Re Estate McNamara - [2018] NSWSC 1661

Supreme Court

New South Wales

Medium Neutral Citation: Re Estate McNamara [2018] NSWSC 1661
Hearing dates: 29 and 30 August 2018
Date of orders: 02 November 2018
Decision date: 02 November 2018
Jurisdiction: Equity - Family Provision List
Before: Lindsay J
Decision:
The plaintiff is to be granted a family provision order in the sum of $75,000.00.

Catchwords: SUCCESSION – Family provision – Claim by adult child for provision from the deceased’s estate under Chapter 3 of the Succession Act 2006 (NSW) – Express disclaimer of intention by deceased to benefit plaintiff – Strained relationship between plaintiff and deceased – Whether provision should be made notwithstanding deceased’s disclaimer – Modest provision made
Legislation Cited: Probate and Administration Act 1898 NSW
Succession Act 2006 NSW
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656
Bosch v Perpetual Trustee Company Ltd [1938] AC 463
Goodman v Windeyer (1980) 144 CLR 490
In re Allen [1922] NZLR 218
Kleinig v Neil [1981] 2 NSWLR 53
Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9
SGRO v Thompson [2017]NSWCA 326
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Luke Patrick McNamara
Defendant: Paul Thomas McNamara
Representation:
Counsel:
Plaintiff: JEF Brown
Defendant: K Morrissey
Solicitors:
Plaintiff: Turnbull Hill
Defendant: Turner Freeman

File Number(s): 2017/00269747

Judgment

INTRODUCTION

Noreen Catherine McNamara (“the deceased”) died on 18 November 2016, aged 83 years, leaving a will dated 18 November 2010, probate of which was granted to the defendant (the elder of her two sons) on 12 May 2017.
In these proceedings, the plaintiff (as the younger son of the deceased) applies for a family provision order, under chapter 3 of the Succession Act 2006 NSW, from the estate or notional estate of the deceased.

THE DECEASED’S ESTATE (AND NOTIONAL ESTATE)

It is agreed between the parties that the deceased’s net actual estate (in substance, the deceased’s former residence at Hurstville, a suburb of Sydney) has a value of approximately $1.15 million. If the deceased’s residence were to be sold, that sum would be reduced to the extent of any costs incurred in effecting a sale.
If the Court were persuaded to designate property as notional estate of the deceased, the parties agree that the deceased’s notional estate is to be valued at $1,118,750.00.
The property available for designation as notional estate represents the deceased’s “share” of four investment properties which, at the time of the deceased’s death, were held by the deceased and the defendant as joint tenants. Under the general law, the deceased’s share in each property passed to the defendant by survivorship. Under chapter 3 of the Succession Act 2006, the investment properties are susceptible to an order for designation of notional estate if the statutory criteria for such an order have been satisfied.
In the event, it is not necessary to consider those criteria in any detail because, if and to the extent that a family provision order ought to be…

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 Re Estate McNamara

Details

AGLC: Re Estate McNamara [2018] NSWSC 1661
Case: [2018] NSWSC 1661
Decision Date: 02 November 2018

CaseChat Overview and Summary

The case of Re Estate McNamara involved a claim by an adult child for provision from the deceased’s estate under the Succession Act 2006 (NSW). The plaintiff sought to have a portion of the estate allocated to them despite the deceased’s prior disclaimer of intention to benefit the plaintiff. The relationship between the deceased and the plaintiff was described as strained, complicating the plaintiff's request for family provision. The court had to decide whether the strained relationship and the deceased's disclaimer should preclude the plaintiff from receiving any provision from the estate.

The primary legal issue was whether the strained relationship between the deceased and the plaintiff, coupled with the deceased's express disclaimer of intention to benefit the plaintiff, should prevent the court from making a provision under Chapter 3 of the Succession Act. The court examined whether the disclaimer was a sufficient bar to the plaintiff’s claim, or if the court had discretion to make a modest provision despite the disclaimer. The court also considered the extent to which the strained relationship impacted the fairness of making any provision.

The court concluded that while the disclaimer and the strained relationship were significant factors, they did not entirely bar the court's discretion to make a modest provision. The court recognised that the disclaimer was a strong indication of the deceased’s intentions but held that the court could still consider the overall fairness of the situation. The court ultimately decided to make a modest provision to the plaintiff, balancing the deceased's disclaimer against the need to achieve a fair outcome in the circumstances.

The court ordered that a modest provision be made to the plaintiff from the estate of the deceased. This decision underscores the court's ability to exercise discretion in family provision matters, even in the face of a disclaimer and a strained relationship, provided that it results in a fair outcome.

Orders