Richardson v Richardson [1999] NSWSC 1220

New South Wales Supreme Court CITATION : Richardson v Richardson [1999] NSWSC 1220 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2765/98 HEARING DATE(S) : 08/12/99 JUDGMENT DATE : 8 December 1999

PARTIES : John Ellis Richardson v Therese Ann Richardson JUDGMENT OF : Master Macready at 1

COUNSEL : Mr M. Willmott for plaintiff Mr P. Sharpe for defendant SOLICITORS : Needs Chan & Monahan for plaintiff R.A. Davies for defendant CATCHWORDS : Family Provision. Application by son. Order made. No matter of principle. DECISION : Paragraphs 43-48

- 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

WEDNESDAY 8 DECEMBER 1999

2765/98 - JOHN ELLIS RICHARDSON v THERESE ANN RICHARDSON - ESTATE OF HARRY RICHARDSON

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Harry Richardson who died on 11 December 1996 aged 81 years. 2 The deceased was survived by the plaintiff, his son and by the defendant, his daughter. Under his last will which was made on 28 September 1995 the deceased in effect left the whole of his estate to his daughter, the defendant, subject to a charge in favour of the plaintiff in the sum of $20,000. That amount has been paid to the plaintiff by the defendant. 3 The estate principally comprises the property of 1 Russell Street, Eastwood. The parties are agreed that that property has a present value of about $450,000. Clearly the property has appreciated in value and at the date of death was estimated by the executor at a value of some $315,000. There was also cash in the estate of $9,127 approximately which will be used for administration expenses and there have been the costs involved in this piece of litigation on the plaintiff's side of some $16,000 and on the defendant's side of some $13,300. 4 I will firstly deal with a little of the history of the matter. The plaintiff and defendant's mother was born on 3 May 1911, the deceased himself was born on 3 June 1915. The plaintiff who was the eldest child was born on 19 August 1948 and the defendant was born on 11 December 1953. By 1963 the plaintiff had completed his education at Marist Brothers and he obtained an apprenticeship as an electrician. He left home in 1967 and married in March 1968. By 1970 he had completed his apprenticeship and started work in his profession. He was divorced in 1972 and he remarried in September 1983. He married Genoveva Richardson. Since sometime after that he has been self-employed as an electrician. 5 The defendant herself married in 1985, however she apparently did not have any children. The plaintiff had a number of children, firstly there was Mark who was born on 25 December 1986 and Carmen who was born on 22 May 1989. 6 By August 1993 the plaintiff and defendant's mother was admitted to a nursing home. She soon started to deteriorate and apparently was suffering from Alzheimer's. At about this time the plaintiff and his wife Genoveva separated and divorced some 18 months later. 7 In September 1993 the defendant moved back into the deceased's home to look after the deceased. She herself separated from her husband and was divorced in June 1994. 8 I have mentioned the deceased executed his last will in September 1995 and he died on 11 December 1996. The parties' mother died on 23 April 1997. There was little in her estate, about $10,000 and that was equally divided between the two parties. Apparently after she had gone into the nursing home her interest in the main property had been transferred back to the deceased and her real estate was held by the deceased. 9 The Summons was filed on 11 June 1998 and accordingly was just within time. The real estate has been transferred to the defendant as beneficiary. 10 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.