Published 12 Nov 2014
Author: Richele Nelsen
The case McFarlane v Mador (2013) NSWSC 399 ( 19 April 2013) was heard in the Supreme Court of NSW before Windeyer AJ, whereby the court ordered a de facto husband to receive the family home.
The Plaintiff in this matter was applying for provision out of the estate of his late de facto wife, Lena Elizabeth Kovic, with whom he had had two children, aged 8 and 13. Ms Kovic’s estate had a net value of $930,970. Ms Kovic passed away in 2011 after having been diagnosed with cancer. Ms Kovic had left a will dated 25 June 2008, in which she left her estate to her children, and appointed the Plaintiff as the sole guardian of the children.
Ms Kovic had also signed a note in which she stated that the Plaintiff “does not work, and makes no attempt to look for employment and earn an income”. The Plaintiff accepted that he might not have worked as hard as he could have, but maintained that this did not warrant Ms Kovic’s decision not to leave him a legacy under her will. The court also took into account the potential concerns of Ms Kovic as a young mother, faced with the possibility of the Plaintiff finding another partner after her death. However, based on the evidence the court found that the Plaintiff was looking after their children and felt he would continue to do so.
It was agreed between the parties that adequate provision had not been made for the Plaintiff out of Ms Kovic’s estate. The question for the court to determine was what would constitute adequate provision in this matter. In coming to its decision the court took into account the relationship between the Plaintiff and Ms Kovic, and the Plaintiff’s current circumstances.
The Plaintiff and Ms Kovic had been in a de facto relationship for 15 years. Their family home was a flat in Cronulla which had been given to Ms Kovic by her parents. The Plaintiff had worked in labouring jobs but stopped working in 2009 after Ms Kovic was diagnosed with cancer. From 2009 onwards the Plaintiff looked after Ms Kovic and received a carers allowance.
At the time of the hearing the Plaintiff was 42 years old, with very few assets and was reliant on welfare payments for his income. The Plaintiff also had care of his two children. The court took into account that as the children’s guardian, the Plaintiff would receive payments from the trustees of Ms Kovic’s estate for the benefit of the children. Furthermore, the court found that there was no reason why the Plaintiff could not gain employment.
The court accepted that the Plaintiff would continue to live in the Cronulla unit with his children. However, after considering the Plaintiff’s age and the length of his relationship with Ms Kovic, the court concluded that a life estate in the Cronulla unit would not be suitable in this case. The court ordered that the Plaintiff was to get the Cronulla unit, but there should be no additional provision beyond the unit as he had the capacity to work and earn an income.