Sergent v Glass (No 2)

HIS HONOUR: These are somewhat unusual proceedings for an order that provision be made for the maintenance, education and advancement in life of Thomas Declan Sergent (“Thomas”) and William James Sargent (“William”), out of the estate and notional estate of their father, Andrew Paul Sergent, (“the deceased”), pursuant to the Succession Act 2006 (NSW) ("the Act"). The reason for it being somewhat unusual is that the Defendant, who was to represent the deceased’s estate, and who was, subsequently, appointed as administrator ad litem, wishes to compromise the proceedings upon the basis that the whole of the estate should be shared equally between the two Plaintiffs. The beneficiary, who is entitled to the whole of the deceased’s estate as a result of the operation of the rules of intestacy, cannot be located.

In the alternative, the parties have asked that the application be treated as one, by the Defendant, for the opinion, advice and direction of the Court under s 63 of the Trustee Act 1925 (NSW), namely, that he would be justified in compromising the proceedings upon the terms of Consent Orders that have been provided to the Court.

The Defendant, who has no interest in the estate, is Jeremy Neil Glass, a well-known, and, if I may say so, a well-respected, lawyer, who is well experienced in proceedings under the Act. I shall refer to the circumstances of his appointment later in these reasons. As will be read, he has done what he can do to locate the sole beneficiary entitled to the deceased’s estate on intestacy.

As one of the Plaintiffs is a person under a legal incapacity (a minor), there may not be, except with the approval of the Court, any compromise or settlement of any proceedings to which s 76 of the Civil Procedure Act 2005 (NSW) applies, regarding a claim made by, or on behalf of, that Plaintiff. This is one such claim and, therefore, the approval of the Court, and the consideration of the settlement reached, is required in any event.

It is clear that, although the wording of s 76 gives an unfettered discretion, there is a wealth of authority that confirms that the Court should only approve the compromise if it is in the best interests of the person under a legal incapacity, or if it is beneficial to him or her: see, for example, Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388, which was applied by Allsop P (as his Honour then was) in Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298, at [2].

Ultimately, there are no guidelines as to the exercise of the Court’s discretion. Performance of the Court’s task, however, requires at least some consideration of the minor’s overall prospects and not just his prospects of obtaining minimal relief under the Act: Bartlett v Coomber [2008] NSWCA 100, at [24] – [25].

The parties requested that the matter be dealt with, in Chambers, “on the papers”. In the circumstances, and subject to what I shall say hereafter, I agreed to follow the course suggested. In this regard, I had in mind s 56 of the Civil Procedure Act and the need to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(To adopt this course is permitted by s 11 of the Supreme Court Act 1970 (NSW) which has abolished the distinction between court and chambers and which states that the business of the Supreme Court, whether conducted in court, or otherwise, shall be taken to be conducted in court.)

The proceedings have necessitated written reasons even though there has been no substantive hearing, and even though the orders have been agreed upon, subject to the approval of the Court.

The deceased died on 2 July 2016. Relevantly, he was survived by his second wife, Sandra Shin (“Sandra”), by his former wife, Michelle Otter, and the two children of her marriage to the deceased, namely, Thomas and William.

The deceased was born in May 1970. He married Michelle Otter in April 1997. Thomas was born in April 1999 and is 19 years old and William was born in October 2001 and will be 17 later this year.

These proceedings were commenced by Thomas, and by Clive Raymond Sergent (“Clive”), who is the deceased’s father, and the grandfather of the Plaintiffs, as the tutor for William.

For ease of reference, I shall refer to the parties, and other family members, by his, or her, first name.

The deceased’s marriage to Michelle was dissolved in December 2010, following a separation in September 2008. Despite the dissolution of the marriage, the deceased continued to have a relationship with his two children. Usually, they spent every second weekend, and some holidays, with him, and he complied with his legal obligation to pay child support in respect of each of them.

On 12 January 2013, the deceased married Sandra. The Marriage Certificate, a copy of which is in evidence, reveals that her given name was “Ngan”; that she was born in Shaanxi, China, in April 1972; that her occupation was that of a “Freelance Artist”; and that she was “never validly married”.

There were no children of the deceased’s marriage to Sandra.

Clive describes his observations of the deceased’s relationship with Sandra as “tumultuous”. William, who did not provide an affidavit, is said to have told Clive that, often, there were arguments between Sandra and the deceased, and, there was sometimes some violence between them. (Sandra was said to have thrown things at the deceased, as well as pushing the deceased over when he had a broken leg thereby causing an additional injury.)

