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Public Trustee of Queensland v Mrs X[2016] QSC 179

Public Trustee of Queensland v Mrs X[2016] QSC 179

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Public Trustee of Qld v Mrs X [2016] QSC 179

PARTIES:

PUBLIC TRUSTEE OF QUEENSLAND
(applicant)
v
Mrs X
(respondent)

FILE NO/S:

No XXXX of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 June 2016 Ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

22 June 2016

JUDGE:

Ann Lyons J

ORDERS:

  1. There is a direction that the Public Trustee is justified in signing the deed;
  2. There is a direction that the Public Trustee is justified in paying the estate money into the US trust account pursuant to that deed and that Ms Y’s receipt will be a sufficient discharge to the Public Trustee;
  3. The applicant’s costs of this application are to be paid from the estate of the deceased on an indemnity basis.

CATCHWORDS:

SUCCESSION – ADMINISTRATION OF ESTATE – DISTRIBUTION – MATTERS RELATING TO BENEFICIARIES – OTHER MATTERS – where the Public Trustee seeks directions from the Court to administer deceased estate in particular way to overcome difficulties associated with beneficiaries’ place of residence – where numerous unsuccessful attempts to administer the estate were made - whether directions should be given to Public Trustee

Public Trustee Act 1978 (Qld), s 133

Marriage Act 1961 (Cth), ss 88C, 88D

COUNSEL:

R Whiteford for the applicant, instructed by the Official Solicitor to the Public Trustee of Queensland

  1. This is an application by the Public Trustee of Queensland (“the Public Trustee”) as administrator of the Estate of Mr X Deceased. 
  2. Mr X died intestate on the 5th of May 2006, which is now over a decade ago.  The deceased estate is in cash and the affidavit material sets out the very real practical difficulties that exist in this case in paying the money directly to Mr X’s widow, who resides in a Middle Eastern country.  
  3. This is an application for directions by the Public Trustee in relation to their proposal to pay the cash to Mr X’s widow in a particular way given those difficulties.  For reasons of security I have removed any information that could identify the deceased’s widow or family.

