Legal Research
Cases
McIntyre v O'Regan

McIntyre v O'Regan

Case [2015] NSWSC 1985 24 December 2015

Adequate Provision

Family Provision Claim

Succession Law

No judgment structure available for this case.

Type to search within this case.

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 45
Category: Principal judgment
Parties: Sarah McIntyre (First Plaintiff)
Seth McIntyre (Second Plaintiff)
Serryn O’Regan (Defendant)
Representation:
Counsel:
K Morrissey with L Clarke (Plaintiffs)
T Catanzariti (Defendant)
Solicitors:
Turner Freeman (Plaintiffs)
Serryn O’Regan (Defendant)

File Number(s): SC 2015/111975

Judgment

Introduction

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”).
The Deceased died on 17 June 2014, aged 66 years.
The Deceased was survived by the plaintiffs:

her son Seth, who is aged 41; and

her daughter Sarah, who is aged 34.

The Deceased made a will on 3 May 2014, a little over a month before she died.
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.

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.
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…

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 O'Regan

Details

AGLC: McIntyre v O'Regan [2015] NSWSC 1985
Case: [2015] NSWSC 1985
Decision Date: 24 December 2015

CaseChat Overview and Summary

In the Supreme Court of Queensland, McIntyre and McIntyre brought a claim against the executors of the estate of their mother, O'Regan, seeking relief under the Family Provision Act 1975. The children argued that their mother had made substantial gifts to the proprietor of a complementary healing and training association and to a friend and carer immediately before her death, and that these gifts, along with the terms of her will, had not made adequate provision for them. The will left a little under half of the estate to the children and the balance to the proprietor of the association. The executors argued that the mother had made the gifts and executed the will of her own volition and that adequate provision had been made for the children.

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