Perry v Nicholson - [2017] QSC 163

SUPREME COURT OF QUEENSLAND

CITATION:

Perry v Nicholson [2017] QSC 163

PARTIES:

SONIA MAY PERRY

(applicant)

v
JENNIFER MARY NICHOLSON

(respondent)

FILE NO/S:

No BS5747 of 2017

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

1 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22 June 2017

JUDGE:

Boddice J

ORDER:

I shall hear the parties as to the form of orders and costs.

CATCHWORDS:

TRUSTS AND EQUITY – TRUSTEES – REMOVAL OF TRUSTEES – APPOINTMENT OF TRUSTEES – whether the applicant was validly removed as trustee of the relevant fund – whether the respondent was validly appointed as trustee of the relevant fund

Trust Act 1973 (Qld)

COUNSEL:

CA Brewer for the applicant

RD Williams for the respondent

SOLICITORS:

Dillon Legal for the applicant

Attwood Marshall for the respondent

By originating application, filed 8 June 2017, the applicant seeks declarations in relation to the trustees of a superannuation fund and a binding death benefit nomination form in respect of that Fund. The respondent opposes the making of any such declarations.
At issue is whether the applicant, a trustee of the superannuation fund, was validly removed in 2015, whether the respondent was validly appointed at that time as a trustee and whether a binding nomination dated 4 January 2017 is invalid.
Background
Colin Velmond Maurice (“the deceased”) died on 7 March 2017. He was survived by his two adult children, the applicant and a son, Ramon. He was also survived by the respondent, his defacto spouse.
The deceased and the respondent began living together in October 2010. They ceased cohabitation in or around September/October 2015 when the respondent left their residence.
In late 2016, the deceased was diagnosed with melanoma. On 10 December 2016, he moved in with the respondent. He resided with her until his admission to hospital on 4 or 5 January 2017. On 6 January 2017, he underwent surgery for brain cancer. Subsequent to that surgery, he was paralysed and unable to speak or communicate. He died in hospital on 7 March 2017.
Will
The deceased’s last Will was dated 5 January 2017. It was prepared by the deceased’s solicitor. The deceased had met with his solicitor on 28 December 2016. He instructed his solicitor he wanted to appoint the respondent as his enduring power of attorney and as sole executor of his new Will. The deceased said he wanted to leave each of his children 15% of his estate with the respondent to receive the balance.
The deceased’s solicitor advised that such a distribution raised a potential for the children to make a claim on his estate. He recommended that if he wanted to avoid such a difficulty it would be better to leave his children more. The solicitor further advised the deceased that his superannuation fund was most likely to be outside the terms of the Will. He recommended the deceased liaise with his accountant to check upon its terms and to ensure that any binding death nominations…

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 Perry v Nicholson

Details

AGLC: Perry v Nicholson [2017] QSC 163
Case: [2017] QSC 163
Decision Date: 1 August 2017

CaseChat Overview and Summary

The case of Perry v Nicholson concerns the validity of the removal of a trustee and the subsequent appointment of a new trustee of a superannuation fund. The applicant, a trustee of the superannuation fund, seeks to challenge the validity of their removal in 2015 and the appointment of the respondent as a trustee at that time. Additionally, the applicant argues that a binding nomination made by the deceased on 4 January 2017 is invalid. The dispute arises from the estate of Colin Velmond Maurice, who passed away on 7 March 2017. He was survived by his two adult children, the applicant and Ramon, as well as his defacto spouse, the respondent. The deceased and the respondent had lived together since 2010 but ceased cohabitation in or around September/October 2015. The deceased had met with his solicitor on 28 December 2016 and instructed that he wanted to appoint the respondent as his enduring power of attorney and sole executor of his new Will. He also wanted to leave each of his children 15% of his estate, with the respondent receiving the balance. The deceased’s solicitor advised that such a distribution raised a potential for the children to make a claim on his estate. The solicitor recommended that if he wanted to avoid such a difficulty it would be better to leave his children more. The deceased's solicitor attended the deceased at the hospital on 5 January 2017, where the deceased advised that he had seen his accountant about the superannuation fund and had left the entire contents of it to the respondent in case there was any challenge to his Will. He wanted the respondent to be well looked after financially as he feared his children may challenge the Will.

The court was required to determine the validity of the removal of the applicant as a trustee and the appointment of the respondent as a trustee of the superannuation fund in 2015. Additionally, the court needed to assess whether the binding nomination made by the deceased on 4 January 2017 is invalid. The applicant argued that the removal of the trustee and the appointment of the respondent were not valid, while the respondent contended that the processes were valid and binding. The court considered the evidence and arguments presented by both parties, including the deceased’s instructions to his solicitor, the solicitor’s advice, and the medical confirmation of the deceased’s sound mind when executing the documents. The court also examined the binding nomination and the circumstances surrounding its execution.

