Hart v McMinn [2023] NSWSC 1218

Supreme Court New South Wales

Medium Neutral Citation: Hart v McMinn [2023] NSWSC 1218 Hearing dates: 25 September 2023 Date of orders: 13 October 2023 Decision date: 13 October 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 $200,000. (2) Directs that: (a) 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 Associate by 4pm on 20 October 2023; and (b) in the event that the parties are unable to agree on the form of the costs order, the parties are to exchange submissions, together with any supporting material, and provide a copy to my Associate by 4pm on 20 October 2023. (3) 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 by spouse of the deceased – No provision made for Plaintiff by the deceased's Will – Plaintiff and deceased had separated, and Plaintiff had commenced de facto relationship with another person – deceased made a statutory declaration explaining her decision not to make provision for the Plaintiff – Defendant conceded that the Plaintiff was an eligible person and jurisdictional requirements for power to make a family provision order were met – Whether discretion should be exercised to make 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 $200,000 Legislation Cited: Family Law Act 1975 (Cth) ss 90UC, 90UJ Succession Act 2006 (NSW) Ch 3 Cases Cited: Alvarez v Matthews [2021] NSWSC 1551 Estate Raineri [2016] NSWSC 489 Estate Zamojski [2023] NSWSC 650 Kalmar v Kalmar; estate of Kalmar [2006] NSWSC 437 Luciano v Rosenblum (1985) 2 NSWLR 65 Maria Oliveira by her tutor Ivo De Oliveira v John Antonio Oliveira [2023] NSWSC 1130 McGuire bht McGuire v NSW Trustee and Guardian [2023] NSWSC 1013 Re Clissold (dec'd) [1970] 2 NSWR 619 Sarant v Sarant [2020] NSWSC 1686 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Sun v Chapman [2022] NSWCA 132 Todd & Todd (No 2) (1976) FLC 90-008 Vella v Vella; Vella v Vella [2020] NSWSC 849 Category: Principal judgment Parties: Leslie Malcolm Hart (Plaintiff) Ian Randall McMinn (Defendant) Representation: Counsel: M Bridger (Plaintiff) M Heath (Defendant)