| 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…
Continue reading Sanderson v Bradley
Sign in free to access the full text
- AGLC
- Sanderson v Bradley [2004] VSC 231
- Case
- [2004] VSC 231
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.