Traviss v Eldridge

[1999] NSWSC 1215

CITATION:	Traviss v Eldridge [1999] NSWSC 1215
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	2469/99
HEARING DATE(S):	12/11/99
JUDGMENT DATE:	12 November 1999
PARTIES :	Kristine Anne Traviss & Anor v Henry William Eldridge
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr A. Enright for the plaintiff
SOLICITORS:	Harris Hyde Page
CATCHWORDS:	Family Provision. Application by children under Family Provision Act. Orders made in their favour. No matter of principle.
DECISION:	Para 16

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

FRIDAY 12 NOVEMBER 1999

2464/99 KRISTINE ANNE TRAVISS & ANOR v. HENRY WILLIAM ELDRIDGE

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Sharon Lynette Davis who died on the 15th January 1999. The plaintiffs are the children of the deceased and the defendant is the widower of the deceased.
2   The deceased died intestate and accordingly under section 61 of the Wills Probate and Administration Act the whole of the estate passes to him on intestacy. He has not taken out a grant and the plaintiffs have taken out a grant pursuant to section 41A of the Wills Probate and Administration Act for the purpose of bringing these proceedings.
3   The estate of the deceased comprises, firstly, some superannuation which was shared between the two plaintiffs of $90,900, an amount in the St George Bank account of $25,000, a tax refund of $1,000 and investments of $104,537.62. There are administration expenses and other debts totalling $4,147.70.
4   The deceased was married three times, first to the father of the second plaintiff, secondly, to the father of the first plaintiff and, thirdly, to the defendant. There was in fact a will which was made on 13 October 1998 which was before the marriage of the plaintiff to the defendant. Under that will she left her estate between her two children equally.
5   Notice of the proceedings has been given to the defendant and he has been served with relevant documents. He has taken no step in the proceedings and has not filed an appearance. There is evidence that indicates that he has told the process server that he does not wish to make a claim and accordingly the Court, given the service of the appropriate notice can disregard his claim. I will however consider the evidence before me in respect of that defendant.
6   It is necessary to consider the circumstances of the plaintiffs. The plaintiff Kristine Traviss was born on 30 September 1993. She had been living with her mother until the age of 13 when apparently her mother left the home. There was then some difficulty in the relationship between the plaintiff and the deceased, but that seems to have been resolved a year or two before the death of the deceased.
7   The plaintiff works as a purchasing manager with TST Australia, North Sydney. She has a salary in the new position of purchasing and logistics manager of some $45,000. She lives in rented accommodation and apparently has a car for which she paid $23,000. She owes $12,000 on that car and apart from that has assets in furniture, white goods and television set.
8   It is necessary to consider how the plaintiff Kristine is then left without adequate and proper provision for her maintenance, education and advancement in life. Clearly she has some debts which she wishes to clear and the sum of $12,000 plus which she wishes to obtain to put a deposit on a house. It is not an unusual request on behalf of a child who is now making her way in life.
9   So far as the plaintiff Warren Anthony Traviss is concerned, he was born on the 9th April 1968. He had a difficult time with his step father, but clearly during the deceased's life he had contact with the deceased and had a reasonable relationship with her.
10   This plaintiff has had difficulties with his health and has had to have his large bowel removed. As a result of that he has had a difficult time. He cannot work and his future prospects are somewhat bleak.
11   As to his assets, he drives a truck worth about $12,000 which has some $4,500 outstanding on it. He has some furniture and electrical appliances. He resides in rented accommodation. He obviously also has a need in respect of discharging his debts and improving his situation in life. He apparently has had a difficult time as a result of his inability to work.
12   It is clear that the plaintiff does have problems with his health and being out of work, funds to support him during this period would be appropriate.
13   The other person who has to be considered is the third husband, Henry William Eldridge. He was married to the deceased in May 1991. The marriage apparently lasted only two years with the deceased leaving in 1993. There is evidence before me that she contributed some $40,000 by paying it to the defendant in order to try and save his house from being repossessed by the National Bank. That money has not come back to her.
14   In the circumstances, particularly given the fact that he has not put his financial situation to the Court, one can consider any claim of his as being minimal in the circumstances. I am satisfied it is appropriate that there be orders in favour of the plaintiff for provision and the payment of their costs out of the estate on an indemnity basis.
15   Given the extent of the evidence, it seems to me appropriate in these circumstances that each should take one half of the estate.
16   Accordingly, I make Orders in accordance with the Short Minutes of Order which I will sign, date today and place with the papers.

Last Modified: 12/13/1999