Shepherd v Shepherd - [2010] NSWSC 167

CITATION: Shepherd v Shepherd [2010] NSWSC 167

HEARING DATE(S): 17 February 2010
Further written submissions received 3 and 5 March 2010

JUDGMENT DATE :
12 March 2010

JURISDICTION: Equity Division

JUDGMENT OF: McDougall J at 1

DECISION: Further provision ordered.

CATCHWORDS: FAMILY PROVISION AND MAINTENANCE - claim by adult son - application for further provision out of estate - substantial estate - where testamentary trust provided for discretionary payment to plaintiff - where plaintiff had health problems preventing him from employment - where plaintiff's expenses exceeded net income - where plaintiff in debt - whether provision made for plaintiff in will inadequate - what provision should be made - no question of principle.

LEGISLATION CITED: Conveyancing Act 1919 (NSW)
Wills Probate and Administration Act 1898

CATEGORY: Principal judgment

CASES CITED: Singer v Berghouse (1994) 181 CLR 201

PARTIES: Russell Kenneth Shepherd (Plaintiff)
Stephen John Shepherd (First Defendant)
Victoria Gay Lorna Vandenberg (Second Defendant)

FILE NUMBER(S): SC 2009/288357

COUNSEL: M K Minehan (Plaintiff)
P P O’Loughlin (Defendants)

SOLICITORS: Kenny Benjamin Pike (Plaintiffs)
Mackenzie Russell & Co (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

McDOUGALL J

12 March 2010

2009/288357 RUSSELL SHEPHERD v STEPHEN SHEPHERD & ANOR

JUDGMENT

1 HIS HONOUR: This is an application for further provision out of the estate of the late Audrey Evelyn Shepherd. The plaintiff and the defendants are her three children. For convenience, and without wishing to be either familiar or condescending, I shall refer to the plaintiff as “Russell”, to the defendants as “Stephen” and “Victoria” respectively, and to the deceased as “the mother”.

Factual background

2 The mother died on 24 October 2007, survived by her three children. Russell was then aged 56. Stephen was then aged 52. Victoria was then aged 49. Russell was then single, and had no children. Stephen had four children. Victoria had three children.

3 The mother’s estate was substantial. The inventory disclosed pursuant to s 81A of the Wills Probate and Administration Act 1898 showed total assets in excess of $5.5 million. Those assets were comprised of real estate (said to have a value of a little in excess of $3 million), money at bank and listed and unlisted investments. No doubt, the value of the listed investments declined before they were dealt with in the course of administration.

4 The mother had made her will on 16 September 1993. She appointed Stephen and Victoria as executors and trustees. By that will (after a presently irrelevantly gift of jewellery and other items) the mother directed that her net estate be divided into three equal parts. In the events that have happened, one of those parts was to be held for Stephen, one for Victoria and (subject to cl 4(c) of the will) one for Russell.

5 By cl 4(c) of the mother’s will, Russell’s share (as it is convenient to call it) was to be held on trust:

(1) during Russell’s lifetime, to pay such part of the income as the trustees in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shepherd v Shepherd

Details

AGLC: Shepherd v Shepherd [2010] NSWSC 167
Case: [2010] NSWSC 167
Decision Date: 12 March 2010

CaseChat Overview and Summary

Shepherd v Shepherd was a family law case where the primary issue was the adequacy of provisions made in a will for an adult son, Shepherd, who had health issues preventing him from working and was in debt. The dispute was heard in the Family Court of Australia. The legal issues revolved around the interpretation of the Family Provision Act and whether the provisions made in the will were sufficient to meet the needs of the plaintiff, considering his health and financial situation.

The court had to determine if the provisions made in the will were adequate, given the plaintiff's circumstances. The will included a testamentary trust that allowed for discretionary payments to the plaintiff. However, the plaintiff argued that these provisions were inadequate as his expenses exceeded his net income and he was in debt. The court examined the overall estate, the plaintiff's health issues, his inability to work, and the financial disparity between his income and expenses.

The court found that the provisions made in the will were inadequate. It considered the plaintiff's health issues and his inability to work, which significantly impacted his financial situation. The court also noted that the plaintiff was in debt, which further supported the argument that the provisions were insufficient. The court concluded that the estate was substantial enough to provide for the plaintiff's needs adequately. It ordered that further provision be made from the estate to address the plaintiff's financial situation adequately.

Orders