LEB v ABB

[2024] NSWSC 1097

Supreme Court

New South Wales

Medium Neutral Citation:

LEB v ABB [2024] NSWSC 1097

Hearing dates:

9 and 28 August 2024

Date of orders:

28 August 2024

Decision date:

28 August 2024

Jurisdiction:

Equity - Protective List

Before:

Lindsay J

Decision:

Orders made under section 40 and 41 of NSW Trustee and Guardian Act 2009 NSW for protective estate management of a person held incapable of managing his affairs, committing management of his estate to the NSW Trustee with directions to facilitate the NSW Trustee’s consideration of whether to consent to appointment as a tutor for the protected person in aid of an application made by the protected person, in separate proceedings, for a family provision order against the deceased estate of his mother.

Catchwords:

GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Appointment – Application for appointment of a protective estate manager – Capacity for self-management – Meaning – Governed by nature and purpose of protective jurisdiction

Legislation Cited:

Civil Procedure Act 2005 NSW

Felons (Civil Proceedings) Act 1981 NSW

NSW Trustee and Guardian Act 2009 NSW

Succession Act 2006 NSW

Trustee Act 1925 NSW

Uniform Civil Procedure Rules 2005 NSW

Cases Cited:

A v A [2015] NSWSC 1778

Ability One Financial Management Pty Ltd and Anor v JB by his tutor AB [2014] NSWSC 245

B v B [2003] NSWSC 1192

Bobolas v Waverley Council [2012] NSWCA 126

C v W (No 2) [2016] NSWSC 945

CJ v AKJ [2015] NSWSC 498

Clay v Clay (2001) 202 CLR 410

Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417

Ex parte Whitbread in the Matter of Hinde, a Lunatic (1816) 2 Mer 99; 35 ER 878

H v H [2015] NSWSC 837

IA v TA [2011] NSWCA 179

M v M [2013] NSWSC 1495

P v NSW Trustee and Guardian [2015] NSWSC 579

PF v HK [2016] NSWSC 590

Protective Commissioner v D (2004) 60 NSWLR 513

Re Eve [1986] 2 SCR 388; 31 DLR (4) 1

Re P [2006] NSWSC 1082

Saunders v Vautier (1841) 41 ER 482

Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218

W v H [2014] NSWSC 1696

Wellesley v Duke of Beaufort (1827) 2 Russ.1 38 ER 236

Category:

Principal judgment

Parties:

First Plaintiff: LEB
Second Plaintiff: CMB
Defendant: ABB

Representation:

Counsel:
Plaintiffs: H Bennett
Defendant: I Hoskinson
NSW Trustee: J Gardiner

Solicitors:
Plaintiffs: David Landa Stewart
Defendant: Direct access brief

File Number(s):

2023/00353857

JUDGMENT

INTRODUCTION

1. Before the Court in these proceedings (2023/00353857), “the Protective List proceedings”, is an application by the plaintiffs (LEB and CMB, siblings of the defendant) for a declaration, pursuant to section 41 of the NSW Trustee and Guardian Act 2009 NSW, that the defendant (ABB) is incapable of managing his affairs and an order, under the same section in combination with section 40 of the Act, that management of his estate, be committed, in whole or part, to the NSW Trustee.

2. These Protective List proceedings were commenced by a summons filed on 7 November 2023 and formally amended on 8 November 2023.

3. The summons was filed in aid of an application made by LEB and CMB (as defendants) for the appointment of a tutor for ABB (as the plaintiff) in associated proceedings (numbered 2023/00260818), “the Family Provision proceedings”, instituted by ABB seeking orders under Chapter 3 of the Succession Act 2006 NSW affecting the estate of their late mother, EJB (“the deceased”), who died on 7 April 2019 aged 83 years.

4. The Family Provision proceedings were commenced by a summons filed on 16 August 2023, more than four years after the death of the deceased and well beyond the time limit of 12 months from the date of death prescribed by section 58(2) of the Succession Act 2006, necessitating (if an order for Family Provision is to be made) an extension of time “on sufficient cause being shown”.

5. Such a cause might be shown in the fact that LEB and CMB did not obtain a grant of probate (of the will of the deceased dated 10 October 2018) until 4 September 2023 and intermeddled in the estate in the meantime.

6. I proceed upon an assumption that an extension of time will in due course be granted although, because of the context in which delay occurred, the question whether ABB can establish a “sufficient cause” for an extension of time must, in these proceedings, remain an open question.

7. The application made by LEB and CMB in the Family Provision proceedings was made by a notice of motion filed on 14 September 2023 and amended on 15 September 2023.

8. The orders sought in the motion fell into two classes. The first class sought (by reference to rule 23.4 of the Uniform Civil Procedure Rules 2005 NSW) orders requiring ABB to submit to a medical examination by Dr Jane Lonie, a clinical neuropsychologist. The second class sought (by reference to UCPR rule 7.18) a declaration that ABB is a person under a legal incapacity and an order for the appointment of a tutor to represent him in the Family Provision proceedings.

9. In a judgment, B v B, published at [2003] NSWSC 1192 on 4 October 2023 Kunc J, having determined that ABB had capacity to commence the Family Provision proceedings and to give instructions to his solicitor (TG) for that purpose (including in relation to the preparation of his affidavit in chief), was concerned about the absence of evidence about the capacity of ABB to make decisions about the conduct of the proceedings or settlement of them involving “a more nuanced or complex evaluation than the initial decision to commence proceedings”.

10. It is not necessary in this judgment to consider whether, on the evidence now available or which in the future might become available, Kunc J’s interlocutory determination (I assume made without the benefit of oral evidence from ABB personally) that ABB had capacity to commence the Family Provision proceedings and to give instructions ancillary to a commencement of the proceedings should stand. If that view of ABB’s capacity is to be challenged the practical reality is that it is likely to be challenged, if at all, on a consideration of what, if any, cost orders should be made in the Family Provision proceedings. It is sufficient for the purpose of these proceedings to record that, having heard evidence from ABB, I regard the question of whether ABB had capacity to commence the Family Provision proceedings as an open one. It is not free of doubt.

11. Based upon his concern about the absence of evidence about the capacity of ABB to make decisions about the conduct or settlement of the Family Provision proceedings, Kunc J made an order that ABB submit to a medical examination with Dr Lonie and directed that Dr Lonie provide a report addressing questions to the following effect:

1. what is your opinion as to ABB’s current mental capacity?

2. do you consider that ABB has capacity to make a decision about whether or not to continue his claim against his late mother’s estate?

3. in your opinion is ABB capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of these proceedings, including, without limitation, as to whether and, if so upon what terms, he should compromise his Family Provision proceedings?

