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)

1. 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.

2. 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.

3. 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 of that property is a little unclear to me, it seems that at least by the mid-1970s, it was a Crown lease and that John and Denise held it as tenants in common and equal shares.

4. In 1997, Maureen and John decided to retire to the coast. Maureen sold the Mears Avenue property and purchased a house in Lake Cathie, where she and John lived. That house was in Maureen’s name.

5. Maureen died in 2004. She left a will naming Scott’s wife, Renee, as executor. So far as the Lake Cathie property was concerned, the will provided that the property was to be held by Renee on the terms of the following trust:

“(A) Subject to the succeeding provisions of this schedule, my Executor must allow my partner JOHN HENRY CREE to live in my principal residence at my death (‘the residence’) during his lifetime or until such time as he ceases to reside permanently in the residence or until he requires or in the opinion of my Executor enters into a bona fide domestic relationship, if he:-

i. pays the rates, taxes and other outgoings in respect of the residence,

ii. pays the premiums on any insurance policies taken out by my executor on the residence, and

iii. keeps it in repair to the reasonable satisfaction of my executor.”

6. Clause 6 of Maureen’s will provided that subject to the trust that I have just described, the Lake Cathie property should then be sold with the proceeds distributed as follows:

“(a) the payment of any agents’ commission and legal expenses associated with the sale.

(b) The balance of the proceeds of sale to be distributed as follows,

(i) 75% to my son, Scott Roderick McLean

ii) 20% to my son, Michael John Bucknell

iii) 5% to my daughter, Joanne May Bucknell.”

7. After Maureen’s death, and as contemplated by her will, John continued to live at the Lake Cathie property until the time of his death about 19 years later in 2023.

8. John made a will in 2009 which named Jodie as executor and sole residuary beneficiary. Probate of that will was granted on 20 August 2023. The annexure to the grant of probate disclosed assets with the total value of around $1.8 million, including the following:

1. real estate being his half share of the Malabar property (by this time, held as Torrens title) with an estimated value of $1,450,000;

2. unclaimed superannuation with a value of $106,477.82; and

3. a balance standing to his credit in an account with the Illawarra Credit Union in the sum of $239,741.65.

9. The annexure did not mention that John was also the guarantor of a borrowing taken out by Jodie and others to acquire an investment property in Matraville and that the Malabar house, including John’s half share of that property, had been given as security. I will say more about that matter in due course.

10. Jodie has now distributed the estate to herself as sole beneficiary. It does not appear that before doing so she gave notice under s 93 of the Succession Act but, in the circumstances, I am not sure that anything turns on that. In submissions, Jodie asserted that the estate still had a liability to St George Bank in respect of the guarantee for the borrowing in respect of the Matraville property. The underlying borrowings for the acquisition of the Matraville property were at about $372,000 as at around April 2024. The evidence shows that the borrowings are currently at around $362,000.

11. Jodie has also given evidence that the estate has incurred expenses totalling about $26,000, quite apart from the costs associated with this litigation.

12. Scott now seeks an order under s 59 of the Succession Act for further provision from John’s estate. He submits that an appropriate sum for further provision would be $150,000. Because, as matters stand, the estate cannot meet that amount, much less meet any cost of these proceedings by reason of the fact that the assets have been distributed in accordance with the will, Scott also seeks notional estate orders in respect of (at least) John’s half share of the Malabar house which was transmitted to Jodie in accordance with the will.

Scott’s circumstances

13. It is necessary to say more about Scott’s circumstances in life and the reasons why he submits that it is appropriate for the Court to make an order for further provision in the sum of $150,000. As mentioned, John moved into the Randwick house when Scott was about nine years old. For the remainder of Scott’s childhood and during the whole of his adolescence, John lived at the Randwick house in a de facto relationship with Scott’s mother. He engaged in many of the usual kinds of activities that a father and son might engage in. He was involved in Scott’s life much as any father might be, save that he seems to have been a fairly aloof character.

14. He coached Scott’s football team for at least one year. The evidence was that Scott had actually played up an age level and also played at a different club for that season in order to play in a team coached by John. Scott has also described how they would attend family occasions together and go on holidays together. It seems that throughout the balance of Scott’s childhood and during Scott’s adolescence they enjoyed a good relationship. When Scott wanted to buy his first car when he was about 17 years old, John guaranteed the loan. Scott said, and I have no reason to doubt, that he regarded him as a father figure.