In about March 2014, Sandra left the deceased and moved from their home, in Sydney, apparently, to Hong Kong. Her address there was not known. As will be demonstrated, the evidence reveals that she has not returned to Australia.

There is a series of email correspondence passing between the deceased and Sandra, in February 2016, the substance of which is that Sandra said that she wished to obtain a divorce from the deceased, to which he agreed. The last email between them stated that the deceased left it to Sandra to “organise” the divorce “as you left me”.

There is no evidence, subsequently, of the deceased having been served with any formal application for the dissolution of their marriage. Whilst not quoting the contents of the emails passing between the deceased and Sandra, it is fair to say that the tone of each is quite vitriolic, on both sides. There can be little doubt that, by the time these emails passed between them, the marriage had irretrievably broken down. The parties have proceeded upon the basis that she was the spouse of the deceased at the date of his death.

It will be necessary to identify the steps taken to locate Sandra since the commencement of the proceedings, to which I shall return later in these reasons.

The deceased died intestate. An “intestate” is defined in s 102 of the Act as “a person who dies and either does not leave a will, or [who] leaves a will but does not dispose effectively by will of all or part of his or her property”. In this case, the evidence establishes that the deceased did not leave a Will.

Clive has given evidence that the deceased’s estate consists of the proceeds of superannuation (approximately $5,000) and the proceeds of a term Life Assurance Policy (about $449,000). (I have omitted, and shall continue to omit, any reference to cents in amounts to which I refer. This will explain any apparent mathematical miscalculations.)

In an affidavit sworn on 5 October 2017, by Mr Glass, the estate was said to have a value of $462,470 at the date of the deceased’s death. There were debts, and other liabilities, of the deceased, at that time, of $20,540. There were testamentary, and other, expenses ($8,475), which were paid out of the estate. (The amounts paid have not included $15,189, paid by Clive, for funeral and interment expenses for the deceased. He has stated that he does not seek reimbursement of these expenses, and that if they are repaid to him, he would gift the amount received from the estate to Thomas and William.)

Mr Glass estimated the value of the distributable estate, omitting the costs of these proceedings, at the date of the affidavit, to be $432,560.

As the deceased died intestate, and in view of the value of his estate, there is no dispute that, under the Act, the whole of the deceased’s estate passes to Sandra, by virtue of s 113 of the Act, coupled with the statutory legacy calculated by the formula set out in s 106 of the Act. (The statutory legacy, alone, was estimated to be $453,579.)

The proceedings were commenced by Summons filed on 29 June 2017. There was no Defendant named in the Summons. On the first return date, the Court simply noted that the matter was being adjourned “as the Plaintiff[s] are seeking the consent of legal representatives to act for the estate”.

On 11 August 2017, the Court, with his consent, appointed Mr Glass, pursuant to Uniform Civil Procedure Rules 2005 (NSW), rule 7.10(2)(b), as a representative of the deceased's estate for the purposes of the proceedings. UCPR rule 7.10(3) provides that any judgment, or order, subsequently entered, or made, in the proceedings, binds the deceased person's estate to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceedings.

The proceedings next came before Ward CJ in Eq, in the Family Provision List, on 6 October 2017. Her Honour made a direction that any application for a limited grant of letters of administration, in favour of Mr Glass, for the purpose of defending the proceedings, be filed by 12 October 2017, and be made returnable before the Family Provision List Judge on 13 October 2017.

The Notice of Motion was filed, and her Honour dealt with it on 13 October 2017. In a comprehensive, ex tempore, judgment, which bears the medium neutral citation Sergent v Glass [2017] NSWSC 1446, her Honour made orders, including that special letters of administration of the estate of the deceased be granted to Mr Glass, until an unlimited grant of administration of the estate is made, or until further order of this Court, limited (a) to defending the proceedings and (b) to compromising the proceedings. Her Honour also dispensed with (a) publication of notice of intention to make the application for administration; (b) the need for an administration bond or sureties; and (c) the further requirements of the Probate Rules in relation to the Defendant's application for the orders. Finally, her Honour ordered that, to the extent that service of the Notice of Motion, or any other documents in the proceedings, was required to be effected on Sandra, the documents would be taken to have been served on her, if emailed to an identified email address, and sent by Facebook messenger to an identified Facebook page.

