SLOAN by next friend THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA -v- SLOAN as executor of the estate of KENNETH RONALD SLOAN

[2009] WASC 4

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   SLOAN by next friend THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA -v- SLOAN as executor of the estate of KENNETH RONALD SLOAN [2009] WASC 4

CORAM:   McKECHNIE J

HEARD:   ON THE PAPERS

DELIVERED          :   14 JANUARY 2009

FILE NO/S:   CIV 2364 of 2005

BETWEEN:   RICHARD JOHN SLOAN by next friend THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA

Plaintiff

AND

DENNIS NEILL SLOAN as executor of the estate of KENNETH RONALD SLOAN
First named First Defendant

THOMAS STANLEY SLOAN as executor of the estate of KENNETH RONALD SLOAN
Second named First Defendant

KENNETH RONALD SLOAN as executor of the estate of KENNETH RONALD SLOAN
Third named First Defendant

DENNIS NEILL SLOAN
Second Defendant

THOMAS STANLEY SLOAN
Third Defendant

KENNETH RONALD SLOAN

Fourth Defendant

RAYMOND PATRICK SLOAN
Fifth Defendant

MAVIS MAUREEN MILLER
Sixth Defendant

HEATHER LYNETTE DELYS LOCKYER
Seventh Defendant

Catchwords:

Inheritance Family and Dependent provisions - Person under a disability - Application to compromise

Legislation:

Nil

Result:

Compromise approved

Category:    B

Representation:

Counsel:

Plaintiff:    No appearance

First named First Defendant     :    No appearance

Second named First Defendant   :    No appearance

Third named First Defendant     :    No appearance

Second Defendant          :    No appearance

Third Defendant          :    No appearance

Fourth Defendant          :    No appearance

Fifth Defendant          :    No appearance

Sixth Defendant          :    No appearance

Seventh Defendant          :    No appearance

Solicitors:

Plaintiff:    Durack & Zilko

First named First Defendant     :    Bowen Buchbinder Vilensky

Second named First Defendant   :    Bowen Buchbinder Vilensky

Third named First Defendant     :    Bowen Buchbinder Vilensky

Second Defendant          :    Bowen Buchbinder Vilensky

Third Defendant          :    Bowen Buchbinder Vilensky

Fourth Defendant          :    Bowen Buchbinder Vilensky

Fifth Defendant          :    Blatchfords Lawyers

Sixth Defendant          :    In person

Seventh Defendant          :    In person

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

Kowal v Langlands [2008] WASC 27

Sosa v Carter [1978] WAR 123

1. McKECHNIE J:  Kenneth Ronald Sloan, late of Kondinin, died on 26 October 2004 survived by seven children now all in their 50s.  One child is Richard John Sloan (known as 'John') who was born on 5 December 1956.  John has Down's Syndrome which is a permanent disability.  With appropriate care the life expectancy of a person with Down's Syndrome can be in the 60s or near normal life span.

2. The late Kenneth Ronald Sloan left a Will making provision for his various children.  On 22 November 2005 John, by his next friend, one of his sisters, sought adequate provision for his maintenance, support, education and advancement in life from the estate under the Inheritance (Family and Dependants Provision) Act 1972 (WA). On 19 January 2006, the Public Trustee was substituted as John's next friend.

3. The plaintiff and the defendants, who are the other siblings, have now reached an agreement by way of a Deed of Family Arrangement, made 12 November 2008, to provide a trust fund for John, subject to and conditional on this court approving the settlement and compromise of the action on the terms set out in the Deed.  The plaintiff's solicitors have obtained the opinion of counsel, J C Curthoys Esq.  The Public Trustee's wish is that the proceedings be compromised in terms of the Deed.  As is obvious from the fact that all parties have entered into the Deed, no party is opposed to the compromise.  Counsel's opinion is full and complete and appears to take account of all relevant matters.  Counsel sets out the advantages and disadvantages of the proposed settlement and concludes that there are very significant advantages in the proposed terms of settlement as contained in the Deed and that the settlement is in the best interests of the plaintiff.  I agree.

4. The task of the court, in these circumstances, was explained in Sosa v Carter [1978] WAR 123 per Burt CJ (Wallace and Brinsden JJ agreeing) and in Kowal v Langlands [2008] WASC 27 by Le Miere J at [10]. Applying those principles, having regard to the opinion of counsel and the wishes of the parties, I have reached the conclusion that the Deed of Family Arrangement is for the benefit of the plaintiff and I order pursuant to O 70 r 10 of the Rules of the Supreme Court that the plaintiff has leave to compromise the action in accordance with the terms of the Deed of Family Arrangement attached to the affidavit of Shaun William Conlin dated 17 November 2008.