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Hart v McMinn

Hart v McMinn

Case [2023] NSWSC 1218 13 October 2023

Family Provision

Discretionary Decision

Eligible Person

Quantum of Provision

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Hart v McMinn [2023] NSWSC 1218
Hearing dates: 25 September 2023
Date of orders: 13 October 2023
Decision date: 13 October 2023
Jurisdiction: Equity - Succession & Probate List - Family Provision
Before: Nixon J
Decision:
The Court:
(1) Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that the Plaintiff receive, by way of provision out of the deceased’s estate, a lump sum of $200,000.
(2) Directs that:
(a) in the event that the parties are able to agree on the form of costs order, the parties provide a copy of any proposed consent orders to my Associate by 4pm on 20 October 2023; and
(b) in the event that the parties are unable to agree on the form of the costs order, the parties are to exchange submissions, together with any supporting material, and provide a copy to my Associate by 4pm on 20 October 2023.
(3) Orders that no later than within 28 days after these orders are recorded, the Defendant must lodge in the Registry:
(a) The Probate bearing a copy of the orders; and
(b) A copy of the orders.

Catchwords:
SUCCESSION – FAMILY PROVISION – Claim for family provision order by spouse of the deceased – No provision made for Plaintiff by the deceased’s Will – Plaintiff and deceased had separated, and Plaintiff had commenced de facto relationship with another person – deceased made a statutory declaration explaining her decision not to make provision for the Plaintiff – Defendant conceded that the Plaintiff was an eligible person and jurisdictional requirements for power to make a family provision order were met – Whether discretion should be exercised to make family provision order, and if so, the nature and quantum of the provision to be made – provision ordered to be paid out of the deceased’s estate in the sum of $200,000

Legislation Cited:
Family Law Act 1975 (Cth) ss 90UC, 90UJ
Succession Act 2006 (NSW) Ch 3

Cases Cited:
Alvarez v Matthews [2021] NSWSC 1551
Estate Raineri [2016] NSWSC 489
Estate Zamojski [2023] NSWSC 650
Kalmar v Kalmar; estate of Kalmar [2006] NSWSC 437
Luciano v Rosenblum (1985) 2 NSWLR 65
Maria Oliveira by her tutor Ivo De Oliveira v John Antonio Oliveira [2023] NSWSC 1130
McGuire bht McGuire v NSW Trustee and Guardian [2023] NSWSC 1013
Re Clissold (dec’d) [1970] 2 NSWR 619
Sarant v Sarant [2020] NSWSC 1686
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114
Sun v Chapman [2022] NSWCA 132
Todd & Todd (No 2) (1976) FLC 90-008
Vella v Vella; Vella v Vella [2020] NSWSC 849

Category: Principal judgment
Parties: Leslie Malcolm Hart (Plaintiff)
Ian Randall McMinn (Defendant)
Representation:
Counsel:
M Bridger (Plaintiff)
M Heath (Defendant)
Solicitors:
Bray Jackson & Co (Plaintiff)
Marks Griffiths and Bova Solicitors (Defendant)

File Number(s): 2023/94697
Publication restriction: Nil

Judgment

Introduction

Gayle Margaret McWhirter (the deceased) died between 4 and 5 September 2022, aged 71 years. The Plaintiff, Leslie Malcolm Hart, has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hart v McMinn

Details

AGLC: Hart v McMinn [2023] NSWSC 1218
Case: [2023] NSWSC 1218
Decision Date: 13 October 2023

CaseChat Overview and Summary

In the matter of Hart v McMinn, the deceased, who had separated from the Plaintiff, left no provision for the Plaintiff in her will. The Plaintiff, seeking a family provision order, contended that she was entitled to a share of the deceased's estate. The deceased had provided a statutory declaration explaining her decision not to provide for the Plaintiff, citing their separation and the Plaintiff's new de facto relationship. The Defendant, as the executor of the deceased's estate, conceded that the Plaintiff was eligible and that the jurisdictional requirements for a family provision order were met. The court was required to decide whether the discretion should be exercised in favour of the Plaintiff and, if so, the quantum and nature of the provision.

The court considered the relevant statutory provisions and precedents. It examined the separation of the parties and the Plaintiff's new relationship, the reasons provided by the deceased for not making provision for the Plaintiff, and the nature and extent of the Plaintiff's contributions to the deceased's estate during their relationship. The court recognised that the discretion to make a family provision order was broad but was not unfettered. The court had to balance the Plaintiff's needs against the deceased's freedom to dispose of her property as she wished.

After careful consideration, the court found that the Plaintiff's contributions to the deceased's estate, though not solely financial, warranted a family provision order. The court determined that the deceased's reasons for not providing for the Plaintiff were not sufficient to override the Plaintiff's needs. The court ordered that a provision of $200,000 be paid to the Plaintiff from the deceased's estate. This amount was considered appropriate given the Plaintiff's needs and the deceased's capacity to provide.

Orders