as sole residuary legatee of the intestate estate. The terms of the proposed trust have been agreed to by the parties as part of the compromise and are reflected in the orders that I propose to make as set out at the end of this judgment.
The third plaintiff is a litigant under a disability; he is 94 years old, resides in a high dependency care nursing home, suffers from multi-morbidities including advanced dementia and is of extremely modest financial means. A solicitor experienced in the wills and estates area, Ms Judith Quick, was appointed as the third plaintiff’s litigation guardian for the purpose of these proceedings.
Any settlement reached on behalf of the third plaintiff requires the Court’s approval in accordance with r 257 of the Supreme Court Civil Rules 2006 (SA). Given that the compromise was arrived at on the eve of trial, I have been content to deal with the matter on the oral application made by counsel for the third plaintiff in open court, rather than requiring the filing of a formal application and affidavits in support. I note that the Court is in receipt of a consent to the proposed compromise signed by the litigation guardian, Ms Quick.
I have not heard the evidence proposed to be adduced by the parties at trial. In these circumstances, the common practice is to require an opinion as to the merits of the proposed compromise from independent counsel. This has been provided. In addition, I do have available the joint trial book containing, inter alia, the affidavit evidence that the parties would have sought to read at trial, various expert reports as to the third plaintiff’s medical conditions and a report from two rehabilitation practitioners canvassing areas of the third plaintiff’s physical and emotional care that could, it is said, be improved upon if further financial support were to become available.
Various aspects of the proposed evidentiary materials in the trial book appear on their face to be inadmissible and, in this respect, I have had the benefit of each party’s list of objections to the other party’s proposed evidence. Of course, none of the affidavits has been formally read before me, nor has any deponent been cross-examined, nor has any of the medical and rehabilitation evidence been tested at trial. I have considered the trial book material with these important caveats in mind.
Importantly, I have also considered the written advice in support of the proposed compromise provided by independent and experienced counsel, Mr Mark Douglas dated 14 February 2018.
The question before me is whether, in all the circumstances, I am satisfied that the proposed compromise is beneficial to the third plaintiff. In this respect, I should ask myself whether the proposed settlement is adequate and reasonable from the third plaintiff’s perspective. Where, as here, a monetary claim is involved, the question before me becomes whether or not the prospect of obtaining a greater sum by rejecting the offer is good enough to outweigh significantly the risk of not getting any more.[2]
[2] See generally, for example, Elliott v Diener (1978) 21 ACTR 21.
Mr Douglas has recommended the compromise and has expressed the opinion which, with respect, is soundly reasoned, that the compromise is appropriate and in the best interests of the third plaintiff. Mr Douglas has also concluded that “it cannot be said that … the prospect of the Court giving a greater sum [should the offer be rejected] is good enough to outweigh significantly the risk of not getting any more”.
The third plaintiff’s claim is strongly contested. The utility of the types of expenditures that have been identified as being a potential benefit is challenged by the defendant on the basis of medical evidence she would adduce at trial. Further, it is possible that those identified expenditures, even if pursued over a life expectancy of 3.2 years or so, may not exhaust the fund. This would be a fortiori if the defendant’s medical opinion evidence that the third plaintiff’s life expectancy is, in fact, significantly less than the statistical 3.2 years and may be as little as 12 months, were to be accepted at trial.
Any trial of the proceedings and reservation of judgment would delay, perhaps significantly, the receipt of any benefit ultimately awarded in favour of the third plaintiff. Another important consideration is that, with the second plaintiff’s claim now all but finalised, the whole of the costs risks of an unsuccessful trial outcome or one markedly inferior to the present offer would fall on the third plaintiff.
This latter issue raises the potential concern of the third plaintiff’s extant exposure to an adverse defendant’s costs order and to the costs of his own legal advisers. Ideally, the settlement proffered for approval would have included a resolution of these costs questions. However, the parties have arrived at the compromise in its present form and it is that which is before the Court for its approval. Both parties agree that the Court is obliged to consider and approve or otherwise the compromise that has been arrived at independently of the question of costs. Whilst not ideal, I accept the correctness of this position.
