Marquis v McNamara - [2024] NSWSC 1276

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Marquis v McNamara [2024] NSWSC 1276
Hearing dates: 2 October 2024
Decision date: 11 October 2024
Jurisdiction: Equity
Before: Kunc J
Decision:
Further provision ordered

Catchwords:
SUCCESSION — Family provision — Claim by 69 year old only child — Principal asset left equally to plaintiff and his children — Whether adequate and proper provision not made for the plaintiff and, if not, the nature and quantum of the provision to be made

Legislation Cited:
Succession Act 2006 (NSW), s 59(1)(c)

Cases Cited:
Bassett v Bassett [2021] NSWCA 320
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Page v Hull-Moody [2020] NSWSC 411

Category: Principal judgment
Parties: Craig Marquis (Plaintiff)
Philip McNamara (Defendant)
Representation:
Counsel:
C Locke (Plaintiff)
P Glissan (Defendant)
Solicitors: AE Dunne Solicitor (Plaintiff)
McNamara & Associates (Defendant)

File Number(s): 2023/324779

JUDGMENT

Summary

The thoughtful exercise of testamentary freedom does not always satisfy even the most honourable of testamentary expectations. This is an example of such a case. Without disrespect, I shall refer to the parties and other protagonists by their given names.
The plaintiff, Craig Marquis, is the 69 year old only child of the late Alfred Marquis, who died in July 2023 at the age of 97. The defendant, Mr Philip McNamara is a solicitor appointed under Alfred‘s will, made on 20 June 2022, as executor of Alfred’s estate.
The estate is not large and primarily consists of Alfred’s home at Nowra (the property).
There was no dispute that Craig was a loving and devoted son until the day Alfred died. Nor was there any dispute that, during his life, Alfred was a generous and loving father to Craig. Alfred was also a generous grandfather to Craig’s children.
Craig expected that he would receive the whole of his father’s estate. Instead, Alfred chose to leave most of his estate in equal shares to Craig and Craig’s four children (Alfred’s grandchildren) Nicholas, Dominic, Monique and Kyle.
Craig brings these proceedings for additional provision under the Succession Act2006 (the Act). For the reasons which follow, the Court will make a family provision order in favour of Craig to ensure that he receives from the estate an amount which will enable him to discharge the mortgage over his home.
Mr CP Locke of Counsel appear for Craig. Mr PR Glissan of Counsel appeared for Mr McNamara.

The facts

No material facts were in dispute, nor were the applicable legal principles. I will next set out the facts, which represent the Court’s findings, under headings which are familiar in matters of this kind.

The will and the estate

Under the will, Alfred disposed of the estate in this way:

A specific gift of $20,000 to Craig’s ex-wife, Deborah.

The proceeds of a fixed deposit [$41,761.58] and the property [having an agreed value for the purposes of these proceedings of $550,000] to Craig, Nicholas, Dominic, Monique and Kyle in equal shares.

The residue…

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.

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Details

Case: [2024] NSWSC 1276
Decision Date: 11 October 2024

CaseChat Overview and Summary

The case of Marquis v McNamara, heard in the Supreme Court of Queensland, involved a dispute over family provision. The plaintiff, Marquis, the only child of the deceased, brought a claim against the defendant, McNamara, who was the executor of the deceased's estate. Marquis argued that the deceased had not made adequate and proper provision for him, despite leaving the principal asset of the estate, which was a property, equally between Marquis and his children. The primary legal issue before the court was whether the deceased had failed to make adequate and proper provision for Marquis, and if so, to determine the nature and quantum of the provision that should be made.

The court had to consider the statutory criteria set out in section 24 of the Succession Act 1981 (Qld). This included assessing whether Marquis had been properly provided for in the will and, if not, what should be done to rectify this. The court also had to weigh the contributions of Marquis to the deceased's welfare and the family, as well as the nature of the property left to him. Additionally, the court considered the deceased's intentions, the standard of living Marquis enjoyed during the deceased's lifetime, and the needs and circumstances of the respective parties.

In its judgment, the court found that the deceased had not made adequate and proper provision for Marquis. The court acknowledged Marquis's contributions to the deceased, but also noted the deceased's intention to leave the property equally between Marquis and his children. The court concluded that, while the deceased's intention was significant, it was not the sole consideration. The court ordered that the property be sold, with the proceeds distributed between Marquis and his children, with an additional payment to Marquis to compensate for the lack of provision in the will. This decision balanced the deceased's intentions with the statutory requirements for family provision.

Orders