Fordham v Burrell [2010] NSWSC 685

New South Wales Supreme Court

CITATION : Fordham v Burrell [2010] NSWSC 685

HEARING DATE(S) : 23/06/10, 24/06/10

JUDGMENT DATE : 11 August 2010

JUDGMENT OF : Macready AsJ at 1

DECISION : I dismiss the summons with costs.

CATCHWORDS : Family Provision. Claim by a de facto partner of 7 years standing for all of a $700,000 estate. Held sufficient provision made in will which provided one third of estate should pass to plaintiff.

PARTIES : Shirley Ann Fordham v Clinton James Burrell and Rebecca Burrell

FILE NUMBER(S) : SC 2009/288304

COUNSEL : Mr D Smallbone for plaintiff Mr M Bradford for defendants

SOLICITORS : Birch Partners for plaintiff Alex Ilkin & Co for defendants

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

ASSOCIATE JUSTICE MACREADY

Wednesday 11 August 2010

2009/288304 - SHIRLEY ANN FORDHAM v CLINTON JAMES BURRELL & REBECCA BURRELL 1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late James Craig Burrell who died on 3 June 2008 aged 69 years. The deceased was survived by his son, Clinton James Burrell, and his daughter, Rebecca Burrell, the defendants, who are the executors of his last will. The deceased was also survived by his de facto partner, Shirley Ann Fordham, the plaintiff in the proceedings. The deceased and his ex-wife had divorced in 1986. The deceased's last will 2 The deceased made his last will on 17 April 2008 ("2008 will") under which he appointed his children, Clinton Burrell and Rebecca Burrell, the defendants, co-executors of his last will. After some minor bequests the deceased divided the residue of his estate equally between the plaintiff, Shirley Fordham and his two children. 3 In November 2006 the deceased had made an earlier will in which he gave 75 per cent of his estate to his children in equal shares and 25 per cent to the plaintiff. The deceased's estate 4 The main asset was the deceased's former home at Lugarno which has been sold and the estate partly reduced to cash. The net proceeds remaining after allowing for costs and legal costs in respect of the estate and the sale of its properties amounts to $706,074.92. 5 There has been a partial distribution of $23,280 to the plaintiff and the defendants in the proceedings. At present the monies are held in an investment and amount to $637,650.19. There is some personalty worth $4,400 in respect of which the parties are in dispute. There are shares worth $12,532 held in the estate. 6 The defendants' costs of $72,681.45 have been paid before arriving at the figure mentioned above. There are further defendants' costs of $7,200. The plaintiff's costs were originally estimated at $58,950 but that estimate has been revised to $78,226.50. History 7 The deceased was born in 1938. The plaintiff was born in 1951. The deceased married Diana Rosalie Burrell in 1969 and they had two children, Rebecca born in 1971 and Clinton in 1973. The deceased and Diana divorced in 1986 and the deceased retained the family home at Lugarno. On 22 September 1998 the deceased made his first will which left his estate to Rebecca and Clinton. 8 The deceased first met the plaintiff in March 1995 and they commenced seeing each other. According to the plaintiff they stayed at each other's residence overnight. In October 2001 the plaintiff commenced to live at the deceased's residence. At that time she was employed as a shop assistant at David Jones at Macarther Square and the deceased was employed as the editor for the St George and Sutherland Leader. 9 In January 2003 the deceased was diagnosed with cancer and underwent chemotherapy. Shortly afterwards he underwent surgery to remove a tumour. At this time the deceased took nine months accrued sick leave. 10 In June 2003, Clinton and his wife, Shauna, returned from England where they had been living and working. They moved in to the Lugarno property to care for the deceased. 11 The deceased had further surgery in September 2003 which was successful to the extent that in October 2003 he returned to his previous full time employment. However in November 2003 the deceased's cancer spread to his liver and lungs and his doctor advised him that the cancer was terminal. 12 In December 2003 the plaintiff resigned from her employment and spent six months at home to care for the deceased. In July 2004 she studied at St George Tafe College to become a medical secretary. The deceased paid for her tuition. 13 In about April 2005 the deceased's employer requested he resign as the editor and he was employed on a part time basis for two days a week as a sub editor at Fairfax suburban newspaper head office. The deceased continued with the part time employment until December 2006 at which time he resigned from his employment due to his ill health. 14 The deceased made his second will on 27 November 2006 in which he left 75 per cent of his estate to his children in equal shares and 25 per cent to the plaintiff. 15 In February 2008 the plaintiff took six months without pay from her employer to enable her to look after the deceased. In March 2008 the deceased underwent further surgery. 16 As I have mentioned the deceased made his last will on 17 April 2008. In May 2008 the cancer had progressed to a stage where the deceased was transferred to the Calvary Hospital where he died on 3 June 2008. 17 These proceedings were commenced within time on 9 April 2009. Some time later the deceased's property at Lugarno was sold for $780,000. 18 Interim distribution of the estate of $23,280 to each of the plaintiff and both defendants were made on 24 August 2009. Eligibility 19 The plaintiff is an eligible person. The High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 has set out the two stage approach that a court must take. At 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 Ltd [1938] AC at 476. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for 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.