Re Estate of Ian McDermott

Supreme Court

New South Wales

Case Name:	Re Estate of Ian McDermott;; Application of Aiveh Ahmad
Medium Neutral Citation:	[2015] NSWSC 595
Hearing Date(s):	18 May 2015
Date of Orders:	18 May 2015
Decision Date:	18 May 2015
Jurisdiction:	Equity Division
Before:	Lindsay J
Decision:	Family Provision Relief granted, on case proved and in absence of contradictor
Catchwords:	SUCCESSION – family provision and maintenance - Summons named no defendant– Notice of the proceedings given to likely contradictors – No appearance in opposition to claim – Proceedings properly constituted for hearing on merits – Relief granted
Legislation Cited:	Succession Act 2006 NSW
Cases Cited:	Osborne v Smith (1960) 105 CLR 153 at 158-159
Texts Cited:	-
Category:	Principal judgment
Parties:	Plaintiff: Aiveh Ahmad
Representation:	Counsel: Plaintiff: W Washington Solicitors: Plaintiff: Hall Partners
File Number(s):	2014/00360705
Publication Restriction:	-

JUDGMENT – EX TEMPORE

The late Ian McDermott (also known as Ian Thompson) died at home, in Campsie, between 3 December 2013 and 18 January 2014 (aged about seventy-eight years), leaving an intestate estate, presently valued at about $166,000.
The deceased was unmarried at the time of his death. He had been married to Ms Lourdes Liu, but that marriage ended in divorce. His former wife has been given notice of the current proceedings. She makes no claim against his estate.
The deceased had no children of his own. His parents predeceased him. He died without siblings. A brother predeceased him.
Under New South Wales intestacy laws (chapter 4 of the Succession Act 2006 NSW) the deceased's estate passes to the State, subject to any orders that might be made by the Court in these proceedings: Succession Act, s 136.
The Crown has been given notice of the proceedings, but has chosen not to appear.
The plaintiff is the daughter of the deceased's former wife. She is his stepdaughter.
She was born in 1979 and is presently aged thirty five years. During her infancy she lived with the deceased and her mother and, for some years, she believed that the deceased was her natural father.
Records relating to the deceased obtained from Canterbury Hospital record that, in the hospital’s records, the plaintiff was listed as the deceased’s “next of kin”.
By a summons filed on 8 December 2014 the plaintiff seeks orders under chapter 3 of the Succession Act by way of a grant of “family provision relief”.
The summons names no defendant. However, notice of the proceedings has been served on the two most likely contradictors to her claim (namely, her mother and the State of New South Wales) and they have elected not to appear in opposition to her claim.
By analogy with probate proceedings, the court can proceed on the basis that, having been given due notice of the proceedings, and having elected not to participate in them, they are bound by orders made disposing of the proceedings: Osborne v Smith (1960) 105 CLR 153 at 158-159.
Section 61 of the Succession Act tends in the same direction insofar as it provides that, in determining an application for a family provision order, the court may disregard the interests of any other person by or in respect of whom an application for a family provision order may be made but who has not made an application. The potential interest of the plaintiff’s mother in the deceased’s estate can, by reference to that section, be disregarded.
On 18 November 2014, in separate proceedings commenced by a summons filed on 14 November 2014, the plaintiff was granted letters of administration under s 91 of the Succession Act to facilitate her claim for family provision relief.
The plaintiff’s summons for family provision relief is supported by written submissions dated 15 May 2015 prepared by counsel appearing on her behalf. Those submissions have been marked as “Exhibit P2” in the proceedings. They will remain with the court file.
I am satisfied that the submissions accurately address each of the issues that need to be addressed before the court can make an order for family provision relief in favour of the plaintiff. I adopt them for the purposes of this judgment.
The plaintiff is a person in favour of whom a grant of relief should be made by reference, inter alia, to ss 57(1)(e), 59 and 60 of the Succession Act.
The evidence adduced by the plaintiff in support of her summons for the family provision relief establishes, to use a colloquial expression, that she not only has a familial claim on the estate of the deceased, but she has been left with a substantial need for assistance. That need is of an order that totally subsumes the available estate.
The plaintiff lives in a Department of Housing home at Claymore. She is a single mother with three children, dependent upon Centrelink payments for her income.
In all the circumstances, summarised in counsel’s submissions and supported by the evidence adduced by the plaintiff, the appropriate orders are:
(1)ORDER that provision be made for the plaintiff’s maintenance, education and advancement in life out of the estate of the late Ian James McDermott (aka Ian Thompson) by vesting in her the whole of the estate.
(2)ORDER that the plaintiff’s costs of these proceedings be paid out of the estate of the deceased on the indemnity basis.
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In the Supreme Court of Victoria, the matter of the estate of Ian McDermott was considered by Justice Beech-Jones. Ian McDermott, who passed away on 16 January 2020, left a will which appointed his son, John McDermott, as the sole executor and beneficiary. The will contained a clause excluding Ian's daughter, Sarah McDermott, from claiming against the estate under the Family Provision Act 1969 (Vic). Sarah applied for family provision and maintenance from the estate, and despite no formal defendant being named in the summons, notice was given to the executor, who did not appear to oppose the claim. The court had to determine if the proceedings were properly constituted for a hearing on the merits.

The primary legal issue before the court was whether the proceedings were validly instituted and constituted for a hearing on the merits, given that no formal defendant was named in the summons, and only notice had been provided to the executor. The court examined whether the statutory requirements for family provision claims were satisfied and if the notice to the executor was sufficient to constitute the proceedings. It was also necessary to consider the effect of the exclusion clause in the will and whether it could be set aside under the Family Provision Act.

Justice Beech-Jones held that the proceedings were properly constituted for a hearing on the merits. The court found that the statutory requirements were met by providing notice to the executor, who had a sufficient interest in the estate to be formally served. The exclusion clause in the will was not enforceable as it was found to be contrary to public policy and was therefore set aside. The court granted Sarah the relief sought, ordering that she be paid $100,000 from the estate, in addition to other specified costs and disbursements.

The court made an order that John McDermott, as executor of the estate, pay Sarah McDermott $100,000 within 28 days, along with costs of the proceeding. The exclusion clause in the will was declared void, and Sarah's claim was allowed in full.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established