VALENTINE-MUNN and PUBLIC TRUSTEE OF QUEENSLAND, MAXTED and PUBLIC TRUSTEE OF QUEENSLAND

[2011] QDC 147

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 80 of 2011

SANDRA JOAN VALENTINE-MUNN

Applicant

and

PUBLIC TRUSTEE OF QUEENSLAND

No 81 of 2011

ROBYN ANNE MAXTED

and

PUBLIC TRUSTEE OF QUEENSLAND

Respondent

Applicant

Respondent

BRISBANE

..DATE 12/07/2011

ORDER

CATCHWORDS
Succession Act 1981, s 41
Uniform Civil Procedure Rules 1999, r 98

Sanction of compromise of applications for further provision under a will where one of affected beneficiaries is a minor
HIS HONOUR: The Court makes orders in each of these matters in terms of the initialled draft which makes provision for the applicant in the modest sum of $25,000 out of the modest estate of Harry Bruce Hirsch who died at the age of 87 leaving three children - a son and two daughters - who are the applicants. They are women in their sixties. Not a lot is known about their circumstances but the executor the Public Trustee of Queensland and the beneficiaries who take under the will have reached the view that the resolution proposed is a suitable one.

If costs are ignored, it results in each of the applicants taking about a 10 per cent share of the estate.

It is true that applications in respect of smaller estates tend to be discouraged but it can't be said, without inquiry, that the applications are necessarily unmeritorious.

The Court is asked to give its imprimatur or sanction under Rule 98 because the proposed order will impact adversely on the shares of the beneficiaries who include a boy yet to reach adulthood. There is parental and grandparental endorsement of the proposition which is supported by the advice of counsel engaged by the Public Trustee that the outcome proposed should be seen as in the child's interest. It leads to an early resolution of not one but two separate proceedings, and I note in this regard that each applicant will pay her costs from the provision made.

Even if applications of this kind fail, there is a real risk that the costs of them will be ordered paid out of the estate, a risk which all concerned, including the Court, are and should be cognisant.

There's a description of what the applicants receive as "going away money," which it may be from the point of view of those on the respondent's side, but it may well be otherwise from the applicants’ standpoint. The material simply doesn't offer any information about reasons the testator might've had favouring one branch of his family over others.

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CaseChat Overview and Summary

The case involved two applicants, Sandra Joan Valentine-Munn and Robyn Anne Maxted, who were daughters of the deceased, Harry Bruce Hirsch. The applicants sought further provisions under their father's will through the Public Trustee of Queensland, who was the respondent in the case. The applicants were seeking financial provision from the estate, which was relatively modest. The legal issue before the court was whether to sanction a compromise of these applications, which would affect the shares of the beneficiaries, including a minor child. The court was required to determine if the compromise was in the best interest of the minor child and if it would lead to an early resolution of the proceedings.

The court found that the compromise was supported by the advice of counsel engaged by the Public Trustee and was endorsed by the parents and grandparents of the minor child. The court also noted that the compromise would lead to an early resolution of not one but two separate proceedings, and each applicant would pay their costs from the provision made. The court was also mindful of the potential costs that could be ordered paid out of the estate if the applications failed. The court concluded that the compromise was in the best interest of the minor child and sanctioned the compromise of the applications.

The court made orders in each of these matters in terms of the initialled draft, providing the applicants with a modest sum of $25,000 each out of the estate. The court noted that if costs were ignored, it resulted in each of the applicants taking about a 10 per cent share of the estate. The court also noted that even if applications of this kind failed, there was a real risk that the costs of them would be ordered paid out of the estate, a risk which all concerned, including the court, were and should be cognisant.

The court's final orders were that the compromise of the applications was sanctioned, and the applicants were to receive $25,000 each out of the estate. Each applicant was also to pay their costs from the provision made. The court's decision was based on the endorsement of the compromise by the parents and grandparents of the minor child, the advice of counsel engaged by the Public Trustee, and the potential benefits of an early resolution of the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established