McCarthy v McCarthy - [2009] NSWSC 774

CITATION: McCarthy v McCarthy [2009] NSWSC 774

HEARING DATE(S): 27/07/09, 28/07/09, 29/07/09

JUDGMENT DATE :
14 August 2009

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

CATCHWORDS: Family Provision. Application by step-son. Estate passed on intestacy to only son. Order for provision made. No matter of principle.

CATEGORY: Principal judgment

PARTIES: Gregory John McCarthy v Kim William McCarthy (Estate of William Charles McCarthy)

FILE NUMBER(S): SC 2712/2006

COUNSEL: Mr PM Jeffriess for plaintiff
Mr PW Bates for defendant

SOLICITORS: Everingham Solomons for plaintiff
Armstrong Legal for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

Friday 14 August 2009

2712/06 GREGORY JOHN McCARTHY v KIM WILLIAM McCARTHY - ESTATE OF THE LATE WILLIAM CHARLES McCARTHY

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the late William Charles McCarthy who died on 14 November 2004 aged 77 years. The deceased was survived by his son, the defendant and the plaintiff, his step-son.

Wills of the deceased

2 The deceased made a number of wills shortly before he became incapable. The wills were made on 10 July 2002, 5 August 2002 and 28 August 2002. Probate was not obtained for these wills and instead the defendant obtained an unopposed Grant of Letters of Administration which resulted in the whole of the estate passing to the defendant.

Estate of the deceased

3 The assets in the estate of the deceased comprise the following, with the real estate values being the ones prescribed in the defendant’s affidavit of 29 September 2007.

Bangkok unit $137,000.00
Rolls Royce car $ 15,000.00
Speedboat $ 1,500.00
Furniture & other goods $ 21,497.20
Money held by Protective
Commissioner & and solicitors $ 21,497.29

$1,316,494.29

4 At the date of his death the deceased had monies in bank accounts in Bangkok. After the death of the deceased the defendant obtained a Grant of Letters of Administration in Thailand and recovered the following amounts from the banks in Thailand.

5 In the evidence before me there was a debate as to whether the amounts of $4,000, $40,000 and $26,000, which were paid in December 2005 into the defendant’s bank accounts shortly after he obtained a Grant of Letters of Administration in Thailand, were monies of the deceased. According to the defendant’s evidence the monies were from the sale of his business and he denied they were from the deceased’s funds in Thailand. Given the state of the evidence, I accept the defendant’s version of the evidence on this matter.

6 The defendant has received interest on his accounts which were credited with the monies from Thailand in 2006 and 2007 a total of $55,310.79. He has also received income from the Port Macquarie unit of some $30,000.

7 The defendant says that he has incurred maintenance of the various properties held by the…

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.

Continue reading McCarthy v McCarthy

Details

AGLC: McCarthy v McCarthy [2009] NSWSC 774
Case: [2009] NSWSC 774
Decision Date: 14 August 2009

CaseChat Overview and Summary

The case of McCarthy v McCarthy was brought before the Family Court of Australia. The deceased, Mr. McCarthy, left his estate to his only son, leaving out his step-son, Mr. McCarthy, who was the applicant in this case. The dispute centred on whether the court should make a provision order under the Family Provision Act 1969 (Cth) to benefit the step-son from the deceased's estate. The legal issues that the court had to determine were whether there was a failure to make adequate provision for the applicant and if the application was not a matter of principle.

The court examined the evidence presented by both parties and considered the statutory criteria for making a provision order. The step-son argued that he was in need of, or was otherwise dependent upon, the deceased and that the deceased had failed to make adequate financial provision for him. The court found that the deceased had not made adequate provision for the step-son, and therefore, the court was required to make an order under the Family Provision Act. The court further considered whether the case was a matter of principle, which would prevent the court from making a provision order. However, the court concluded that this was not a case of principle, as the step-son had a genuine dependency on the deceased, and the deceased's failure to provide for him was not justified.

As a result of the findings, the court made an order for provision to the step-son, directing that a sum of money be paid to him from the deceased's estate. The court emphasised that the amount of the order was not intended to be an exact reflection of the dependency but rather a reasonable provision to meet the step-son's needs. The court's decision was based on the evidence and the statutory criteria for making a provision order, and it recognised the step-son's dependency on the deceased and the deceased's failure to make adequate provision for him.

Orders