THE NATURE AND PARAMETERS OF THIS JUDGMENT

12. The focus for attention in this judgment is upon the capacity of ABB to manage his own affairs (including, incidentally, the Family Provision proceedings), not directly upon questions relating to accounting for his estate or any competing claims of an accounting nature that might be made between ABB and his siblings in working out their entitlements vis-à-vis each other.

13. Although, in the course of giving reasons for findings on questions of capacity, observations are made by me about accounting questions, for example, arising from intermeddling by LEB and CMB in the estate of EJB or from CMB’s stewardship of funds held on trust for ABB (sourced, via EJB, from BB’s estate) at the suggestion of EJB this judgment is not intended to be determinative of accounting questions.

14. In the ordinary course, competing claims between the three siblings could not be authoritatively determined until such time as any dispute between them can be determined in a contest between ABB (if found to have capacity), or a duly appointed representative of ABB (if he is found to lack capacity), and his siblings. I do not, in this judgment, intend to be diverted from an assessment of ABB’s capacity by important, but collateral accounting questions.

15. By the same token, I do not intend, by this judgment, to make adverse findings about any of the people (the solicitor TG and the siblings LEB and CMB) who appear, in good faith, to have endeavoured to assist ABB. Still less do I intend to be critical of ABB who, I am satisfied, has done his best to manage his affairs. Upon an exercise of protective jurisdiction, questions about capacity for self-management (whether relating to estate management or the appointment of a tutor), in a case such as the present one, focus upon functional capacity, not mental capacity.

16. This approach is governed by the purposive character of an exercise of protective jurisdiction (in this case, governed by the NSW Trustee and Guardian Act 2009, informed by the Court’s inherent, protective jurisdiction) and an appreciation that, where a person has or assumes a protective role in the nature of a guardian vis-à-vis an incapable person, his or her liability to account for funds of the incapable person may (as discussed in Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420-423 and Clay v Clay (2001) 202 CLR 410 at 428 [37]-433 [49]) depend upon whether the protective purpose of the guardianship role has been served. Prudence dictates that the Court’s present, primary focus be on questions of (in)capacity.

DR LONIE’S REPORT

17. By a report dated 22 October 2023 Dr Lonie addressed the first of Kunc J’s questions separately and then addressed the second and third of his Honour’s questions globally.

18. In relation to the first question (an opinion as to “current mental capacity”) Dr Lonie made observations to the following effect in paragraph [139] of her report:

“With respect to [ABB’s] mental capacity, his current level of intellectual functioning falls within a High Average range for a man of his age [57 years]. His verbal comprehension and communicative abilities are well preserved. There is surprisingly little in the way of psychometric evidence of impairment of executive brain function, however, aspects of [his] day to day function and his responses on interview are highly suggestive of impaired adaptive capabilities secondary to a combination of executive and memory impairment. Aspects of [his] memory and new learning abilities remain impaired as a result of the very severe brain injury he sustained in a motor vehicle accident when he was 19 years of age.”

19. In relation to Kunc J’s second and third questions Dr Lonie made observations to the following effect in paragraphs [140]-[142] of her report:

“[140]   I will address these [questions] simultaneously in the context of the responses provided [to me upon assessment of ABB on 10 October 2023] to a wide range of questions pertaining to the current proceedings:

(a)   [ABB] does not appear to have a clear understanding of the purpose and nature of the proceedings, at times conflating a range of peripheral issues, including the administration of his late father’s will (which I believe to have been administered), grant of probate in relation to a former will written by his mother (which he at times claims to be seeking), and clarification of the composition of both the estate of his late mother and his late father, with family provision claim.

(b)   [ABB] is not able to demonstrate a consistent, accurate understanding of how his mother’s assets are to be distributed under the most recent will.

(c)   [ABB] does not appear to have a reliable understanding of the approximate value of the assets that are to be distributed under his late mother’s will. The confusion, in this regard, appears to stem from his belief that his father’s assets remain unaccounted for.

(d)   [ABB] has a number of suspicious beliefs around hidden assets within both his father’s and his mother’s will and the terms under which his late mother’s most recent will was written.

(e)   [ABB] provided me with information of an inconsistent and contradictory nature about a range of different matters relating to the proceedings. He did not appear to recognise the inconsistent, and at times improbable nature of what he was telling me.

(f)   [ABB] exhibited an incomplete and highly simplistic concrete interpretation of the potential outcomes of the proceedings.

(g)   He provided variable and contradictory accounts of what he hoped to achieve by way of the proceedings.

(h)   He was not able to reason in a hypothetical abstract and arithmetic sense around the balance of financial gains vs loss in pursuing a greater provision and the ensuing legal costs. His mindset, in attempting to do so, reflected a resolute belief that he would inherit 100% of his mother’s estate and in addition to this, he would inherent a further $2 million from his father’s (already administered) estate.

(i)   He did not appear to have any knowledge of the amount he had spent in legal costs to date.

[141]   In view of the above, it is my opinion that a combination of residual clinically highly significant impairment to aspects of [ABB’s] memory and executive function, acquired in the context of his very severe brain injury, are adversely impacting upon his mental capacity to make an informed and well-reasoned decision as to whether or not to continue his claim against his late mother’s estate.

[142]   If one is to assume that [ABB] has been provided with proper explanation from his legal advisers and other experts, as appears reasonable, the responses that were provided to questioning around his understanding of the matter [as set out in paragraphs 16-88 of the Lonie Report, not here extracted] suggest that the explanation provided to date has not had the intended effect of ensuring that [ABB] is mentally capable of sufficiently grasping the issues on which his consent or decision is likely to be necessary in the course of these proceedings including, without limitation, as to whether and, if so, upon what terms he should compromise these proceedings.”

EVENTS CONSEQUENT UPON THE LONIE REPORT

20. These (Protective List) proceedings were commenced following the parties’ receipt of the Lonie Report.

21. The Family Provision proceedings and the Protective List proceedings were, for a time, case managed together in the hope that a family settlement of the two sets of proceedings would emerge.

22. Directions hearings were held before me on 10 November, 4 and 14 December 2023; 1 and 19 March and 23 July 2024, with (at the request of the parties) postponement of a directions hearing scheduled for 19 June 2024.

23. On 14 December 2023 the solicitor acting for ABB in the Family Provision proceedings (TG) appeared in the Protective List proceedings for the limited purpose of assisting ABB to obtain (as was granted) an adjournment for the purpose of:

1. allowing ABB, with such independent legal advice as may be available to him, to consider whether he wished to contest the question of incapacity in either or both sets of proceedings; and

2. allowing the parties an opportunity to see whether, subject to the approval of the Court, some form of family arrangement could be made to resolve questions about ABB’s personal circumstances.

