McFarlane v Mador [2013] NSWSC 399

McFarlane v Mador [2013] NSWSC 399

The plaintiff had not been left with adequate provision, and proper provision required that the Cronulla unit, the family home during the 15-year de facto relationship, be transferred to him absolutely rather than by way of life estate. No further provision was warranted because the plaintiff was 42, able to work, able to look after himself, and would receive estate income as guardian for the benefit of the children.

Jurisdiction
Australia
Judgment Date
19 April 2013
Procedural Posture
Succession Family Provision and Maintenance / Principal Judgment
Outcome
Provision was made for the plaintiff out of the estate; the Cronulla unit and contents were to pass to him absolutely, outgoings on that property up to the date of judgment were to be paid from the estate except payments already made by the plaintiff, and costs were payable out of the estate.
Legal Topics
['adequate Provision for De Facto Partner' 'provision Out of Deceased Estate' 'life Estate Versus Absolute Transfer' 'provision for Children Under Will']
['succession' 'family Provision and Maintenance'] ['adequate Provision for De Facto Partner' 'provision Out of Deceased Estate' 'life Estate Versus Absolute Transfer' 'provision for Children Under Will']

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Procedural Posture

Succession Family Provision and Maintenance / Principal Judgment

Legal Issues

  1. 1 ["Whether the plaintiff, the deceased's de facto partner, had been left without adequate provision for his proper maintenance and advancement." 'Whether adequate provision required the Cronulla unit to be transferred to the plaintiff absolutely or only as a life estate.' 'Whether any further provision should be made for the plaintiff from the estate.']

Ratio Decidendi

The plaintiff had not been left with adequate provision, and proper provision required that the Cronulla unit, the family home during the 15-year de facto relationship, be transferred to him absolutely rather than by way of life estate. No further provision was warranted because the plaintiff was 42, able to work, able to look after himself, and would receive estate income as guardian for the benefit of the children.

Court Disposition

Provision was made for the plaintiff out of the estate; the Cronulla unit and contents were to pass to him absolutely, outgoings on that property up to the date of judgment were to be paid from the estate except payments already made by the plaintiff, and costs were payable out of the estate.

Orders

  • ['That property Unit 2/63-65 The Kingsway, Cronulla be transferred to the plaintiff absolutely, and that he receive all the contents of the deceased in the unit.' 'That outgoings on that property up to this date be paid out of the estate other than any payments which the plaintiff himself has made up to this date.'...