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McFarlane v McFarlane

McFarlane v McFarlane

Case [2025] VSCA 163 7 July 2025

Family Provision

Moral Duty

Adequacy of Provision

Financial Resources

Succession Law

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-SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0030

ADAM PAUL MCFARLANE	Applicant
v
HEATHER JEAN MCFARLANE (WHO IS SUED AS THE EXECUTRIX OF THE WILL AND ESTATE OF BRIAN HUGH MCFARLANE, DECEASED)	Respondent

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JUDGES:	McLEISH, KAYE and KENNY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2025
DATE OF JUDGMENT:	7 July 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 163
JUDGMENT APPEALED FROM:	McFarlane v McFarlane [2023] VSC 379 (Barrett AsJ)

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TESTATOR’S FAMILY MAINTENANCE – Family provision – Adequacy of reasons – Applicant adult son of deceased – Respondent wife of deceased – Whole of deceased’s estate passed to respondent – Applicant sought provision of $265,000 under Administration and Probate Act 1958 pt IV – Associate judge refused application on basis deceased not having failed to make adequate provision – Reasons not expressly finding deceased owed moral duty to applicant – Judge’s consideration of adequacy of provision depended on anterior finding of moral duty – Implicit in judge’s reasons that moral duty was established – Whether associate judge erred in determination that deceased failed to make adequate provision to applicant by focusing only on whether to order provision in amount sought by applicant – No error.

TESTATOR’S FAMILY MAINTENANCE – Alleged error in determination of adequacy of provision – Value of estate approximately $420,000–$487,500 – ‘Reasonably modest’ size of estate central to associate judge’s finding no failure to make adequate provision – Financial resources of respondent included real estate worth $1,920,000–$2,287,500 formerly held jointly with deceased and cash and superannuation accounts worth $1,262,000 – Whether judge erred by failing to take proper account of respondent’s financial resources – Size of deceased’s estate of relatively minor significance to respondent’s financial position – Leave to appeal granted – Appeal allowed.

TESTATOR’S FAMILY MAINTENANCE – Order for provision – Jurisdictional requirements in Administration and Probate Act 1958, s 91(2) satisfied – Applicant adult son having fallen on hard times following divorce – Applicant seeking provision of $265,000 to provide house deposit and discharge debts – Debts not so burdensome as to warrant provision – Applicant and wife having some means to save for house deposit – Applicant able to purchase suitable property with $147,000 deposit by taking mortgage insurance – Moral duty – Order made for provision of $125,000.

WORDS AND PHRASES – ‘moral duty’ – Administration and Probate Act 1958, s 91(2)(c).

Administration and Probate Act 1958, ss 90, 91, 91A.

Singer v Berghouse (1994) 181 CLR 201, Blair v Blair (2004) 10 VR 69, Walsh v Walsh [2013] NSWSC 1065, referred to.

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Counsel
Applicant:		Mr P Reynolds
Respondent:		Mr N McOmish
Solicitors
Applicant:	Clancy & Triado
Respondent:	GR Legal

MCLEISH JA
KAYE JA
KENNY JA:

Brian McFarlane died on 21 September 2020. He was survived by his second wife, Heather McFarlane (the respondent), as well as two adult children from his first marriage, including his son Adam McFarlane (the applicant). It is convenient to refer to the family…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McFarlane v McFarlane

Details

AGLC: McFarlane v McFarlane [2025] VSCA 163
Case: [2025] VSCA 163
Decision Date: 7 July 2025

CaseChat Overview and Summary

In the case of McFarlane v McFarlane, the applicant, an adult son of the deceased, sought a provision from his deceased father's estate under section 91 of the Administration and Probate Act 1958. The entire estate had passed to the respondent, the deceased's wife. The applicant's application was dismissed by an associate judge on the basis that the deceased had not failed to make adequate provision for the applicant. The applicant appealed, arguing that the judge had erred in determining the adequacy of the provision and in failing to consider the respondent's financial resources.

The court was required to determine whether the associate judge had erred in deciding that the deceased had made adequate provision for the applicant and in focusing solely on whether to order the provision in the amount sought by the applicant. The court also had to decide whether the judge had failed to properly consider the respondent's financial resources, which included significant real estate and cash and superannuation accounts.

The appeal was allowed. The court found that the associate judge had erred by not expressly finding that the deceased owed a moral duty to the applicant and by focusing only on whether to order the provision in the amount sought by the applicant. The size of the deceased's estate, which was considered to be of a reasonably modest size, was central to the judge's finding that there was no failure to make adequate provision. However, the court held that the size of the estate was of relatively minor significance to the respondent's financial position, given her substantial financial resources. The court ordered that the applicant be provided with $125,000 to assist with a house deposit and discharge certain debts.

Orders