McFarlane v McFarlane

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.