Supreme Court
New South Wales
Medium Neutral Citation: McIntyre v O’Regan [2015] NSWSC 1985 Hearing dates: 10 and 11 December 2015 Decision date: 24 December 2015 Jurisdiction: Equity - Family Provision List Before: Stevenson J Decision: Plaintiffs’ claims to be dismissed
Catchwords: FAMILY PROVISION – claim by adult children against estate of mother – mother made gifts to the proprietor of a complementary healing and training association and to a friend and carer immediately before her death – will made at that time left a little under half her estate to her children and the balance to the proprietor of that association – whether adequate provision made for the children – whether further provision should be made Legislation Cited: Evidence Act 1995 (NSW)
Family Provision Act 1982 (NSW)
Property (Relationships) Act 1984 (NSW)Cases Cited: Andrew v Andrew [2012] NSWCA 308
Ciric v Ciric [2015] NSWSC 313
Friend v Brien [2014] NSWSC 613
Gersbach v Blake [2011] NSWSC 368
Gorton v Parks (1989) 17 NSWLR 1
Keep v Bourke [2012] NSWCA 64
Lajcarova v Todorov [2011] NSWSC 522
Manuel v Lane [2013] NSWCA 61
McKenzie v Topp [2004] VSC 90
Nowak v Beska [2013] NSWSC 166
Phillips v James [2014] NSWCA 4; 85 NSWLR 619
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; 107 CLR 9
Salmon v Osmond [2015] NSWCA 42
Singer v Berghouse (No 2) [1994] HCA 40
Verzar v Verzar [2014] NSWCA 45Category: Principal judgment Parties: Sarah McIntyre (First Plaintiff)
Seth McIntyre (Second Plaintiff)
Serryn O’Regan (Defendant)Representation: Counsel:
Solicitors:
K Morrissey with L Clarke (Plaintiffs)
T Catanzariti (Defendant)
Turner Freeman (Plaintiffs)
Serryn O’Regan (Defendant)
File Number(s): SC 2015/111975
Judgment
Introduction
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This is a claim for family provision made by Sarah McIntyre and Seth McIntyre in respect of the estate of their late mother, Judith McIntyre (“the Deceased”).
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The Deceased died on 17 June 2014, aged 66 years.
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The Deceased was survived by the plaintiffs:
her son Seth, who is aged 41; and
her daughter Sarah, who is aged 34.
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The Deceased made a will on 3 May 2014, a little over a month before she died.
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Under the will, the Deceased left to:
Sarah, a plaster sculpture, half of her personal effects and $250,000;
Seth, half of her personal effects and $190,000;
Ms Ingrid Langenbruch, her household contents (not including personal effects) and the right to use her car for one year from the date of her death; and
the residue to Mr Serge Benhayon.
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In April 2014, two months before she died, the Deceased gave Seth $60,000 to assist him with expenses in relation to proceedings in the Federal Circuit Court of Australia concerning custody of and access to one of his children. That money was paid into a solicitor’s trust account. Of the $60,000, $41,000 has now been returned to Seth.
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Between 2 October 2013 and 30 May 2014, the Deceased paid a total amount of $322,259 towards the purchase and improvement of a property registered…
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- AGLC
- McIntyre v O'Regan [2015] NSWSC 1985
- Case
- [2015] NSWSC 1985
- Decision Date
CaseChat Overview and Summary
The court was required to consider whether the gifts made by the mother were influenced by undue influence and whether the will made adequate provision for the children. The court held that there was no evidence of undue influence and that the gifts were made of the mother's own volition. The court also held that the will made adequate provision for the children, as it left them with a significant portion of the estate. The court further held that the children had not discharged the onus of proving that the provision made for them was not reasonable.
The court held that the mother had the capacity to make the gifts and execute the will and that the gifts and will were not the result of undue influence. The court found that the mother had a reasonable expectation of being supported by the proprietor of the association and that the gifts were not unreasonable in the circumstances. The court also held that the will made reasonable provision for the children and that they had failed to establish that further provision should be made. The court dismissed the application.
The court made no order as to costs.
Orders
Orders of the court
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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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