RL v NSW Trustee and Guardian

The case of RL v NSW Trustee and Guardian concerned a dispute arising from the management of a protected person's estate. The protected person, referred to as PBL, had made a will bequeathing a garage on a separate certificate of title to a neighbour. Subsequently, PBL became subject to a management order, and the NSW Trustee and Guardian, acting as manager, sold the garage along with PBL's home unit. The central issue was the effect of this sale on the specific bequest of the garage.

The court was required to determine whether the disposal of the specifically bequeathed garage by the manager adeemed the bequest. It also considered whether the NSW Trustee had the power to order the separate investment of the proceeds from the sale of the devised asset and, if so, whether such an action was appropriate. Furthermore, the court examined the principles governing the management of protected estates, particularly the balance between the maintenance of the protected person and the preservation of specific bequests.

The court held that the disposal of the garage by the manager, effected with the proper authority of the NSW Trustee and in the best interests of the protected person, did adeem the specific bequest. The court found that the NSW Trustee possessed the power under the *NSW Trustee and Guardianship Act 2009* to order the separate investment of proceeds from a devised asset, and that this action was consistent with the legislative intent and proper principles of managing protected estates. The reasoning emphasised that the primary consideration in managing a protected estate is the maintenance of the protected person, with secondary regard given to the preservation of bequests. To the extent that the protected person is properly maintained, specific bequests or their proceeds should be preserved. The court also noted that it was not appropriate to join parties who would be affected by a judicial opinion on the disposal of a specific bequest after the hearing had concluded, meaning the decision would not bind those parties.

The appeal was allowed, and several orders were made. The court declined to answer a specific question posed in the court below and revoked a declaration. New orders were substituted regarding the retention of income from a "Sale Fund" and the manner in which moneys spent for PBL's benefit or on PBL's care were to be paid from other funds. These new orders replaced previous directions concerning the setting aside of a separate fund from the proceeds of the garage sale. Finally, the appellant's costs of the appeal were ordered to be paid from PBL's estate, excluding certain specified funds.