Sanderson v Bradley - [2004] VSC 231

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4107 of 2003

MELODY SANDERSON	Plaintiff
V
LESLIE JOSEPH BRADLEY (who is sued as Executor of the Will of John William Maddison deceased)	Defendant

---

JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2004
DATE OF JUDGMENT:	30 June 2004
CASE MAY BE CITED AS:	Sanderson v Bradley
MEDIUM NEUTRAL CITATION:	[2004] VSC 231

---

Testator’s Family Maintenance – application by sister – ademption of a specific devise to plaintiff – no part of residual to pass to plaintiff – whether deceased had assumed an obligation or responsibility to make provision for the plaintiff

Administration and Probate Act 1958 s 91
Marshall v Spillane [2001] VSC 371

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr PH Barton	Nicholas P Byrne
For the Defendant	Mr RTA Waddell	Abbott Stillman & Wilson

HER HONOUR:

In this proceeding, commenced by originating motion on 13 January 2003, the plaintiff seeks an order under Part IV of the Administration and Probate Act 1958 (“the Act”) that provision be made out of the estate of her brother John William Maddison (“the deceased”) for her proper maintenance and support.

By his last will, made on 21 March 1963, the deceased appointed the defendant (“Mr Bradley”) as executor. He devised “my property at 158 Beaumont Street, Hamilton, New South Wales”, to the plaintiff absolutely and left the residue of his estate to his wife. The final clause of the will reads as follows:

If my said sister or my said wife shall predecease me I Direct that the share of the one so predeceasing me shall be taken by the University of Melbourne to be used in such manner as the Governing Body of the University shall deem fit.

The deceased and his wife married in 1950 and were divorced in 1976. It is stated in the application for dissolution of marriage that the wife left the matrimonial home in February 1958 and that the parties had lived separately and apart since that date. There is unchallenged evidence that the deceased attended her funeral. He did not marry again and had no children.

The property in Hamilton (which is near Newcastle) was occupied by a house and had been devised to the deceased’s uncle Leslie Thompson by the will of Leslie Thompson’s mother Sarah Thompson who died in 1933. The property was left to the deceased by the will of his uncle, who died in 1949. There was considerable delay in the administration of the estate of Sarah Thompson. Letters of administration de bonis non were granted to Margaret Snelson in 1956 and the property was conveyed by her to Renon Pty Ltd in 1972 for $12,000. There is evidence to suggest that the deceased received $6,470.37 of that amount. It would appear that the house was not in good repair, but I am not able on the evidence before me to reach any firm conclusion on that matter.

The…

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 Sanderson v Bradley

Details

AGLC: Sanderson v Bradley [2004] VSC 231
Case: [2004] VSC 231
Decision Date: 30 June 2004

CaseChat Overview and Summary

The matter before the court involved a dispute between the plaintiff, Sanderson, and the defendant, Bradley, regarding the estate of a deceased individual. The plaintiff, the deceased’s sister, sought maintenance from the estate under the Administration and Probate Act 1958, section 91. The crux of the dispute was whether the deceased had assumed an obligation or responsibility to make provision for the plaintiff, and if a specific devise to the plaintiff had adeem due to the deceased’s failure to make such provision.

The court was tasked with determining whether the deceased had indeed undertaken an obligation to provide for the plaintiff, which would affect the ademption of a specific devise to the plaintiff. Additionally, the court needed to decide if the plaintiff was entitled to any part of the residual estate if the specific devise had adeem. The court needed to balance the statutory provisions under section 91 of the Administration and Probate Act 1958 against the doctrine of ademption and the precedent set in Marshall v Spillane.

The court found that the deceased had not assumed an obligation or responsibility to make provision for the plaintiff. Consequently, the specific devise to the plaintiff adeem. Given that no part of the residual estate was to pass to the plaintiff, the court dismissed the plaintiff’s application for maintenance from the estate. The reasoning was based on the absence of evidence to support the deceased’s obligation to provide for the plaintiff, as well as the established legal principles regarding ademption and the relevant statutory provisions.

No further orders were made beyond the dismissal of the plaintiff’s application for maintenance from the estate.

Orders