McIntyre v McIntyre & Anor [2005] NSWSC 1216

New South Wales Supreme Court

CITATION : McIntyre v McIntyre & Anor [2005] NSWSC 1216

HEARING DATE(S) : 25, 26 and 27 July 2005

JUDGMENT DATE : 1 December 2005

JURISDICTION : Equity

JUDGMENT OF : Associate Justice McLaughlin at 1

DECISION : 1. I order that, in lieu of the benefits given to her by the will of the late David William McIntyre ("the Deceased"), the Plaintiff receive a legacy in the sum of $40,000, such legacy not to bear interest if paid on or before 1 January 2006, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898. 2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendants on the indemnity be paid first out of the estate of the Deceased, and then, to the extent that the assets of the estate are not sufficient to meet those costs, out of the notional estate of the Deceased. 3. I designate as notional estate of the Deceased so much of The McIntyre Superannuation Fund as may be necessary to meet so much of the foregoing costs as cannot be paid out of the estate of the Deceased. 4. The exhibits may be returned.

CATCHWORDS : Succession. - Family Provision. - Claim by widow. - Plaintiff and Deceased were estranged at time of Deceased's death. - Conduct disentitling. - Relevance of Plaintiff's adultery. - Financial and material circumstances of Plaintiff. - Whether Plaintiff has been left without adequate provision for her proper maintenance. - Prescribed transaction. - Notional estate. - Costs payable out of notional estate.

Family Provision Act 1982 LEGISLATION CITED : Testator's Family Maintenance and Guardianship of Infants Act 1916 Wills, Probate and Administration Act 1898