Hart v McMinn

Case [2023] NSWSC 1218


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

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

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

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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