Re Fraser;

RE FRASER; EX PARTE THE PUBLIC TRUSTEE as MANAGER OF THE ESTATE OF ANNE VERONICA FRASER [2000] WASC 36

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 36
Case No:	CIV:2155/1999	Heard:	25 JANUARY 2000
Coram:	McKECHNIE J	Delivered:	25/01/00
No of pages:	8	Judgment Part:	1 of 1
Result:	Question answered in the negative
PDF Version

Parties:	THE PUBLIC TRUSTEE as MANAGER OF THE ESTATE OF ANNE VERONICA FRASER
Catchwords:	Public Trustee Powers Whether power to invest Incapable person Whether trust created
Legislation:	Public Trustee Act 1941 (WA) Mental Health Act 1962 (WA) Mental Health Act 1981 (WA)
Case References:	In re Brown (1895) 2 Ch 666 In re Knight [1898] 1 Ch 257 Larkman v The Public Trustee [1999] WASCA 93 Melbourne v Department of Social Security (1988) 20 FCR 496

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE FRASER; EX PARTE THE PUBLIC TRUSTEE as MANAGER OF THE ESTATE OF ANNE VERONICA FRASER [2000] WASC 36 CORAM : McKECHNIE J HEARD : 25 JANUARY 2000 DELIVERED : 25 JANUARY 2000 FILE NO/S : CIV 2155 of 1999 MATTER : Section 58 of the Public Trustee Act 1941

Estate of ANNE VERONICA FRASER of Franciscan House, 16 Hampton Street, Victoria Park, Western Australia

EX PARTE

THE PUBLIC TRUSTEE as MANAGER OF THE ESTATE OF ANNE VERONICA FRASER
Applicant

Catchwords:

Public Trustee - Powers - Whether power to invest - Incapable person - Whether trust created

Legislation:

Public Trustee Act 1941 (WA)

Mental Health Act1962 (WA)
Mental Health Act 1981 (WA)

(Page 2)

Result:

Question answered in the negative

Representation:

Counsel:

Applicant : Mr J D Allanson

Solicitors:

Applicant : Public Trustee

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

In re Brown (1895) 2 Ch 666

Case(s) also cited:

In re Knight [1898] 1 Ch 257
Larkman v The Public Trustee [1999] WASCA 93
Melbourne v Department of Social Security (1988) 20 FCR 496

(Page 3)

McKECHNIE J:

Introduction

1 This is a request by the Public Trustee for the opinion of this Court as to whether in the circumstances the Public Trustee has authority to seek investment advice and where necessary reinvest the assets of an estate in accordance with that advice.

Factual circumstances

2 Ms Fraser was born on 13 September 1947 and is now aged 52. Regrettably, on 29 July 1981 she was declared incapable of managing her affairs. This declaration was made under the provisions of the Mental Health Act 1962 which was, a couple of months later, replaced by the Mental Health Act 1981, but the provisions were in similar form.

3 Her estate is valued at slightly over $1.12 million and consists of shares, real property and money held in the Public Trustee's common fund. The Public Trustee wishes to have the estate professionally reviewed to ensure that the risks pertaining to her assets are evenly balanced.

4 The question which arises is whether, on a proper construction of the Public Trustee Act there is power…