Orders that any argument as to the costs of the proceeding be listed on a date to be arranged when these reasons are published.
Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of how the costs of the proceedings are to be borne.
Catchwords:
SUCCESSION – Claim for declaration that the Plaintiff is a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death – Claim for family provision order –– Reliance on different categories of eligibility – Defendant denies that Plaintiff an eligible person within any category of eligibility – Defendant also denies that, if relevant, there are factors warranting the making of the Plaintiff’s application – Whether eligibility and factors warranting the making of the application established and, if so, whether an order for provision ought to be made.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bezjak v Wyatt [2018] NSWSC 199
Case
[2018] NSWSC 199
Decision Date
CaseChat Overview and Summary
The Plaintiff in Bezjak v Wyatt sought a declaration that she was living in a de facto relationship with the deceased at the time of his death, along with a family provision order. The Defendant, the deceased's son, contested the Plaintiff's eligibility for such an order under the relevant legislation and denied the existence of any factors that would warrant granting the Plaintiff's application. The case was heard in the Supreme Court of Queensland.
The court needed to determine whether the Plaintiff's eligibility for a family provision order was established and, if so, whether such an order should be granted. This required an examination of the criteria for determining de facto relationships and the factors that may justify a family provision order. The Plaintiff argued that she met the criteria for being considered in a de facto relationship with the deceased and that the factors in her favour warranted the court making a family provision order. The Defendant argued that the Plaintiff did not meet the criteria for a de facto relationship and that no factors existed to justify a family provision order.
The court found that the Plaintiff had not established that she was in a de facto relationship with the deceased at the time of his death. The court held that the Plaintiff had not demonstrated a sufficient level of emotional and financial interdependence with the deceased to meet the criteria for a de facto relationship. The court also found that the Plaintiff had not established any factors warranting the making of a family provision order. The court held that the Plaintiff had not demonstrated any exceptional circumstances or any other factor that would justify the court making a family provision order in her favour.
As a result of the findings, the court dismissed the Plaintiff's claims. The court held that the Plaintiff was not eligible for a family provision order and that no order should be made in her favour. The court did not make any orders in favour of the Plaintiff.