Bradbury, Estate of [1999] QSC 145

) ) j 36;(4( IN THE SUPREME COURT OF QUEENSLAND Brisbane Before Wilson J [Estate of Bradbury] CATCHWORDS: Counsel: Solicitors: Date of hearing: No. 2822 of 1999 IN THE MATTER -of "The Trusts Act" - and- IN THE ESTATE of DONALD BRADBURY late of Railway Hotel, Herbert Street, Allora in the State of Queensland, Retired Police Officer, deceased REASONS FOR JUDGMENT - WILSON J. Judgment delivered 2 July 1999 EQUITY - TRUSTS AND TRUSTEES - APPLICATIONS TO THE COURT ON ORIGINATING PROCESS - GENERAL MATTERS- application for authorisation of the variation of a trust - property held on trust for spouse for life - after death or remarriage trust property to go to children or, if predeceased, their children - proposal to distribute trust property to spouse and some children - all adults consent to variation - whether variation would be for the benefit of the infant grandchildren or unborn grandchildren. Trusts Act 1973 s.95 Re Christmas' Settlement Trusts [1986] 1 Qd R 372, considered STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS - Reprints Act- editorial changes - mistake - no power to alter meaning. Reprints Act 1992 Part 4 Mr R. M. Bourke for the applicant McInnes Wilson Lawyers for the applicant 6 May 1999 -- 1 of 7 -- ----~--~~~--~--- ) ) ) ) IN THE SUPREME COURT OF QUEENSLAND No. 2822 of 1999 Brisbane Before Wilson J [Estate of Bradbury] '. IN THE MATTER of "The Trusts Act" - and- IN THE ESTATE of DONALD BRADBURY late of Railway Hotel, Herbert Street, Allora in the State of Queensland,Retired Police Officer, deceased REASONS FOR JUDGMENT - WILSON J. Judgment delivered 2 July 1999 This is an application by Jeffrey Thomas Bradbury for authorisation of the variation of a trust pursuant to s. 95 of the Trusts Act 1973. The trust was established by order of de Jersey J made on 17 July 1990. So far as relevant, the order provided: 1. That JEFFREY THOMAS BRADBURY the administrator of the estate of DONALD BRADBURY, deceased, do transfer to PETER THOMAS MAKER and DONALD WILLIAM BROWN, as trustees the house and farming property situated at Warwick Road, Cambooya on the following trusts:- (a) to allow BEVERLEY ANNE YEATES to reside therein as tenant until her death or remarriage, whichever should occur first; (b) During her tenancy to allow BEVERLEY ANNE YEATES to receive all profits derived from carrying on any business on the said property anc.iat the same time BEVERLEY ANNE YEATES to be personally responsible for all outgoings (including insurance and rates) which may be charged ~ against the property during her tenancy; (c) in the event that BEVERLEY ANNE YEATES should require the trustees to sell the property during her tenancy the following provisions should apply:- (i) the trustees shall sell the property at market value and the ~ ~~ . ~ -- 2 of 7 -- 3 4 5 2 costs of sale shall be deducted from the sale price; (ii) the trustees shall purchase a substitute property at which BEVERLEY ANNE YEATES may reside (from the proceeds of sale); the purchase price (including costs of purchase) not t9 exceed the nett sale price of the property sold; .. (iii) in the ev~t that there is a surplus of monies after the purchase of the substitute property, then that surplus shall be invested !>y the trustees and the income derived therefrom shall be paid to BEVERLEY ANNE YEATES, she being responsible for any income tax accruing on that mcome. (d) On the death or remarriage of BEVERLEY ANNE YEATES any real property held by the trustees is to be sold' and the proceeds of sale together with all other monies held by the trustees shall be distributed in ·the following manner:- (i) as to a one seventh share to each of the children of BEVERLEY ANNE YEATES living at the date of this Order; (ii) as to a one seventh share to each of the children of DONALD BRADBURY deceased. (e) In the event that any of the children referred to in the preceding paragraphs (d)(i) and (ii) should predecease BEVERLEY ANNE YEATES or die prior to her remarriage then the share to which he/she or they would have been entitled to hereunder shall be paid to the child or children of the said deceased child and in the event of there being no such child or children then the deceased child's share shall be divided equally between the brothers and sisters of the deceased child equally." Beverley Anne Yeates was the de facto wife of Donald Bradbury deceased. At the date the order was made, there were five children of the deceased (by his former marriage) and two children ofMs Yeates (by a former relationship). They are all adults who have indicated their consent to the proposed variation, as have the adult children of one of Donald Bradbury's sons. In time the property at Cambooya was sold. As a result, there are now: (a) a substitute dwelling occupied by Ms Yeates at Woodridge, the purchase price of which ~. was approximately $109,000; and (b) an interest bearing deposit of approximately $102,300. The proposal is that the house property be transferred to Ms Yeates absolutely, that the balance funds (after payment of costs) be distributed equally amongst the deceased's five children c c c c -- 3 of 7 -- 6 7 ) \j ) 3 and that the trust be wound up. Ms Yeates consents to this proposal. She says that by her will she has left all of her possessions to her children in equal shares andthat she does not intend changing her will. Of course, there can be no guarantee that she will not do so. Four of the Bradbury children have children: they propose using the money to discharge -- obligations, past, present or future, in respect of the education and upbringing of those children, and also to give $2000 each to their mother who has received nothing from their father's estate. The fifth proposes using the money to discharge obligations arising from his own education and to give $2000 to his mother. Section 95 of the Trusts Act as it appears inReprint No.2 authorised by the Parliamentary Counsel is as follows:- "Power of court to authorise variations of trust 95.