15. When Scott finished school, he left home but returned to live at the Randwick house from time to time. John was, of course, still living at the Randwick house with Maureen during those periods in which Scott returned to live at the property. He clearly got on well enough with John that even as adults they were content to live in the same house together.

16. It is not entirely clear to me when Scott and Renee met, but they seem to have been living together by about 1995. The evidence shows that at least for much of the period between about 1995 and 1997 they were living as a couple together at the Mears Avenue property in Randwick with Maureen and John. They were married in about 1997, and their first child was born that year. At that time, they were still living at the Randwick Property. However, 1997 was also the year in which Maureen and John decided to sell the Randwick property and move to Lake Cathie.

17. Scott is a tradesperson. I understand him to be a stonemason by trade, but he is generally very handy and performs other work also. Renee worked in project management at Dell for many years. They jointly own a house on the central coast of New South Wales that is unencumbered. Their children are all now adults, and they seem to be pursuing their own independent lives, although their children do seem to have the usual occasional need for funds from Scott and Renee. One of their children is currently living with them together with his partner. Renee has superannuation that has a current value of around $300,000. They own some other modest assets such as cars.

18. Renee has suffered several setbacks in recent years. She received a cancer diagnosis in late 2022, for which she underwent chemotherapy, but now is apparently in remission. In March of 2023, she was made redundant after many years of employment with Dell, and she received a payout of about $203,000. She also suffered wrist injuries during the course of her employment with Dell for which she has had surgery and for which she will need further surgery. She has also suffered in recent years from quite serious anxiety and depression for which she is receiving regular treatment.

19. Scott’s income in recent years has been limited. He has largely wound down his work as a tradesman and is generally only doing ad hoc jobs for friends. The evidence as to exactly why he has wound his work down to the extent that he has was a little unclear, and it is also not entirely clear to me when and in what circumstances he would propose to take up a heavier workload in the future. I accept that, for the most part, winding down his work has been as a result of the fact that Renee became so unwell.

20. Renee has not had employment income since being made redundant in 2023, but at least since August of 2024 she has been receiving an amount of just under $2,000 per week from a workers’ compensation insurer because of her ongoing wrist injury and the need for further surgery. Those workers’ compensation payments are likely to continue at least until she has had the further surgery she needs. Renee’s workers’ compensation payments seem to make up the bulk of Scott and Renee’s household income, at least at the moment. It provides plenty for them to live on because their expenditure is significantly less than what Renee is receiving. It follows that despite the fact that Scott has a low income and despite Renee’s health difficulties, Scott and Renee do seem comfortably able to make ends meet at the moment.

Repair work

21. The circumstance that more than any other appears to me to attract the potential application of Part 3 of the Succession Act concerns work which Scott did to repair the Lake Cathie home before and after the time of John’s death in March 2023. That work was necessary because in the long period in which he lived at the Lake Cathie house following Maureen’s death, John did not maintain the property to anything like a reasonable standard. By some point in 2023, the property was showing quite serious damage from trees that had grown too close to the roof and that had caused damage all the way through to the ceiling of the living areas. Most of the toilets were completely inoperable. The garden was seriously overgrown. A retaining wall had collapsed. New fencing was required around the whole of the property. Much more was required even to make the property habitable.

22. No doubt because he was the principal beneficiary of the proceeds of sale of the Lake Cathie property under the terms of Maureen’s will, Scott undertook the burden of undertaking the repair work. That was done both before and after John’s death. There was also evidence that Jodie’s husband, Mark, performed repair work on the property. I accept that evidence. But it does not take away from the fact that Scott did a serious amount of work on the property, as he describes in his evidence.

23. Scott’s evidence was that in total he spent over $100,000 in repairing the property and that he and Renee spent an entire three months living in Lake Cathie or nearby to allow him to work on the property to bring it up to a point where it was able to be sold. As I have mentioned, Scott is a tradesperson and was able to undertake much of that work himself.

24. I note, however, that in Renee’s evidence she annexes what she says is evidence relating to the payment of expenses in connection with the work done on the property. The documents annexed to her affidavit, at best, evidence expenditure of around $50,000 on materials and tradespersons in the period March to April of 2023. I also note from her evidence that a new hot water system seems to have been installed in early May.