That Sandra had a Facebook page was clear on the evidence. On 5 July 2017, an employee of the Plaintiffs' solicitor had searched Facebook for “Sandra Shin”. That search returned a Facebook page for a “Sandra Shin”, which included a photograph of the person. The Plaintiffs, and Clive, confirmed that the person in the photograph was Sandra.

(Service of documents by email is hardly controversial any more. No doubt, her Honour was well aware of the international reach of Facebook, which, as I understand it, is a social networking website and service that provides an electronic medium for the acquisition, and dissemination, of information. It is available to anyone who can access it. Facebook users can access the information on Facebook pages and can then contribute to the page by posting material on it. For someone to post on Facebook, he, she or it, must also have a Facebook account.)

At the request of the parties, I held a judicial settlement conference on 22 November 2017. On that occasion, Ms T Catanzariti of counsel appeared for the Plaintiffs, and Ms R Bianchi of counsel, appeared for the Defendant.

The matter was resolved, in principle, by the parties at the judicial settlement conference. However, in order to ensure that Sandra was given notice of the proposed resolution, the matter was adjourned until 21 February 2018.

Since then, the proceedings have been before this Court on three occasions, on the last of which, at the request of the parties, I referred it to Chambers for consideration.

There was no dispute that even though Mr Glass, as Defendant, has the power to compromise the proceedings, as provided for in the orders of Ward CJ in Eq, it has been necessary to ensure, since any compromise will result in the diminution of Sandra’s entitlement to the deceased’s estate (to the point of extinction), that she has the opportunity to consent, or to persuade the Defendant (or if appropriate, the Court) that the Defendant was not adequately representing her interests: Bartlett v Coomber at [74].

As stated earlier, there was electronic communication passing between Sandra and the deceased in about 2016. There was an email address, for Sandra, stated in the emails sent by her.

Mr Glass also deposed that Sandra had been identified as the person depicted in photographs upon a Facebook page styled: “Sandra Shin. Lives in Hong Kong. From Hong Kong.”

The following correspondence, both before, and after the orders made by Ward CJ in Eq, was sent to Sandra’s email address:

To none of the email correspondence was a response received. Whilst not stated explicitly, there is no suggestion that a “bounce-back message” or a "Non-Delivery Report" or "Non-Delivery Receipt" in respect of any email was received. (That type of message is an automated one informing the sender of a previous email message that the email message has not been delivered.)

There is also evidence that the deceased’s brother, David Adam Sergent, who attended the ceremony of the deceased’s marriage to Sandra, and whose relationship with her was said, by him, to be “relatively good”, sent an email to her “using two email addresses I had previously used to send emails to her”.

The content of the email, which is dated 27 November 2017, and which is in respectful and polite terms, confirmed the death of the deceased, that each of Thomas and William “have obviously been very affected by this emotionally”, and that lawyers had been trying to contact her in regards to them receiving “whatever funds possible from [the deceased’s] life insurance”. David then made a request that she acknowledge receipt of the email.

David received no response to the email sent to each email address. He “received no bounce-back message” or a "Non-Delivery Report" or "Non-Delivery Receipt”, in respect of either email.

In addition, the following attempts were made to contact Sandra by Facebook:

There is no evidence of a reply to any of the Facebook messages.

This is not a case in which the “evidence … did not establish, other than by mere assertion, that the Facebook page was in fact that of [Sandra] and did not prove that a posting on it was likely to come to [her] attention in a timely fashion”: Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 at [38]. To the contrary, I consider the evidence clearly establishes that it is more probable than not, that the email correspondence, and the Facebook messages, have reached Sandra, even though she has not acknowledged any of them.

There were also various other searches carried out:

There does not appear to have been any responses to any of the searches. In fact, Mr Glass deposes that he has “not been contacted by Ngan (or Sandra) Shin, or by any other person, in response to any email, or letter, that I have sent to her; nor have I received any response to the advertisement that was placed in the South China Morning Post”.

It is difficult to know whether Sandra’s failure to respond is due to indifference as to the outcome of the proceedings, or due to some other reason. Her failure to engage with Mr Glass defies logic.

