Pakis & ors v Pakis [2011] NSWSC 1073

Pakis & ors v Pakis [2011] NSWSC 1073

The Court refused to vary the power of attorney because deleting the restriction on dealing with real property would override a limitation deliberately inserted in the power and might substantially interfere with the defendant's testamentary intentions, especially where the targeted property had been devised to his son in a will made shortly before execution of the power. Although funds may need to be realised for a nursing home bond, deciding which property or assets should be used was more appropriately left to a financial manager under the Guardianship Act rather than achieved by extending the attorneys' powers contrary to the defendant's expressed wishes.

Jurisdiction
Australia
Judgment Date
29 August 2011
Procedural Posture
Application Under (nsw) Powers of Attorney Act 2003, S 36(4) to Vary a General Enduring Power of Attorney / Hearing of Summons; Ex Tempore Judgment
Outcome
Summons dismissed
Legal Topics
['variation of Enduring Power of Attorney' 'reviewable Power of Attorney' 'best Interests of Principal' 'testamentary Intentions' 'sale of Real Property to Fund Nursing Home Bond']
['powers of Attorney' 'equity' 'guardianship'] ['variation of Enduring Power of Attorney' 'reviewable Power of Attorney' 'best Interests of Principal' 'testamentary Intentions' 'sale of Real Property to Fund Nursing Home Bond']

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Procedural Posture

Application Under (nsw) Powers of Attorney Act 2003, S 36(4) to Vary a General Enduring Power of Attorney / Hearing of Summons; Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the Court should vary the defendant's general enduring power of attorney by deleting a clause directing the attorneys not to sell, mortgage or lodge any encumbrance against his real property." "Whether the proposed variation would be in the defendant's best interests or better reflect his wishes." "Whether the proposed sale of real property would impermissibly interfere with the defendant's testamentary intentions expressed in a will made shortly before the power of attorney."]

Ratio Decidendi

The Court refused to vary the power of attorney because deleting the restriction on dealing with real property would override a limitation deliberately inserted in the power and might substantially interfere with the defendant's testamentary intentions, especially where the targeted property had been devised to his son in a will made shortly before execution of the power. Although funds may need to be realised for a nursing home bond, deciding which property or assets should be used was more appropriately left to a financial manager under the Guardianship Act rather than achieved by extending the attorneys' powers contrary to the defendant's expressed wishes.

Court Disposition

Summons dismissed

Orders

  • ['The summons be dismissed.']