Bradley Bates v Robert Henry Cooke [2014] NSWSC 1259

Supreme Court New South Wales

Medium Neutral Citation: Bradley Bates v Robert Henry Cooke [2014] NSWSC 1259 Hearing dates: 23 & 25 July 2014 Decision date: 15 September 2014 Jurisdiction: Equity Division Before: Kunc J Decision: Summons dismissed Catchwords: FAMILY PROVISION AND MAINTENANCE - Adult son - Mother and stepfather made mutual wills -Plaintiff's financial predicament result of plaintiff's own decisions - Need for provision for superannuation - Succession Act 2006, ss 59, 60 Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Birmingham v Renfrew (1937) 57 CLR 666 Camernik v Reholc [2012] NSWSC 1537 Daniels v Hall (as administrator of the estate of Daniel) [2014] WASC 152 Smilek v Public Trustee [2008] NSWCA 190 Verzar v Verzar [2014] NSWCA 45 Walker v Walker [2005] NSWSC 1024 West v Mann [2013] NSWSC 1852 Category: Principal judgment Parties: Bradley Bates (Plaintiff) Robert Henry Cooke (Defendant) Representation: Counsel: A.D. Crossland and K. Jones (Plaintiff) B.J. Skinner (Defendant) Solicitors: Low Doherty & Stratford (Plaintiff) Djekovic, Hearne & Walker (Defendant) File Number(s): 2013/341075 Publication restriction: No

Judgment

Summary 1The plaintiff (Bradley Bates) is an adult son of the late June Melita Cooke ("Mrs Cooke") and the stepson of the defendant ("Mr Cooke"). Mrs Cooke died on 9 January 2013 at the age of 62. Without disrespect, I shall refer to the plaintiff and several others who feature in this judgment by their given names. 2On 10 August 2006 Mr and Mrs Cooke made mutual wills. Each left their entire estate to the other and, in default, to be divided equally between their five children: Bradley and Michael (Mrs Cooke's sons from a previous relationship), Lisa and Cassandra (Mr Cooke's daughters from a previous relationship) and Benjamin (the son of Mr and Mrs Cooke). Mr Cooke survived Mrs Cooke and has inherited her entire estate. Bradley and his siblings received nothing but remain equal beneficiaries under Mr Cooke's will. At the commencement of the hearing Mr Cooke undertook to file an application for administration of Mrs Cooke's estate. 3In addition to Mr Cooke, Bradley and his four siblings are the only other eligible beneficiaries in the estate. While each of his siblings has been notified of these proceedings, none of them has participated. There is no evidence about any of their circumstances other than their respective ages. 4Mrs Cooke's actual estate is of no value. However, assets which could form part of her notional estate have an estimated total value of at least $1,100,000 (after deducting liabilities). 5By summons filed on 12 November 2013 Bradley applies for provision out of his mother's estate under s 59 of the Succession Act 2006 (NSW) (the "Act"). Mr A.D. Crossland of Counsel appeared with Ms K. Jones of Counsel for Bradley. Mr B.J. Skinner of Counsel appeared for Mr Cooke. 6By the end of the hearing the main issue for determination had been identified as whether provision should be made for Bradley to assist him in building a suitable amount of superannuation for his retirement. The Court is not satisfied that adequate provision was not made for Bradley. Even if it were satisfied, the Court would not order provision for him. The summons will be dismissed.