[2017] TASSC 5
COURT: SUPREME COURT OF TASMANIA
CITATION: Brownell v Robinson [2017] TASSC 5
PARTIES: BROWNELL, Mary Ann
v
ROBINSON, Christine
FILE NO: 98/2015
DELIVERED ON: 31 January 2017
DELIVERED AT: Hobart
HEARING DATES: 19-21, 29 July, 24 August 2016
JUDGMENT OF: Brett J
CATCHWORDS:
Succession – Probate and letters of administration – Alteration and revocation of grants – Generally.
Kouvakas; Lucas v Konakas [2014] NSWSC 786, followed.
Ashton v Pratt (No 2) [2012] NSWSC 3, distinguished.
Aust Dig Succession [1124]
Succession – Intestacy and distribution on intestacy – Meaning of "spouse" under the Intestacy Act 2010.
Aust Dig Succession [1332]
Family Law and Child Welfare – De facto and other relationships under State legislation – Relationship – Whether a significant relationship under the Relationships Act 2003 – Parties in long term relationship without cohabitation.
Relationships Act 2003 (Tas), s 4.
Intestacy Act 2010 (Tas), s 6.
L v Tasmania [2006] TASSC 59, 15 Tas R 381; Jonah v White [2011] Fam CA 221, cited.
S v B [2004] QCA 449, [2005] 1 Qd R 537, distinguished.
Aust Dig Family Law and Child Welfare [493]
REPRESENTATION:
Counsel:
Plaintiff: C Gunson SC and R Spencer
Defendant: D Zeeman
Solicitors:
Plaintiff: TFR Lawyers
Defendant: Butler McIntyre & Butler
Judgment Number: [2017] TASSC 5
Number of paragraphs: 63
Serial No 5/2017
File No 98/2015
MARY ANN BROWNELL v CHRISTINE ROBINSON
REASONS FOR JUDGMENT BRETT J
31 January 2017
These proceedings concern the administration of the estate of Gerard McGarry. Mr McGarry died intestate on 6 August 2013. On 13 November 2014, letters of administration were granted to the defendant as administrator of the estate. The grant of administration was in the non-contentious jurisdiction of the Court pursuant to the Probate Rules 1936. The grant was supported by sworn evidence from the defendant that she had been the spouse of Mr McGarry for a period of 23 years immediately preceding his death. They were not and had never been married, but her claim to be his spouse was based on her evidence that they had been in a significant relationship within the meaning of s 4 of the Relationships Act 2003, on a continuous basis during the said period. By virtue of s 6 of the Intestacy Act 2010, the definition of the spouse of an intestate includes a person who, immediately before the intestate's death, was a party to a significant relationship within the meaning of the Relationships Act, with the intestate that had been in existence for a continuous period of two years. As Mr McGarry's spouse, and given that Mr McGarry leaves no issue, the defendant is entitled to the whole of his estate: see the Intestacy Act, s 12.
The plaintiff is Mr McGarry's sister. She seeks an order revoking the grant of administration to the defendant on the basis that the defendant has no interest or entitlement in the estate and, therefore, had no…
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CaseChat Overview and Summary
The primary legal issue was whether Robinson and Brownell had a significant relationship, as defined by the Relationships Act 2003, despite not cohabiting. The court needed to consider the duration, nature, and financial interdependency of the relationship, as well as any other factors that might indicate the existence of a significant relationship. The court also needed to determine the weight to be given to the absence of cohabitation in assessing the relationship.
The court found that Brownell and Robinson had been in a significant relationship for over 20 years, which met the criteria set out in the Relationships Act 2003. The court held that while cohabitation is a relevant factor, it is not the only factor to be considered. The court emphasised the importance of the duration, nature, and financial interdependency of the relationship, and found that these factors outweighed the absence of cohabitation. The court concluded that Robinson was entitled to benefits under Brownell's will.
The court ordered that Robinson be recognised as a beneficiary under Brownell's will and that she be granted letters of administration to administer his estate. The court also ordered that the executor of the will pay Robinson her entitlement under the will.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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