McCarthy v Tye

The appeal concerned a claim for provision from the estate of the deceased, Mr. Tye, brought by the appellant, Ms. McCarthy. The primary judge had found that Ms. McCarthy was not the de facto partner of the deceased, but was nevertheless an "eligible person" under section 57(1) of the *Succession Act 2006* (NSW) due to having a "close personal relationship" with the deceased. The primary judge awarded Ms. McCarthy $85,000 from an estate valued at approximately $900,000. The appeal to the Court of Appeal of New South Wales questioned whether the primary judge had erred in their findings of fact or evaluative judgments.

The central legal issues before the Court of Appeal were whether the primary judge had made any errors in their factual findings or in the evaluative judgments made in determining the appellant's eligibility for provision and the quantum of that provision. Specifically, the court considered whether the primary judge had correctly assessed the nature of the relationship between the appellant and the deceased in determining eligibility, and whether the award made was appropriate in all the circumstances.

The Court of Appeal dismissed the appeal, finding no error in the primary judge's findings or judgments. The court affirmed the primary judge's conclusion that while the appellant was not a de facto partner, she did have a close personal relationship with the deceased, thus qualifying her as an eligible person. The court also found that the award of $85,000 was not demonstrably wrong or unjust. The court extended the time for the filing of the notice of appeal and ordered that the appellant pay the respondent's costs.