The fact that there is this extant exposure is a consideration for the Court but it cannot be determinative nor would it be appropriate to determine the costs issue first. The question of whether or not or to the extent to which each parties’ costs are to be met out of the estate will, in part, depend on the final outcome of the litigation, in this case the compromise arrived at. A potential liability to pay costs is an irrelevant consideration on a trial on the merits. Similarly, it is an irrelevant consideration when assessing the merits of a party’s case in advance in order to identify a compromise. As a matter of prudence, a party may only wish to settle on a costs inclusive basis. But as a matter of logic, the appropriateness of a proposed settlement of a monetary claim in advance of trial turns on the merits of the claim as then perceived.
To delay the approval of the compromise until costs issues were to be resolved would risk an outcome where, following a costs order adverse to the third plaintiff, if so made, and where, for this reason alone the approval of the compromise were to be refused, the parties would be forced to trial. In such circumstances, the parties, and in particular the third plaintiff, would be put to significant delay and very significant further costs where, ex hypothesi, the third plaintiff might still gain access to only $80,000 or even less, but with a greater costs liability. In such circumstances, the third plaintiff would have been far better off with the compromise even if it were to be eroded by a cost liability.[3]
[3] In identifying this consideration, I am not expressing any view one way or another as to whether the trustee would be entitled, in accordance with the proposed terms of the trust, to expend any of the trust sum on behalf of any costs liability the third plaintiff may subsequently acquire.
If the likelihood of gaining more at trial is low, as I believe it to be, the risk of getting less and with an associated significantly increased costs liability must, in all the circumstances, be regarded as an unacceptable one.
On my review of the trial book materials, albeit qualified as indicated, I see no reason not to accept Mr Douglas’ advice and recommendation. In any event, on my review of all the material before me, I am satisfied that the proposed compromise is beneficial to the third plaintiff in the sense of that term as earlier set out and approve the compromise.
The second issue
There is the need to appoint a trustee of the $80,000 fund. The parties have reached agreement in principle on the terms to govern the proposed trust and I indicate that I am satisfied with the agreed terms, subject to some minor drafting modifications. However, the parties have been unable to reach agreement on a suitable trustee. It is an aspect of the parties’ compromise that the trustee was to be determined by the Court. To this end, I received written and oral submissions from the parties and the following affidavits were read:
(i)on behalf of the third plaintiff, affidavits by his instructing solicitor, Pamela Jean McEwin, sworn 12 February 2018 and by a proposed trustee, Margaret Anne Arthur, an experienced wills and estates solicitor practising in Queensland, sworn 9 February 2018; and
(ii)on behalf of the defendant, an affidavit by her instructing solicitor, Melissa May Yule, sworn 12 February 2018.
The third plaintiff’s preferred position is that the first plaintiff, his daughter, be appointed as trustee. However, recognising that there is a very significant level of antipathy towards and distrust of Ms Doedens by the defendant,[4] the third plaintiff has also proffered Ms Arthur as a person capable of and willing to undertake the role.
[4] The affidavits in the trial books disclose an apparent basis for this antipathy and distrust. However, that evidence has not been tested at trial and I am not in a position, nor is it necessary, nor would it be appropriate, to make findings in this respect. It is sufficient to accept, which I do, the fact that this antipathy and distrust of Ms Doedens exists.
The defendant contends that the Queensland Public Trustee would be the most appropriate appointee and has secured its agreement to undertake the role and has provided some, fairly limited, information as to what this would involve. The third defendant opposes the appointment of Ms Doedens.
Rule 258 of the Supreme Court Civil Rules 2006 is in these terms.
258—Court's power to regulate dealings with money to which person under disability entitled
(1)Any money to which a person under a disability is entitled under a judgment of the Court, or on the settlement of proceedings or a claim that might have formed the basis of proceedings, is to be dealt with in accordance with the Court's directions.
(2)The Court may give directions under this rule from time to time as circumstances require.
It is common ground that, as an incident of this Court’s parens patriae jurisdiction, the discretion as to the appointment of a trustee to hold and administer a fund such as that presently under consideration is at large, although the discretion must, of course, be exercised judicially.
The usual practice in this State, where an award in favour of a litigant under a disability is concerned, is to direct payment of the award to the Public Trustee to be held pursuant to section 16 of the Public Trustee Act 1995. However, in appropriate circumstances the appointment of a private trustee might be warranted. In this case, given that the third plaintiff resides in Queensland, the “usual practice” would tend towards the appointment of the Queensland Public Trustee.
