O'Loughlin v O'Loughlin

CITATION:	O'Loughlin v O'Loughlin [2003] NSWCA 99
HEARING DATE(S):	14 April 2002
JUDGMENT DATE:	1 May 2003
JUDGMENT OF:	Mason P at 1; Meagher JA at 2; Davies AJA at 3
DECISION:	Appeal dismissed. Appellant to pay the Respondents' taxed costs on an indemnity basis
CATCHWORDS:	SUCCESSION - family provision - whether provision made for widow was inadequate - what is a proper provision for widow of wealthy barrister - award should not be niggardly where widow has need and there are no competing claims of children. D
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Bosch v Perpetual Trustee Company Limited [1938] AC 463 Gregory v Hudson [1999] NSWCA 221 In re Allardice, Allardice v Allardice (1910) 29 NZLR 959 Luciano v Rosenblum [1985] 2 NSWLR 65 Marshall v Carruthers (unreported court of Appeal 22 February 2002) Re Buckland, deceased [1966] VR 404 Sayer v Sayer [1999] NSWCA 340 Singer v Berghouse (1994) 181 CLR 201 Worladge v Doddridge (1957) 97 CLR 1
PARTIES :	Christopher Justin O'Louglin (Appellant) Patricia Dawn O'Loughlin (First Respondent) Frank Low (Second Respondent)
FILE NUMBER(S):	CA 40244 of 2002
COUNSEL:	Mr B Coles, QC with him Mr J Wilson (Appellant) Mr P Hallen SC (First Respondent)
SOLICITORS:	Teece Hodgson & Ward (Appellant) Boyd Legal (First Respondent) Frank Low Yeung & Co (Second Respondent)

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	1210 of 2001
LOWER COURT JUDICIAL OFFICER :	Young CJ in Eq

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40244/02

Mason P, Meagher JA, Davies AJA

Thursday 1 May 2003

CHRISTOPHER JUSTIN O’LOUGHLIN V PATRICIA DAWN O’LOUGHLIN & ANOR

Judgment

1 MASON P: I agree with Davies AJA.

2 MEAGHER JA: I agree with Davies AJA.

3 DAVIES AJA: This is an appeal from an order made by Young CJ in Eq in a Family Provision application brought by the respondent, the widow of the late Edward Leonard O’Loughlin. This appeal is brought on behalf of the ten children of the deceased who are the residuary beneficiaries of his estate.

4 Relevant provisions of the Family Provision Act 1982 provide

7. Provision out of estate or notional estate of deceased person

Subject to section 9, … if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.

9. Provisions affecting Court's powers under secs 7 and 8
…
(2) The Court shall not make an order under section 7 or 8 in favour of an eligible person out of the estate or notional estate of a deceased person unless it is satisfied that:
(a) the provision (if any) made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's…