McDonald v McDonald

The case of McDonald v McDonald involved a dispute over the distribution of an estate among several claimants. The deceased had left the entirety of his estate to his de facto partner, excluding his three adult children, one of whom was disabled. The children, alongside the deceased's former wife, filed claims against the estate, arguing that they were not adequately provided for under the will. The court was tasked with determining whether the estate was sufficient to meet the family provision claims of the children and the former wife, and if so, how the estate should be distributed among the various claimants.

The legal issues that arose in this case centred on the interpretation of the Family Provision Act and the identification of assets that were part of the deceased's estate. The court had to determine which assets were jointly owned by the deceased and his de facto partner and, therefore, passed by survivorship to the de facto partner. Additionally, the court had to consider the financial and material circumstances of each claimant, including the competing claim of the de facto partner, to decide if there were sufficient grounds for the court to exercise its discretion to make an order under the Family Provision Act.

In its decision, the court emphasised the importance of the executor's obligation to identify and disclose the assets of the estate to the court. It found that the estate was not of a size that would allow for the claims of the successful applicants and the competing claim to be satisfied. The court also considered the factors warranting a claim by the former wife, particularly the deceased's failure to pay child maintenance to her for more than 30 years ago, and her failure to enforce an order for such payment. However, the court held that it must look to the present circumstances of the applicant, rather than the circumstances as they might have been more than 30 years ago. The court ultimately decided that the estate was insufficient to meet the claims of the children and the former wife.

The final orders of the court were that the claims of the three children and the former wife were not to be met from the estate, as the estate was not of sufficient size to accommodate all of the claims. The court also found that the de facto partner was not required to contribute any part of the estate to meet the claims of the children and the former wife.