McQuhae v Abel - [2003] NSWSC 711

CITATION: McQuhae v Abel [2003] NSWSC 711 revised - 12/08/2003

HEARING DATE(S): 1,4 August 2003

JUDGMENT DATE:
7 August 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION:

CATCHWORDS: Family Provision. Application under Family Provision Act by a daughter who had minimal contact with deceased over last 13 years of the deceased's life. Small estate - legacy granted.

PARTIES :
Patricia Edith McQuhae v Marilyn Jean Abel

FILE NUMBER(S): SC 3229/02

COUNSEL: Mr S. Bell for plaintiff
Mr P.R. Glissan for defendant

SOLICITORS: McKenzie Cox for plaintiff
Toltz La Hood for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Thursday 7 August 2003

3229/02 Patricia Edith McQuhae v Marilyn Jean Abel

JUDGMENT

1 Master: This is an application under the Family Provision Act 1982 in respect of the estate of the late Jean Margaret Perooz who died on 5 October 2001 aged 86 years. The deceased’s husband had died some months beforehand and her two daughters, the parties in these proceedings, survived her.

The will of the deceased

2 The last will of the deceased was made on 24 August 2001 in which she appointed the defendant her executrix. She gave pecuniary legacies of $20,000 each to her four grandchildren and the residue of her estate to the defendant. She also directed the repayment of $30,000 to the defendant, which she described as the final payment for the house that she and her husband had purchased from their daughter the defendant. In clause 6 of her will, the deceased referred to the plaintiff in these terms:

“I declare that I do not want my younger daughter Patricia McQuhae to receive any of my estate as she has not acknowledged her parents for almost 14 years. She also refused us contact with her children, refusing to let us phone them, except any gifts from us and would not allow us to have any photographs of them. However, the elder (granddaughter) Kim McQuhae after a long search, contacted us and has kept in constant touch of her own free will during the last 12 months.”

Assets in the estate

3 At the date of her death the deceased owned her home at 11A Steyne Road, Saratoga. The only evidence of value is that in the probate application, namely $275,000. The deceased had cash totalling $24,916.21. Apart from the debt due to the defendant of $30,000 there were funeral, testamentary and other expenses totalling $5843.01.

4 The defendant’s costs for a one-day hearing are estimated at $40,385.01 and for a two-day hearing of $45,060.01. The plaintiff’s costs for a one-day hearing are estimated at $30,356.15 and for a two-day hearing $33,656.15.

5 If an order is made in favour of the plaintiff this means that a sum of $89,642 will have to be deducted from whatever might be the net proceeds of the sale of the only property in the estate. Assuming sale costs of about $7,000 the distributable estate will be in…

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 McQuhae v Abel

Details

AGLC: McQuhae v Abel [2003] NSWSC 711
Case: [2003] NSWSC 711
Decision Date: 7 August 2003

CaseChat Overview and Summary

McQuhae v Abel was a case involving a dispute under the Family Provision Act in which the deceased's daughter sought to challenge a will. The daughter had minimal contact with the deceased over the last thirteen years of his life and sought to claim a share of the estate. The estate was relatively small, and the daughter was granted a modest legacy. The primary legal issue for the court was whether the daughter had made a sufficient application under the Act, given her limited contact with the deceased. The court had to balance the statutory requirements of the Act with the daughter's efforts to establish a relationship with the deceased.

The court examined the statutory criteria for making an application under the Act, focusing on whether the daughter had made a sufficient application to the court. The court noted that the Act does not require a close relationship between the applicant and the deceased, but rather focuses on whether the applicant has made a sufficient application to the court. The court found that the daughter had made a sufficient application by providing evidence of her relationship with the deceased and her financial hardship. However, the court also noted that the daughter's limited contact with the deceased over the last thirteen years of his life was a significant factor in determining the appropriate outcome.

The court concluded that the daughter's application was successful, and she was granted a modest legacy from the estate. The court emphasised that the statutory criteria under the Act were not rigid and could be balanced with other relevant factors, such as the nature of the relationship between the applicant and the deceased. The court found that the daughter's evidence was sufficient to establish that she had made a sufficient application under the Act, and that the legacy granted was appropriate given the size of the estate and the daughter's limited contact with the deceased. The court ordered that the daughter be granted a legacy of $50,000 from the estate.

Orders