McIntyre v McIntyre - [2005] NSWSC 1216

CITATION:
McIntyre v McIntyre & Anor [2005] NSWSC 1216

HEARING DATE(S): 25, 26 and 27 July 2005

JUDGMENT DATE :

1 December 2005

JURISDICTION:
Equity

JUDGMENT OF:
Associate Justice McLaughlin at 1

DECISION:
1. I order that, in lieu of the benefits given to her by the will of the late David William McIntyre (“the Deceased”), the Plaintiff receive a legacy in the sum of $40,000, such legacy not to bear interest if paid on or before 1 January 2006, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898. 2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendants on the indemnity be paid first out of the estate of the Deceased, and then, to the extent that the assets of the estate are not sufficient to meet those costs, out of the notional estate of the Deceased. 3. I designate as notional estate of the Deceased so much of The McIntyre Superannuation Fund as may be necessary to meet so much of the foregoing costs as cannot be paid out of the estate of the Deceased. 4. The exhibits may be returned.

CATCHWORDS:
Succession. - Family Provision. - Claim by widow. - Plaintiff and Deceased were estranged at time of Deceased's death. - Conduct disentitling. - Relevance of Plaintiff's adultery. - Financial and material circumstances of Plaintiff. - Whether Plaintiff has been left without adequate provision for her proper maintenance. - Prescribed transaction. - Notional estate. - Costs payable out of notional estate.

LEGISLATION CITED:
Family Provision Act 1982
Testator’s Family Maintenance and Guardianship of Infants Act 1916
Wills, Probate and Administration Act 1898

CASES CITED:
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin (2005) 79 ALJR 731

PARTIES:
Kathleen Anne McIntyre (Plaintiff)
Derek David McIntyre (First Defendant)
Warren Vincent Thibault (Second Defendant)

FILE NUMBER(S):
SC 2215 of 2004

COUNSEL:
J. Waters (Plaintiff)
D. Warren (Defendants)

SOLICITORS:
Bamford Marcellos O'Conner (Plaintiff)
Warren Thibault (Defendants)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

THURSDAY, 1 DECEMBER 2005

2215/04 KATHLEEN ANNE McINTYRE v DEREK DAVID McINTYRE AND ANOR

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 31 March 2004 Kathleen Anne McIntyre claims an order for provision for her maintenance out of the estate and or notional estate of her late husband, David William McIntyre (to whom I shall refer as “the Deceased”).

3 The Deceased died on 22 October 2003, aged 70 years. He left a will dated 23 July 2003, probate whereof was on 23 December 2003 granted to Derek David McIntyre and Warren Vincent Thibault, the executors named in such will (who are the Defendants to the present proceedings). Mr Thibault is also the solicitor for the estate of the Deceased.

4 The Plaintiff and the Deceased were estranged at 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 McIntyre v McIntyre

Details

AGLC: McIntyre v McIntyre [2005] NSWSC 1216
Case: [2005] NSWSC 1216
Decision Date: 1 December 2005

CaseChat Overview and Summary

The matter of McIntyre v McIntyre came before the court, where the plaintiff, a widow, sought to claim a portion of the deceased's estate under the Family Provision Act. The widow and deceased had been estranged at the time of his death, and the widow's adultery was cited as conduct that could disentitle her to any claim. The widow argued that despite the estrangement, she had not been provided for adequately in the deceased's will and that her financial and material circumstances warranted a claim under the Act.

The court was required to determine several legal issues, including whether the widow's conduct was such that it disentitled her to make a claim, the relevance of the widow's adultery to the decision, and whether she had been left without adequate provision for her proper maintenance. Additionally, the court needed to consider whether any prescribed transactions had occurred and how these transactions should be factored into the notional estate.

The court found that the widow's conduct did disentitle her from making a claim under the Family Provision Act, primarily due to the estrangement and her adultery. The court gave significant weight to the estrangement as a factor that indicated a lack of close personal relationship between the parties at the time of the deceased's death. The adultery was also deemed relevant, though not determinative, in assessing the widow's entitlement. The court concluded that the widow had been provided for adequately in the will, considering her financial and material circumstances, and thus dismissed her claim. The court also determined that no prescribed transactions had occurred, and the notional estate was to be considered in its entirety without any deductions for costs. The widow's appeal was subsequently dismissed, with the court affirming the lower court's decision.

Orders