McIntyre v McIntyre & Anor [2005] NSWSC 1216

McIntyre v McIntyre & Anor [2005] NSWSC 1216

The plaintiff, as widow and eligible person, has not been adequately provided for by the will. Her financial/material circumstances, liabilities, and contributions justify further provision. Her conduct, including adultery, is not such as to disentitle her in the circumstances. She is entitled to a legacy of $40,000 in lieu of the will's benefit, and costs are to be paid out of the estate and, as necessary, from designated notional estate.

Parties
Plaintiff: Kathleen Anne McIntyre; First Defendant: Derek David McIntyre; Second Defendant: Warren Vincent Thibault
Jurisdiction
Australia
Judgment Date
01 December 2005
Procedural Posture
Family Provision Application / Final Judgment
Outcome
Provision granted in favour of the plaintiff; costs orders made as specified.
Legal Topics
Family Provision, Notional Estate, Testamentary Dispositions, Costs
Succession Equity Family Provision Notional Estate Testamentary Dispositions Costs

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 6 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

Kathleen Anne McIntyre

Plaintiff

Derek David McIntyre

First Defendant

Warren Vincent Thibault

Second Defendant

Procedural Posture

Family Provision Application / Final Judgment

Legal Issues

  1. 1 Whether the plaintiff has been left without adequate provision for her proper maintenance
  2. 2 Whether plaintiff's conduct disentitles her from relief
  3. 3 Whether notional estate should be designated for provision and costs

Ratio Decidendi

The plaintiff, as widow and eligible person, has not been adequately provided for by the will. Her financial/material circumstances, liabilities, and contributions justify further provision. Her conduct, including adultery, is not such as to disentitle her in the circumstances. She is entitled to a legacy of $40,000 in lieu of the will's benefit, and costs are to be paid out of the estate and, as necessary, from designated notional estate.

Court Disposition

Provision granted in favour of the plaintiff; costs orders made as specified.

Orders

  • In lieu of benefits under the will, plaintiff to receive a legacy of $40,000, not bearing interest if paid by 1 January 2006, otherwise interest per Wills, Probate and Administration Act 1898.
  • Plaintiff's costs on the party and party basis and defendants' costs on the indemnity basis are to be paid first from the deceased's estate and, if insufficient, from the notional estate.