The exercise of the discretion to appoint an administrator of a person’s financial affairs was discussed in Diver v Diver & Ors.[5] The discussion arose in a context different from the present but I am satisfied that the principles there set out are of general application and should guide my decision in this matter.[6] The principles which I am satisfied should govern the exercise of my discretion in this case include, as a minimum, my satisfaction:
(i)that the proposed trustee will act in the best interests of the proposed beneficiary, the litigant under a disability;
(ii)that the proposed trustee is not in a position where that person’s interests conflict or may conflict with the interests of the proposed beneficiary, the litigant under a disability;
(iii)that the proposed trustee is a suitable person to act as the trustee of the fund set aside for the maintenance, education or advancement of the proposed beneficiary, the litigant under a disability; and
(iv)that the proposed trustee has sufficient expertise to administer the fund or there is a special relationship or other special reason why that person should be appointed as the trustee.
[5] [2007] VSC 146.
[6] The principles there identified and discussed emanate from section 47 of the statute under consideration in that case, the Guardianship and Administration Act 1986 (Vic).
The evidence and submissions of the parties focussed on three main issues: the relative cost of each alternative; the relative practicality and efficiencies to be enjoyed in the case of each alternative; and the defendant’s distrust of Ms Doedens.
As earlier indicated, the third plaintiff is 94 years old and suffers from advanced dementia and lives in a nursing home. The report of the two rehabilitation practitioners in the trial book identifies a number of areas of expenditure that might serve to advance the third plaintiff’s quality of life. The reliability of that report, in particular as to the potential or likelihood for any of the suggested rehabilitation processes to in fact benefit the third plaintiff, is strongly contested by the defendant. Again, this is not a matter about which I can or need to make any findings. The effect of the settlement is to place a fund at the disposal, as to both capital and income earned, of the third plaintiff for his maintenance, education or advancement. It will be a matter for the trustee to ensure that the fund is directed entirely for the benefit of the third plaintiff insofar as or to the extent that such appropriate expenditure purposes can be identified.
In doing so, the trustee will not be restricted to the evidence of the needs of the third plaintiff contained in the trial book, such as it is, but presumably will consult with and take advice, in particular from the various persons, medical or otherwise, who from time to time have responsibility for the care, comfort, enjoyment and wellbeing of the third plaintiff, suitable medical and other experts and, of course, the first plaintiff, Ms Doedens.
Ms Doedens is the third plaintiff’s next of kin and sole surviving member of his family (save for her children, the third plaintiff’s grandchildren). Ms Doedens assumed responsibility for looking after her mother, the second plaintiff, whilst she lived with Ms Doedens and her husband during her last and declining years. Ms Doedens has also been intimately involved in the care of and the management of the professional care provided to her father over a number of years. She holds an enduring power of attorney and guardianship granted pursuant to Queensland law by her father when he was of sound mind. Ms Doedens has been managing his affairs, including his financial affairs, for quite some time.

There is nothing in the materials before me to suggest that Ms Doedens does not have her father’s best interests at heart or that, to the extent that she were to be involved in the expenditure of trust monies, she would act otherwise than in the best interests of her father as she would understand them to be. Indeed, the evidence available, albeit untested at trial, is quite to the contrary.
Without in any way intending to constrain or direct the manner by which the trustee of the proposed fund would operate, it does seem to me that the task of managing the fund would be relatively straightforward. Of prime importance would be the investment of the fund in a manner that would ensure, as far as possible, the security of the capital sum. Whilst the sum of money concerned is not insubstantial, it is unlikely in the present economic or financial climate to be invested in a sound and secure way that would return particularly significant income. Further, there is likely to be a need for ready and repeated access to the fund for day to day or week to week expenses incurred on behalf of the third plaintiff. As such, it would seem to make little sense to invest the fund in any form of long term investment that did not enable ready access to capital. It may be, and again without in any way intending to constrain the trustee’s conduct, that the more practical investment would be to maintain an interest bearing account with a major financial institution which permits ready access to the capital. An alternative approach might be to invest some of the funds on a medium term basis so as to attract a higher interest rate but to keep a portion of the funds available in a ready access account at a lower interest rate.
Obviously these are matters for the trustee upon receipt of advice as necessary. However, the nature and management of the investment task to be undertaken by the trustee is unlikely to be a taxing one. A lay trustee capable of managing their own financial affairs and upon taking appropriate accounting advice from time to time, should have no difficulty in performing the task.
There is no doubt in my mind that both Ms Arthur and the Queensland Public Trustee are capable of undertaking and suitable to undertake the role of trustee subject to the following concerns.
