McCarthy v McCarthy

Case [2010] NSWCA 103

New South Wales


Court of Appeal


CITATION: McCarthy v McCarthy [2010] NSWCA 103
HEARING DATE(S): 3 May 2010
JUDGMENT OF: Young JA at [1]; Tobias JA at [40], [48]; Macfarlan JA at [47]
EX TEMPORE JUDGMENT DATE: 3 May 2010
DECISION: The appeal is dismissed with costs.
CATCHWORDS: SUCCESSION- family provision- appeal- whether provision excessive- large estate- respondent is a relatively wealthy stepson- factual errors insufficient to set aside discretionary judgment on quantum- no error in considering desire of respondent to provide for education of deceased's grandchildren- relevance of wills made without testamentary capacity.
LEGISLATION CITED: Family Provision Act 1982
CATEGORY: Principal judgment
CASES CITED: Anasson v Phillips (Young J, 4 March 1988, unreported) BC880247
Clifford v Mayr [2010] NSWCA 6
Goodman v Windeyer [1980] HCA 31; 144 CLR 490
In re Park dec'd; Park v Park [1984] P 112
Lloyd-Williams v Mayfield [2005] NSWCA 189; 63 NSWLR 1
Re Buckland, deceased [1966] VR 404
Singer v Berghouse [1994] HCA 40; 181 CLR 201
Taylor v Farrugia [2009] NSWSC 801
PARTIES: Kim William McCarthy (Appellant)
Gregory John McCarthy (Respondent)
FILE NUMBER(S): CA 2009/00298437
COUNSEL: P Hallen SC (Appellant)
P M Jeffriess (Respondent)
SOLICITORS: Horowitz & Bilinsky (Appellant)
Everingham Solomons (Respondent)
LOWER COURT JURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S): SC 2712/06
LOWER COURT JUDICIAL OFFICER: Macready AsJ
LOWER COURT DATE OF DECISION: 14 August 2009
LOWER COURT MEDIUM NEUTRAL CITATION: McCarthy v McCarthy [2009] NSWSC 774




                          CA 2009/00298437

                          TOBIAS JA
                          MACFARLAN JA
                          YOUNG JA

                          Monday 3 May 2010
McCARTHY v McCARTHY
Judgment

1 YOUNG JA: This is an appeal from a decision of Associate Justice Macready who made an order for provision under the Family Provision Act 1982 in favour of the respondent, granting him a legacy of $400,000.

2 The deceased, William Charles McCarthy, died on 14 November 2004, aged eighty-seven years, though the primary judge erroneously said seventy-seven. The deceased who had been incapable of making a will from at least 2002, died intestate, his whole estate passing to the appellant, his only biological son. The appellant obtained a grant of letters of administration unopposed, on 6 March 2007.

3 The respondent is a stepson of the deceased. His mother, Evelyn, married the deceased in March 1973. It was the deceased’s third marriage. The respondent had been born in April 1967 so that at the time of the marriage he was about six years old. The marriage broke down in 1981 and the spouses separated and the respondent departed from the deceased’s home where he had lived for eight years and went to live with his mother.

4 The respondent successfully completed an apprenticeship in the automotive mechanics and boiler making profession. When he became twenty-one in 1988 he received a cash sum of $20,000 from the “Gregory’s Trust”, which the deceased had set up for his benefit.

5 The respondent married in 2000. He is now forty-three, though the primary judge noted that he was fifty-four. He and his wife…

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McCarthy v McCarthy [2010] NSWCA 103
Case
[2010] NSWCA 103
Decision Date

CaseChat Overview and Summary

McCarthy v McCarthy concerned an appeal from a family provision order made by the Supreme Court of New South Wales. The respondent, a stepson of the deceased, had been granted provision from the deceased's estate. The appellant, presumably another beneficiary or executor, argued that the provision made was excessive.

The primary legal issue before the Court of Appeal was whether the primary judge had erred in exercising their discretion regarding the quantum of provision to be made for the respondent. This involved considering whether any factual errors made by the primary judge were significant enough to warrant interference with the discretionary judgment, and whether the judge had correctly considered all relevant factors, including the respondent's financial position and the deceased's intentions.

The Court of Appeal found no error in the primary judge's decision. It held that while there may have been minor factual inaccuracies, these did not vitiate the overall exercise of discretion. The court specifically noted that it was not an error for the primary judge to consider the respondent's stated desire to provide for the education of the deceased's grandchildren, even though the respondent was himself a relatively wealthy individual. The relevance of prior wills made by the deceased, which may have been made without full testamentary capacity, was also considered in the context of discerning the deceased's intentions.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

The appeal is dismissed with costs.

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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