Supreme Court New South Wales Medium Neutral Citation: McFarlane v Mador [2013] NSWSC 399 Hearing dates: 19 April 2013 Decision date: 19 April 2013 Jurisdiction: Equity Division Before: Windeyer AJ Decision: Refer to paras [20] and [21] of judgment. Catchwords: SUCCESSION - family provision and maintenance - adequate provision for de facto partner - whether claimant should be given land absolutely or only life estate - relevance of age of claimant - relevance of length of relationship and whether claimant will provide for children Category: Principal judgment Parties: Scott Andrew McFarlane (Plaintiff) Ana Mador (1st Defendant) Steve Mador (2nd Defendant) Representation: Counsel: D Liebhold (Plaintiff) M Meek SC (Defendants) Solicitors: Maurice Blackburn (Plaintiff) Carroll & O'Dea (Defendants) File Number(s): 2012/72586 Judgment 1HIS HONOUR: The plaintiff seeks an order for provision out of the estate of his late de facto wife, Lena Elizabeth Kovic, who died on 11 March 2011 aged 44 years. She left a will dated 25 June 2008, probate of which was granted to the defendants who are cousins of the deceased, on 7 November 2011. Under that will Ms Kovic appointed her de facto husband, the Plaintiff here, as sole guardian of their infant children, Haley and Kane. Haley is now aged 13, and Kane is now aged eight. She gave the whole of her estate to her trustees after payment of her debts to hold the proceeds upon trust to invest the same until each child became 18, and during that time to apply the whole of the income from the investments to the education, maintenance, advancement and benefit of the child or children. Upon each child attaining the age of 18 years, then the one-half share of that child was to be paid to that child absolutely. 2The will also provided that while the children remained under the age of 18 years, that the moneys payable for their education, maintenance and benefit would be paid to the guardian, namely the father, and Plaintiff here. The will in addition authorised the trustees to use any part of the capital for the same purposes if the income was insufficient. That was an authority; it was not a direction. 3On the same day that she made her will the deceased signed a note which I assume was prepared by the solicitors, but it does not matter, explaining why she did not make any provision for the plaintiff other than appointing him as guardian. The reason she gave was that, "My de facto husband does not work, and makes no attempt to look for employment and earn an income". 4The assets in the estate as disclosed for probate comprised property Unit 14, 8-12 Parry Avenue, Narwee, with an estimated value of $270,000; property Unit 2, 63-65 The Kingsway, Cronulla with an estimated value of $470,000; some furniture of no particular value; moneys in a bank account of $7,890; and superannuation moneys of $217,348. There were said to be funeral expense of $20,000, and debts due to the parents of the deceased secured by unregistered mortgages on the two strata title properties of $50,000 and $90,000. It is accepted that those debts are statute barred. The proceedings have been run on the basis that those debts are unrecoverable. The parents of the deceased were given notice that that was to be done, and, as I understand it, it is accepted that that is the position. 5The present assets in the estate now that the superannuation moneys have been collected are agreed to be as follows: The Narwee unit, $295,000; the Cronulla unit $532,500; moneys in a Westpac interest bearing account $202,626; moneys in a Westpac Choice account $8,715. The total is approximately $1,038,840. The liabilities in the estate are said to comprise the plaintiff's legal costs of $37,870, the defendants' legal costs of $55,000, and provision for executor's commission and administration of $15,000, making a total amount for liabilities of $107,870. 6I cannot avoid saying that this is a relatively simple case where there is a small amount of evidence, and it is difficult to see how those amounts, particularly the defendants' costs, can be justified. However, I say nothing more about that. 7The plaintiff and Ms Kovic entered into a de facto relationship in 1996. In other words, it was a relationship which lasted for 15 years. During that time the parties lived in the Cronulla unit. Both the Cronulla unit and the Narwee unit were given to the deceased by her parents. The Plaintiff did make some contributions by way of improvements to the Cronulla unit, but the important point to remember here is that the Cronulla unit was in essence the family home of the couple. 8In 2009 the deceased was diagnosed with cancer. The plaintiff stopped work and he obtained a carer's allowance. The evidence is that he still has a carer's allowance. He is 42 years of age. He has worked in labouring-type jobs, or as a carpet layer, but stopped work in 2009 as I said, to look after the deceased. 9The plaintiff is 42 years old. He has nothing in the way of assets other than a 1996 motor vehicle said to be worth about $2,000, and a bank account with little else. He receives a sole parent's benefit of $1,000 per fortnight. His estimated fortnightly expenditure, which includes levies on the Cronulla property, are said to balance that amount of $1,000. There is no real dispute about that, but the expenditure includes expenses for the children. 10The plaintiff says that the Cronulla unit needs some work done on it. Some of this he could do, but at the present moment he cannot afford to pay for materials such as paint. While I accept that the Cronulla unit would be improved if this work were done, particularly the bathroom renovation work, it does not seem to me that it is necessary or right to make any proper provision for that. That is work which the plaintiff can do, or can arrange to have done if and when he goes back to more remunerative work. I do appreciate that he is presently getting $500 per week as a sole parent's allowance, but that cannot go forever, and I see no reason to think that he is not capable of earning more than that. 11So far as the children are concerned, Haley now attends the Cronulla High School, and Kane the Woolooware Primary School. Both of them seem to be doing reasonably well. It is perfectly clear that the plaintiff is fond of his children and intends to look after them, and wishes to do the best that he can for them. 12One of the things which must be borne in mind in this matter is that although he has not received any money at this stage, and that can probably be understood while these proceedings are on foot, the executors are required to pay the income from the estate to the plaintiff as guardian of the children. He is entitled to use that income for the maintenance, education and advancement of those children. There is no reason to think that he will not do so when payments to him commence. While the amount of the income cannot really be determined at this stage, one would assume that at least the Narwee property would be returning something in the order of a return of four per cent. 13It is accepted that the plaintiff has been left without adequate provision for his proper maintenance and advancement. Counsel for the defendant does not dispute that. The only question for the Court to determine is what is the adequate provision. It has been put by counsel for the plaintiff that his client is in much the same position as a widow, entitled to security in the property, some fund for maintenance, and some income for maintenance and some capital fund. That is not necessarily an appropriate analogy. In any event, the position must be looked at in the light of the facts. 14The plaintiff is 42 years of age. He appears able to work. The Court must work on the basis that he will go out to work. He accepted that there was some basis for the deceased's view that he was not working, at least not as hard as he could. In other words, that there was some basis for the note which she left, but not really a basis which would justify her doing what she did. That is as I understand it how the evidence was left, and that at least appears to be right, although not from the time when the deceased was diagnosed with cancer. 15Because the plaintiff is able to work, and I take the view that he should work, while the order he seeks is that he gets the whole of the estate apart from the Narwee unit, this is not necessarily a provision which ought to be made. 16The first question to decide is whether or not the Cronulla unit should go to the plaintiff absolutely. It is accepted that the family will continue to live there. They lived there during the whole time the plaintiff was in a de facto relationship with Ms Kovic. I accept that that is where he will continue to live with the children. Counsel for the defendants argued that the proper provision might be made by giving to the plaintiff a life estate in the Cronulla unit. That might have been the position years ago, but in a case where the plaintiff, who has had a 15-year relationship with the deceased, living with her as his wife, and is only 42 years of age, the courts now tend to take the view that a life estate is not appropriate. That is the view which I have come to in this case, and I consider that the proper provision requires that the Cronulla unit be transferred to the plaintiff. 17I do not think that this is a case where any further provision ought to be made. The plaintiff is able to work; he is able to look after himself; he will have moneys coming in from the estate for the benefit of his children; and he should be able to look after his debts and any other outgoings with that. 18So far as the Cronulla unit is concerned, it appears that the outgoings have been paid, or at least some of them have been paid by the executors, and some of them may have been paid by the plaintiff. Those payments should stand. There is some evidence that there may be a debt or strata title levies of $700 at the present time. That debt should be paid from the estate. 19There is nothing to suggest that there was not a close and loving relationship between the plaintiff and the deceased, albeit that they were not married. They had lived together for 15 years, and it seems to have been at least a reasonable relationship. No doubt there was some reason for the deceased making the will she did and leaving the note which she did, and no doubt mothers who are reasonably young, concerned about the future, worry about what will happen to the children if their partner remarries. While that is I think a justified concern, it has to be balanced out against the length of the relationship. The fact that there is no doubt in this case that the plaintiff feels responsible for his children, and nothing to suggest that he will not do what he can for their best interests. It is his responsibility to do so. Notwithstanding the orders made each child should receive a reasonable sum on attaining 18. Interests must be considered and balanced which I have endeavoured to do in the orders I will now make. 20The orders, therefore, are that provision be made for the plaintiff out of the estate of Lena Elizabeth Kovic, deceased, as follows: 1.That property Unit 2/63-65 The Kingsway, Cronulla be transferred to him absolutely; and that he receive all the contents of the deceased in the unit. 2.That outgoings on that property up to this date be paid out of the estate other than any payments which the plaintiff himself has made up to this date. 21The costs of the plaintiff and defendants be paid out of the estate of the deceased, those of the defendants on the indemnity basis. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2013