25. The expenditure which Scott incurred and the work which he undertook to the property both before and after John’s death was of considerable benefit to John’s estate (and consequently to Jodie). That is because John, as I have mentioned, had always been required by the terms of Maureen’s will to maintain the property, at least to Renee’s satisfaction as executor. As I have described, he had failed to do so. By avoiding doing the work during his lifetime, John, and subsequently his estate, directly avoided the financial burden of complying with the terms of Maureen’s will.

26. The benefit to John’s estate was not only in the financial contribution which Scott made to repairing the property, but also the considerable amount of time that he contributed undertaking the work himself. If the work was never done, John and his executor, Jodie, would have been liable, in my view, to pay damages to Renee as trustee under Maureen’s will in respect of the wastage of the Lake Cathie property.

27. The evidence also shows that despite the terms of the will, Renee met the cost of insurance for the property for the whole of the period from 2004 until the property was sold after John’s death. This was, again, a cost which John avoided to his benefit and to the detriment of Scott and Renee.

28. In cross-examination, Scott accepted that the proceedings were brought largely as a result of the fact that Jodie, as executor of John’s estate, refused what he considered to be his reasonable request for reimbursement for his out-of-pocket expenditure in fixing up the house. I also consider those requests to have been reasonable. The estate and Jodie had the direct financial benefit of Scott’s contribution to the repair of the property. John and his estate were better off because, by repairing the property at no cost to either John or his estate, John and his estate avoided that cost. Scott, in turn, was worse off because of those same circumstances.

29. The question, however, is whether those circumstances, when combined with the other matters to which regard must be had in s 60(2) of the Succession Act, are a sufficient basis for the making of an order under s 59 in the terms sought by Scott.

Issues for determination

30. To that end, the plaintiff identified five questions for determination as follows:

1. What is the size of the estate or the notional estate?

2. Is Scott an eligible person?

3. Are there factors warranting the bringing of the application?

4. Should further provision be made and, if so, in what amount?

5. Should the Court make notional estate orders out of which any such provision should be paid?

31. I will deal with these issues in turn.

Size of the estate

32. As to the size of the estate, the only real question here is whether or not the existence of the guarantee should be treated as a liability of the estate for the purpose of working out the value of the estate. The property in question was an investment property in Matraville which was acquired by Jodie, her brother, Neale, her husband, Mark, and their son, Steven. As mentioned, they borrowed from St George Bank to acquire the property, supported by a guarantee given by John. John apparently granted a mortgage over his interest in the Malabar property to secure his obligations under the guarantee.

33. If the guaranteed amount is treated as a current liability of the estate, then together with the other costs incurred by the estate (apart from the costs of this litigation), the estate, at least prior to distribution, had a total value of about $1.4 million. If the amount is ignored, as the plaintiff submits it should be, then the value of the estate was just under $1.8 million.

34. Counsel for Scott submitted that it is not appropriate for John’s potential liability under the guarantee to be recognised as a liability of the estate. All of the evidence shows that John was not intended to be a borrower and that he was only willing to give a guarantee and grant a mortgage on the express basis that he would not have to pay anything. It was also pointed out that the mortgage document does not appear to have been executed by John, instead it appears to have been executed by Steven, Jodie’s son.

35. However that may be, it is quite clear that John did execute a guarantee and that the mortgage which he purportedly granted to secure his obligations as guarantor was registered. In those circumstances, it is appropriate to recognise the contingent liability of the estate to make good on the guarantee. As I understand the guarantee, it was as to the whole of the indebtedness. The guarantor’s obligation was not divisible. It appears to me to be a guarantee that would have survived John’s death. That is to say, had there been a default on the loan after John’s death, the bank would have been quite entitled to hold the estate to account on the guarantee.

36. It does not, however, follow from this that the estate only had a value of $1.4 million prior to distribution. The position is better expressed as follows, namely that after taking into account the expenditure of around $26,000 that was described in Jodie’s evidence and without regard to the costs of this litigation, the estate had assets with a total value of just under $1.8 million prior to distribution, but it also had a contingent liability as guarantor, which at the time of the deceased’s death was around $372,000, but which is currently around $362,000.

Eligible person

37. It is next necessary to consider whether Scott is an eligible person within the meaning of s 57 of the Succession Act. The defendant submitted that such evidence as exists as to this matter was extremely thin and was insufficient to satisfy the Court that Scott had at any time been even partly dependent on the deceased. However, as the defendant also accepted, the bar here is not terribly high. In Chisak v Presot [2022] NSWCA 100, White JA said at [57]:

“I respectfully doubt that it is legitimate to read into section 59(1)(e) a requirement that partial dependency be ‘significant’ rather than ‘more than minimal.’”