In the circumstances, I am satisfied that the Plaintiffs’ solicitors and the Defendant have done all that they can do to bring the proceedings and the documents that have been sent, to the notice, and attention, of Sandra. I am unaware of any other steps that could practically be taken to bring the proceedings to her attention in order to enable her to participate in them, either by agreeing to the proposed orders, by seeking to replace Mr Glass as the proper contradictor, or by otherwise giving notice of her opposition to the Plaintiffs’ claim and/or the resolution of their claim. For these reasons, I was prepared to deal with the matter as requested by the parties.

There cannot be any dispute that the Plaintiffs commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. It is not in dispute that, each Plaintiff, as a child of the deceased, is an eligible person within s 57(1)(c) of the Act. The language of the sub-section is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased.

The only eligible persons are Thomas and William, Sandra and Michelle. There is evidence that Michelle has been served with a notice of the Plaintiffs’ application and of the Court's power to disregard her interests, in the manner and form prescribed by the regulations or rules of Court. Michelle acknowledged, in writing, receipt of the notice, on 5 October 2017. No proceedings have been commenced, subsequently by her.

It is unnecessary to serve a notice on each of Thomas and William as each has brought proceedings.

There is sufficient evidence of attempts at service of the notice on Sandra. As stated, I am satisfied that she has been informed of the proceedings.

A family provision order may be made in relation to property that is not part of the deceased person’s estate, but is designated as “notional estate” of the deceased person by an order under Part 3.3 of the Act: s 63(5). There is no evidence of any property that could be designated as notional estate.

Clive has given evidence by affidavit, sworn 28 June 2017, of the financial and material circumstances of each Plaintiff. He stated that:

In an affidavit sworn 20 February 2018, Clive updated the position of the family members:

No tutor for Thomas has been appointed and there has been no additional evidence as to his current condition.

I turn next to the role of the Defendant in proceedings brought for a family provision order.

In Bartlett v Coomber, Hodgson JA wrote, in relation to the duty of the executor or administrator, at [70] – [71]:

Consequently, it is the duty of Mr Glass, as the Defendant representing the intestate estate, to compromise the proceedings, as he wishes to do, or to uphold the distribution on intestacy. In either case, he has an obligation to put before the Court such evidence as he has, or that is otherwise available from the beneficiaries, relevant to the issues to be determined.

I am satisfied Mr Glass has satisfied his obligations as the representative of the deceased’s estate.

In Hore v Perpetual Trustee Co Ltd (Supreme Court (NSW), Windeyer J, 8 June 1995, unrep) the Court referred to the provisions of the Family Provision Act 1982 (NSW), and wrote, at 11-12:

In Schaechtele v Schaechtele [2008] WASC 148, Le Miere J, in the Supreme Court of Western Australia, wrote, at [18]:

The same principles apply in respect of the Act.

In relation to the Court's power to make an order, by agreement of the parties, Mason P wrote in Bartlett v Coomber, at [37] - [39]:

On this topic, Hodgson JA, in the same case, wrote at [72]:

Bryson JA wrote, at [79] and at [84] – [86]:

In relation to the Court's power to not make a consent order, Mason P, in Bartlett v Coomber, wrote, at [56] – [60], and [65]:

In Affoo v Public Trustee of Queensland [2012] 1 Qd R 408; [2011] QSC 309, Dalton J wrote, at [24]:

This statement was approved by the Court of Appeal in Abrahams v Abrahams (2015) 13 ASTLR 406; [2015] QCA 286, at [30].

It is relevant also, that s 98(3) of the Act contemplates the making of consent orders. It provides:

It is not the role of the Court asked to approve a settlement or compromise to decide whether the outcome of the settlement or compromise is the one that it would have made, but, rather, whether it (as a settlement or compromise) ought to be approved. The Court is requested by the parties to exercise its independent judgment on the question whether or not to approve the proposed compromise or settlement. The purpose of court approval is, principally, to protect the person under legal incapacity.

Consequently, the role of this Court is to consider the terms of the proposed orders. The Court must be satisfied, on the evidence available before it, that such an order for provision is one that ought to be made. This, of course, involves a consideration of whether adequate provision has been made to the Plaintiffs. Without such a consideration, the Court does not have jurisdiction to make an order.

Where someone opposes the approval of the settlement, her, or his, reasons for opposition may provide "a convenient focus" (see, Jessup J in Darwalla Milling Co Pty Ltd v F Hoffman La Roche Ltd (No 2) (2006) 236 ALR 322; [2006] FCA 1388, at [39]), by reference to which the Court will consider whether to approve the settlement. Similarly, that no one opposes the settlement, in the interests of the person under the legal incapacity, may, in some circumstances, also be relevant.

