PMR
[2013] QDC 232
•22 JULY 2013
[2013] QDC 232
DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE ROBIN QC
No 2489 of 2013
RE: PMR
BRISBANE
10.38 AM, MONDAY, 22 JULY 2013
ORDER
.
CATCHWORDS
Succession Act 1981 s41
Trusts Act 1973 s5, s44, s96Use of s96 of the Trusts Act to seek directions to a trustee obviating the need for other proceedings to for construction of a will and for better provisions from the testatrix’s estate
HIS HONOUR: The Court makes an order in terms of the initialled draft, which I’ve amended to state specifically that it’s made pursuant to sections 5, 44 and 96 of the Trusts Act 1973 that the applicant, Mr E.V. P be empowered to compromise claims by beneficiaries interested in the estate of his late mother in relation to a bond that’s presently held by the Blue Care Masters Lodge and refundable to the estate on a specific basis which protects or covers the applicant in respect of any costs incurred by him as executor of estate, a role he’s appointed to under the will, provides a fixed sum to him by way of commission and otherwise stipulates that the remaining assets of the estate by divided equally between him and three siblings, who, together, represent the deceased’s children and also the beneficiaries acknowledged in the will of the deceased lady.
The decision of the High Court in Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Doicesan Bishop of the Macedonian Orthodox Dioceses of Australia and New Zealand [2008] HCA 42, at paragraphs 58 and 71, which concern a legislative provision in another jurisdiction corresponding to section 96 sufficiently confirms that this present application seeking the orders that are made today may be pursued under the Trusts Act notwithstanding that it may be seen as a less expensive substitute for or, more correctly, in the present context, a way of avoiding entirely potentially costly disputes in a proceeding to obtain judicial interpretation of the will of the deceased (as sought in Re Plant [1974] QdR 203 and cases referred to in the reasons) or an application under section 41 of the Succession Act.
The expectations of the applicant would appear to have been frustrated by a sudden health crisis suffered by the testatrix. She died in February of this year, having left as her last will, an instrument before the Court dated the 7th of October 2011. At the time of the will, she had in excess of $250,000 in a bank account or accounts, dealt with by the will in clause 4.06, which provides, “As to all moneys which I may hold in any bank or building society account or term deposit or similar account (including my moneys presently held in Wide Bay Australia and Suncorp Bank): (a) to pay from those moneys all my just debts and all of my funeral and testamentary expenses, (b) to pay the balance of such moneys to EVP absolutely.”
The following provision divided the residue of the estate equally among the remaining three children. On the 6th of January 2012, in connection with the admission of the testatrix to a nursing home in the circumstances alluded to above, recourse was had to the money which the testatrix had available to provide the bond required by the operator of the home. The four children have reached a sensible compromise which, for all of them, falls short of what they might have expected had there been a favourable outcome from their point of view of the potential proceedings mentioned above. It’s a satisfactory outcome which the Court ought to endorse by giving the applicant trustee the directions which he seeks, with the consent amply established by evidence before the Court of the other persons interested. Order as per initialled draft.
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