Shepherd v Shepherd [2010] NSWSC 167

New South Wales Supreme Court

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

Russell Kenneth Shepherd (Plaintiff) PARTIES : 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: