Hart v McMinn

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.