McGuire bht McGuire v New South Wales Trustee and Guardian [2023] NSWSC 1013

Supreme Court New South Wales

Medium Neutral Citation: McGuire bht McGuire v New South Wales Trustee and Guardian [2023] NSWSC 1013 Hearing dates: 9–10 August 2023 Date of orders: 24 August 2023 Decision date: 24 August 2023 Jurisdiction: Equity - Succession & Probate List - Family Provision Before: Nixon J Decision: The Court: (1) 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 $220,000. (2) Orders that the Plaintiff's costs of the proceedings, calculated on the ordinary basis, be paid out of the estate of the deceased. (3) Orders that the Defendant's costs of the proceedings, calculated on the indemnity basis, be paid out of the estate of the deceased. (4) Orders, pursuant to s 77(2) of the Civil Procedure Act 2005 (NSW), that the lump sum referred to in order (1) above be paid into Court. (5) Grants liberty to the Plaintiff, no later than within 28 days of the date of this judgment, to make any application in these proceedings pursuant to s 77(4) of the Civil Procedure Act 2005 (NSW) in respect of the money to be paid into Court pursuant to order (4) above. (6) Orders that no later than within 28 days after these orders are recorded, the Defendant must lodge in the Registry: (a) the Probate bearing a copy of the orders; and (b) a copy of the orders. Catchwords: SUCCESSION – FAMILY PROVISION – Claim for family provision order under the Succession Act 2006 (NSW), Ch 3 by Plaintiff – whether Plaintiff is an eligible person under s 57(1)(b), or alternatively s 57(1)(e) or (f), of Succession Act – Whether Plaintiff and deceased were in a de facto relationship – Will of deceased made no provision for Plaintiff – Whether circumstances justified the making of a family provision order, and if so, the nature and quantum of the provision to be made – provision ordered to be paid out of the deceased's estate in the sum of $220,000 Legislation Cited: Civil Procedure Act 2005 (NSW), s 77 Interpretation Act 1987 (NSW), s 21C NSW Trustee and Guardian Act 2009 (NSW), ss 5, 6; Sch 1 cls 3, 11 Property (Relationships) Act 1984 (NSW), s 4 Succession Act 2006 (NSW), Ch 3; ss 3, 57, 58, 59, 60, 61, 65, 72, 99 Cases Cited: Alexander v Jansson [2010] NSWCA 176; (2010) 6 ASTLR 432 Chan v Chan [2016] NSWCA 222 Chisak v Presot [2022] NSWCA 100 Golosky v Golosky [1993] NSWCA 111 Harris v Carter [2020] NSWSC 196 Hayes v Marquis [2008] NSWCA 10 Indjic v Stojanovic [2020] NSWSC 470 Luciano v Rosenblum (1985) 2 NSWLR 65 Page v Hull-Moody [2020] NSWSC 411 Piras v Egan [2008] NSWCA 59 Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Sun v Chapman [2022] NSWCA 132 Vella v Vella [2020] NSWSC 849 Verzar v Verzar [2014] NSWCA 45; (2014) 12 ASTLR 523 Wild v Meduri [2023] NSWSC 113 Category: Principal judgment Parties: Eileen McGuire by her tutor Timothy Andrew McGuire (Plaintiff) NSW Trustee and Guardian (Defendant) Representation: Counsel: A Katsoulas (Plaintiff) M Bridger (Defendant)