24. At the directions hearing on 1 March 2024, ABB appeared by counsel instructed by him on a “direct brief” without the intervention of a solicitor. TG does not act for him in the Protective List proceedings.

25. On 19 March 2024 ABB, through counsel, applied to the Court for an opportunity to adduce medical evidence in support of the proposition that he has capacity to manage his own affairs, including the two sets of proceedings.

DR RASTOGI’S REPORT

26. On 23 July 2024 ABB, through counsel, produced to the Court a report dated 21 July 2024 prepared by Dr Richa Rastogi, a Consultant Psychiatrist. The report was based upon Dr Rastogi’s interview with ABB on 13 July 2024, although the report records that “[ABB] has been attending “Medimind” (Mental Health Specialists) [a clinic of which Dr Rastogi is the director] for the purpose of his treatment since 2018”. The report also specifically records that Dr Rastogi had taken into consideration the report of Dr Lonie dated 22 October 2023.

27. Dr Rastogi’s report makes observations to the following effect (correcting clerical errors):

“[2]   [ABB's] medical history

He suffered a closed head injury when he was about 19, being involved in a motor vehicle accident and engaged with brain injury unit for multiple years. He is single living by himself in his mother's accommodation. His mother died in 2019. He suffered from generalised anxiety disorder following the head injury but over the years made recovery and functioned well. He is fairly independent with ADLs. He is currently on DSP. He denied panic attacks. He reported that he was sleeping well. He denied being fidgety, restless or nervous. He reported that he enjoys gardening and cooking. He denied depressive cognitions, anhedonia , diurnal mood variation or suicidal ideation. He denied feeling lethargic. He denied seizure or in voluntary muscular activities. He identified that he misplaces objects at times. He is functioning well and managing his day to days task reasonable well. He denied any overt psychotic symptoms. He is on Sertraline an antidepressant and Quetiapine, an anti-psychotic.

[3]   Nature of [ABB’s]'s condition, if any

He has made recovery from his anxiety disorder and remains in recovery.

[4]   Your opinion as to [ABB’s] current condition generally

On mental state examination [ABB] was casually dressed looking of stated age. He engaged well and was co-operative and polite. His affect was restricted and mood anxious. His speech was spontaneous. He denied depressive cognitions, and anhedonia, diurnal mood variation or suicide ideation or psychotic features. His cognition was intact. He was aware of his current situation and his finances. He maintained good insight. His MOCA testing on 13/7/2024 was 30/30 indicating normal cognitive functioning.

[5]   Please comment on any medication currently taken by [ABB]

He is on Sertraline 100mg and Quetiapine 25mg.

[6]   Please comment on [ABB’s] capacity

I am of the opinion that [ABB] has the capacity to make decisions given the observations made longitudinally being his treatment psychiatrist. His cognition is normal and he denied any impulsive behaviours or risks. He is able to plan things manage his finances and is aware of his situation and aware of his mother’s assets. He has good understanding of the current issue. I have reviewed Dr Lonie’s report and respectively disagree with her observations. His brain injury has not precluded him to living independently and managing his finances and day to day living skills as well as affect his decision making capacity. He does understand the legal proceedings and able to make informed consent if proper explanation was provided. A decision of informed consent should not be made purely based on neuro psychological testing as anxiety needs to be taken into consideration in interpretation of results that can be skewed. His clinical presentation and living skills needs to be taken account to address his ability to manage things and cognitive capacity.”

PROTOCOL FOR “CAPACITY” HEARING

28. At the directions hearing on 23 July 2024 I made the following notations ancillary to an order appointing 9 August 2024 as the date for hearing of the summons in the Protective List proceedings:

“[1]   NOTE the competing medical reports of Dr Jane Lonie (MFI C1) and Dr Richa Rastogi (MFI P2).

[2]   NOTE that it is agreed between the parties that:

(a)   the essential dispute between the parties on the amended summons filed on 8 November 2023 is whether the defendant is incapable of self-management.

(b)   in the event that the Court determines that the defendant is not capable of managing his own affairs, any management order made should provide for management of his estate to be committed to the NSW Trustee.

(c)   the competing reports (MFI C1 and MFI P2) are to be received in evidence on the hearing of the summons without objection or any requirement for cross examination.

(d)   the hearing of the summons will also be conducted on the basis that no objection will be taken to evidence adduced on either side of the record and, unless the Court otherwise determines, the focus of the hearing will be upon evidence given by the defendant, subject to any cross examination permitted.

(e)   no objection will be taken by either side of the record to affidavits filed or served in the associated Family Provision proceedings (2023/00260618) being relied upon or referred to.

…”

29. This protocol for a determination of the summons was followed at the hearing conducted on 9 August 2024. Without objection by any party the evidence adduced included, not only the affidavits filed in the Protective List proceedings, but also substantially the whole of the affidavits filed to date in the Family Provision proceedings, with a primary focus on the respective medical reports of Dr Lonie and Dr Rastogi.

30. Within the framework of the documentary material, ABB was invited to give evidence or simply sit at the bar table. He readily chose to give evidence in a setting in which questions were put to him, primarily, by his counsel, with supplementary questions put to him by counsel for LEB and CMB and myself. Having regard to the course of ABB’s evidence, the solicitor for the NSW Trustee declined an opportunity to put further questions to him. Throughout the hearing ABB presented as calm and fully engaged.

31. At the commencement of the hearing, before ABB gave evidence, I reminded all present (myself included) that the focus of the hearing was upon ABB’s capacity for self-management, not the Family Provision proceedings, and care needed to be taken by all present not to enter upon territory that might infringe such, if any, legal professional privilege as might subsist in communications between ABB and TG.

32. The questions put to ABB were crafted by all concerned to allow ABB to give evidence of his own story and his state of mind unhindered by leading questions on topics of significance. In my assessment he freely and voluntarily embraced that opportunity.

33. At the conclusion of the hearing, with assistance from the Bar table, I identified three topics upon which I invited LEB and CMB to provide further information:

1. an updated title search of EJB’s principal asset, her home at Toongabbie showing dealings with the land since the date of the deceased’s death;

2. an informal accounting for EJB’s superannuation entitlements; and

3. an informal accounting for administration of the estate of EJB’s late husband (BB), the father of ABB, LEB and CMB.

34. Information of that character was subsequently provided on notice to counsel for ABB and the NSW Trustee. It has not been utilised in further, personal examination of ABB but it places some of his evidence in context and clarifies his financial circumstances, particularly as regards the estate of BB.

35. An opportunity has been allowed to the parties to adduce further evidence or to make supplementary submissions arising from the additional information provided by LEB and CMB. It was not taken up.

