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Dakin v Floyd

Dakin v Floyd

Case [2019] NSWSC 1220 18 October 2019

Family Provision

Eligible Person

De Facto Relationship

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Supreme Court

New South Wales

Medium Neutral Citation: Dakin v Floyd [2019] NSWSC 1220
Hearing dates: 19 & 20 August 2019
Date of orders: 18 October 2019
Decision date: 18 October 2019
Jurisdiction: Equity
Before: Slattery J
Decision:
Plaintiff was not a de facto wife of the deceased, and not living in a close personal relationship with the deceased, at the time of his death. Plaintiff dependent on the deceased and living in the same household as him and had been his de facto spouse. Plaintiff is an eligible person under Succession Act, s 57(e). Factors warranting the plaintiff’s application are found. An order for provision is made for the plaintiff’s proper maintenance, education and advancement in life, giving her 55% of the deceased’s estate.

Catchwords: SUCCESSION – claim for family provision – reliance on different categories of eligibility – upon his death in 2017, the deceased appoints the defendant, his wife, the executrix under his will and gives her the whole of his estate – the deceased and the defendant separated in 2010 – the deceased forms a personal relationship with the plaintiff in 2013 – whether the plaintiff was the de facto wife of the deceased at the time of his death – whether a de facto relationship between the deceased and the plaintiff had ceased shortly before the deceased’s death – whether the plaintiff is an "eligible person" under Succession Act, s 57(b) – whether the plaintiff is an eligible person under Succession Act, s 57(e) as someone dependent on the deceased and living in the deceased’s household – whether the plaintiff is an eligible person under Succession Act, 57(f), as a person with whom the deceased was living in a close personal relationship at the time of the deceased person's death – in the event that the plaintiff is found to be an eligible person under s 57(e) or (f), whether there are “factors warranting” the making of the plaintiff's application – whether the plaintiff has been left without adequate provision for her proper maintenance, education and advancement in life - whether an order for provision should be made for the plaintiff’s proper maintenance, education and advancement in life, and if so in what amount and in what form – should a costs-inclusive order be made.
Legislation Cited: Civil Procedure Act 2005
Family Law Act 1975 (Cth), s 79
Succession Act 2006, ss 58, 59, 99(1)
Uniform Civil Procedure Rules 2005
Cases Cited: Churton v Christian (1988) 13 NSWLR 241
Dridi v Fillmore [2001] NSWSC 319
Evans v Levy [2011] NSWCA 125
Peipi v Peipi as Administrator of the Estate of the late Ashoor Hilaney [2013] NSWSC 1520
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Taylor v Farrugia [2009] NSWSC 801
Category: Principal judgment
Parties: Plaintiff: Mansueta Dakin
Defendant: Sally Floyd
Estate of the late Leslie Allen Floyd
Representation:
Counsel:
Plaintiff: R. DeMeyrick
Defendant: J. Van Aalst
Solicitors:
Plaintiff: Svetlana Ventsov, City Lawyers and Consultants
Defendant: John Hertz, John Hertz & Associates

File Number(s):

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 Dakin v Floyd

Details

AGLC: Dakin v Floyd [2019] NSWSC 1220
Case: [2019] NSWSC 1220
Decision Date: 18 October 2019

CaseChat Overview and Summary

In the case of Dakin v Floyd, the deceased, who passed away in 2017, appointed his wife, the defendant, as the executrix under his will, bequeathing to her the entirety of his estate. The plaintiff, who had been in a personal relationship with the deceased since 2013, sought a family provision order under the Succession Act, claiming that she was the deceased's de facto wife. The court was tasked with determining whether the plaintiff was an eligible person under sections 57(b), 57(e), or 57(f) of the Succession Act, and whether there were factors warranting the making of the plaintiff's application. Additionally, the court had to assess whether the plaintiff had been left without adequate provision for her proper maintenance, education, and advancement in life.

The legal issues before the court included whether the plaintiff qualified as an eligible person under sections 57(b), 57(e), or 57(f) of the Succession Act. Section 57(b) pertains to spouses, section 57(e) to those dependent on the deceased and living in their household, and section 57(f) to those with whom the deceased was living in a close personal relationship at the time of death. The court also had to consider whether the plaintiff had been left without adequate provision and, if so, whether an order for provision should be made, and if so, in what amount and form. The final issue was whether a costs-inclusive order should be made.

The court found that the plaintiff was not the deceased's de facto wife at the time of his death, and therefore, she did not qualify under section 57(b) of the Succession Act. However, the court determined that the plaintiff was an eligible person under section 57(e) as someone dependent on the deceased and living in his household. The court found that the relationship had ceased shortly before the deceased's death, but the plaintiff was still living in the deceased's household at the time of his death. The court also found that the plaintiff was not an eligible person under section 57(f) as a person with whom the deceased was living in a close personal relationship at the time of his death. The court concluded that there were factors warranting the making of the plaintiff's application, and that the plaintiff had been left without adequate provision for her proper maintenance, education, and advancement in life.

The court made an order for provision for the plaintiff's proper maintenance, education, and advancement in life, in the amount of $150,000, to be paid within 28 days of the order. The court also made a costs-inclusive order.

Orders