Cartledge v Bryan - [2023] VSC 195

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2022 08875

NICOLE MAREE HEUVERLING CARTLEDGE	Plaintiff
v
KAYE HELLEN BRYAN	Caveator

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions
DATE OF JUDGMENT:	19 April 2023
CASE MAY BE CITED AS:	Cartledge v Bryan
MEDIUM NEUTRAL CITATION:	[2023] VSC 195

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WILLS AND ESTATES – Caveats – Application by plaintiff for a grant of letters of administration opposed by caveator – Whether particulars established prima facie case – Where caveator alleges domestic partnership with the deceased – Prima facie case established – Administration and Probate Act 1958, ss 3(1) and 70L(1)(a) – Gardiner v Hughes (No 2) [2019] VSCA 198; Re Robustelle (No. 2) [2023] VSC 72.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Peter Cahill
For the Caveator	Andrew Burnett	Petersen Westbook Cameron

HIS HONOUR:

Introduction

Gary Richard Cartledge died on 21 March 2022 without leaving a will. He was survived by three adult children from a previous marriage: Wayne Richard John Cartledge (Wayne), Kerrie Lee-Anne Horkings (Kerrie) and Nicole Maree Heuverling Cartledge (the plaintiff).

Kaye Hellen Bryan (the caveator) alleges that she was the domestic partner of the deceased at the time of his death. The caveator and her adult daughter, Sarah May Bryan (Sarah), both claim that the deceased was Sarah’s biological father and that this was known and acknowledged by the deceased over many years.

The plaintiff disputes the existence of a domestic partnership between the caveator and the deceased, as well as Sarah’s paternity. She contends that the close relationship between the caveator and the deceased was the result of the caveator being the deceased’s niece by marriage, and the fact that the caveator was taken in by the deceased and his then wife as a teenager.

In accordance with the inventory of assets filed in the proceeding, the deceased left an estate valued at approximately $180,000. Given that the estate is less than the statutory legacy, if the caveator’s application is successful, she will be the sole beneficiary of the estate pursuant to s 70L(1)(a) of the Administration and Probate Act 1958 which provides:

(1)If an intestate leaves a partner and a child or other issue who is not the child or other issue of that partner, the partner is entitled—
(a) if the intestate's residuary estate is worth not more than the amount of the partner's statutory legacy, to the whole of the estate, including the personal chattels of the intestate; …

For the purposes of s 70L(1)(a), a partner includes an unregistered domestic partner. Section 3(1) of the Administration and Probate Act 1958 defines an unregistered domestic partner as follows:

unregistered domestic partner of a person who dies means a person (other than a registered domestic partner of the person) who, although not married to the person—
(a) was living with the person at the time of…

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 Cartledge v Bryan

Details

AGLC: Cartledge v Bryan [2023] VSC 195
Case: [2023] VSC 195
Decision Date: 19 April 2023

CaseChat Overview and Summary

Cartledge v Bryan involved a dispute between the plaintiff, Cartledge, and the defendant, Bryan, regarding the administration of the estate of a deceased person. Bryan had entered a caveat against the grant of letters of administration to Cartledge, claiming a domestic partnership with the deceased. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether Cartledge had established a prima facie case for a grant of letters of administration, considering Bryan's opposition based on an alleged domestic partnership.

The court examined the statutory requirements under the Administration and Probate Act 1958 and relevant case law, particularly Gardiner v Hughes and Re Robustelle. The court determined that Cartledge had provided sufficient particulars to establish a prima facie case for a grant of letters of administration. The court found that Bryan's opposition did not sufficiently rebut the presumption of the validity of Cartledge's claim. The court also considered the relevant provisions of the Administration and Probate Act 1958, particularly sections 3(1) and 70L(1)(a), which address the process for granting letters of administration and the rights of parties claiming to be domestic partners.

Ultimately, the court dismissed Bryan's opposition and ordered that letters of administration be granted to Cartledge. The court held that Cartledge had met the necessary legal threshold to establish a prima facie case, and Bryan's allegations of a domestic partnership did not override this finding. The orders made by the court included the grant of letters of administration to Cartledge and the dismissal of Bryan's caveat.

Orders