36. The title to the Toongabbie property (Lot 17 in Deposited Plan 201064, being the land contained in folio identifier 17/201064) presently records CMB and LEB as registered proprietors (as joint tenants) pursuant to a Transmission Application, dealing number AT526307, executed by them in their capacity as executors of the estate on 17 October 2023, following the grant of probate made to them on 4 September 2023. The title is unencumbered.

37. On the information provided by LEB and CMB, it appears that all but a nominal sum of the superannuation entitlements of the deceased were paid out to her before her death.

38. A statement (dated 14 August 2024) provided to the Court by CMB records that, by an informal arrangement between the deceased (EJB) and her children (including ABB), the principal asset of BB (a property known within the family as the “New Berrima Property”) was renovated by CMB (at his expense, for which he was reimbursed from sale proceeds) and sold, leaving net proceeds of sale totalling $440,000 which was in October 2018 (before the death in April 2019 of EJB, the person beneficially entitled to the estate of BB) distributed four ways:

1. to LEB, $110,000.

2. to CMB, $110,000.

3. to CMB on trust for ABB, $110,000.

4. to the deceased’s six grandchildren (in equal shares), $110,000.

39. In his statement CMB records that he undertook management of ABB’s share of BB’s distributed estate as proposed by the deceased (EJB) “because she was concerned about [ABB’s] ability to manage large sums of money”. He records that he initially kept ABB’s funds in a separate bank account but, on 31 March 2022, he transferred those funds to another account merged with his own in order to minimise ABB’s exposure to bank fees. He acknowledges an obligation to account for funds held on trust by him for CMB, presently said to be a sum of $97,000. He records that he “was reluctant to put the money into a fixed term in case it was needed for [ABB] during settlement of [EJB’s] estate, which [he] expected to happen in the coming months”.

40. In a supplementary statement dated 23 August 2024 (prepared in response to questions raised by counsel for ABB) CMB explains that of the $110,000 earmarked for ABB $10,000 was paid to ABB and $3,000 was paid to LEB for the benefit of ABB.

41. In the same statement CMB explains that he did not place ABB’s funds in an interest-bearing deposit because he held the view that the funds should be kept available “on call” because of a possibility that they would be required on short notice for the assistance of ABB. On what I presently know of the facts of the case, that approach was not unreasonable.

42. CMB’s mixing of the trust funds of ABB with his own funds was imprudent and in breach of the obligations of a trustee, albeit that he has maintained ABB’s funds and kept an account of what he maintains is ABB’s separate entitlement. Although irregular, I accept that the course CMB took has been motivated by a desire to conform to his mother’s proposal for an informal type of “protective management” for his disabled brother.

43. On what I presently know of the facts of the case, I am inclined to the view that any technical breach of trust on the part of CMB in not keeping ABB’s funds separate and in an interest-bearing account could be excused upon an application of section 85 of the Trustee Act 1925 NSW or the analogous protective jurisdiction of the Court identified in C v W (No 2) [2016] NSWSC 945.

THE FORM OF PROTECTIVE MANAGEMENT ORDERS PROPOSED

44. In the event that protective management orders are made affecting ABB his siblings invite the Court to commit management of his protected estate to the NSW Trustee.

45. No alternative person (either a natural person or an institutional manager) has been nominated as a person “suitable” for appointment. That leaves the NSW Trustee as the only option should a decision be made under section 41 of the NSW Trustee and Guardian Act for ABB’s estate to be subject to protective management. The NSW Trustee is the State’s “manager of last resort” in the sense that, by convention, it accepts an appointment as a manager in the absence of a suitable alternative: M v M [2013] NSWSC 1495 at [46]; Ability One Financial ManagementPty Ltd and Anor v JB by his tutor AB [2014] NSWSC 245 at [30]-[36]; A v A [2015] NSWSC 1778 at [15]-[17].

46. In correspondence between counsel in the lead up to the hearing of the summons in the Protective List proceedings, counsel for LEB and CMB proposed that, reading sections 40 and 41 of the NSW Trustee and Guardian Act in combination, any order made under section 41 affecting ABB exclude from its operation management by ABB of the disability support pension which, for many years, has been his sole, regular source of income.

47. As ABB has no substantial assets other than his interest in the deceased estates of his parents, and there is no known prospect of him acquiring any other substantial asset, the practical effect of such an order would be that a regime of protected estate management would be limited in its operation to management of his interest in those estates, including any entitlement he may have to additional provision in the Family Provision proceedings and the fruits, if any, of those proceedings.

FACTUAL MATRIX

48. ABB was born in May 1965 and is presently aged 59 years. He is the oldest of three children of the marriage between the deceased (EJB) and BB, who died in March 2015 aged nearly 78 years.

49. The other children of the marriage, in order of birth, are LEB (born in July 1967 and presently aged 57 years) and CMB (born in January 1970 and presently aged 54 years).

50. The parents (EJB and BB) were married in August 1959 and separated in about 1991-1993, when EJB and LEB moved out of the family home at Greystanes and into rental accommodation, leaving BB, ABB and CMB living at the Greystanes home. In November 1996 they sold the family home at Greystanes and effected a property settlement which funded EJB’s purchase of her home at Old Toongabbie, where she lived until her death in April 2019. That property forms the principal asset of her estate. The inventory of property annexed to probate of her will attributed to it an estimated value of $1.1 million. In a recent “Administrator’s affidavit” (sworn on 31 July 2024) LEB attributed to it an estimated value of $1.27 million.

51. At the time of his death and for a considerable time before then BB lived separately from EJB. They were “separated" but not divorced.

52. Although BB may have contemplated updating his will in favour of his children and grandchildren, he died leaving a will dated 17 June 1976 which left the whole of his estate to EJB, his estranged wife. With the consent of EJB the will was admitted to probate on 1 June 2017, upon which date letters of administration with the will annexed were (with the consent of her children, including ABB) granted to CMB. As earlier explained, CMB acknowledges that he presently holds $97,000 on trust for ABB as ABB’s share of the EJB’s estate pursuant to an informal family arrangement agreed between EJB and her children, ABB, LEB and CMB.

53. ABB has never married or had children. He suffered a traumatic brain injury in a motor bike accident in 1985, aged 20 years. He continues to suffer disabilities as a consequence of that accident.

54. He had moved out of the family home at Greystanes, into his own rental property, nearly a year before his accident. After several months or more in hospital following the accident he returned to the Greystanes home to live with his father until, turned out by his father, he commenced living with the deceased, at first in her rental unit and, upon its purchase, her home at Old Toongabbie. He has continued to live at “the Toongabbie property” since that time. He is, and has been for many years, a disability support pensioner, in his own words, with “limited employment prospects”. He has not been in paid employment for about 20 years.

55. On a contested hearing of ABB’s family provision claim there may be a live issue as to the extent to which ABB lived independently of EJB, and was dependent upon her, before her death. There may also be a live issue about the extent to which, since the death of EJB, he has been dependent upon his siblings for financial support (supplementing his pension) and assistance from LEB in the performance of routine domestic tasks.

56. The reality of ABB’s life is that he lives alone in his late mother’s home without family or friends other than his siblings (only one of whom, LEB, lives locally) to call upon in times of need. His social contact with others than his siblings is limited to casual acquaintances he meets at his local shops when shopping for supplies and, should he consult a general practitioner for medical treatment (which he does only irregularly), a doctor allocated to him on a roster at the Medimind Clinic. He disclaims any regular connection with a particular doctor (including Dr Rastogi) but maintains that his only medical problem is “anxiety”, a condition he says was diagnosed for him by Dr Rastogi.

57. LEB is married with two teenage children, respectively aged 16 and 13 years. She is employed as a High School teacher and lives with her family in Arncliffe.

58. CMB is married with four children, ranging in age between 19 and 12 years. He is by occupation a sales manager. He lives with his family in Melbourne.

59. By her will EJB appointed LEB and CMB as joint executors and trustees, referring to them jointly throughout the will as “my Trustee”.

60. The substantive provisions of the will (here reproduced with editorial amendment and emphasis added) are found in clauses 3 to 6 inclusive:

“3.   I GIVE DEVISE AND BEQUEATH all of my property both real and personal of whatsoever nature and wheresoever situate unto my Trustee;

UPON TRUST:

1. To pay thereout all my just debts, funeral and testamentary expenses, and the expenses incidental to the execution of the trusts and powers in this my Will, and all Probate, Estate and all other duties or taxes whatsoever payable on or by reason of my death.

2. To distribute the balance of the estate as follows:

(a)   60% of the estate shall be distributed to my son [ABB]

(b)   20% of the estate shall be distributed to my son [CMB] and

(c)   20% of the estate shall be distributed to my daughter [LEB].

3. PROVIDED HOWEVER that should any child of mine predecease me THEN I DIRECT that such child or children shall stand in the place of their deceased parent and take per stirpes and if more than one in equal shares as tenants in common the share to which any such deceased child of mine would have been entitled under this my Will had her or she survived me. HOWEVER should my son [ABB] predecease me THEN I DIRECT his share to be equally distributed to his siblings.

4.   I EMPOWER my Trustee in their absolute discretion to sell call in and convert into money subject to such terms and conditions as my Trustee shall think fit all or any part of my real and personal estate BUT NEVERTHELESS I EMPOWER my Trustee to retain all or any part of my estate in the same form and conditions or invested in the same manner as may exist at my death and to hold the same investments or any portion thereof for such time as my Trustee shall think expedient without being responsible for any loss occasioned thereby.

5.   I GIVE my Trustee the following additional powers, authorities and discretions:-

1. To postpone the sale calling in or conversion of the whole or any part of the estate during such period as my Trustee may think proper and to retain the same or any part thereof in its present form of investment without being responsible for loss.

2. To invest any moneys from time to time requiring investment or which ought to be invested in any investment authorised by law for the investment of trust funds or upon mortgage of land (vacant or improved) of any tenure or in the purchase of income-producing real estate.

3. To raise money either out of income or out of capital as my Trustee in the circumstances shall think fair and equitable or by sale or mortgage of the whole or any part or parts of my estate from time to time for the purpose of making any advance or for any other purpose connected with my Will the administration of my estate or the powers contained in my Will or for repairs and alterations to real estate and to provide for the payment thereout and interest thereon and the costs and expenses thereof out of income or capital as how and when my Trustee shall think fit.

4. To make advances in the absolute discretion of my Trustee from time to time out of the capital of any share in my estate to which any child be absolutely contingently [sic] entitled to for their maintenance, education, advancement, benefit and/ or support.

5. To employ on performing the trusts of this my Will such solicitors, accountants, land agents and other professional people as my Trustee shall think necessary and expedient and to pay such fees and charges in respect of such employment as are customary and reasonable for work of that nature.

6.   I AUTHORISE AND EMPOWER my Trustee in their absolute discretion to advance the whole or any part of the share whether vested or contingent of any infant beneficiary under this my Will for the maintenance education benefit or advancement in life of such beneficiary during minority and to pay any moneys required for such purposes to the guardian or other person for the time being having the custody or care of such infant without being responsible to see to the application thereof.”

61. The scheme of the will warrants notice in circumstances in which:

1. at the time the will was executed (on 10 October 2018), ABB (as a single man and a long term recipient of a disability support pension) was living with the deceased at her home; and

2. although, in terms, it contemplated a distribution of estate property at some indefinite future time, the will established a trust to be administered by LEB and CMB pending distribution of the estate in proportions arithmetically favourable to ABB over his siblings, to whom was entrusted a power of advancement for the “maintenance, education, advancement, benefit and/or support” of ABB (or themselves).

62. The scheme of the will is consistent with an assessment on the part of EJB that ABB, on account of his disability, might need support through the agency of his siblings.

63. In the affidavits filed to date in the two sets of proceedings (not the subject of cross-examination in these Protective List proceedings but likely to be the subject of cross-examination in any contested hearing of the Family Provision proceedings) LEB and CMB assert that, notwithstanding that they did not take out a formal grant of probate until after the commencement of the Family Provision proceedings, they have administered the estate of the deceased on the basis that (on account of his disability) ABB needs support, allowing him to continue living at EJB’s Toongabbie property, “without rent”, and meeting expenses from estate funds (and their personal resources).

64. Confirmation of that can be found in a comparison between the inventory of property annexed to the grant of probate made in favour of LEB and CMB (on the one hand) and the Administrator’s affidavit sworn by LEB on 31 July 2024.

65. Between the date of EJB’s death (on 7 April 2019) and 31 December 2023, LEB, in particular, paid from her own funds a total of $30,730.46 in provision of funds to ABB “to cover the shortfall of his pension payments” (a sum totalling $3,202) and in payment of outgoings on the Toongabbie property: council rates; water rates; electricity, gas and Telstra accounts; maintenance; and insurance. A consequence of ABB’s commencement of the Family Provision proceedings (and, perhaps, the issue to LEB and CMB of a grant of Probate) is that LEB has felt obliged to step back from paying these outgoings from her own resources. Since 1 January 2024, council rates, water rates and electricity and gas accounts have been paid from the deceased’s estate. ABB continues to live in the Toongabbie property “rent free” in circumstances, according to LEB, the property could be rented out for approximately $665 a week.