38. The question of whether or not someone was partially dependent within the meaning of s 57 is a question of fact. Here, I have little difficulty in concluding that Scott was at least partially dependent on John from time to time. During most of his childhood and the whole of his adolescence, Scott lived with John and Maureen in the Randwick property. John and Maureen were life partners. They lived together as husband and wife. Scott lived with them from the time he was a small boy until the time he left home. John may not have been a terribly effusive or generous contributor to the life of the family, but the evidence suggests he did participate in family routines. All three of them seem to have carried on their lives for many years as a family unit. John and Scott went fishing together. I have already described the evidence as to Scott playing in a football team that John was coaching. They attended family functions together, and they attended social functions together.

39. So far as financial dependency is concerned, I have also mentioned that John guaranteed a loan taken out by Scott for him to acquire his first car when he was 17 years old. The fact that he did so, in my view, strongly suggests that some kind of relationship of dependency, even if only partial dependency, was probably already in place at the time that he did so. There is no doubt that Scott was also part of the same household as John from the time he was nine years old until he left home. In my view, Scott is an eligible person within the meaning of s 57 of the Succession Act.

Factors warranting

40. The next matter concerns whether there are factors warranting the making of the application within the meaning of s 59(1)(b) of the Succession Act. In Re Fulop (1987) 8 NSWLR 679 at 681, McClellan J suggested that the factors to which this provision refers are those which, when added to the facts that make the applicant an eligible person to bring a claim, give him or her the status of someone who would naturally be regarded as an object of testamentary recognition by the deceased.

41. In my view, the particular factors which warrant the making of Scott’s application in the present case are not only the circumstances that I have described concerning the fact that he grew up as essentially the deceased’s stepson from the time he was nine years old, but also the circumstances surrounding the ownership of the Lake Cathie property and John’s failure to maintain it. Even if one leaves aside the fact that Scott ultimately did the work to bring that property up to a state of good repair, and even leaving aside the fact that much of that was done after the deceased died, the fact that John spent the final 19 years of his life living in a house which he was required to maintain but did not, and that he did so knowing that Scott had a real interest in the value of the house (effectively as remaindermen), is a matter that, in my view, brings these circumstances within s 59(1)(b).

42. John was an old man during almost the whole of the period in which he was living in that property. It seems to me that the obvious way in which John would make good the damage that the house was suffering, and for which he must have realised he was liable, was by making a testamentary disposition to Scott. In other words, it might be thought that an elderly man living in a house in those circumstances with knowledge of his obligation to look after it might well have thought that the way to put matters right would be to leave a sum of money to Scott in his will to account for the damage.

43. It follows that the particular relationship that existed between John and Scott in relation to the Lake Cathie property – on the one hand as life tenant with unmet obligations to repair the property and on the other as remainderman with a particular family connection – contributes to the existence of factors warranting the bringing of this application. In my view, there are factors warranting the bringing of the application.

Order for further provision

44. Next, and most significantly, it is necessary to determine whether an order for further provision should be made at all. As is so often the case, it is appropriate to refer to Meek J’s excellent summary of the principles applicable to the making of a family provision order in Tarbes v Taleb [2023] NSWSC 565 at [195]-[222]. I also particularly note what was said by Mason CJ and Deane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 209-210 about the two-stage process of addressing the statutory function of determining whether or not an order for further provision should be made.

45. The task here, as in all cases, requires a consideration of a whole range of matters, most particularly those that are identified in s 60(2) of the Succession Act. When regard is had to most of those circumstances in the present case, it is difficult to see why an order for further provision would be appropriate. Scott is an adult child of the deceased’s former de facto partner who died some 21 years ago now. He was not in any respect dependent on John for decades prior to his death, either in a financial sense or in any other sense. He owns his own home. His children are grown and independent. He is not terribly well off, but he is a skilled tradesperson. Renee has had a successful career and has some superannuation savings, although she has suffered the setbacks that I have mentioned. She is being well compensated in respect of them at the moment, although I accept that that may change.

