Slade v Slade

[2002] NSWSC 501

CITATION:	Slade v Slade [2002] NSWSC 501
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 93 of 2001
HEARING DATE(S):	31/05/2002
JUDGMENT DATE:	3 June 2002
PARTIES :	Kevin Leslie Slade v Sharyn Margaret Slade (Estate of Margaret Patricia Slade)
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr J. Wilson for plaintiff Mr M. Willmott for defendant
SOLICITORS:	Attwaters for plaintiff Eric Butler for defendant
CATCHWORDS:	Family Provision. Claim by son under the Family Provision Act. Son's share in estate increased. No matter of principle.
DECISION:	Paragraph 20

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

MONDAY 3 JUNE 2002

001717/02 - KEVIN LESLIE SLADE - BY HIS TUTOR CHRISTINE FAYE O'CONNOR v SHARYN MARGARET SLADE

JUDGMENT

1 MASTER: This is an application under the Family Provision Act 1982 in respect of the estate of the late Margaret Patricia Slade who died on 20 January 2000. The plaintiff and the defendant are her two adopted children. Her husband predeceased her having died in 1989.

2 The deceased made her last will on 7 May 1997 under which she gave one-third of the estate to the plaintiff and two-thirds to the defendant. On 3 December 1999, she wrote a letter of instruction to her solicitors to change the will to provide that each would get half. The letter was not sent and there has been a declaration by the court that the letter did not constitute a will.

3 The assets remaining in the estate are the deceased's home which has a present value of $225,000 and cash of $399,702. This is a total of $624,702. Costs have been incurred by the defendant amounting to $35,000 and the plaintiffs $21,000, a total of $56,000. The distributable estate is thus likely to be $568,702 less the costs of the sale of the house.

4 I will deal briefly with some of the history. The plaintiff was born on 23 March 1965 and the defendant on 27 June 1968. The plaintiff left school in 1981 having completed the school certificate. In 1982, he was an apprentice working in stables when he suffered an injury while exercising a horse in the surf. He was kicked in the head and suffered complications from this for the rest of his life. The following year the defendant completed the school certificate and left school. In 1983, the plaintiff once he got over his accident although not completely, started work with the RAAF on an unpaid basis but eventually was fully employed as a gardener. 1983, the defendant moved to Townsville.

5 In 1989, the parties' adopted father died and in that year the plaintiff left home and commenced a relationship with Angela Burns. She apparently was a drug addict and this relationship was not of great benefit to the plaintiff. He then started to have difficulties with drugs for some years. In that year the defendant and her then partner, Karl Finch, came to live with the deceased and in December her son Owen was born. The following year, the defendant and her partner separated. In May of 1990, the deceased purchase a car for the defendant who also paid off the plaintiff's boat loan. In 1992, the defendant met her future husband Peter Hopkins and they transferred to Brisbane and ultimately came to Singleton. He was a noncommissioned officer in the regular army.

6 In 1996, the plaintiff's employment with the RAAF as a gardener finished because contractors took over all that work. He received $40,000 of which his mother thoughtfully put aside $10,000. The rest he spent on drugs. Meanwhile in June of that year, the defendant's daughter Claudia was born. She married her husband Peter Hopkins. They transferred to Townsville the following year and their son Liam was born in August 1997. The plaintiff's relationship with his former girlfriend finished, and he had over the years attended a number of rehabilitation programs, most of these were unsuccessful. In 1999 he went into a 12-month course and ultimately managed to overcome his drug habit. In 1999 he returned and lived with the deceased for a year, it was clear that she appreciated the help that he gave.

7 In December of that year, the deceased wrote the letter to which I have referred and she died on 10 January 2000. Shortly thereafter the defendant and her husband were transferred to Perth. Probate was granted and these proceedings commenced within time.

8 In applications under the Family Provision Act the High Court has recently in Singer v Berghouse (1994) 181 CLR 201 set out the two stage approach that a Court must take. At page 209 it said the following:-

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

9 I turn to consider the plaintiff's situation. He is 37, single and has no dependents. He currently has no relationship, although he still hopes that one day he might “meet the right girl” to use his words. He has a boat worth $2,000 and he is presently driving the estate car which he has agreed to buy from the estate for $3,000. He has small personal possessions and cash of $8,100. He has superannuation of $57,000 which, of course, he cannot access for many years. He also has a present interest in the estate.

