Colbourne v Colbourne [2020] NSWDC 37

District Court New South Wales

Medium Neutral Citation: Colbourne v Colbourne [2020] NSWDC 37 Hearing dates: 12 & 13 February 2020 Date of orders: 13 February 2020 Decision date: 13 February 2020 Jurisdiction: Civil Before: Judge Levy SC Decision: See paragraph [19] Catchwords: SUCCESSION – approval of settlement of a claim for provision to be made for a disable person out of a deceased estate Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 District Court Act 1973 (NSW), s 134 Succession Act 2006 (NSW), s 59, s 60(2) Category: Procedural and other rulings Parties: Richard Colbourne (Plaintiff) Sarah Colbourne (Defendant) The Official Trustee in Bankruptcy as Trustee of the Bankrupt Estate of Adam Colbourne (Interested party) Representation: Counsel: Mr S Radburn (Solicitor for Plaintiff) Mr C Simpson (Defendant) Ms M Bateman (Interested party)

Solicitors: Somerville Laundry Lomax (Plaintiff) Baker Mannering & Hart (Defendant) Harris Carlson (Interested party) File Number(s): 2019/269852 Publication restriction: None

Judgment

Nature of case 1. I have before me two competing interlocutory applications in proceedings brought pursuant to s 59 of the Succession Act 2006 (NSW). This Court has jurisdiction as the proceedings involve an amount less than $250,000: s 134 of the District Court Act 1973.

Factual background 1. The plaintiff, who proceeds by way of a tutor, is an 89 year old man who has dementia. He resides in an aged care facility. He has substantial ongoing maintenance and care needs because of that condition. On the evidence, those needs will more likely than not, increase over the remainder of his life expectancy, which is uncertain. 2. The plaintiff is a widower. His wife died on 31 August 2018, aged 80 years; having made a new will shortly beforehand, leaving her whole estate to her two children, whom she had with the plaintiff. In those circumstances, after 58 years of marriage, the plaintiff has reasonable expectations for his maintenance and care needs to be provided for out of his late wife's estate. 3. The estate essentially comprises half the value of the matrimonial home, now estimated to be in the rounded sum of $140,000. The estate had two executors, these being the plaintiff's children, Sarah Colbourne, who is the defendant in these proceedings, and her brother, Adam Colbourne. Those siblings are the equal beneficiaries of their late mother's estate. 4. Adam Colbourne has renounced his role as executor of his mother's estate. He has done so in awareness of the plaintiff's claim against the estate. He has not sought to participate in these proceedings. He does not resist the claim made by his father. He makes no claim of his own, as is his right. That right exists notwithstanding that he remains a bankrupt until the statutory discharge period expires on 16 February 2020 absent another application to delay that process. 5. The first application in time is made jointly by the plaintiff and defendant for approval of a proposed settlement of the proceedings, with the effect that the plaintiff receives the whole of the distributable proceeds of his late wife's estate. The second application comprises a notice of motion filed on 10 February 2020, by the Official Trustee in Bankruptcy as the Trustee of the bankrupt estate of Adam Colbourne. The Official Trustee seeks to be heard in opposition to the proposed settlement. At the commencement of the hearing leave was granted for the Official Trustee to be heard on that question.