Where the interest of the sole beneficiary on intestacy has been compromised whether to the point of extinction as in this case, or otherwise, in favour of the Plaintiffs, the Court must consider whether the terms of the agreement fall outside the range of possible outcomes, if the matter were determined at hearing. In doing so, it considers whether the compromise agreement has failed to effectuate the specific policies of the Act, including, as mentioned, whether adequate provision has been made for the proper maintenance, education and advancement in life of the Plaintiffs.

The Court also considers whether the compromise agreement amounts to an abuse of process, or, whether it, otherwise, offends public policy in a demonstrable way: Bartlett v Coomber at [58]. If such a failure occurs, the Court must reject the compromise agreement.

There can be no dispute about the relevant principles that apply to a claim for a family provision order.

In this case, the pre-ordained scheme for distribution of the deceased's estate is not according to the wishes of the deceased as expressed in a Will, but according to the regime established by statute. It was written in NSW Law Reform Commission, Report 116 Uniform Succession Laws: Intestacy, (April 2007) at [1.23]:

In In the Estate of Bridges (1975) 12 SASR 1, at 5, Bray CJ noted:

In Kossert v Ruggi As Executor of the Will of Korps (No 2) [2012] WASC 191, at [38], Kenneth Martin J, after referring to the passage in Re Estate of Bridges, noted:

I respectfully agree with what Bergin CJ in Eq wrote (omitting transcript references), in In the Estate of the late Marras [2014] NSWSC 915, at [116] - [117] and [124] - [125]:

In dealing with the application by the Plaintiffs under s 59(1) of the Act, the question under s 59(1)(c) and (2) is, in substance, whether adequate provision was made for the proper maintenance, education or advancement in life of each of the Plaintiffs as a result of the operation of the rules of intestacy. In this case, no provision is made as a result of the intestacy rules. Whether the provision is inadequate requires an assessment of the financial position of each of Thomas and William, respectively, the size and nature of the deceased's estate, the relationship between each and the deceased, as well as the relationship of Sandra and the deceased, as a person who has a legitimate claim upon his bounty: Tobin v Ezekiel (2012) 83 NSWLR 75; [2012] NSWCA 285, at [70]; McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82, at 571-572; Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, at 210; and Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, at [16], [75], [112].

The question is whether some provision should be made for each applicant’s proper maintenance, education or advancement in life, and if so, the next question that would arise under s 59(2) is what order for provision, if any, should be made.

Section 60(2) sets out the matters that the Court may consider when determining whether, amongst others, to make a family provision order and the nature of such order: s 60(1). None of the matters listed in s 60(2) is necessarily decisive. None is given, by the section itself, any primacy. In the present case, almost all of the matters identified in s 60(2) are relevant and should be considered.

The question of the inadequacy of the provision is determined at the time the Court is considering the application under s 59(1)(c).

The content of what is adequate provision is flexible, and reflects what is considered to be right and proper according to contemporary accepted community standards.

In Sgro v Thompson [2017] NSWCA 326, White JA (McColl JA agreeing), at [71] – [72], noted that:

In this case, Sandra is the sole beneficiary entitled on intestacy. The Court is not entitled to disregard her interests and I do not do so.

However, bearing in mind the shortness of the marriage before she left the deceased (about 14 months); the fact that there is no evidence of any contribution made by her towards the acquisition, conservation and improvement of the estate of the deceased, or to his welfare; that it is not suggested that she contributed to the welfare of the family of the deceased; that nothing at all is known about her financial resources (including earning capacity) and financial needs or about any physical, intellectual or mental disability from which she might suffer; that she appears to have wished to have a complete break from the deceased, and has maintained that approach by not, apparently, wishing to participate in the proceedings; and despite the numerous efforts to involve her, I am satisfied that the Court should regard her as having virtually no competing claim on the bounty of the deceased.

I am also satisfied that the relationship of each of Thomas and William, and the deceased, was a reasonably close one. The same cannot be said for his relationship with Sandra, to whom he was married and living with for about 14 months, and from whom he was separated for more than two years before his death. I am of the view, taking into account all the circumstances of the case, that there was no requirement for the deceased to have made any provision for her.

