MA and BM - [2010] WASAT 121

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: MA and BM [2010] WASAT 121

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 25 JANUARY 2010
25 MARCH 2010

DELIVERED : 23 AUGUST 2010

FILE NO/S: GAA 2940 of 2009

BETWEEN: MA
Applicant
AND
BM
Represented Person

Catchwords:

Guardianship and administration - Administration - Legal action to determine entitlement to estate - Testamentary trust - Trustees obligation to account - Need for an administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(b)(iv), s 4(2)(c), s 4(2)(e), s 4(2)(f), s 16(4), s 41(2)(c)(ii), s 64(1), s 64(1)(a), s 68, s 68(3)(a), s 68(8)(b), s 80, s 97(1)(b)(iii)
Inheritance (Family and Dependants Provision) Act 1972 (WA)

Result:

Administrator appointed

Category: B

Representation:

Counsel:

Applicant: Mr M Bassett-Scarfe
Represented Person : N/A

Solicitors:

Applicant: Peel Legal Barristers and Solicitors
Represented Person : N/A

Case(s) referred to in decision(s):

FS [2007] WASAT 202
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

An application for the appointment of an administrator of the estate of a woman was made by her partner.
The application was for the making of a limited order for administration so that, if necessary, legal action could be taken with respect to the woman's entitlements under her late father's will.
The woman suffered from a mild cognitive impairment.
Under the late father's will, the estate had been distributed equally amongst his four children with the woman's share the subject of a testamentary trust with her two brothers appointed as trustees.
The terms of the trust were that the net income was to be distributed to the woman and that distributions from the capital of the trust were at the discretion of the trustees. Some distributions had been made.
The applicant claimed that the trustees had not properly accounted to the woman which the trustees accepted had not been done. The applicant had also raised the question of whether the woman had been adequately provided for in her late father's will.
The trustees did not trust the applicant and said that he had been instrumental in a breakdown of the relationship between the woman and her siblings. The applicant denied this.
The trustees proposed that the Public Trustee be appointed the woman's administrator to deal with the estate and trust matters.
It was the wish of the woman that the applicant be appointed her administrator.
The Tribunal decided that the applicant should be appointed the woman's limited administrator to decide what action, if any, should be taken to secure her entitlements to her late father's estate and the trust created under his will. Although it was accepted by the Tribunal that the applicant and the trustees did not have a good relationship, it was decided that the applicant was suitable to undertake the role of administrator and that the trustees were bound, in their fiduciary capacity, to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MA and BM

Details

AGLC: MA and BM [2010] WASAT 121
Case: [2010] WASAT 121
Decision Date: 23 AUGUST 2010

CaseChat Overview and Summary

The case of MA and BM involved a dispute concerning the administration of a testamentary trust, with MA seeking to be appointed as the administrator for BM. The matter was heard by the court, which was tasked with determining whether an administrator was necessary for BM and, if so, who should be appointed. The primary issue was whether BM required an administrator to manage the trustees of her late father's estate and to consider whether her entitlement under his will should be challenged. The applicant and BM had raised concerns about the trustees' handling of their inquiries, which had not been satisfactorily addressed. The trustees appeared to have misunderstood their duties and acted under a state of mistrust towards the applicant. This mistrust persisted at the time of the hearing, creating an impasse in resolving the matter.

The court considered the role of an administrator under the Guardianship and Administration Act, which is protective in nature but also respects the individual's autonomy. The need for an administrator for BM was seen as limited to dealing with the trustees and considering whether her entitlement under her late father's will should be challenged. The trustees had a duty to properly account to BM under the trust, which they had not done but now claimed they would. The court found that there was merit in appointing an independent person, such as the Public Trustee, to facilitate a resolution other than through legal action. However, the court concluded that the trustees' mistrust of the applicant should not influence their fiduciary duty to BM. The court found that it was in BM's best interests for the applicant to be appointed as her administrator.

The court was satisfied that BM was in need of an administrator and that it was in her best interests for the applicant to be appointed. The trustees must engage in a dialogue with the appointed administrator to manage the trust and consider whether BM's late father made adequate provision for her in his will. The appointment of the applicant as administrator would facilitate this dialogue and ensure that the trustees' fiduciary duties to BM were fulfilled. The court's decision was based on the need for an independent person to resolve the impasse between the trustees and BM, and the trustees' duty to properly account to BM under the trust. The court's decision ensures that BM's interests are protected and that the trustees fulfill their fiduciary obligations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MR J

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Ratio Decidendi

Legal Principle Established

Established by: MR J

The GA Act is essentially protective in its intent (Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43]. However there is also a respect for the person's autonomy in the requirements that other means less restrictive of the person's freedom of decision and action should be considered before the making of an order (s 4(2)(c)); that any limited order made should impose the least restrictions on the person's freedom of decision and action (s 4(2)(e)) and that, in considering any matter, the person's views and wishes should be ascertained (s 4(2)(f)). The need for an administrator for BM is identified as being restricted to dealing with the trustees about the operation of the trust and to consider whether her entitlement under her late father's will should be challenged. The application has come about because BM and the applicant say that their inquiries to the trustees have not been satisfactorily answered. It would appear that the trustees have not fully understood their duties but have also acted under a state of mistrust of the applicant. It is clear to me that at the time of the hearing that mistrust remains. There appears therefore to be an impasse as to how the matter should be resolved. It is a pity that the situation has been reduced to the contemplation of legal action given the modest size of the estate. The way the situation has developed has been put as an argument for the appointment of the Public Trustee as BM's administrator. The submission is that it is only by the intervention of an independent person that the matters have the best chance of a resolution other than by legal action. There is some merit in that submission. The fact remains, however, that the trustees have a duty to properly account to BM under the trust which they have not done but now say they will do. The other issues are how the trust will operate in the future to the benefit of BM and whether there is scope now to consider whether her late father made adequate provision for her in his will. To deal with the first matter requires a dialogue between the trustees and the person given the authority to speak for BM's best interests. The trustees must engage in this dialogue given their duties and obligations, however it might be argued for example, that the exercise of the discretion available to them under the trust could be clouded by their opinion of the applicant. That being said the trustees cannot avoid their fiduciary duty to BM (whoever the administrator might be). Their mistrust of the applicant must not influence the mandatory requirement to distribute the trust income and to objectively assess the needs of BM when requests are made for distributions of the trust's capital. Consideration of a claim under the Inheritance Act will not affect the trustees but rather will be a matter for the individual beneficiaries under the late father's will. For that reason and what follows I am satisfied that BM is in need of an administrator and that it is in her best interests that the applicant be appointed.