McBride v McBride

The case of McBride v McBride involved a family provision claim brought by a son, currently in custody, against his deceased father's estate. The son argued that he was entitled to a greater share of the estate than what was allocated to him in the will. The dispute was heard in the Supreme Court of New South Wales. The central legal issues in the case were whether the son, who had been convicted of serious Commonwealth offences and was currently serving a prison sentence, could maintain and settle the family provision proceedings while still in custody, and whether the Felons (Civil Proceedings) Act 1981 (NSW) applied to Commonwealth offences. The court also needed to address the operation of sections 63, 79, and 90 of the Succession Act 2006 (NSW) in designating property as the notional estate.

The court found that there was doubt as to whether the common law concept of "felony offences" and the associated disabling effects applied to the Commonwealth offences for which the son was convicted and incarcerated. Similarly, there was some uncertainty about whether the Felons (Civil Proceedings) Act 1981 (NSW) extended to Commonwealth offences. However, the court considered that if the Act did apply, leave should be granted nunc pro tunc to the son for the bringing, maintenance, and settlement of the proceedings. The court further clarified the operation of sections 63, 79, and 90 of the Succession Act 2006 (NSW) in determining the notional estate. Ultimately, the parties requested and the court granted consent orders finalising the family provision claim and resolving the standing issue.

The court ordered that the son's family provision proceedings could continue and be settled while he remained in custody, subject to the conditions of the Felons (Civil Proceedings) Act 1981 (NSW) if applicable. The court also made consent orders that finalised the family provision claim and addressed the standing issue, ensuring that the son's right to bring the proceedings was preserved. These orders provided clarity and resolution to the parties involved, allowing the case to proceed in a manner that was fair and just under the circumstances.