Ms Arthur has given an indication of likely fees that her firm would charge with respect to the anticipated work load. The work would be charged on a time cost basis and performed by her together with a paralegal with, hopefully, the bulk of the work being undertaken by the latter at a lower hourly rate. Ms Arthur has provided an outline of the work she anticipates might initially be required in order to set up the trust together with the estimated costs to the fund of her firm’s involvement, albeit qualified. This qualified estimate is $8,000 plus GST for initial set up and planning work costs and in the order of $10,000 per annum thereafter for ongoing work. I have to say, and meaning no disrespect to Ms Arthur or her firm, that this strikes me as likely to result in a significant impost on a fund of only $80,000 intended to provide, in practical terms, for the further care, comfort and medical needs of a 94 year old man with an actuarial life expectancy of about 3.2 years without any mortality loading based on his multi-morbidities, who is suffering from dementia and living in a nursing home.
The information provided by Ms Arthur as to the steps to be taken in order to set up the trust and to familiarise herself with the third plaintiff’s circumstances and ongoing needs suggests also, as a real possibility, undesirable delays in the provision of benefits to the third plaintiff. In this respect, and given the third plaintiff’s age, his serious multi-morbidities, and Ms Doedens’ concern for immediate needs to be met promptly, time is to some degree of the essence.
As far as the Queensland Public Trustee is concerned, the fees to be charged are likely to be much less than in the case of a private commercial trustee, such as Ms Arthur, although still not inconsequential. As I understand the position, there would be an annual standing charge based on the size of the estate together with administration charges. The costs may vary according to the number of transactions undertaken and to a degree can be seen as open ended. It is not possible on the evidence available to form a reliable view of the likely costs. However, it does seem likely that charges amounting to some thousands of dollars a year, at the least, would be involved together with any disbursement charges for obtaining professional advice or resolving any matters of dispute should they arise.
An appointment of the Queensland Public Trustee would also risk the problem of delay similar to that with respect to a private commercial trustee. General experience suggests that such an organisation will have time consuming bureaucratic procedures and protocols to observe. These no doubt are necessary and serve an appropriate function in such a large organisation where consistency in practice and procedure and the minimisation of risk of error across the activities of a number of employees of varying experience are necessary virtues.
However, such protocols may not be necessary in the case of a small specific purpose trust such as presently under consideration. Again, as with Ms Arthur, it may take some time for the Public Trustee to identify and assess the third plaintiff’s circumstances and ongoing needs to an extent such that the Public Trustee finds itself able to meet those needs.
I am satisfied that the third plaintiff’s needs will be more reliably met and met in the most timely way were Ms Doedens to be appointed as the trustee. The appointment of Ms Doedens would have the advantage of minimising the expenses to be incurred by the trust in its management, albeit recognising that Ms Doedens might need to expend funds in order to obtain investment, financial (tax and accounting) or legal advice from time to time. Nevertheless, I am satisfied that a relatively simple trust fund such as the one in contemplation could be set up and managed by Ms Doedens for significantly less cost than by either Ms Arthur or the Queensland Public Trustee.
However, and in addition to this consideration, my primary motivation in preferring Ms Doedens is that I have formed a view that she is, by far, best placed to know or to identify and understand the needs of the third plaintiff and the types of expenditure from the trust fund that would benefit the third plaintiff. She also is best placed to do this in as timely a manner as possible.
The defendant opposes Ms Doeden’s appointment on the basis that she does not trust her to fulfil the functions of a trustee in a proper and lawful manner. The defendant has an interest in the sense that, in the event that the trust fund were not to be exhausted by the time of the third plaintiff’s death, the balance of the fund would revert to the defendant. This is a significant consideration, although it does not cause me to doubt, on the information available to me, that Ms Doedens would manage the trust solely for the benefit of her father.
It is not to be forgotten, and notwithstanding the gift over to the estate, that the fund is there in the first and pre-eminent instance for the benefit of the third plaintiff in the sense of contributing to his maintenance, education or advancement. If Mr Owen were to survive for a sufficient period of time such that expenditures from the fund for proper purposes would be such as to exhaust the fund, the defendant could not complain.
In my view, there would be sufficient protections in place pursuant to the law of trustee and beneficiary so as to render Ms Doedens accountable should there be any breach of trust. Further, Ms Doedens has agreed to account to the defendant for her management of the trust fund at three monthly intervals. The law constraining the rights and obligations of a trustee and a provision for three monthly accounting would provide protection to the defendant sufficient to the day.