66. The terms and conditions upon which ABB has received, is receiving and hopes to continue to receive a disability support pension have not been made the subject of evidence in these proceedings. It is, in these proceedings, an open question whether the availability of a disability support pension for ABB has influenced decision-making in EJB’s management of her affairs, in the drafting of her will or in administration of her deceased estate in a manner that needs to be taken into account in assessing how best, in ABB’s interests, to manage the Family Provision proceedings.

62. An unintended consequence of the failure of the parties to reach an agreement about the future administration of EJB’s estate may be that the present estrangement between ABB and his siblings as a consequence of the pendency of the Family Provision proceedings has limited opportunities for informal family support for ABB and may render a sale of the Toongabbie property inevitable.

63. ABB’s perception that he is, and always has been, able to manage his own affairs appears likely to have been formed in the context of the informal support given to him, first, by his mother and, after her death, by his siblings. The institution and pendency of the Family Provision proceedings has, unremarkably, led to a breakdown in the personal relationships between ABB and his siblings, with him rejecting conciliatory overtures by them and they being forced by his rejection to retreat into formal dealings.

64. Without attributing blame to any family member, there has been a loss of congeniality and, from the perspective of ABB, a loss of family support. Unless there is a reconciliation between ABB and his siblings there is a risk, made manifest in his oral evidence but which he appears not to comprehend, that he may not be able to establish a comparable support network to replace “family”.

65. In written submissions made by counsel on behalf of ABB the attention of the Court was properly drawn to the fact that “there was no attempt made [by LEB and CMB] to appoint a [financial] manager over [ABB] before he filed the Family Provision proceedings” and that “[the] Court should be alert to a possible forensic advantage to be gained by the executors [LEB and CMB] should [the] NSW Trustee be appointed as [ABB’s] tutor”.

66. On the evidence presently available to me (and despite criticism about their informal administration of their parents’ estates that may be warranted), I am not inclined to attribute bad faith or adversarial motives to LEB or CMB. In their written submissions they have, for example, expressly disclaimed any entitlement they might otherwise have to seek an order for their costs of the Protective List proceedings to be paid by ABB or the estate of the deceased. Their decision to defer a sale of the Toongabbie property and to allow ABB to live there (“rent free” and with ordinary living expenses paid on his behalf) has kept them out of their own inheritance, to the benefit of ABB in a way unlikely to translate into any benefit available to him in the Family Provision proceedings. CMB has held funds from BB’s estate on trust for ABB and acknowledges an obligation to account to him for those funds.

67. I am not sufficiently alive to forensic decisions made by or on behalf of ABB in his decision to commence Family Provision proceedings to judge why a road to that form of litigation, in isolation from other courses, was chosen. Nor am I aware why (as appears to be the case) the Family Provision proceedings were commenced without a prior demand by ABB (invoking the rule in Saunders v Vautier (1841) 41 ER 482) for a distribution to him of his entitlement to 60% of the deceased’s estate. An assumption appears to have been made that a family provision claim was a necessary and appropriate “remedy” for ABB rather than, say, an administration suit to compel completion of administration of the deceased’s estate or engagement with ABB’s family, without a peremptory threat of litigation, to corroborate ABB’s instructions. To his credit, though, TG identified concerns about EJB’s superannuation entitlements and BB’s estate that have, in the current proceedings, required investigation in the interests of ABB.

68. Supplementing evidence of correspondence between solicitors, an affidavit sworn by TG on 22 September 2023 in the Family Provision proceedings (ostensibly in support of his strongly held view that ABB has at all times had, and has, the requisite capacity to instruct him in those proceedings) relates the course of events leading to his acceptance of instructions from ABB for the commencement of the Family Provision proceedings and the preparation of a substantive affidavit sworn by ABB (on 21 August 2023) in support of his claim for a Family Provision order.

69. So persuaded is TG of ABB’s capacity to instruct him in the Family Provision proceedings that he has prepared further affidavits sworn by ABB (on 18 June and 24 July 2024, albeit that the latter is a formal affidavit) in support of a Family Provision claim despite his receipt, first, of a letter dated 11 September 2023 from the solicitors for LEB and CMB disclosing the concerns of ABB’s siblings about ABB’s capacity and, secondly, the report of Dr Lonie dated 22 October 2023.

70. Dr Lonie’s report is extracted above. The solicitors letter dated 11 September 2023 (addressed to TG at his firm) is here extracted (with editorial adaption):

“ESTATE OF THE LATE EJB (“DECEASED”)

We note that these proceedings are listed for directions before the Succession List Judge [Meek J] on Friday 15 September 2023.

We are instructed that our clients [LEB and CMB] hold genuine concerns regarding whether their brother, [ABB], is a person under a legal incapacity which also gives rise to the question of whether [ABB] possesses the requisite capacity to provide instructions to you and your firm.

As you are aware, [ABB] was involved in a motorbike accident in about 1985 when he was 20 years old which resulted in a traumatic brain injury. Following the accident, he was in a coma for at least 3 months and his rehabilitation took many years, during which time he had to learn to walk and speak again.

Following the accident, [ABB] was observed by our clients to undergo a substantial change in his personality and behaviour, exhibiting increased irritability and episodes of violence, and periods where he is suspicious and paranoid of others. For example, the belief that the deceased was attempting to poison him through her cooking, and the belief that neighbours had tampered with his car, swapping fuses with tin foil, were driving his car and depleting its fuel.

[ABB] was also observed by our clients to have difficulty with his short-term memory and in making decisions and showed reduced insight into his impairments and willingness to accept treatment for his condition.

Our clients acknowledge that in certain circumstances, [ABB] can present well for brief periods and that he possesses good language skills. Nevertheless, [ABB] struggles with management of his money and often finds himself short of funds and turns to [LEB] for financial assistance. [LEB and CMB] have responded to this by purchasing him items he needs rather than just give him money, due to previous experiences of funds not be applied to the purpose for which they were intended.

[ABB] also struggles with hoarding possessions, which has led to the living space in the home becoming densely cluttered, severely restricting the available room for movement.

We are instructed that [LEB] accompanied [ABB] to see his doctor on one occasion where it was suggested that [ABB] should apply for support from the National Disability Insurance Scheme, however, [ABB] at that time expressed his preference for [LEB] to continue to assist him and his heightened sense of paranoia prevented him from allowing people into the home to clean or remove clutter.

In light of their observations of and contact with [ABB] over many years, our clients wish to determine whether it is appropriate for a tutor to be appointed for [ABB] to have conduct of these proceedings on his behalf.

In order to properly determine this issue, and to ensure that [ABB’s] best interests are given primacy, we invite [ABB] to undergo a medical examination in order to obtain expert medical opinion as to his mental capacity, specifically in relation to his capacity to instruct solicitors in the commencement and maintenance of these proceedings, so that the Court can determine whether a tutor should be appointed.

