Re B

[2007] NSWSC 1060

CITATION:	Re B [2007] NSWSC 1060
HEARING DATE(S):	17/9/07
JURISDICTION:	Equity Division Protective List
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	17 September 2007
DECISION:	Trustee of the estate of a protected person granted power to initiate or defend litigation for that person with proviso that no more than $10,000 be paid out of the estate without the consent either of the Court or the estate's "Protector".
CATCHWORDS:	MENTAL HEALTH [16]- Legal proceedings by or against a protected person- Trustee of protected person's estate seeks power to initiate or defend litigation on their behalf- Potential for litigation to be very costly for estate- Power granted but Court directs that a "Protector" be appointed as additional safeguard against dissipation of estate.
LEGISLATION CITED:	Family Provision Act 1982 Wills, Probate and Administration Act, 1898, s 18A
PARTIES:	Perpetual Trustee Company Limited as Financial Manager of the Affairs of B (Applicant on Notice of Motion)
FILE NUMBER(S):	SC 59/87 and 72/94
COUNSEL:	L Ellison SC (Applicant)
SOLICITORS:	Z Jordan (Solicitor) - Perpetual Trustee Company Ltd (Applicant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST

YOUNG CJ in EQ

Monday 17 September 2007

59/87 and 72/94 – RE B

JUDGMENT

1 HIS HONOUR: This is an application by a trustee company, the trustee of the estate of a person who suffered brain damage in a motor vehicle accident and who was, until recently, protected by his mother, who is now deceased. The mother left a will of 2002 about which there must be some suspicion. She also left a series of notes which may or may not qualify as a testamentary instrument under s 18A of the Wills, Probate and Administration Act 1898. The protected person has a son who is living with that son's mother. The estate of the protected person’s mother is only about $1.65 million so that one has to be very careful that the costs of dealing with the series of disputes which one can see arising are kept proportionately within limits. One can anticipate there may be litigation over the 2002 will, in connection with s 18A of the Wills, Probate and Administration Act, and an application under the Family Provision Act 1982 by the grandson as well as by the protected person.

2 At the moment, the trustee does not have sufficient power to initiate or defend litigation. It seeks that power in its notice of motion. I believe that is justified. However, so far, the trustee company has been acting with in-house solicitors and advisors. Experience in the Probate/Family Provision Act area shows that very quickly costs can get out of all proportion unless there is some experienced person monitoring what is happening. I am prepared to make the order extending the trustee’s power but with the proviso that no more than $10,000 is to be paid out of the protected person's estate without either:

(1) The leave of the court; or

(2) The consent of a person I will call "the Protector".

3 Protectors have been used in trusts in Europe, America and England for some time, mostly to allow a settlor to have some control over the trustee. However, it seems to me that it is a useful device that can be employed in trusts in Australia. I would be quite content for the trustee company to suggest the names of possible protectors. In the absence of such suggestion I would be happy, even if there was no protector, if there was a condition imposed that an experienced solicitor give the advice before too much was spent on legal costs. Without limiting the persons whom the court might see fit to appoint, persons like Mr Richard Neal of Teece Hodgson & Ward, or Ms Pam Suttor of L Rundle & Co would be the sort of people I have in mind. Short minutes to reflect these views are to be brought into chambers.

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