46. Scott, in my view, had a good relationship with John, although it would be fair to say they were not terribly close. That is not a criticism of anybody. My impression is that John was not a very effusive character and liked to keep to himself in many ways. To his credit, Scott did not claim to be especially close to John. The way he saw it, John was not particularly close to anyone, and he was about as close to him as anyone else. John does seem to have been a fairly lone individual, without being a loner. He certainly was not a great talker.

47. The evidence also shows that their relationship became more remote after John’s own mother died in 2016. Although it seems that in the years following Maureen’s death, they had enjoyed a warmer relationship, in the years following John’s mother’s death, the reception that Scott and the family received on visits to Lake Cathie became much, much cooler. Nevertheless, they did continue to visit. The evidence shows that they did not visit more than about once a year during the final ten years or so of John’s life.

48. If these were the only matters, I would not consider it appropriate to make an order for further provision. However, the circumstances surrounding John’s occupation of the Lake Cathie property and failure to keep it in good condition, and Scott’s contribution to the repairs, are matters that, in my view, do weigh heavily in the balance.

49. Section 60(2)(h) of the Succession Act provides that the Court may take the following matter into account in determining whether or not to make an order under s 59:

Any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received by the applicant.

50. There are several things to note about paragraph (h). The first is that it recognises that a contribution of any kind whatsoever to the conservation of the estate of the deceased person is a matter that may be taken into account in determining whether to make a family provision order. Where an applicant does things that have the effect of conserving the deceased’s funds or the funds in his or her estate, it is appropriate for this to be taken into account where those things are done for no consideration or for inadequate consideration.

51. Secondly, paragraph (h) recognises that contributions of this kind are relevant even where they occur after death. In this respect, paragraph (h) is not centrally concerned with a matter that underlies many of the other circumstances described in s 60(2), namely those things that would bear on the deceased’s moral obligation to provide for the applicant. Many of the other circumstances described in s 60(2) are circumstances that would tend to render someone the natural object of the deceased’s testamentary obligation. Paragraph (h) on the other hand, in describing contributions to the conservation of the estate after death, contemplates something that could not bear on the deceased’s moral or testamentary obligations.

52. In other words, an applicant may in an appropriate case demonstrate an entitlement to further provision by reference to the circumstance in paragraph (h), having regard, at least partly, to things that he or she did for the benefit of the estate after death.

53. Thirdly, the presence of s 60(2)(h) exemplifies that it is a mistake to approach the task of determining whether a family provision order should be made based primarily on the existence of financial need. Section 60(2)(h) contemplates cases where far from being in a position of financial need, the applicant has in fact made a contribution to the deceased or to the estate. That, it seems to me, is precisely the point that was sought to be made by Brereton J in Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [124], where his Honour said:

“There is no reason why the reference to ‘financial needs’ in s 60(2)(d) should have primacy when viewed alongside the reference to ‘contribution’ in s 60(2)(h), let alone exclusively so.”

54. I also note what his Honour said about the significance of factors other than financial need in the succeeding paragraphs of his Honour’s reasons.

55. In Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2, Barwick CJ said that:

“In some cases a special claim may be found to exist because the applicant has contributed to building up the testator’s estate or has helped him in other ways.”

56. His Honour made that observation in the context of explaining why there were no rigid rules in determining whether or not it is appropriate to make an order for further provision for an adult son. His Honour’s reference to a ‘special claim’ was, I think, a way of describing a case such as the present in which the circumstance that the Act now recognises in s 60(2)(h) is seen to exist, but where absent those circumstances the claim might otherwise have failed.

57. In the present case, Scott undoubtedly made a fairly significant contribution to John and to his estate by bringing the Lake Cathie property into a state of good repair.

58. It was submitted for the defendant that that is a conclusion that involves an undue amount of speculation on the part of the Court as to how such a claim might ever have been brought against the estate. In my view, there is little difficulty in reasoning to the conclusion that the repair work that Scott did to the property benefited both John and his estate. It is clear from the evidence that the property had become quite badly damaged. It was, in some respects, squalid. John had an obligation to make good the repair. It also seems not to be in doubt that the bulk of the work that was done in order to bring the property up to a state of good repair was in fact done by Scott.