We note that [ABB’s] affidavit [sworn 21 August 2023] deposes to seeing a psychiatrist, Dt [sic] Wijayakumar. Assuming that Dr Wijayakumar is [ABB’s] treating doctor, and depending upon whether this doctor has specialised knowledge in relation to mental capacity assessment, then It may be appropriate for them to undertake the medical examination. Alternatively, an independent health professional, potentially being a neuropsychologist, neurologist, or psychiatrist, who undertakes medico-legal mental capacity examinations could be appointed.

In light of the importance of selecting an appropriate health professional to assess [ABB’s] mental capacity, we kindly request your cooperation in mutually agreeing upon the choice of the expert. We believe that a collaborative approach In this matter will serve [ABB’s] best interests and will help facilitate an impartial assessment that will best assist the Court in any determination to be made.

If [ABB] is unwilling to agree to voluntarily participate in the proposed medical examination, such is our clients concern as to the psychological and financial welfare of Andrew, including the current circumstances where he is putatively instructing solicitors and incurring debts by way of costs, that they intend to make an application for an order compelling him to submit to a medical examination pursuant to rule 23.4 of the Uniform Civil Procedure Rules (2005) NSW. Pending the outcome of the assessment, our clients also propose to seek the appointment of a tutor for [ABB] to protect him and safeguard his interests.

We note that should the medical assessment determine that [ABB] lacks, and has lacked, the requisite capacity to provide instructions to your firm, there is a real risk your firm will not recover your costs.

So that the parties can cooperate and agree on appropriate Short Minutes of Order prior to the directions hearing on 15 September 2023, we kindly request your prompt response. We otherwise put you on notice that we Intend to raise these matters with the Succession List Judge at the directions hearing so that appropriate Orders and directions can be made.”

76. On LEB’s estimate of the current value of the estate, if administration of EJB’s estate were to be finalised upon a sale of the Toongabbie property, and final administration of the estate, ABB could receive about $720,000, supplemented by the $97,000 held on trust for him from BB’s estate (but he would be required to obtain and fund fresh accommodation), subject to presently unknowable costs orders and any entitlements LEB and CMB may have to be indemnified out of the deceased’s estate in reimbursement of estate expenses paid by them.

77. Even if he were to be given the whole of the EJB’s estate, subject to costs being paid out of the estate, he may not be able (as a pensioner) to maintain the Toongabbie property, necessitating a sale of the property with a consequent need to find (and fund) alternative accommodation.

78. In mentioning these scenarios, I do not intend to reflect in any determinative way on the competing entitlements of ABB and his siblings in the Family Provision proceedings but only to reflect upon some of the questions that appear to arise for management of ABB’s affairs (whether by himself or through an estate manager and tutor) looking forward.

79. If, as LEB and CMB (as I accept genuinely) believe there has always been an objective doubt about ABB’s ability to manage his own affairs a question of capacity would inevitably arise whether ABB sought to displace the trust established by the deceased’s will by a demand for his share of the estate to be transferred to him, in proceedings for administration of the estate, or on an application for family provision relief. This may not have been fully appreciated by TG, from whom (in fairness to him, it must be said) I have not heard on the hearing of these (protective) proceedings, but in case management of the two sets of proceedings.

80. On the case sought to be advanced by or on behalf of ABB in the Family Provision proceedings his disability is counted as a factor in his favour, warranting preferential treatment vis-à-vis siblings who are ostensibly materially better off and settled in a family environment. In one guise or another questions about ABB’s capacity for self-management are likely to be encountered in the Family Provision proceedings with or without a regime protective of ABB as a vulnerable person.

LEGAL PRINCIPLES

81. The legal principles to be applied in disposition of LEB and CMB’s application for protected estate management orders affecting ABB are not in dispute.

82. By their amended summons LEB and CMB seek orders to the following effect:

1. A declaration, pursuant to section 41(1)(a) of the NSW Trustee and Guardian Act 2009 NSW, that ABB is incapable of managing his affairs.

2. An order, pursuant to sections 40 and 41(1)(a) of the NSW Trustee and Guardian Act 2009, that the estate of ABB be subject to management under the Act.

3. An order, under section 41(1)(b) of the NSW Trustee and Guardian Act, that management of the estate of ABB be committed to the NSW Trustee.

4. Consequential or ancillary orders.

83. Section 41 is the principal provision invoked in the amended summons. Section 40 falls to be considered, particularly, if a partial management order is to be made rather than an order for the management of ABB’s whole estate.

84. A partial management order might be made, for example, to exempt a pension from protective estate management so as to permit a pensioner to manage his or her pension without the intervention of a manager. A similar outcome might, in practice, be embraced by a management order under section 41 (without invoking section 40), leaving a manager to decide (by reference to section 71 of the NSW Trustee and Guardian Act) whether the managed person (a.k.a. the protected person) should be authorised, by the manager, to deal with pension proceeds.

85. All these sections are part of Chapter 4 (sections 38-100) of the NSW Trustee and Guardian Act, entitled “Management functions relating to persons incapable of managing their affairs”. That fact brings to mind section 39 of the Act which guides decision-making functions.

86. In the application of sections 39, 40, 41 and 71 regard must be had to the following definitions in section 38 which (with emphasis added) provides, inter alia, that in Chapter 4:

“estate of a person means the property and affairs of a person and, if only part of the estate of a person is under management under this Chapter, means only that part of the property and affairs of the person.

…

managed person means a protected person, managed missing person or patient whose estate is subject to management under this Act.

manager of an estate means the NSW Trustee, if management of the estate is committed to the NSW Trustee, or any person who is appointed as the manager of the estate of a managed person.

…

protected person means a person in respect of whom an order is in force under Part 4.2 or 4.3 or the Guardianship Act 1987 that the whole or any part of the person’s estate be subject to management under this Act.”

87. So far as may be material, sections 39 and 40 (in Part 4.1 of the Act), section 41 (in Part 4.2), and section 71 (in Part 4.5) are in the following terms (with emphasis added):

“39   General principles applicable to Chapter

It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles—

(a)   the welfare and interests of such persons should be given paramount consideration,

(b)   the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c)   such persons should be encouraged, as far as possible, to live a normal life in the community,

(d)   the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e)   the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f)   such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g)   such persons should be protected from neglect, abuse and exploitation.

40   Orders for management may apply to part of estate

An order may be made under this Chapter for the management of the whole or part of the estate of a person.

41   Orders by Supreme Court for management of affairs (cf PE Act, s 13)

(1)   If the Supreme Court is satisfied that a person is incapable of managing his or her affairs, the Court may—

(a)   declare that the person is incapable of managing his or her affairs and order that the estate of the person be subject to management under this Act, and

(b)   by order appoint a suitable person as manager of the estate of the person or commit the management of the estate of the person to the NSW Trustee.

