TS by his tutor PS v Ian Raymond Malouf [2010] NSWSC 630

TS by his tutor PS v Ian Raymond Malouf [2010] NSWSC 630

On the evidence, there was no proof that the defendant's conduct as trustee, including the absence of payments prior to November 2009 or any animosity between him and Paul, had adversely affected the plaintiff's welfare or interests. No mismanagement or misconduct was established. The testatrix's provision for the plaintiff was not shown to be inadequate. As neither ground for relief was made out, the application for removal of trustee and for a family provision order were both dismissed.

Parties
Plaintiff: TS (by his tutor PS); Defendant: Ian Raymond Malouf
Jurisdiction
Australia
Judgment Date
15 June 2010
Procedural Posture
Application for Removal of Trustee and for Family Provision / Final Judgment
Outcome
The amended statement of claim is dismissed.
Legal Topics
Removal of Trustee, Family Provision, Estate Management, Maintenance and Education of Infant Beneficiary
Trusts and Trustees Succession Removal of Trustee Family Provision Estate Management Maintenance and Education of Infant Beneficiary

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Parties

TS (by his tutor PS)

Plaintiff

Ian Raymond Malouf

Defendant

Procedural Posture

Application for Removal of Trustee and for Family Provision / Final Judgment

Legal Issues

  1. 1 Whether the trustee (Ian Raymond Malouf) should be removed for failure to provide for the infant beneficiary's living and education expenses and for animosity with the beneficiary's father
  2. 2 Whether the provision for the plaintiff under the will was inadequate, justifying an order under s 7 of the Family Provision Act 1982

Ratio Decidendi

On the evidence, there was no proof that the defendant's conduct as trustee, including the absence of payments prior to November 2009 or any animosity between him and Paul, had adversely affected the plaintiff's welfare or interests. No mismanagement or misconduct was established. The testatrix's provision for the plaintiff was not shown to be inadequate. As neither ground for relief was made out, the application for removal of trustee and for a family provision order were both dismissed.

Court Disposition

The amended statement of claim is dismissed.

Orders

  • The amended statement of claim is dismissed.
  • Costs yet to be determined; parties encouraged to resolve out of court or re-list for submissions if necessary.