Bradley Bradley [2001] NSWSC 1116

New South Wales Supreme Court

CITATION : Bradley Bradley [2001] NSWSC 1116 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2155/2000 HEARING DATE(S) : 29th and 30th November 2001 JUDGMENT DATE : 3 December 2001

PARTIES : Yvonne Frances Bradley v Robert Marshall Bradley - Estate of Lindsay James Bradley JUDGMENT OF : Master Macready at 1

COUNSEL : Mr P. Hallen SC & M. Meek for plaintiff Mr J. Whittle & Mr S. Foda for defendant SOLICITORS : Trislley Kilmurray for plaintiff O'Hearn & Bilinsky for defendant CATCHWORDS : Family Provision. - Claim by a widow. Incfrease in legacy given under the will by the court. No matter of principle. DECISION : Paragraph 42 to 45

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Lindsay James Bradley, who died on 20 October 1998, aged fifty-eight years. 2 He was survived by his widow, the plaintiff, his former wife, and three children by his first marriage. By his will dated 8 May 1998, he left his wife a legacy of $150,000 and a bequest of a motor vehicle, a Ford Fairmont, which he owned. He gave the residue of the estate to his three children, Lee-Anne Rutledge, Janine Lyn Segreto and Michelle Anne Bradley. 3 The estate presently comprises the following: The home at 57 Dilkera Avenue, Valentine, a suburb of Newcastle worth $800,000 (the plaintiff presently resides in that home); superannuation $277,050; cash $65,484.00; one share being half the issued capital in L J Bradley Enterprises Pty Limited $118,864; a total of $1,261,398. 4 There are liabilities as follows: the loan due to L J Bradley Enterprises Pty Limited $192,736; the Commonwealth Bank home loan secured on the home $63,706; total of $256,442, leaving a net estate of $1,004,956. Those figures already take account of the interim provision of $30,000 which has been paid to the plaintiff on account of her claim. 5 Costs have been incurred in this matter, on the plaintiff's part $64,000, and the balance of the defendant's costs which are still unpaid amount to $69,000. This is a total of $133,000, which leaves a distributable estate of $871,956. 6 I will deal with the chronology of the family history. The plaintiff was born on 21 January 1940 and the deceased on 15 August 1940. The plaintiff married for the first time in 1960 and she had a son, Scott, in 1962. The deceased himself married for the first time in April 1963. His daughter, Lee-Anne, was born on 2 October 1963. Michelle was born on 27 June 1967 and Janine on 19 September 1969. 7 In 1974 the deceased and his first wife bought The Antenna Man business in Newcastle. They ran that for some four years and then sold it to buy the Retravision store at Wallsend. They purchased their home at Valentine in 1982. In that year the plaintiff divorced her husband. There was, in the meantime, in 1978, the purchase of a further Retravision store at Warner's Bay. That was sold in 1989 by the deceased and his wife. 8 He and his wife separated in April 1989. They divorced in 1990 and there was a property settlement in which the deceased's first wife received the sum of approximately $390,000. 9 In May 1990 the plaintiff met the deceased. In July that year she moved into the Valentine property and commenced to live with him. They were married on 4 August 1990. Two weeks after that she started working in the Retravision business. She was previously working for Grace Bros. 10 The deceased was diagnosed that he was suffering from diabetes in 1993. In January 1994 there was a separation between the plaintiff and the deceased for a period of ten days. This, and other ones which I will come to, were the result of the deceased suffering from manic depression, subsequently diagnosed in another form. However, it did affect the marriage for some time. For instance, in late 1994 there was a further separation of six weeks. In August to November 1995 the deceased was off work and had to stay at home. In May 1996 there was a separation of some two months as a result of the problems from which the deceased was suffering. 11 However, at this stage, in July 1996, the plaintiff herself joined a support group which apparently enabled her to rejoin the deceased and she and the deceased remained together thereafter. He was diagnosed with cancer in August 1996. He and the plaintiff spent time travelling overseas, and elsewhere, to have him treated for that disorder. 12 His illness progressed during 1998. He made his last will in May 1998, as I have said, and died on 20 October 1998. The plaintiff started to receive the widow's allowance the following year. That was interrupted as a result of the declaration of a dividend of $20,000 by a board meeting of the company which ran the family business. That company was owned as to half by the deceased and half by the plaintiff. 13 The summons was filed on 17 April within time. There was an application for interim provision made in July 2001, which led to the order in August 2001. The plaintiff received an interim sum of $30,000, which was paid a few days later. 14 In applications under the Family Provision Act the High Court has in Singer v Berghouse (1994) 181 CLR 201 set out the two-stage approach that a court must take. At p 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' et cetera 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 et cetera 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.