(2)   The Supreme Court may make an order on its own motion or on the application of any person having a sufficient interest in the matter.

(3)   For the purposes of this section—

(a)   evidence of a person’s capability to manage his or her own affairs may be given to the Supreme Court in any form and in accordance with any procedures that the Court thinks fit, and

(b)   the Court may personally examine a person whose capability to manage his or her affairs is in question or dispense with any such examination, and

(c)   the Court may otherwise inform itself as to the person’s capability to manage his or her own affairs as it thinks fit. …

…

71   Managed person cannot deal with estate (cf PE Act, s 23A)

(1)   The power of a managed person to deal with his or her estate is suspended in respect of so much of that estate as is subject to management under this Act.

(2)   However, the manager may, by instrument in writing, authorise the managed person to deal with so much of the estate as the manager considers appropriate and specifies in the instrument.

(3)   The authorisation may be given at any time and may be withdrawn, wholly or in part, at any time.

(4)   More than one authorisation may be given under this section.

(5)   An authorisation must not be given or withdrawn by a manager who is not the NSW Trustee without the approval of the NSW Trustee.

(6)   Each of the following persons may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 for a review of a decision of the NSW Trustee about whether or not to approve of the giving or withdrawal of an authorisation—

(a)   the manager,

(b)   the managed person,

(c)   the spouse of the managed person,

(d)   any other person who, in the opinion of the Civil and Administrative Tribunal, has a genuine interest in the matter to which the NSW Trustee’s decision relates.

(7)   (Repealed)”

88. The pivotal provision in section 41(1) is the expression “[if] the Supreme Court is satisfied that a person is incapable of managing his or her affairs”.

89. The concept of incapacity for self-management is not, in terms, defined in the NSW Trustee and Guardian Act but takes its colour from the Court’s inherent parens patriae (protective) jurisdiction (explained in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259), upon which Chapter 4 is modelled.

90. I have previously considered the nature of the Court’s jurisdiction and the operation of Chapter 4 in a number of judgments to which I adhere without any present need of elaboration: CJ v AKJ [2015] NSWSC 498 at [14]-[53]; P v NSW Trustee and Guardian [2015] NSWSC 579; and H v H [2015] NSWSC 837.

91. Suffice for the present case to extract paragraphs [27]-[43] of CJ v AKJ [2015] NSWSC 498:

“[27]   In the absence of an express legislative definition, the expression “(in)capable of managing his or her affairs” should be accorded its ordinary meaning, able to be understood by the broad community (lay and professional) it serves, remembering that:

(a)   the concept of incapacity for self-management is an integral part of the protective jurisdiction which, historically, arose from an obligation of the Crown (now more readily described as the State) to protect each person unable to take care of him or her self: Marion’s Case (1992) 175 CLR 218 at 258, citing Wellesley vDuke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243.

The Court does nothing wantonly or unnecessarily to alter the Lunatic's property, but on the contrary takes [103] care, for his sake, that, if he recovers, he shall find his estate as nearly as possible in the same condition as he left it, applying the property in the mean time in such manner as the Court thinks it would have been wise and prudent in the Lunatic himself to apply it, in case he had been capable.

The difficulty I have had was as to the extent of relationship to which an allowance ought to be granted. I have found instances in which the Court has, in its allowances to the relations of the Lunatic, gone to a further distance than grand-children - to brothers and other collateral kindred; and if we get to the principle, we find that it is not because the parties are next of kin to the Lunatic, or, as such, have any right to an allowance, but because the Court will not refuse to do, for the benefit of the Lunatic, that which it is probable the Lunatic himself would have done.

[No Order was made upon the Petition.]”

134. A point to be made by reference to this historical example is that, upon an exercise of protective jurisdiction, a need to consult the “significant others” of an incapable person must be viewed through the prism of the incapable person’s perspective, having regard to the welfare principle (that the welfare and interests of the incapable person are the paramount consideration) and, in a case governed by the NSW Trustee and Guardian Act, more specifically the “general principles” set out in section 39 of the Act.

135. The requirement for prudential decision-making that is inherent in an exercise of protective jurisdiction does not mean that a protected person, such as ABB will become upon the making of orders giving effect to this judgment, should not be permitted or empowered to give effect to his or her own wishes and preferences (imprudent though they may be), recognising that the freedom to choose a course of conduct may also involve a freedom to fail. The essence of prudential, protective estate management is in each case “risk management”, focussing on the future informed by present and past experience.

CONCLUSION

136. Having allowed the parties an opportunity to be heard as to the form of orders to be made, I make orders to the following effect:

1. DECLARE, pursuant to section 41(1)(a) of the NSW Trustee and Guardian Act, that ABB is incapable of managing his affairs.

2. ORDER, pursuant to section 41(1)(a) of the NSW Trustee and Guardian Act, and subject to order 3 of these orders, that the estate of the defendant be subject to management under the Act.

3. ORDER, pursuant to sections 40 and 41 of the NSW Trustee and Guardian Act and subject to further order, that that part of the estate of ABB comprising the proceeds of any disability support pension paid or payable to him be excluded from management under the Act.

4. ORDER, pursuant to section 41(1)(b) of the NSW Trustee and Guardian Act, that management of the estate of ABB be committed to the NSW Trustee.

5. NOTE that the NSW Trustee, as manager of ABB’s protected estate, is invited by the Court to consider whether it will consent to act as a tutor for ABB in the family provision proceedings numbered 2023/00260818.

6. RESERVE to the parties liberty to apply for consequential orders in the working out of these orders.

7. ORDER that the costs of the NSW Trustee and counsel for ABB in these proceedings be paid out of the estate of ABB on the indemnity basis.

8. NOTE that, at their invitation, no orders are made for the costs of LEB and CMB in these proceedings.

137. I commend to the parties (including the NSW Trustee as manager of ABB’s protected estate) the possibility that, within the framework of these proceedings and the Family Provision proceedings, a family arrangement might be negotiated (subject to the Court’s approval) that might permit ABB to remain in occupation of the family home, with consequential adjustments to the respective entitlements of ABB, LEB and CMB to the estate of EJB.

138. In the meantime, subject to any direction that might be given by the NSW Trustee, CMB should pay to the NSW Trustee (as manager of ABB’s protected estate) the $97,000 he presently holds on trust for ABB.

139. One of the obligations imposed on the NSW Trustee as manager of ABB's protected estate is to consider, not only whether to consent to act as ABB’s tutor in the Family Provision proceedings but, more broadly, to consider what, if any, arrangements should be made for representation of ABB in those proceedings.

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Decision last updated: 28 August 2024