59. I also note that it was not suggested to Scott or Renee that they did not incur the expenditure which they described in their affidavits, although I do note the difference between what each of them says was actually spent. Scott’s evidence, about which he was not challenged, was that the expenditure was in excess of $100,000. Renee’s evidence was that she considered that she had receipts and other documents evidencing payments of almost $50,000. Although there was some cross-examination of Renee as to the wisdom of seeking to evidence the payment of money by the production of a receipt signed by the payer, it was never suggested to Renee that either she or Scott had not actually paid tradespeople for the work that was done. It was also not suggested either to Scott or to Renee that they did not relocate to Lake Cathie for a period of about three months, as they said they did, in order to complete the work, including by Scott.

60. The expenditure and work that was undertaken by Scott could probably have been the subject of some kind of restitutionary claim against John’s estate by Scott directly, but as I have already mentioned it is probable that John’s estate would have been liable in damages for permissive waste if a claim had been brought by Renee as trustee under Maureen’s will. It is also true that these are matters that could have been raised by Renee or anyone else with John during his lifetime.

61. I do not see any of the matters to which I have just referred as having any particular significance, in circumstances where s 60(2)(h) refers to contributions for which ‘adequate consideration was not received’. By describing contributions in that way, s 60(2)(h) seems to me to contemplate expenditure or contributions of a kind that might otherwise be the subject of claims, such as where contributions are made without adequate consideration.

62. Here, it is appropriate to view the expenditure incurred and work performed by Scott both before and after John’s death as a contribution to the conservation of John’s estate for which he received no consideration. I, therefore, consider that the circumstance described in paragraph (h) is present, and that it is appropriate for it to be taken into account.

63. As Brereton JA saw it appropriate to both repeat and emphasise in Steinmetz v Shannon at [132]:

“Ultimately, in the words of McClellan J in Re Fulop, the cases make clear that attention must be directed to ‘a standard appropriate to all the circumstances of the case’.”

64. In my view, when regard is had to that proposition and to the matters to which I have already referred concerning Scott’s contribution to the conservation of John’s estate, it is appropriate to make an order for further provision for Scott.

65. In determining an appropriate figure, it is relevant to take into account the extent of Scott’s financial and other contributions to the preservation of the Lake Cathie property. But even in a case such as this, which I considered to involve the kind of ‘special claim’ described by Barwick CJ, it is not appropriate to approach the determination of the amount of further provision as though it were an exercise in assessing damages or in ensuring the recoupment of lost expenditure. It remains appropriate, even in such a case, for the Court to consider all of the matters referred to in s 60(2) and any other relevant matters in determining an appropriate amount of provision.

66. Here, there are two particular circumstances that weigh in the balance. One is that there is no doubt of what John’s intentions were so far as his estate was concerned. His testamentary wishes were for the whole of his estate to be paid to Jodie. Even though Jodie has not put her financial circumstances in issue, it remains appropriate for me to take her position as sole beneficiary of the estate into account. I also note that although I have found him to be an eligible applicant, this is a case where there were not terribly close ties or familial bonds between the applicant and the deceased. They got on, and they were reasonably close, but that is about as much as can be said.

67. Secondly, it is also appropriate to recognise that any contribution that Scott made to John’s estate by doing the work that he did must also be seen as something that he did out of love and affection for John, at least to some extent. I am unable to regard the expenditure that he incurred and the work that he did as being solely attributable to his desire to maximise the value of the property, at least insofar as he did the work before John died. It would, in my view, be inappropriate to award further provision on the assumption that the amount of provision should be sufficient to make Scott whole for his entire contribution to the repair work on the property.

68. In my view, in all of the circumstances, it would be appropriate to award further provision to Scott in the sum of $75,000.

69. The defendant has submitted that the Court would make no order for further provision in circumstances where the evidence does not demonstrate financial need. I agree that the evidence does not demonstrate significant financial need, but as I have sought to explain, I do not consider this to be a case that really turns on the applicant’s financial need.

Notional estate orders

70. Because the estate is unable to meet the orders for further provision, the parties say that it will be necessary to make notional estate orders. The precise terms of those orders will need to be the subject of further submission from the parties once they have had an opportunity to consider these reasons. Nevertheless, there are several things that I can say about the form of the orders and the appropriateness of making notional estate orders at all.

71. Section 63 of the Act provides in subsection (5) that,

A family provision order may be made in relation to property that is not part of the estate of a deceased person, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3.3.

72. Part 3.3 of the Act is headed ‘Notional estate orders.’ Section 79, which is contained within Part 3.3, provides:

The Court may, on application by an applicant for a family provision order, or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that on, or as a result of, a distribution of the deceased person’s estate, property (whether or not the subject of the distribution) became held by a person (whether or not as trustee) or subject to a trust.

