McFarlane v McFarlane - [2023] VSC 379

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S ECI 2021 03780

BETWEEN:

ADAM PAUL MCFARLANE	Plaintiff
v
HEATHER JEAN MCFARLANE (who is sued as the Executor of the Estate of BRIAN HUGH MCFARLANE, deceased)	Defendant

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JUDGE:	Barrett AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2023 – 14 February 2023
DATE OF JUDGMENT:	10 July 2023
CASE MAY BE CITED AS:	McFarlane v McFarlane
MEDIUM NEUTRAL CITATION:	[2023] VSC 379

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TESTATOR’S FAMILY MAINTENANCE – Application by adult son for provision to be made out of the deceased’s estate for the plaintiff’s proper maintenance and support pursuant to s 91(1) of the Administration and Probate Act 1958 (Vic) (‘the Act’) – Whether the deceased had a moral duty to provide for the plaintiff’s proper maintenance and support pursuant to s 91(2)(c) of the Act – Whether the deceased’s will failed to make adequate provision for the plaintiff’s proper maintenance and support pursuant to s 91(2)(d) of the Act and if so, the degree to which further provision ought to be made to the plaintiff pursuant to s 91(4) of the Act – Consideration of mandatory and discretionary factors in s 91A of the Act – Regard to principles in Pavlidis v Pavlidis [2023] VSC 92 and Re Papaioannou [2019] VSC 844 – Held, deceased did not fail to make adequate provision for the plaintiff’s proper maintenance and support.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P D Reynolds	Clancy & Triado
For the Defendant	Mr N McOmish	GR Legal Lawyers & Business Consultants

TABLE OF CONTENTS

The evidence....................................................................................................................................... 2

Background......................................................................................................................................... 3

Applicable legal principles.............................................................................................................. 9

Relevant factors................................................................................................................................ 15

The terms of the deceased’s will, any evidence of the deceased’s reasons for making the dispositions, and evidence of the deceased’s intentions............................................. 15
The nature and length of the relationship between the deceased and the eligible person 19
Any obligations or responsibilities of the deceased to the eligible person, any other eligible persons, and the estate’s beneficiaries............................................................................ 19
The size and nature of the estate............................................................................................... 21
The current – taken as at the time of the hearing – and foreseeable future financial resources, including earning capacity and financial needs, of the eligible person, any other eligible persons and any beneficiary............................................................................................ 22
Any physical, mental or intellectual disability of any eligible person or any beneficiary 23
The age of the eligible person.................................................................................................... 23
Any contribution of the eligible person, otherwise than for adequate consideration, to building up the estate or to the welfare of the deceased or the deceased’s family.................. 23
Any previous benefits to the eligible person or any beneficiary......................................... 23
Whether the eligible person was being wholly or partly maintained by the deceased, and if so, the extent and basis of such maintenance............................................................................ 23
The liability of any other person to maintain the eligible person........................................ 23
The character and conduct of the eligible person or any other person............................... 24
The effects that a family provision order…

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 [2023] VSC 379
Case: [2023] VSC 379
Decision Date: 10 July 2023

CaseChat Overview and Summary

In McFarlane v McFarlane, the plaintiff, an adult son, brought an application under section 91(1) of the Administration and Probate Act 1958 (Vic) for provision to be made out of his deceased father’s estate for his proper maintenance and support. The father had passed away leaving a will which the plaintiff contended failed to make adequate provision for his maintenance and support. The primary legal issues were whether the deceased had a moral duty to provide for the plaintiff under section 91(2)(c) of the Act, and if the will indeed failed to make adequate provision under section 91(2)(d), to what extent further provision should be made under section 91(4). The court had to consider both mandatory and discretionary factors as outlined in section 91A of the Act.

The court examined the statutory framework and principles established in Pavlidis v Pavlidis and Re Papaioannou, weighing the mandatory factors against the discretionary ones. The court found that the deceased had not failed to make adequate provision for the plaintiff’s proper maintenance and support. The will was deemed to contain sufficient provisions, and the court was satisfied that the deceased had acted in accordance with his moral duties. Consequently, the application for additional provision from the estate was dismissed.

In light of the findings, the court ruled that the estate should be distributed according to the terms of the deceased’s will. No further provision was to be made to the plaintiff from the estate for his maintenance and support. The court's decision was based on the comprehensive analysis of the statutory obligations and the circumstances surrounding the deceased's estate planning.

Orders