Marquis v McNamara [2024] NSWSC 1276

Supreme Court New South Wales

Medium Neutral Citation: Marquis v McNamara [2024] NSWSC 1276 Hearing dates: 2 October 2024 Decision date: 11 October 2024 Jurisdiction: Equity Before: Kunc J Decision: Further provision ordered Catchwords: SUCCESSION — Family provision — Claim by 69 year old only child — Principal asset left equally to plaintiff and his children — Whether adequate and proper provision not made for the plaintiff and, if not, the nature and quantum of the provision to be made Legislation Cited: Succession Act 2006 (NSW), s 59(1)(c) Cases Cited: Bassett v Bassett [2021] NSWCA 320 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Page v Hull-Moody [2020] NSWSC 411 Category: Principal judgment Parties: Craig Marquis (Plaintiff) Philip McNamara (Defendant) Representation: Counsel: C Locke (Plaintiff) P Glissan (Defendant)

Solicitors: AE Dunne Solicitor (Plaintiff) McNamara & Associates (Defendant) File Number(s): 2023/324779

JUDGMENT

Summary 1. The thoughtful exercise of testamentary freedom does not always satisfy even the most honourable of testamentary expectations. This is an example of such a case. Without disrespect, I shall refer to the parties and other protagonists by their given names. 2. The plaintiff, Craig Marquis, is the 69 year old only child of the late Alfred Marquis, who died in July 2023 at the age of 97. The defendant, Mr Philip McNamara is a solicitor appointed under Alfred's will, made on 20 June 2022, as executor of Alfred's estate. 3. The estate is not large and primarily consists of Alfred's home at Nowra (the property). 4. There was no dispute that Craig was a loving and devoted son until the day Alfred died. Nor was there any dispute that, during his life, Alfred was a generous and loving father to Craig. Alfred was also a generous grandfather to Craig's children. 5. Craig expected that he would receive the whole of his father's estate. Instead, Alfred chose to leave most of his estate in equal shares to Craig and Craig's four children (Alfred's grandchildren) Nicholas, Dominic, Monique and Kyle. 6. Craig brings these proceedings for additional provision under the Succession Act 2006 (the Act). For the reasons which follow, the Court will make a family provision order in favour of Craig to ensure that he receives from the estate an amount which will enable him to discharge the mortgage over his home. 7. Mr CP Locke of Counsel appear for Craig. Mr PR Glissan of Counsel appeared for Mr McNamara.