Re RB, a protected estate family settlement [2015] NSWSC 70

Supreme Court New South Wales

Medium Neutral Citation: Re RB, a protected estate family settlement [2015] NSWSC 70 Hearing dates: 11 February 2015 Date of orders: 11 February 2015 Decision date: 16 February 2015 Jurisdiction: Common Law Before: Lindsay J Decision: Orders made for approval of a family settlement (including a statutory will) relating to a protected person Catchwords: SUCCESSION – Wills, probate and administration – Statutory will – Protective jurisdiction – Purposive character of jurisdiction – Protection of person in need of protection – Consideration of interests, and benefit, of protected person – Family settlement MENTAL HEALTH – Guardians, committees, administrators, managers and receivers – Management and administration of property – Statutory will - Allowance of provision for family out of protected estate – Approval of family settlement – Principles applicable

PRACTICE – NSW Trustee and Guardian Act – Management and administration of property – Statutory will - Allowance of provision for family out of protected estate – Approval of family settlement – Material considerations Legislation Cited: Civil Procedure Act 2005 NSW Family Law Act 1975 Cth Guardianship Act 1987 NSW NSW Trustee and Guardianship Act 2009 NSW Powers of Attorney Act 2003 NSW Succession Act 2006 NSW Uniform Civil Procedure Rules 2005 NSW Cases Cited: A (by his tutor Brett Collins) v Mental Health Review Tribunal (No. 4) [2014] NSWSC 31 at [145]-[147] Ability One Financial Management Pty Ltd and Anor v JB by his tutor AB [2014] NSWSC 245 Andrew v Andrew (2012) 81 NSWLR 656 at 659 [8]-661 CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 CCR v PS (No 2) (1986) 6 NSWLR 622 at 640 Churton v Christian (1988) 13 NSWLR 241 at 252A-E Ex Parte Whitbread In the matter of Hinde, a Lunatic (1816) 2 Mer 99 at 101-103; 35 ER 878 at 879 GAU v GAV [2014] QCA 308 Holt v Protective Commissioner (1993) 31 NSWLR 227 at 240D J v Lieschke (1987) 162 CLR 447 at 457 JPT v DST [2014] NSWSC 1735 L v L [2014] NSWSC 1686 Luciano v Rosenblum (1985) to NSWLR 65 at 69G-70A Protective Commissioner v D (2004) 60 NSWLR 513 at 540-543 and 544 Re Eve [1986] 2 SCR 388 at 407-417; (1986) 31 DLR (4th) 1 at 14-21 Re Fenwick; Application of JRF Fenwick; Re "Charles" (2009) 76 NSWLR 22 at [154]-[170] Re Fulop (dec'd) (1987) 8 NSWLR 679 at 681 Scott v Scott (2012) 7 ASTLR 299; [2012] NSWSC1541 at [306]-[307] Secretary, Department of Health and Community Services v JWB and SMB (Marion's case) (1992) 175 CLR 218 at 258-259 Secretary, Department of Family and Community Services v K [2014] NSWSC 1065 Skarica v Toska [2014] NSWSC 34 at [50] W v H [2014] NSWSC 1696 Wellesley v Duke Beaufort (1827) 2 Russ 1at 20; 38 ER 236 at 243 Wellesley v Wellesley (1828) 2 Bli NS 124 at 131, 136 and 142; 4 ER 1078 at 1081, 1083 and 1085 Texts Cited: HS Theobald, The Law Relating to Lunacy (Stevens & Sons, London, 1924), pages 462-467 Category: Principal judgment Parties: Plaintiff: Wife of Defendant (Protected Person) Defendant: Protected Person Applicants: Four Surviving Daughters of Defendant Representation: Counsel: Ms K James: Plaintiff Ms R Kako: Applicants Ms C Phang, NSW Trustee and Guardian (Amicus Curiae)