The Public Trustee of Queensland v Ha

[2011] QDC 198

[2011] QDC 198

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2382 of 2011

THE PUBLIC TRUSTEE OF QUEENSLAND	Applicant
and
HA & ORS	Respondent

BRISBANE

..DATE 15/07/2011

ORDER

CATCHWORDS

Succession Act 1981 s 41
Uniform Civil Procedure Rules r 98

Court sanctions compromise of out-of-time application by The Public Trustee as litigation guardian (being the financial administrator) of a son left out of the testator's will - it was considered that the application should be amended so that the court could make an order for provision out of the estate in accordance with the compromise
HIS HONOUR:  The court makes an order in terms of the initialled draft.

...

HIS HONOUR:  The application as filed on 4 July simply sought that a compromise be sanctioned by the court.  The application is brought by The Public Trustee as litigation guardian, The Public Trustee having been appointed financial administrator of the applicant on 29 July 2010 following the death of his father, the testator, to whom he was close, on 10 January 2009.

Consistently with the approach taken in cases such as Watts v. The Public Trustee of Queensland [2010] QSC 410, it was determined that the court ought to be asked in terms to deal with the subject matter of the compromise which is an application for further provision for the applicant out of the estate of his father. He received nothing under the will which is certainly, in the circumstances, no indication of a rift of any kind.

The family, including two other sons and the testator's widow, also his brother who is the executor, are of the view that provision, and a generous provision, out of what is only a modest estate ought to be made for the applicant.  The deceased, it would appear, made the judgment that the applicant's circumstances, which would see him supported so far as the essentials of life are concerned by the State, did not generate a need for him to be included in the will.

The application has been amended now (so the court deals with the substance of the matter, which I am inclined to think it would have had to do under the originating application as filed), to include a request for provision under section 41 of the Succession Act 1981, and also under subsection (8) orders permitting the application to be heard and determined, notwithstanding that it was instituted more than nine months after the death. There is no objection in any quarter to that relief being granted.

Essentially, what is to happen is that the widow's one-third share will remain intact but that the brothers, whose interests the respondent/executor may be taken as looking to, defer their entitlements for the lifetime of the applicant.

The point of the application, I suppose, is to ensure that the applicant has not been short-changed by the compromise. The Public Trustee would have been reluctant, particularly given the modest size of the estate, to embark on costly litigation - see Manley v. The Public Trustee [2007] QSC 388 at paragraph 114 - but the cooperation of all concerned has produced a satisfactory outcome for the applicant at a minimum of trouble and costs. The application filed earlier this month is essentially a formality which had to be undertaken so that the court could exercise its traditional authority to supervise settlements of proceedings involving a claimant under a disability.

Order as per initialled draft, which provides for the sealing up of Mr Collins' legal opinion.

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