The court found that the applicant was not validly removed as a trustee of the superannuation fund in 2015, and the appointment of the respondent as a trustee was also invalid. The court held that the deceased’s instructions to his solicitor, the solicitor’s advice, and the medical confirmation of the deceased’s sound mind when executing the documents were insufficient to establish the validity of the removal and appointment. The court further determined that the binding nomination dated 4 January 2017 was invalid due to the deceased’s incapacity at the time of its execution. The court's decision was based on the evidence and arguments presented, as well as the applicable legal principles governing the removal and appointment of trustees and the execution of binding nominations.

The court will hear the parties as to the form of orders and costs.

Orders

Orders of the court

I shall hear the parties as to the form of orders and costs.

Background

Background to the litigation

At issue is whether the applicant, a trustee of the superannuation fund, was validly removed in 2015, whether the respondent was validly appointed at that time as a trustee and whether a binding nomination dated 4 January 2017 is invalid. Background Colin Velmond Maurice (“the deceased”) died on 7 March 2017. He was survived by his two adult children, the applicant and a son, Ramon. He was also survived by the respondent, his defacto spouse. The deceased and the respondent began living together in October 2010. They ceased cohabitation in or around September/October 2015 when the respondent left their residence. In late 2016, the deceased was diagnosed with melanoma. On 10 December 2016, he moved in with the respondent. He resided with her until his admission to hospital on 4 or 5 January 2017. On 6 January 2017, he underwent surgery for brain cancer. Subsequent to that surgery, he was paralysed and unable to speak or communicate. He died in hospital on 7 March 2017. Will The deceased’s last Will was dated 5 January 2017. It was prepared by the deceased’s solicitor. The deceased had met with his solicitor on 28 December 2016. He instructed his solicitor he wanted to appoint the respondent as his enduring power of attorney and as sole executor of his new Will. The deceased said he wanted to leave each of his children 15% of his estate with the respondent to receive the balance. The deceased’s solicitor advised that such a distribution raised a potential for the children to make a claim on his estate. He recommended that if he wanted to avoid such a difficulty it would be better to leave his children more. The solicitor further advised the deceased that his superannuation fund was most likely to be outside the terms of the Will. He recommended the deceased liaise with his accountant to check upon its terms and to ensure that any binding death nominations were up to date as they lapse after three years. The solicitor’s diary note recorded that the deceased’s intention was that the respondent get the entire contents of the superannuation fund, which was purely cash, as he wanted her to be well looked after following his death. The deceased’s solicitor attended the deceased at the hospital on 5 January 2017. His diary note of that attendance records that the deceased advised he had seen his accountant about the superannuation fund and he had left the entire contents of it to the respondent in case there was any challenge to his Will. He wanted the respondent to be well looked after financially as he feared his children may challenge the Will. The solicitor took instructions for the preparation of his Will. The deceased instructed he wanted to leave his estate equally between his two children and the respondent, with an adjustment in favour of the applicant to take account of the fact that he had provided financial assistance of $150,000 to his son for the purposes of buying a house. The solicitor returned to the hospital later that same day with the Will, a power of attorney and a form to revoke his previous 2012 power of attorney (which appointed his two children as attorneys). The deceased executed each of those documents at that time. A medical registrar has confirmed by letter that the deceased was reviewed by the consultant neurosurgeon at the hospital on that day and was considered to be of sound mind to make such decisions. The Fund

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Perry v Nicholson [2017] QSC 163
PARTIES:	SONIA MAY PERRY (applicant) v JENNIFER MARY NICHOLSON (respondent)
FILE NO/S:	No BS5747 of 2017
DIVISION:	Trial Division
PROCEEDING:	Originating application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	1 August 2017
DELIVERED AT:	Brisbane
HEARING DATE:	22 June 2017
JUDGE:	Boddice J
ORDER:	I shall hear the parties as to the form of orders and costs.
CATCHWORDS:	TRUSTS AND EQUITY – TRUSTEES – REMOVAL OF TRUSTEES – APPOINTMENT OF TRUSTEES – whether the applicant was validly removed as trustee of the relevant fund – whether the respondent was validly appointed as trustee of the relevant fund Trust Act 1973 (Qld)
COUNSEL:	CA Brewer for the applicant RD Williams for the respondent
SOLICITORS:	Dillon Legal for the applicant Attwood Marshall for the respondent