That there is no provision made for either Plaintiff, each of whom is a child of the deceased, out of the deceased’s estate by operation of the rules of intestacy does not, automatically, mean that each will have satisfied the jurisdictional threshold. A person may fail to satisfy the description of being "left without adequate provision" even though no, or little, provision is made for him or her by Will or by operation of the rules of intestacy.

Yet, judged by quantum, and looked at through the prism of Thomas’ and William’s financial and material circumstances, respectively, adequate provision for the proper maintenance or advancement in life of each could be seen as not having been made. As stated, the test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case.

In all the circumstances, I am satisfied that there is a basis for the Plaintiffs making the application. No provision was made for either. The deceased, on intestacy, failed to provide adequate and proper provision for each. There is no doubt that each has a need for provision for his maintenance, education and advancement in life. In the circumstances, the requirements of the Act have been made out, and the jurisdiction of the Court has been enlivened.

I am satisfied, in this case, that the Defendant, as the person appointed to represent the deceased’s intestate estate, has given serious, and proper, consideration to the entitlement of Sandra as the sole beneficiary on intestacy. In addition, he has been advised by junior counsel with experience in the conduct of these matters, which adds to his own significant experience. Both consider that the orders ought to be made.

It is also clear that Clive, as William’s tutor, considers that it is in William’s best interests, and beneficial to William, to resolve the proceedings in the manner proposed. He has consented to the orders. I am satisfied that he and his legal advisors have acted appropriately, understanding their significant duty to protect the interests of William. I am also satisfied that the compromise, so far as it relates to him, is in William’s best interest and is appropriate in all the circumstances.

Furthermore, Mr Glass has acted within the limits of his power to compromise and appears to have exercised his power to compromise in good faith and for the purpose for which it was conferred by Ward CJ in Eq. It could not be suggested that he has done so for any ulterior, or improper, purpose.

Nor is there any evidence that Mr Glass has not formed an honest judgment that it would be in the best interests of the estate to resolve the Plaintiffs’ claims at the judicial settlement conference, rather than to incur the further costs, expenses and delay in defending their claim for provision: McGrath v Troy [2010] NSWSC 1470 at [55] per White J (as his Honour then was). Clearly, the small size of the estate and the extent to which it would be depleted by further legal costs if the Plaintiffs’ claims were defended in contested proceedings are important considerations.

Having considered the matters I am required to consider, I am satisfied that the Defendant is entitled to come to the view that the deceased did not make adequate provision for the proper maintenance, education and advancement in life of each of Thomas and William by operation of the rules of intestacy and is entitled to resolve the proceedings on the terms that he considers appropriate.

Section 77(2) of the Civil Procedure Act provides that money recovered in any proceedings on behalf of a person under legal incapacity, is to be paid into court. However, s 77(3) empowers the Court to order that the whole, or any part of, such money not be paid into court, but be paid instead to such person as the Court may direct, including, if the person is a protected person, to the manager of the protected person's estate.

In the present case, the parties have requested that the lump sum payable to William be paid to his tutor, who is not only his grandfather, but also a retired Chartered Accountant with considerable experience in investment, and to David Arnold Klein, a Business Manager. Each has consented to act as Trustee and has signed a Deed of Trust, pursuant to which they have agreed to hold the lump sum for William until he attains the age of 18 years (on XX October 2019).

I have read affidavits of fitness of Clive and of Mr Klein, and I am satisfied that they may be appointed as the trustees of the lump sum payable to William. Pursuant to s 77(3) of the Civil Procedure Act the lump sum should be paid to them to be held by them on the terms of the Deed of Trust for William.

So that Sandra may be made aware of these reasons for judgment and the orders and notations set out hereunder, I order that a copy of these reasons be provided to her, in PDF form, sent to each of the email addresses known to the Defendant, and notification, by private message, of the Court’s orders, be given to her by Facebook message.

The orders and notations are not to be entered into the Court’s computerised record system until 14 days after the Defendant has filed an affidavit of service, in admissible form, deposing to service of the documents. This will allow Sandra an additional opportunity to contact the Defendant.

Finally, it is to be noted that the appointment of Mr Glass as an administrator ad litem is limited. The parties will have to give consideration to obtaining a grant of administration so that the estate may subsequently be distributed in accordance with the orders of the Court.

In the circumstances, the Court: