Shepherd v Shepherd [2010] NSWSC 167

Shepherd v Shepherd [2010] NSWSC 167

The testamentary provision for Russell by way of discretionary income only was inadequate because his health prevented employment, his net income was insufficient to meet his expenses and debt burden, he had no substantial assets apart from Alloway Bank and its contents, and the deceased's substantial estate could make more ample provision without relevant competing claims. Appropriate provision was a legacy equal to the net capital value of the bank accounts and listed investments in the Russell Shepherd Trust, excluding any interest in Negunya, to be applied first to specified debts and costs, rather than leaving the plaintiff only to discretionary trust income.

Jurisdiction
Australia
Judgment Date
12 March 2010
Procedural Posture
Family Provision Application for Further Provision Out of Estate / Principal Judgment
Outcome
Further provision ordered.
Legal Topics
['adult Child Claim' 'adequacy of Testamentary Provision' 'testamentary Trust' 'discretionary Income Payments' 'substantial Estate' 'health and Inability to Work' 'plaintiff Debt and Living Expenses']
['succession Law' 'family Provision and Maintenance' 'equity'] ['adult Child Claim' 'adequacy of Testamentary Provision' 'testamentary Trust' 'discretionary Income Payments' 'substantial Estate' 'health and Inability to Work' 'plaintiff Debt and Living Expenses']

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Procedural Posture

Family Provision Application for Further Provision Out of Estate / Principal Judgment

Legal Issues

  1. 1 ["Whether the provision made for the plaintiff by his mother's will was inadequate in all the circumstances." 'If the provision was inadequate, what further provision should be made for the plaintiff out of the estate.' 'Whether further provision should be structured as a capital legacy, continuing trust provision, or no further provision.']

Ratio Decidendi

The testamentary provision for Russell by way of discretionary income only was inadequate because his health prevented employment, his net income was insufficient to meet his expenses and debt burden, he had no substantial assets apart from Alloway Bank and its contents, and the deceased's substantial estate could make more ample provision without relevant competing claims. Appropriate provision was a legacy equal to the net capital value of the bank accounts and listed investments in the Russell Shepherd Trust, excluding any interest in Negunya, to be applied first to specified debts and costs, rather than leaving the plaintiff only to discretionary trust income.

Court Disposition

Further provision ordered.

Orders

  • ['On the conditions set out in orders (3) and (4), order that, in lieu of the provision made for him by the will of Audrey Evelyn Shepherd deceased, the plaintiff receive a legacy equal to the net capital value, at the time of payment, of the assets of the "Russell Shepherd Trust" identified in paragraph 13 of the...