Hart v McMinn [2023] NSWSC 1218

Hart v McMinn [2023] NSWSC 1218

Although the Plaintiff and deceased had separated by around 2019 and the deceased clearly intended to leave him nothing, the deceased had a moral obligation to make provision for him because of the 26-year marriage, his financial and non-financial contributions to the marriage, the Primbee Property and the deceased's welfare, his present financial need, age and poor health, and the absence of any competing moral claim by the sole beneficiary. Some statements in the deceased's Statutory Declaration did not fairly reflect the Plaintiff's contributions. A lump sum of $200,000 was sufficient to meet the Plaintiff's identified needs, including the shortfall in projected expenses, replacement...

Jurisdiction
Australia
Judgment Date
13 October 2023
Procedural Posture
Family Provision Claim Under S 59 of the Succession Act 2006 (nsw) / Principal Judgment After Hearing
Outcome
Family provision order made for the Plaintiff in the sum of $200,000; costs directions made; Defendant ordered to lodge the Probate bearing a copy of the orders and a copy of the orders in the Registry.
Legal Topics
['family Provision Order' 'eligible Spouse' 'adequate Provision for Proper Maintenance, Education or Advancement in Life' 'testamentary Intentions' 'separated Spouses' 'de Facto Relationship' 'quantum of Provision']
['succession' 'probate' 'equity'] ['family Provision Order' 'eligible Spouse' 'adequate Provision for Proper Maintenance, Education or Advancement in Life' 'testamentary Intentions' 'separated Spouses' 'de Facto Relationship' 'quantum of Provision']

Case Brief

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Procedural Posture

Family Provision Claim Under S 59 of the Succession Act 2006 (nsw) / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Court should exercise its discretion under s 59(2) of the Succession Act 2006 (NSW) to make a family provision order for the Plaintiff despite the deceased's clear testamentary intention to make no provision for him." "If a family provision order should be made, what nature and quantum of provision should be ordered from the deceased's estate."]

Ratio Decidendi

Although the Plaintiff and deceased had separated by around 2019 and the deceased clearly intended to leave him nothing, the deceased had a moral obligation to make provision for him because of the 26-year marriage, his financial and non-financial contributions to the marriage, the Primbee Property and the deceased's welfare, his present financial need, age and poor health, and the absence of any competing moral claim by the sole beneficiary. Some statements in the deceased's Statutory Declaration did not fairly reflect the Plaintiff's contributions. A lump sum of $200,000 was sufficient to meet the Plaintiff's identified needs, including the shortfall in projected expenses, replacement...

Court Disposition

Family provision order made for the Plaintiff in the sum of $200,000; costs directions made; Defendant ordered to lodge the Probate bearing a copy of the orders and a copy of the orders in the Registry.

Orders

  • ["Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that the Plaintiff receive, by way of provision out of the deceased's estate, a lump sum of $200,000." 'Directs that in the event that the parties are able to agree on the form of costs order, the parties provide a copy of any proposed consent orders to my...