Moore v McLean [2022] NSWSC 978

Moore v McLean [2022] NSWSC 978

Given the significant factual disputes, the untested evidence, the uncertainty as to any final order for provision, and the Plaintiff's inability to repay, the Court was unable to form the opinion under s 62 Succession Act 2006 (NSW) that no less provision than $40,000 would be made in a final order. Discretionary factors further militated against making an interim order. The application was dismissed with costs.

Jurisdiction
Australia
Judgment Date
21 July 2022
Procedural Posture
Application for Interim Provision (notice of Motion) / Interlocutory Determination (dismissal of Motion)
Outcome
Plaintiff's notice of motion dismissed with costs
Legal Topics
['family Provision' 'interim Orders' 'constructive Trust' 'mutual Wills' 'testamentary Intention']
['succession Law' 'equity'] ['family Provision' 'interim Orders' 'constructive Trust' 'mutual Wills' 'testamentary Intention']

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Procedural Posture

Application for Interim Provision (notice of Motion) / Interlocutory Determination (dismissal of Motion)

Legal Issues

  1. 1 ['Whether the Court can form the opinion under s 62 Succession Act 2006 (NSW) that no less provision than $40,000 would be made in a final order' 'Eligibility and quantum of provision under family provision legislation' 'Discretionary grounds for refusal of interim provision']

Ratio Decidendi

Given the significant factual disputes, the untested evidence, the uncertainty as to any final order for provision, and the Plaintiff's inability to repay, the Court was unable to form the opinion under s 62 Succession Act 2006 (NSW) that no less provision than $40,000 would be made in a final order. Discretionary factors further militated against making an interim order. The application was dismissed with costs.

Court Disposition

Plaintiff's notice of motion dismissed with costs

Orders

  • ["Plaintiff's notice of motion filed on 2 May 2022 is dismissed" "Plaintiff to pay Defendant's costs of the notice of motion"]