O'LOUGHLIN v O'LOUGHLIN and ORS [1997] NSWCA 237

O'LOUGHLIN v O'LOUGHLIN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and HANDLEY JJA

15 October 1997, 15 October 1997

[1997] NSWCA 237

FAMILY PROVISION — provision for adult son — provision to establish career FAMILY PROVISION — protective trust for adult son — inadequate provision

The appellant and the respondent were the only sons of the deceased. The deceased left half his residuary estate to one son, his executor, absolutely and half on protective trusts for the other. The executor son had substantial assets. The other son who had no assets and had no success in his chosen vocation, architecture, applied for further provision. The value of the residuary estate was approximately $370,000. The Master awarded substantially the whole estate to the applicant.

HELD: (1) The deceased was not obliged to provide funds to establish the applicant in private practice as an architect. In so holding the Master fell into error. (2) The provision in the protective trust was inadequate and the appropriate provision was half the estate absolutely.

Handley JA This is an appeal by the former executor of the estate and a principal beneficiary from orders made by Master Macready under the Family Provision Act on 28 November 1996.

The appellant and the respondent are the only children of the late Francis James O' Loughlin who died on 25 June 1994. The deceased was then in his late seventies or early eighties.

The plaintiff, Jeffrey, is the younger of the two brothers being born in 1942, Peter being born in 1940.

The deceased left a will dated 28 May 1994 under which he gave a series of legacies to his grandchildren and others. He directed that the rest of his estate be divided into two half shares. One half share went to Peter James O' Loughlin, the executor, absolutely. The other half share the deceased directed should be held by the executor on protective trusts for the benefit of Jeffrey. The protective trust extended to both capital and income and, subject to distributions made for the benefit of Jeffrey, the remainder was held in trust for the children of Peter.