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Brownell v Robinson

Brownell v Robinson

Case [2017] TASSC 5 31 January 2017

De facto Relationships

Significant Relationship

Alteration and Revocation of Grants

Probate and Letters of Administration

Family Law

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[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…

Grounds of appeal

[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.

Continue reading Brownell v Robinson

Details

AGLC: Brownell v Robinson [2017] TASSC 5
Case: [2017] TASSC 5
Decision Date: 31 January 2017

CaseChat Overview and Summary

In the matter of Brownell v Robinson, the deceased, Brownell, left a will that made certain provisions for his partner, Robinson. Robinson sought to be recognised as a beneficiary under the will, but the validity of her relationship with Brownell was contested. The case before the court was to determine whether Robinson was entitled to benefits under Brownell's will, based on the existence and nature of their relationship. The court was required to decide whether Robinson and Brownell had a significant relationship under the Relationships Act 2003, which would entitle her to benefits under his estate.

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