10 It is necessary to give further consideration to the plaintiff's present position. I have already touched on his accident when he was riding in 1982 and mentioned his employment as a gardener with the RAAF. It was after his father died in February 1989 that he moved out of home and had the relationship to which I have referred. The plaintiff is fortunate in that he is now able to stay off drugs. He still continues to attend Alcoholics Anonymous meetings. As he gets a substantial amount of help from them, he goes to four meetings each week. He has been living in the estate property since the death of his mother. His relationship with the deceased, of course, was obviously not good at times during her lifetime but was good for the last year before she died. The deceased expressed her appreciation for the help that he had been in that year and obviously contemplated changing her will.

11 It is necessary to consider the situation of others who have a claim upon the bounty of the deceased. That in this case is the defendant. She is married, 33 years of age and has three dependent children aged between 5 and 12. Her husband was a drill sergeant in the army aged 36. She works for Sportsgirl on a casual basis. Their combined income at the moment is $39,859.22. They have modest assets, a car worth $21,000, $15,256 in the bank, shares worth $1,892 and personal possessions. They have debts of $6,363.

12 The defendant's husband only has five years left to serve in the army. Normally he will have to retire at 41. He cannot access his superannuation which would not be large until he reaches the age of 60. They live in rented accommodation with the army. It is perfectly obvious that they will have to make a new start in life in about five years time. The defendant's husband finished year 10 at school but has no qualifications and the defendant herself wants to start a career in nursing.

13 They have two children who have problems. The oldest Owen is diagnosed with ADD and is under the care of specialists. He has difficulties with behaviour at school and because of this the defendant wishes to send him to a school where army personnel have priority. The costs of that schooling at St John's school is about $8,741. At the present stage she cannot afford it. Her daughter Claudia has suffered from chronic eczema but that is able to be treated and apparently Claudia is a little bit uncooperative at school.

14 The defendant, herself, suffers from depression. However, that is able to be controlled by medication. Now that her husband has been posted back from overseas to Australia she will have assistance in bringing up her children.

15 The defendant had a good relationship with the deceased and it is clear that the deceased wanted to benefit her. Neither she nor her brother have contributed to the estate of the deceased.

16 It is necessary to see how the plaintiff says that he has been left without adequate and proper provision for his maintenance, education and advancement in life. The plaintiff does not want to live in the house in which he finds too big and difficult to maintain. He wants to have it sold and to buy a house himself. There is evidence that the cost of a two-bedroom house in the area in which he lives is between $130,000 and $140,000 and a three-bedroom house between $160,000 and $170,000. The plaintiff expresses a preference for a three-bedroom house. First, because he believes that it is better value than a two bedroom and, second, because he hopes at some stage to meet the right person and to have a family. Whether this will happen is a matter of conjecture.

17 He also suggests that he needs some funds because of his difficult work situation. At the moment he is on a pension as a result of the damage which he has suffered. He is 37 years old and has not worked since 1996. He has minimum skills and given his history the chance of him obtaining employment could only be classified as not good.

18 Both children, of course, have needs. The plaintiff's situation is very indeterminate given his inability to work and the defendant has a young family and will have to reestablish herself in five years time. Given the promises that were made by the deceased when she wrote the letter suggesting that her the estate should be left equally between the children, it is probably reasonable for the plaintiff to have brought this application and thus, even if he were to fail, I would have thought his costs could have come out of the estate.

19 At present, he is entitled after costs to a third of the estate which is $189,567 and his sister, the other two-thirds. It is important to realise in considering what their needs are that there are, in fact, only these two beneficiaries. Both are her children, and both should share in the estate. I think it is probably appropriate that there should be some slight adjustment to give more funds to the plaintiff so that he has something behind him because of his difficulties. On the basis that he receives three eighths of the estate he would receive $213,263 and his sister $355,438. This will provide an appropriate amount for the plaintiff.

20 Accordingly, the orders that I make are:

(1) that in lieu of the provisions in clause 3 of the will of the deceased as to the shares thereof that pass to the deceased’s children the estate be held as to five-eighths for the defendant Sharyn Margaret Slade-Hopkins and three-eighths for the plaintiff Kevin Lesley Slade;

(2) that the plaintiff's costs on a party and party basis and the defendant’s costs on an indemnity basis be paid out of the estate of the deceased;

(3) Exhibits can be returned.

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Last Modified: 06/11/2002