Lawyers acting in Family Provision Applications should take note of a recent District Court decision that discusses the level and type of information that the Court will expect to see in considering an application for the approval of a settlement.
In the recent decision of White v White [2021] QDC 321, Porter QC DCJ, would not approve a settlement reached by the Public Trustee of Qld (PTQ) in its capacity as the litigation guardian for an intellectually disabled woman and adjourned the application on the basis that further information was required.
The PTQ, as the litigation guardian for Ms White, made a claim on her behalf in the estate of her late mother. Ms White had been receiving an NDIS package but it had expired by the time the application was made. In referring to seven different areas in respect of which further material was required, the Judge commented that evidence as to the likelihood and level of another NDIS package, as well as how Ms White would be impacted if funding wasn’t continued, was required.
The Judge also pointed out that the PTQ, as Ms White’s administrator, under the General Principles to the Guardianship & Administration Act 2000 (Qld), needed to put evidence forward in relation to how it had maximised Ms White’s participation in the decision-making process in reaching the settlement and respected the processes of ‘supported decision-making’.
The case is important for two reasons:
- it gives insight into the type and level of information that the Court requires in approving the settlement of a Family Provision Application; and
- emphasising that substitute-decision makers such as litigation guardians, administrators, enduring attorneys, need to apply ‘supported decision-making’ and to put forward evidence showing that the adult has been consulted and that their aspirations and wishes have been sought.
The case is certainly one to bear in mind when heading to Court for the approval of a Family Provision Claim, particularly where NDIS and or a litigation guardian is involved.
If you require further information or assistance, please contact our Estates and Succession team.