I am satisfied that the criteria (i) to (iv) set out earlier are met in the case of Ms Doedens.
Conclusion
Minutes of order approving the terms of the compromise with the third plaintiff together with the terms of the proposed trust have been agreed in principle by the parties. I have made amendments consequential on my determination to appoint Ms Doedens as trustee together with some cosmetic drafting changes and I have included a condition requiring Ms Doedens to render an accounting to the defendant every three months. I make the following orders.
1.The Court approves the parties’ compromise insofar as it affects the third plaintiff, a person under a disability.
2.The following amounts be paid out of the estate of Christopher Andrew Owen late of Unit 5, 8 Prospect Road Fitzroy 5082 Scientist deceased (“the deceased”) who died on 29 November 2015 at Bedford Park 5042 for the maintenance, education or advancement in life of the second and third plaintiffs namely:
(a)that the estate of the second plaintiff be paid a legacy in the sum of $12,500 inclusive of interest to the date of this order by cheque styled “Estate MF Owen” and paid to the solicitors for the late second plaintiff.
(b)that the sum of $80,000 be paid to the third plaintiff’s daughter Gillian Doedens as special trustee upon the trust as provided for by Annexure A to this order.
3.The burden of the legacies referred to in paragraph 2 of this order be borne by and paid out of the residuary estate of the deceased.
4.The question of costs of the second and third plaintiffs be reserved to Justice Nicholson.
5.A certified copy of this order be made on the letters of administration for the estate of the deceased and, for that purpose, the defendant as Administrator produce the letters of administration to the Registrar of Probates.
6.The parties may apply for further orders and directions.
Annexure A
A.The sum of $80,000 is to be paid to Gillian Doedens (“the special trustee”) to be held on trust for John Owen.
B.The special trustee shall upon receiving appropriate expert financial advice invest the $80,000 and, from time to time, vary such investments, as so advised (the $80,000 together with all income earned from time to time upon its investment is herein referred to as “the Fund”).
C.During the life time of the said John Owen the special trustee shall be permitted to pay the whole or any part of the income earned on the Fund for the benefit of John Owen in respect of medical treatment, diversional programmes, dental hygiene and any other care, treatment or expense which in the view of the special trustee, after taking advice of such person or persons as the special trustee deems appropriate, is for the comfort, wellbeing, maintenance and advancement of John Owen.
D.The special trustee shall be permitted to reimburse Gillian Doedens the sum of $447.50 plus any invoice received and paid by the said Gillian Doedens in respect of therapy provided to the said John Owen since October 2017.
E.If at any time the special trustee deems it expedient not to apply the whole of the income from the said fund then the special trustee shall be permitted to accumulate the unapplied income so that it becomes part of the Fund.
F.During the life time of the said John Owen the special trustee shall be permitted to pay out of the capital of the Fund such sums and at such time or times as the special trustee deems fit for the benefit of John Owen in respect of medical treatment, diversional programmes, dental hygiene and any other care, treatment or expense which in the view of the special trustee, after taking advice of such person or persons as the special trustee deems appropriate, is for the comfort wellbeing maintenance and advancement of John Owen.
G.The special trustee is to secure a pre-paid funeral for John Owen to the same standard as the funeral provided for his wife Marion Owen.
H.At three monthly intervals commencing from the date of the inception of the trust, the special trustee shall provide to the defendant an accounting of her administration of the Fund, such accounting to include the location and nature of the investment of the Fund, documentary records of all income earned, and details of all expenditures incurred together with copies of invoices and/or receipts in support of all such expenditures which exceed $50.
I.The special trustee shall be permitted to deduct from the Fund from time to time any reasonable fees and expenses incurred in respect of the administration of the Fund including the reasonable costs of obtaining financial advice, and of any reporting of her management to the Court or to Queensland Public Trustee or to the Defendant, Larysa Owen.
J.The special trustee shall be at liberty to apply to the Court for further directions if required and the costs of seeking such further directions shall be payable from the Fund.
K.The appropriate law insofar as the investment of and with respect to the accounting of the Fund is to be the law of Queensland.
L.Upon the death of John Owen the remainder of the monies in the Fund (after deduction of any outstanding fees and expenses) is to be paid to Larysa Owen.
M.Upon payment to Larysa Owen in accordance with paragraph L above the special trustee’s duties under the Trust shall cease and the special trustee shall be discharged from all duties under the Trust.