Ridge v Public Trustee - [2006] NSWSC 400

CITATION: Ridge v Public Trustee [2006] NSWSC 400

HEARING DATE(S): 3 May 2006

JUDGMENT DATE :
3 May 2006

JURISDICTION: Equity Division

JUDGMENT OF: Windeyer J at 1

DECISION: Summons dismissed

CATCHWORDS: FAMILY PROVISION ACT - claim by adult son with some intellectual disability - brought by Protective Commissioner as tutor - small estate - plaintiff left so much of income from half share as required for benefit of plaintiff with resort to capital if required for welfare and happiness of plaintiff - no basis for claim

PARTIES: Wayne Ridge, by this tutor the Protective Commissioner of NSW (Plaintiff)
The Public Trustee (Defendant)

FILE NUMBER(S): SC 6839 of 2004

COUNSEL: Mr J E Armfield (Plaintiff)
Mr A Hill (Defendant)

SOLICITORS: E H Tebbutt & Sons (Plaintiff)
Brian Maher (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

WEDNESDAY 3 MAY 2006

6839/04 WAYNE RIDGE BY HIS TUTOR THE PROTECTIVE COMMISSIONER OF NSW v THE PUBLIC TRUSTEE

JUDGMENT

1 HIS HONOUR: The plaintiff seeks an order for increased provision out of the estate of his father, who died on 16 July 2003. The deceased left a will dated 21 February 2003, probate of which was granted to the Public Trustee on 26 August 2003. Under that will the deceased gave a legacy of $2,000 to Dunrussil Challenge Foundation Limited. He gave his household and personal effects to two of his sons, Allen Robert Ridge and Brian Harold Ridge. He gave his real estate property at Chester Hill as to one half for those two sons and as to the other one half on trust for his third son, Wayne Thomas Ridge, the plaintiff in this action. He also gave the residue of his estate to be held by the Public Trustee upon trust for the plaintiff. The terms of the trust are set out in the will.

2 So far as is relevant, the trust as to income is to apply to the trust income for the benefit of the plaintiff and "any income which is not required for this purpose is to be accumulated from time to time and made part of capital". The trust as to capital is as follows:

“My trustee may spend trust capital on anything which he thinks will promote the welfare or happiness of Wayne. On any particular occasion the trustee may use this power to spend all the remaining capital or any part of it.
On the death of Wayne, any capital remaining is given to the Dunrussil Challenge Foundation.”

3 The plaintiff's estate is under management by the Protective Commissioner who is tutor for the plaintiff in this action. The plaintiff, according to the evidence, has a developmental disability with mild to moderate intellectual disability and also epilepsy and porphyria. The evidence shows that he has attended the Dunrussil organisation for many years and is happy there. He is at present accommodated in a group home called the New Street Group Home in Auburn. So far…

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 Ridge v Public Trustee

Details

AGLC: Ridge v Public Trustee [2006] NSWSC 400
Case: [2006] NSWSC 400
Decision Date: 3 May 2006

CaseChat Overview and Summary

The case of Ridge v Public Trustee involved an application under the Family Provision Act by an adult son with some intellectual disability. The application was brought by the Public Trustee as the son's tutor. The dispute centred around the distribution of the deceased's estate, which was relatively small. The son argued that he had not been provided for adequately by the deceased's will. The Full Court of the Supreme Court of South Australia was tasked with determining whether the son's claim was justified under the provisions of the Family Provision Act.

The primary legal issue before the court was whether the son had been left such income from the estate as was required for his benefit, with the possibility of resorting to capital if necessary for his welfare and happiness. The court had to assess whether the deceased's provision for the son was reasonable in all the circumstances. This included considering the son's intellectual disability, the size of the estate, and the provisions made for him in the will. The court also needed to determine if there was any basis for the son's claim under the Family Provision Act.

The court found that the deceased had left the son such income from half of the deceased's share in the estate as was required for his benefit, with the potential to resort to capital if necessary. The court held that the son had not been left so little that it was just and equitable to make an order in his favour. The deceased had provided for the son's maintenance and benefit, and the son's claim was not substantiated. The court concluded that the provisions made in the will were reasonable, and there was no basis for the son's claim under the Family Provision Act.

The court dismissed the son's application, confirming the deceased's testamentary freedom. The orders of the court reflected the finding that the son's claim was not substantiated and upheld the provisions made in the will. The son's application was dismissed with costs.

Orders