Background

  1. Mr X was born in the Middle Eastern country in 1973. In 1992, he married Mrs X according to local Islamic law and had three children born in 1996, 1997 and 1999.  He came to Australia on 9 May 2001, leaving his wife and children in the Middle Eastern country.  He was granted a permanent visa on 26 July 2005. In his application for a visa he stated that Mrs X was his wife. From 2003 until early 2006, Mr X lived in Victoria, working as a farm worker. He was killed in a motor vehicle accident in Queensland on 5 May 2006.  He died intestate. He was domiciled in Victoria when he died.
  2. The Public Trustee obtained an order to administer Mr X’s estate on 12 February 2010.  The deceased estate consists of about $196,000.00, almost all of which came from the proceeds of life insurance policies which were part of Mr X’s superannuation benefits. 
  3. Sections 88C and 88D of the Marriage Act 1961 (Cth) provides that a marriage which is recognised as valid under the law where it was solemnised is recognised as valid in Australia. I also note that after the deceased’s death, Mrs X was recognised as his wife by the High Court of the province in which she lives in the Middle Eastern country. This was done for the purpose of guardianship orders in respect of two of the children.
  4. On 13 April 2016 Chief Justice Holmes directed that, pursuant to s 132 of the Public Trustee Act 1978 (Qld), “the Public Trustee is justified in distributing the estate of Mr X deceased, to the respondents (the widow and 3 children) according to sections 51 and 52 of the Administration and Probate Act 1958 (Vic).”
  5. Mrs X and her children live in a remote village in the Middle Eastern country.  Except for one of the children, they are all illiterate and thumb prints are used as signatures.  They have no postal or residential address.  Neither the deceased’s widow nor his children have previously had a bank account. 
  6. Recently however a bank account was opened for Mrs X for the purposes of this application. Whilst there is now a bank account, the affidavit of Linda Blackburne sworn 5 April 2016 states that the Public Trustee’s bank, namely the Commonwealth Bank, as at 3 May 2014 “no longer accepted International Money Transfer requests for delivery to the Middle Eastern country”.[1]
  7. Section 133 of the Public Trustee Act 1978 (Qld) provides that when money is payable from an estate being administered by the Public Trustee to a person in another country, the Public Trustee may pay that money to the Chief Consular Officer in Australia for that foreign country. 
  8. The affidavit of Kate Do sworn 13 June 2016 sets out the efforts she has made in this regard on behalf of the Public Trustee. I accept, on the basis of that affidavit material, that numerous letters have been sent by email, facsimile and registered post to the Middle Eastern country’s Embassy in Canberra asking if it would receive money on behalf of the deceased’s family. There has been no response. Whilst officers from the Public Trustee have telephoned that Embassy on three occasions there has been no response to any of those calls.  Despite information being provided to the Embassy in writing, I am satisfied that the Chief Consular Officer, although promising to phone back, has never done so. Accordingly I am satisfied that payment by the Public Trustee pursuant to section 133 of the Public Trustee Act 1978 (Qld) is not a viable option in the circumstances of this case.  
  9. The affidavit of Ms Do also sets out the details of a previous plan to pay the money through a lawyer who practices in the capital city of the Middle Eastern country, and the various arrangements they attempted to put in place. At the hearing of the application before Chief Justice Holmes on the 13th of April 2016, the Public Trustee had also sought a direction not only that the Public Trustee was justified in distributing the estate on intestacy to the respondents according to Victorian law, but that it was to be distributed to a lawyer in the Middle Eastern country by paying it into the lawyer’s US account.
  10. The Chief Justice declined to direct that the applicant was justified in paying the funds to a lawyer who practiced in the Middle Eastern country on the basis that the US account into which the funds were to be paid was in the lawyers name only and was not a trust account. The Chief Justice indicated that evidence was required from an officer in the Australian Embassy that Mrs X and her children understood the Authority document and they had executed and understood that they would have to trust their lawyer to transmit the money to them form his USA account. Accordingly no orders were made on 13 April 2016 with respect to the payment of the funds to Mrs X.
  11. The affidavit of Ms Do sworn 13 June 2016 also details the subsequent enquiries which were made with the Australian Embassy in the Middle Eastern country to obtain that information or alternatively to have the funds paid to the Australian Embassy for collection by Mrs X.  On 14 April 2016 an official from the Australian Embassy sent an email to Ms Do advising that “this is a private legal matter and it’s not possible to use DFAT or Embassy accounts or personnel to transfer funds”.[2]  That affidavit however outlines the assistance received from officials at the Australian Embassy. Ms Do states that an officer from the Australian Embassy met with the deceased’s widow and children together with their lawyer. The information received was that the Authority document was read to the family who confirmed that they wanted the money paid to their lawyers account in the USA and were trusting him to then transfer the money back to them.
