Shepherd v Doolan & OrsShepherd v Doolan & Anor; Est. Doolan [2005] NSWSC 42

Shepherd v Doolan & OrsShepherd v Doolan & Anor; Est. Doolan [2005] NSWSC 42

The plaintiff is entitled to a 9% beneficial interest in the property at Norah Head (and thus in its net sale proceeds) on the basis of a constructive trust arising from the common intention of both parties, evidenced by the plaintiff's financial contribution and non-financial work towards acquisition and development of the property, despite the quantum not being specifically agreed upon. As the deceased’s de facto partner at time of death, the plaintiff is an eligible person under the Family Provision Act, and the deceased's failure to make testamentary provision is found to be inadequate for her proper maintenance, warranting an order for provision of $80,000 from the estate,...

Jurisdiction
Australia
Judgment Date
10 August 2005
Procedural Posture
Equity / Family Provision / Judgment After Final Hearing
Outcome
Plaintiff succeeds in obtaining a 9% beneficial interest in the property and provision of $80,000 from the estate.
Legal Topics
['constructive Trust' 'resulting Trust' 'beneficial Interest in Property' 'de Facto Relationship' 'family Provision Act' 'property Contributions']
['equity' 'succession' 'trusts and Trustees' 'family Provision'] ['constructive Trust' 'resulting Trust' 'beneficial Interest in Property' 'de Facto Relationship' 'family Provision Act' 'property Contributions']

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Procedural Posture

Equity / Family Provision / Judgment After Final Hearing

Legal Issues

  1. 1 ['Whether plaintiff is entitled to a beneficial interest in deceased’s property under a resulting or constructive trust' 'Whether plaintiff is an eligible person for provision from the estate under Family Provision Act 1982 (NSW)' 'Quantum of beneficial interest under the trust, if any' 'Appropriate provision under Family Provision Act considering estate size and claims']

Ratio Decidendi

The plaintiff is entitled to a 9% beneficial interest in the property at Norah Head (and thus in its net sale proceeds) on the basis of a constructive trust arising from the common intention of both parties, evidenced by the plaintiff's financial contribution and non-financial work towards acquisition and development of the property, despite the quantum not being specifically agreed upon. As the deceased’s de facto partner at time of death, the plaintiff is an eligible person under the Family Provision Act, and the deceased's failure to make testamentary provision is found to be inadequate for her proper maintenance, warranting an order for provision of $80,000 from the estate,...

Court Disposition

Plaintiff succeeds in obtaining a 9% beneficial interest in the property and provision of $80,000 from the estate.

Orders

  • ['Direct counsel for the plaintiff to bring in short minutes of order accordingly' 'Plaintiff entitled to 9% of net proceeds of Norah Head property sale' 'Provision of $80,000 to plaintiff out of estate, burdened: 50% Kim Griffin, 25% Michael Doolan, 25% Rodney Shepherd' 'Plaintiff’s costs to be paid by defendants;...