McLean v Cree [2025] NSWSC 577 | Case summary | Zoe

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McLean v Cree [2025] NSWSC 577 | Case summary | Zoe

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.
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:
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;
unclaimed superannuation with a value of $106,477.82; and
a balance standing to his credit in an account with the Illawarra Credit Union in the sum of $239,741.65.
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.
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.
Jodie has also given evidence that the estate has incurred expenses totalling about $26,000, quite apart from the costs associated with this litigation.
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.

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.
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.
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.
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.
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.
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.
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.
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.

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.
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.
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.
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.
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.
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.
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.
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.
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.

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.
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.
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.
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.
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.

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.
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).
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.
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.

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.
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.
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.
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.
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.
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:

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.
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.
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.
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:

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

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