73. In the present case, the assets of John’s estate have been distributed in accordance with his will, and the estate otherwise holds no property that is available to satisfy an order for further provision in the amount that I have held is appropriate. This, in my view, is a circumstance that brings the matter within s 79 of the Act.

74. Division 3 of Part 3.3 is headed ‘restrictions on protections relating to notional estate orders.’ Section 87 provides that:

The Court must not make a notional estate order unless it has considered the following--

a) the importance of not interfering within reasonable expectations in relation to property,

b) the substantial justice and merits involved in making or refusing to make the order,

c) any other matters it considers relevant in the circumstances.

75. The defendant has not submitted that there are any particular matters that would stand in the way of the Court making a notional estate order. Be that as it may, it is appropriate to recognise the significance of the command in s 87 that the Court must not make a notional estate order unless it has considered the matters that I have just mentioned. So far as concerns paragraph (a), I take seriously the circumstance that Jodie is the sole beneficiary under John’s will and that a notional estate order of the sort that is proposed by the plaintiff is one that would interfere with what might be seen as her reasonable expectations in relation to John’s half share of the Malabar property.

76. Nonetheless, in circumstances where she is the sole beneficiary of an estate which I have found was improved by the value of the work that was contributed by Scott and where Scott’s claims in that regard were clearly communicated to Jodie as trustee of John’s estate prior to the commencement of the litigation, and indeed prior to the distribution of any assets, I do not consider that the matter described in s 87(a) would stand in the way of making a notional estate order in relation to John’s half share of the Malabar property.

75. Next, I consider that there is substantial justice and merit involved in making a notional estate order here. It is no criticism of Jodie that the estate has been distributed. Nonetheless, that is the circumstance with which Scott is faced. In my view, it is appropriate for a notional estate order to be made having regard to the justice and merits involved in making such an order.

76. As I have mentioned, there was no suggestion that there were other matters that were relevant to take into account as contemplated by s 87(c).

77. Next, s 88 provides that the Court must not make a notional estate order unless it is satisfied that, relevantly:

(b) the deceased person’s estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made...

80. I am satisfied of that matter here. There is no doubt that the estate is insufficient for the making of the family provision order that I propose to make.

81. Next, s 89 provides that in determining what property should be designated as notional estate of a deceased person, that the Court must have regard to various matters. They relevantly include,

(a) the value and nature of any property--

…

(ii) the subject of a distribution from the estate of the deceased person or from the estate of a deceased transferee...

82. Here, the plaintiff has identified John’s half share of the Malabar property as being property that is appropriate to designate.

83. The evidence as to the value of that property and hence a half share of that property, coupled with the fact that the property is unencumbered save for the mortgage securing the indebtedness associated with the acquisition of the Matraville property, means that the half share of the Malabar property is an appropriate item of property in respect of which a notional estate order should be made. I also note that that property has only increased in value since the date of John’s death.

84. It is next necessary to consider under s 89(1)(d) of the Succession Act whether or not property of the same nature as the property that I have just described:

…could have been used to obtain income in the time since the relevant property transaction was entered into, the distribution was made, the property became held by the legal representative of the estate of the deceased transferee or the consideration was given.

85. In my view, this question does not affect my conclusion that John’s half share of the Malabar property is appropriate to be designated as notional estate.

86. Section 89(2) provides that:

The Court must not designate as notional estate property that exceeds that necessary, in the Court’s opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under section 99, to allow costs to be paid as ordered, or both.

87. That is a circumstance that can be accommodated by the way in which the notional estate order is drafted. It would be appropriate for the orders to identify as notional estate so much of the half share of the Malabar property held by Jodie in her personal capacity as is necessary to satisfy the order for further provision as well as costs (if it becomes appropriate for there to be an order in relation to costs).

ORDERS

88. It follows from what I have said that it will be appropriate to direct the parties to bring in short minutes of order to give effect to my reasons. I will therefore make a direction that the parties do so by the close of business on 5 June 2025.

89. I will also make an order that the parties are to provide:

1. any evidence and short submissions on the question of costs by close of business on 5 June 2025; and

2. any evidence and short submissions on costs in reply by close of business on 12 June 2025.

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Decision last updated: 04 June 2025