Slade v Slade [2002] NSWSC 501

New South Wales Supreme Court

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.