New South Wales Supreme Court CITATION : Ridge v Public Trustee [2006] NSWSC 400 HEARING DATE(S) : 3 May 2006 JUDGMENT DATE : 3 May 2006 JURISDICTION : Equity Division JUDGMENT OF : Windeyer J at 1 DECISION : Summons dismissed CATCHWORDS : FAMILY PROVISION ACT - claim by adult son with some intellectual disability - brought by Protective Commissioner as tutor - small estate - plaintiff left so much of income from half share as required for benefit of plaintiff with resort to capital if required for welfare and happiness of plaintiff - no basis for claim PARTIES : Wayne Ridge, by this tutor the Protective Commissioner of NSW (Plaintiff) The Public Trustee (Defendant) FILE NUMBER(S) : SC 6839 of 2004 COUNSEL : Mr J E Armfield (Plaintiff) Mr A Hill (Defendant) SOLICITORS : E H Tebbutt & Sons (Plaintiff) Brian Maher (Defendant) - 3 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J WEDNESDAY 3 MAY 2006 6839/04 WAYNE RIDGE BY HIS TUTOR THE PROTECTIVE COMMISSIONER OF NSW v THE PUBLIC TRUSTEE JUDGMENT 1 HIS HONOUR: The plaintiff seeks an order for increased provision out of the estate of his father, who died on 16 July 2003. The deceased left a will dated 21 February 2003, probate of which was granted to the Public Trustee on 26 August 2003. Under that will the deceased gave a legacy of $2,000 to Dunrussil Challenge Foundation Limited. He gave his household and personal effects to two of his sons, Allen Robert Ridge and Brian Harold Ridge. He gave his real estate property at Chester Hill as to one half for those two sons and as to the other one half on trust for his third son, Wayne Thomas Ridge, the plaintiff in this action. He also gave the residue of his estate to be held by the Public Trustee upon trust for the plaintiff. The terms of the trust are set out in the will. 2 So far as is relevant, the trust as to income is to apply to the trust income for the benefit of the plaintiff and "any income which is not required for this purpose is to be accumulated from time to time and made part of capital". The trust as to capital is as follows: "My trustee may spend trust capital on anything which he thinks will promote the welfare or happiness of Wayne. On any particular occasion the trustee may use this power to spend all the remaining capital or any part of it. On the death of Wayne, any capital remaining is given to the Dunrussil Challenge Foundation." 3 The plaintiff's estate is under management by the Protective Commissioner who is tutor for the plaintiff in this action. The plaintiff, according to the evidence, has a developmental disability with mild to moderate intellectual disability and also epilepsy and porphyria. The evidence shows that he has attended the Dunrussil organisation for many years and is happy there. He is at present accommodated in a group home called the New Street Group Home in Auburn. So far as is possible, it seems the accommodation is as suitable as could be arranged for him. It is clear that the people in charge do what can be done to make his life purposeful. 4 On the evidence, as it stands, the annual expenses for the plaintiff are somewhat in excess of the amount which is paid by way of pension. I say that because at the present time there is in fact a surplus of funds but I am not saying that would continue or that perhaps some further outgoings could be required to make the life of the plaintiff somewhat more comfortable. 5 There is some evidence that in the future there may be needs for the plaintiff which would have to be met from capital for an electric wheelchair, electronic bed, and a hoist, but I should say that while that may turn out to be the position, it is not suggested that those items are required at the present time. 6 The plaintiff does not seek to vary the provisions made for his brothers under the will of his father. What he seeks is an order that the whole of the income which is subject to the trust should be paid to him and that an order should be made that a sum which is now accepted to be in the order of $23,000 to $30,000 should be paid to the Protective Commissioner out of which moneys could be made available to pay for the items such as the wheelchair and electronic bed if these are required. 7 The question, then, is whether the deceased in making the provision which he did for his son failed to adequately provide for his proper maintenance and advancement in life. It is necessary first to deal with the argument as to whether or not the ability to retain a pension is a matter which the court should take into account. There have been different views about this but in my opinion those can to some extent be explained by the amounts of money involved in an estate. This is not a big estate. There is no application to make inroads on the benefits given to the other two sons of the deceased. It would, in my view, be quite inappropriate not to take the pension into account, as all that would happen, if that attitude were taken , would be that the whole of the capital would be spent to maintain the plaintiff, that the capital would run out in a relatively short time and then the plaintiff would be forced back onto the pension. There would be no benefit to anybody in making an order along those lines and in fact that is not really sought, I think, by the counsel for the plaintiff. 8 There is evidence that the fees which would be charged by the Protective Commissioner on that part of the estate if any were invested by him would be more than the fees which would be charged by the Public Trustee. As it is not sought that the whole of the estate be paid to the Protective Commissioner to be invested by him, I do not think the argument as to fees is of great importance in this matter. It might have been had an order been sought that the trust be administered in total by the Protective Commissioner. That is not the position here. 9 There is evidence, according to an estate officer of the Protective Commission, that it has been her experience that there are administrative costs in correspondence between the office of the Protective Commissioner and the Public Trustee in obtaining release of funds. While this in some ways can hardly be challenged, it seems to me that there could really be no difficulty in this particular case. The testator made it perfectly clear by the terms of his will that his purpose in setting up the trust he did was to promote the welfare or happiness of the plaintiff. Happiness requires or could require greater expenditure than material needs; it could require, for instance, expenditure on holidays which seems to have been made available at the present time anyway without the income from the estate. 10 I do not think that any case has been made out for the capital sum to be paid and held by the Protective Commissioner for the plaintiff. If those moneys are required I have no reason to believe that they would not be paid. It could never be said that the testator failed to make adequate provision for his son by not making provision for that capital sum, in essence, to be held by his son which is really what is sought at the moment. That claim could not be supported. The other claim is that the whole of the income be paid for the benefit of the plaintiff. Once again that may or may not bear upon the question of the pension and the money may or may not be required for that purpose. If it is not required, it seems to me that the provision which has been made by the deceased for the plaintiff, namely, that income not required be accumulated and made part of capital and, therefore, available to promote the welfare or happiness of the plaintiff, is a proper provision and one which ought not be disturbed. In all those circumstances, in my view it is clear that the summons must be dismissed. 11 Order that the costs of the defendant on the indemnity basis be paid out of that share of the estate held upon the testamentary trust in the will, such costs in any event not to exceed $20,000. No order as to the costs of the plaintiff. It is a matter for the Protective Commissioner to give serious consideration as to whether or not it is proper to charge the managed estate for those costs. 12 The exhibit can be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.