(1) Where property, whether real or personal, is held on trusts arising, whether· before or after the commencement of this Act, under any instrument creating the trus(the cburt may if it thinks fit by order approve on behalf of- (a) (b) (c) any person having, directly or indirectly, an interest, whether vested or contingent, under the trusts who by reason of infancy or other incapacity is incapable of assenting; or any person (whether ascertained or not) who may become entitled, directly or indirectly, to an interest under the trusts as being at a future date or on the happening of a future event a person of any specified description or a member of any specified class of persons, so however that this paragraph shall not include any person who would be of that description, or a member of that class (as the case may be) if the said date had fallen or the said event had happened at the date of the application to the court; or any person unborn; or (d) any person in respect of any discretionary interest of the person under protective trusts where the interest of the principal beneficiary has not failed or determined; any arrangement (by whomsoever proposed and whether or not there is any other -- 4 of 7 -- 9 10 ~---~- ------------- 4 person beneficially interested who is capable of assenting thereto) varying or revoking all or any of the trusts, or enlarging the powers of the trustees of managing or administering any of the property subject to the trusts. (lA) However, except- (a) in the case of a!1 unascertained person whose entitlement is dependent on a futUre event which the court is satisfied is unlikely to occur; or :: (b) where the court approves of an arrangement on behalf of a person referred to in subsection (1); the court shall not approve an arrangement on behalf of any person unless the carrying out thereof would be for the benefit of that person." Originally subs. (1A) was a proviso to subs. (1). It was in the following terms:- "Provided that except - (e) in the case of an unascertained person whose entitlement is dependent on a future event which the court is satisfied is unlikely to occur; or (t) where the Court approves of an arrangement on behalf of a person referred to in paragraph (d), the Court shall not approve an arrangement on behalf of any person unless the carrying out thereof would be for the benefit of that person." :." j c c In the exercise of editorial powers conferred by Part 4 of the Reprints Act, the Parliamentary C Counsel made it a separate subsection. from to Importantly for present purposes he also made this change: "(t) where the Court approves of an arrangement on behalf of a person referred to in paragraph @, " "(b) where the court approves of an arrangement on behalf of a person referred to in subsection ill;" This purported to change the meaning of the section; indeed to make a nonsense of it. Since "editorial changes" altering the effect of a provision have at all times been impermissible (Reprints Act s.8), I conclude that an error was made in the reprint and I read the reference to "subsection c -- 5 of 7 -- 11 ) 5 (1)" in subs. (lA)(b) as if it were a reference to "subsection l(d)". Paragraph 1( e) of the order of de Jersey J provides that if any of the seven children dIes before the death or remarriage ofMs Yeates, the respective share is to go to that child's children, or if none, to be shared amongst his or her brothers and sisters. The material I have in respect of the seven children is limited. It can be summarized as follows: BENEFICIARY Yeates children Glen Ronald Yeates .Issue: unknown Robin Ann McCullough Issue: unknown AGE 41 40 ) Bradbury children ) j 2 3 Jeffrey Thomas Bradbury Issue: Caitlin Emily Mitchell Donald. Ian Bradbury Issue: Donna Helen Debra Joy Nash Issue: Rebecca Matthew Reegan Bruce Cameron Bradbury Issue: None Fiona Margaret Hawthorne Issue: Bronte Lachlan unknown 13 11 9 unknown 22 18 unknown 16 13 5 40 unknown 4 <12 months By subs. (IA) of s.95 I cannot approve the arrangement on behalf of the infant grandchildren or any grandchildren as yet unborn unless I am satisfied that it would be for tl].eir . ~ benefit. I do not know whether there are any grandchildren ofMs Yeates. Prima facie there could still be children born to both of her children. Of the three Bradbury sons, two have had -- 6 of 7 -- 6 vasectomies (Jeffrey and Donald) and the third who has no children and who has never married has declared his intention not to have children. However, the possibility of their fathering children in the future cannot be excluded. Similarly, the two daughters may yet have more children, despite -. Debra's second husband having had a vase~omy and Fiona's declaration that she does not intend to have any more. = 14 InRe Christmas' Settlement Trusts [1986] 1 Qd R 372 at 374-75, McPherson J referred to the desirability of there being separate representation for infant beneficiaries and the provision of an opinion by counsel instructed on behalf of unborn beneficiaries, at least where a large c amount of money is involved. There was neither on the present application, perhaps because the estate is comparatively small and out of concern at the impact on it of legal costs. I have been C furnished with an opinion by counsel instructed on behalf of the applicant (one of the Bradbury children). With respect, that goes no further than saying that the court "may accept an argument" that the proposal is for the benefit of the infant beneficiaries. 15 In all the circumstances, I am not prepared to approve the variation of the trust because - (a) I have no information as to the position of the Yeates grandchildren (if any): under the C proposal their contingent interest would be defeated; (b) I cannot be satisfied that it is unlikely that there will not be Yeates grandchildren born in C the future: under the proposal their contingent interest would be defeated; (c) I have some doubts whether the proposal would be for the benefit of the Bradbury grandchildren who are presently infants, as there would be no obligation on their parents to spend the money as they have proposed; (d) I cannot be satisfied that it is unlikely that there will be no further Bradbury grandchildren: under the proposal their contingent interest would be defeated. 16 The application is dismissed. -- 7 of 7 --