  12. Ms Do states that subsequent inquiries revealed that the money would not be paid to the family as a lump sum but in shares and that “the shares would only be issued to the males as payment to females was not permitted”.[3] Ms Do stated that such advice, together with some further information which was subsequently provided, led the Public Trustee to conclude that he no longer had confidence that the money paid into the lawyers account would reach the deceased’s family.
  13. Ms Do further states that she has calculated the amount the deceased’s widow is entitled to under Victorian intestacy law and that her entitlement will exhaust the estate. No money is therefore payable to the children as Mrs X is the only person entitled to money from the deceased’s estate. After further enquiries and with assistance from the Australian Embassy another lawyer was located and retained by Mrs X. That lawyer, Ms Y, was trained in the United States and is qualified to practice before the United States Supreme Court and in the Middle Eastern country.
  14. Ms Y was present by phone during the hearing of the application. I have read Ms Y’s affidavit and I have considered her Curriculum Vitae. She has been in practice for the last 13 years and holds the degrees of Bachelor of Science in Criminal Justice and Political Science, a Masters degree of Science in Criminal Justice and a Juris Doctor degree. She has been practicing in the Middle Eastern country for the last 7 years and represents many international companies and Embassies in that Country. Prior to setting up practice in the Middle East, Ms Y was an assistant Public Defender for 6 years with a particular focus on juvenile justice. She has also been a guest speaker at Conferences organised by the World Bank, the United Nations and the United States Embassy. Ms Y’s impressive CV sets out her extensive list of achievements in a variety of cases in that Middle Eastern country, particularly representation for women and children in the local and National courts.  
  15. In her affidavit and in her evidence before me, Ms Y outlined the proposals and the discussions she has had with the Public Trustee.  She states that she has been retained by the deceased’s widow to assist the Public Trustee to pay the deceased’s widow her entitlement to the estate.  Ms Y sets out her involvement with the Public Trustee and her interviews with the deceased’s widow in the Middle Eastern country. 
  16. In her affidavit sworn on 17 June 2016 Ms Y, sets out the efforts she has made in relation to the transfer of the money to Mrs X. Ms Y outlines the inquiries she made in the USA about having Mrs X, as the absolute owner of the money, open a bank account in her name in the USA.  Ms Y sets out the attempts she made to open such an account. I accept that as Mrs X is illiterate, cannot read or write English, and signs documents by affixing her thumb print, opening an account in her name in the USA is not possible.  It would seem clear that the bank’s requirements which would allow an account to be opened in Mrs X’s name in the US cannot be satisfied.  
  17. Ms Y therefore proposes that the most appropriate arrangement is as follows;
    1. That Ms Y will establish in the United States a bank account in her firm’s name as trustee for Mrs X;  
    2. That Mrs X is to establish an account in her name with the Middle Eastern country’s International Bank in the capital of that country;
    3. That the Public Trustee will deposit the money payable to Mrs X into the trust account in the United States; and
    4. That Ms Y, as trustee, will transfer the money to Mrs X’s account in the Middle Eastern country’s capital as appropriate, taking into account the US currency laws.
  18. Ms Y also states in her affidavit that, with her assistance, Mrs X has now opened an account in her name at the capital’s branch of the Middle Eastern country’s International Bank and that there has been an identity card issued to Mrs X. 
  19. Ms Y has outlined in her affidavit the details of the Bank of America bank account that she has opened. The bank account is in the name of the IOLTA (‘Interest on Lawyers’ Trust Accounts’) as Trustee for Mrs X, and there are two documents issued by the Bank of America confirming the establishment of that trust account. 
  20. Ms Y also states that she has obtained from the International Bank in the Middle Eastern country, instructions for the payment of money from the trust account in the United States to Mrs X’s account. That material is exhibited to Ms Y’s affidavit.  Ms Y also outlines in her affidavit her consent to act as trustee of the money and swears that she will transfer the money to Mrs X’s account as soon as practicable, noting the need to have it transferred in tranches. Ms Y also swears that she will deduct from the money only her costs calculated in accordance with the retainer agreement and the outlays she has incurred in establishing the bank accounts. Ms Y has also signed the Deed prepared by the Public Trustee to facilitate those arrangements, and that is also exhibited.
  21. Having considered all of that material, I am satisfied that there should be orders as the Public Trustee seeks.  That is, there is a direction that the Public Trustee is justified in signing the deed; and a direction that the Public Trustee is justified in paying the estate money into the US trust account pursuant to that deed; and a direction that Ms Y’s receipt will be a sufficient discharge to the Public Trustee.

Footnotes

[1] Affidavit of Linda Blackburne sworn 5 April 2016, Exhibit LFB-19.

[2] Affidavit of Kate Do sworn 13 June 2016, Exhibit KKDD-15.

[3] Affidavit of Kate Do sworn 13 June 2016, Exhibit KKDD-17.

Close

Editorial Notes

  • Published Case Name:

    Public Trustee of Qld v Mrs X

  • Shortened Case Name:

    Public Trustee of Queensland v Mrs X

  • MNC:

    [2016] QSC 179

  • Court:

    QSC

  • Judge(s):

    A Lyons J

  • Date:

    22 Jun 2016

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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