Day v Perpetual Trustee; Maguire v Perpetual Trustee; McLennan v Perpetual Trustee [2001] NSWSC 394

Day v Perpetual Trustee; Maguire v Perpetual Trustee; McLennan v Perpetual Trustee [2001] NSWSC 394

All three plaintiffs are eligible persons under the Family Provision Act. Despite a prolonged absence of contact between Pamela Maguire and Judith McLennan and the deceased, this was not solely their fault and circumstances of family breakdown should not disentitle them. Considering their needs, the relationship with the deceased, and the size of the estate, the court determined they had not received adequate provision and ought to receive shares in the estate. It is appropriate that the estate be held, three-fifths for Jill Day, one-fifth for Pamela Maguire, and one-fifth for Judith McLennan, in lieu of the will's provisions.

Jurisdiction
Australia
Judgment Date
17 May 2001
Procedural Posture
Family Provision Application / Final Hearing and Judgment
Outcome
Orders made in favour of the daughters; the estate is to be held as to three-fifths for Jill Day, one-fifth each for Pamela Maguire and Judith Ann McLennan.
Legal Topics
['adequate Provision' 'moral Obligation' "testator's Relationships" 'adult Child Claims']
['succession Law' 'family Provision'] ['adequate Provision' 'moral Obligation' "testator's Relationships" 'adult Child Claims']

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Procedural Posture

Family Provision Application / Final Hearing and Judgment

Legal Issues

  1. 1 ['Whether adult daughters of the deceased were left without adequate provision under the will' 'Whether the breakdown in relationship between the deceased and her daughters precludes provision' 'How provision should be allocated among the claimants']

Ratio Decidendi

All three plaintiffs are eligible persons under the Family Provision Act. Despite a prolonged absence of contact between Pamela Maguire and Judith McLennan and the deceased, this was not solely their fault and circumstances of family breakdown should not disentitle them. Considering their needs, the relationship with the deceased, and the size of the estate, the court determined they had not received adequate provision and ought to receive shares in the estate. It is appropriate that the estate be held, three-fifths for Jill Day, one-fifth for Pamela Maguire, and one-fifth for Judith McLennan, in lieu of the will's provisions.

Court Disposition

Orders made in favour of the daughters; the estate is to be held as to three-fifths for Jill Day, one-fifth each for Pamela Maguire and Judith Ann McLennan.

Orders

  • ["Residue of the deceased's estate to be held: three-fifths for Jill Day, one-fifth for Pamela Maguire, and one-fifth for Judith Ann McLennan in lieu of clauses 4A, 4B, and 4C of the will." 'Court to hear submissions on orders for costs at a later date.' 'Exhibits may be returned.']