Hand v Hurley
[2011] QDC 80
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- Hand v Hurley[2011] QDC 80
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Hand v Hurley[2011] QDC 80
Hand v Hurley[2011] QDC 80
[2011] QDC 80
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 2405 of 2010
JAMES PATRICK HAND | Applicant |
and | |
ILMA PATRICIA HURLEY & OTHERS | Respondent |
BRISBANE
DATE 16/05/2011
ORDER
CATCHWORDS | Succession Act 1981 s 41 Uniform Civil Procedure Rules r 98 Court approves compromise of application by disabled adult son - affidavits sufficient under the rule although not adopting its precise terms |
HIS HONOUR: The Court makes an order in terms of the initialled draft. The proceeding under s. 41 of the Succession Act 1981 is an unusual one so far as applications under rule 98 of the UCPR go, in my experience, but Mr Travis appearing for the applicant litigation guardian, the Public Trustee of Queensland, tells me that there are plenty of previous instances.
The compromise that the Court is invited to sanction or “approve” is of an application made on behalf of an intellectually disabled gentleman who additionally suffers some serious health issues which are likely to be increasingly debilitating as he ages from his present age in his late 50s to around 70 which is considered to be to put the most favourable view of his likely life expectancy.
His affairs came under the control of the litigation guardian by virtue of intervention of the Guardianship and Administrative Tribunal of the 16th of February 2007. His mother is the testatrix. She died on the 23rd of November 2009 leaving a will - whose dispositions were plainly based on a sensible and sympathetic view taken of the needs of her four children in that 30 per cent shares of the estate went to Mr Hand and to two of his sisters who are pensioners married to pensioners in modest circumstances but with advantages such as security of home ownership and the like; the remaining 10 per cent of the estate went to another sister who is still working.
The two married sisters were appointed executors under the Will. They have compromised the application on a basis that makes 55 per cent of the modest estate available to support the applicant. On his demise what is left of resources so made available will go to the sisters or survivors. It is impossible to predict whether what remains will be substantial, given that the identified needs of Mr Hand include some very expensive equipment which it's feared he may need; ultimately, he may not.
Counsel's advice, which has been read by me and will now be sealed up pursuant to the order to preserve confidentiality, acknowledges the sensitivities in bringing of applications like the present which inevitably are costly where an estate is modest and where all of the beneficiaries may be seen as having just claims; see Manly v. The Public Trustee [2007] QSC 388 at paragraphs 96, 97 and 114. However, in the cases acknowledgements can be found that it may be appropriate for a particularly disabled child to be awarded the entire estate, see Gunawardena v. Kanagaratnam Sri Kandha [2007] NSW SC151 [8] 82. See also Ridge v. Public Trustee [2006] NSW SC400.
While a case could be made for greater provision to the extent of the whole estate if all of Mr Hand's potential needs are to be satisfied from it, counsel's advice establishes that the compromise can be seen as appropriate. It's of some comfort to note that the applicant is in secure accommodation and essentially receiving full time care at Government expense.
That doesn't gainsay the importance of provision of the supports which may well become necessary for him in the near future which the Government may not be well placed to provide.
The solicitor's affidavit supplied to satisfy rule 98(2)(a) does not in terms describe the arrangements agreed on as in Mr Hand's best interests but a proposition to that effect is in substance clearly communicated by the more expansive comments made.
Mr Miles' affidavit satisfies the litigation guardian's obligation under paragraph (b). So there will be an order in terms of the initialled draft which gives the Court's sanction to the compromise. The parties should be commended for arriving at it in a co-operative way which has reduced the incidence of costs to a minimum.
...
HIS HONOUR: Although the traditional practice may have evolved an often artificial process of ordering that wills be read and construed as if they contained identified provisions that are not there rather than the ones that are, it's difficult to see the necessity of that in a case like the present where all parties involved have deliberately joined in a compromise embodied in clearly expressed terms of settlement appropriate in the circumstances I've consulted those. The applicant's to receive the 55 per cent of the net estate mentioned which the litigation guardian will hold on trust.
It is a discretionary trust permitting application of income and capital for the applicant during his lifetime following; the balance of the estate is to be divided equally among the three sisters and on the applicant's death whatever remains of the trust estate will be distributed among them or their estates equally.
It'll be noted that the working sister may be advantaged by those orders. Having read all the material it's easy for the Court to understand why a principle of equality has been resolved upon. As always seem to happen, costs on an indemnity basis will come out of the estate and it seems that those are as modest as can be.
Thanks. Order as per initialled draft.