Re B [2007] NSWSC 1060

Re B [2007] NSWSC 1060

The trustee's lack of power to initiate or defend litigation justified extending its powers, but because anticipated probate, testamentary instrument and family provision disputes could quickly generate costs out of proportion to the estate, the extension was to be subject to a safeguard prohibiting payment of more than $10,000 from the protected person's estate without leave of the Court or the consent of a Protector.

Jurisdiction
Australia
Judgment Date
17 September 2007
Procedural Posture
Application by Trustee Company/financial Manager of a Protected Person's Estate for Power to Initiate or Defend Litigation on Behalf of the Protected Person / Notice of Motion; Ex Tempore Judgment
Outcome
Trustee of the estate of a protected person granted power to initiate or defend litigation for that person, with a proviso that no more than $10,000 be paid out of the estate without the consent either of the Court or the estate's Protector.
Legal Topics
['legal Proceedings by or Against a Protected Person' 'financial Manager Powers' 'litigation Costs Control' 'protector of Trust or Estate' 'testamentary Instruments' 'family Provision Application']
['mental Health and Protective Jurisdiction' 'trusts' 'probate and Succession' 'family Provision'] ['legal Proceedings by or Against a Protected Person' 'financial Manager Powers' 'litigation Costs Control' 'protector of Trust or Estate' 'testamentary Instruments' 'family Provision Application']

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Procedural Posture

Application by Trustee Company/financial Manager of a Protected Person's Estate for Power to Initiate or Defend Litigation on Behalf of the Protected Person / Notice of Motion; Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the trustee of the protected person's estate should be given sufficient power to initiate or defend litigation on behalf of the protected person." "Whether safeguards should be imposed to prevent disproportionate legal costs from dissipating the protected person's estate."]

Ratio Decidendi

The trustee's lack of power to initiate or defend litigation justified extending its powers, but because anticipated probate, testamentary instrument and family provision disputes could quickly generate costs out of proportion to the estate, the extension was to be subject to a safeguard prohibiting payment of more than $10,000 from the protected person's estate without leave of the Court or the consent of a Protector.

Court Disposition

Trustee of the estate of a protected person granted power to initiate or defend litigation for that person, with a proviso that no more than $10,000 be paid out of the estate without the consent either of the Court or the estate's Protector.

Orders

  • ["The trustee's power is extended to initiate or defend litigation on behalf of the protected person." "No more than $10,000 is to be paid out of the protected person's estate without either the leave of the Court or the consent of a person called the Protector." "Short minutes reflecting the Court's views are to be...