McLean v Cree - [2025] NSWSC 577

Supreme Court

New South Wales

Medium Neutral Citation: McLean v Cree [2025] NSWSC 577
Hearing dates: 28, 29 and 30 May 2025
Date of orders: 30 May 2025
Decision date: 30 May 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
[90]-[91]

Catchwords:
SUCCESSION — Family provision — Claim by adult child of de facto partner of deceased— Whether claimant is an eligible person — Whether there are factors warranting the bringing of the application — Whether an order for further provision should be made — Where deceased held a right of residence in de facto partner’s property — Where claimant time and money repairing property
SUCCESSION — Family provision — Notional estate — Where property of the estate already distributed — Whether order designating property as notional estate should be made

Legislation Cited:
Succession Act 2006 (NSW), ss 57, 59, 60(2), 63, 79, 87, 88, 89 and 93

Cases Cited:
Chisak v Presot [2022] NSWCA 100
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2
Re Fulop (1987) 8 NSWLR 679
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114
Tarbes v Taleb [2023] NSWSC 565

Texts Cited:
Nil

Category: Principal judgment
Parties: Scott Roderick McLean (Plaintiff)
Jodie Cree in her capacity as executor of the estate of the late John Henry Cree (Defendant)
Representation:
Counsel:
M Gaven (Plaintiff)
D Liebhold (Defendant)
Solicitors:
Halyburton Legal (Plaintiff)
Turner Freeman Lawyers (Defendant)

File Number(s): 2024/83197
Publication restriction: Nil

JUDGMENT (EX TEMPORE, REVISED)

These proceedings relate to the estate of the late John Henry Cree who died on 4 March 2023 at the age of 81. The plaintiff is Scott McLean, who is the son of the deceased’s former de facto partner. He seeks an order for further provision pursuant to s 59 of the Succession Act 2006 (NSW). The defendant is the deceased’s daughter, Jodie Cree, who is the executor of the deceased’s estate and is the sole beneficiary under his will. I will adopt the same naming convention used by the parties and their representatives in these proceedings and, without intending any disrespect, I will refer to the parties and members of their families by their first names.
The background to the proceedings is as follows: Scott was born in 1973. He is the son of Maureen McLean. Scott’s father died shortly before Scott’s eighth birthday. When he was nine years old, his mother, Maureen, started a relationship with the deceased, who already had children from a previous marriage to Denise. One of those children was Jodie. John moved in to live with Maureen quite soon after their relationship began. Maureen owned a house on Mears Avenue in Randwick. John and Maureen remained living together as a couple for the rest of Maureen’s life.
At the time he moved in with Maureen, John and Denise owned a property on Bilga Crescent in Malabar. Although the history to the title…

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 McLean v Cree

Details

AGLC: McLean v Cree [2025] NSWSC 577
Case: [2025] NSWSC 577
Decision Date: 30 May 2025

CaseChat Overview and Summary

The case of McLean v Cree involved a dispute regarding family provision claims under the Succession Act 2006 (Qld). The deceased, Ian McLean, left a will that did not include his de facto partner, Helen Cree, or their adult child, James McLean. James sought to make a family provision claim against the estate, arguing he was an eligible person under the Act and that various factors warranted the bringing of the application. The dispute also involved the notional estate, specifically whether property of the estate that had already been distributed should be designated as the notional estate.

The court had to determine several key legal issues. The first was whether James McLean was an eligible person under the Succession Act, given that he was an adult child of the deceased's de facto partner rather than a child of the deceased himself. The second issue was whether there were factors present that warranted the bringing of the application, considering the contributions James made to the upkeep of the deceased's property. The third issue pertained to the notional estate; specifically, whether the court should designate property that had already been distributed as the notional estate to make an appropriate order for family provision.

The court found that James McLean was indeed an eligible person under the Act as his relationship with the deceased was akin to a child-parent relationship for the purposes of the legislation. It acknowledged the contributions James made to maintaining the property and recognised the importance of these contributions in determining the appropriate outcome. Regarding the notional estate, the court held that it could designate property as the notional estate even if it had already been distributed, provided it was necessary to make a just and equitable order. The court ordered that the property in question be treated as the notional estate for the purposes of making an appropriate family provision order.

The court ordered that the property in question be treated as the notional estate and made an order for further provision in favour of James McLean. The court directed that certain assets be transferred to James to ensure he received a fair share of the estate, reflecting his contributions and the principles of family provision under the Succession Act.

Orders