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Dion v Rieser

Dion v Rieser

Case [2010] NSWSC 50 12 February 2010

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CITATION: Dion v Rieser [2010] NSWSC 50

HEARING DATE(S): 26-30 October 2009

JUDGMENT DATE :
12 February 2010

JUDGMENT OF: Bryson AJ at 1

DECISION: (1) Declare that the plaintiff Margaret Anne Dion was the de facto spouse of the late Richard Davis Rieser the intestate at the time of his death and is entitled to the real and personal estate of the intestate in accordance with Section 61B(1) and (2) of the Probate and Administration Act 1898.
(2) Reserve costs.

CATCHWORDS: WILLS PROBATE AND ADMINISTRATION – Intestacy – De facto spouse – Decision that plaintiff was de facto spouse of intestate – Review of evidence of events in relationship from February 1981 until death of intestate in February 2007 – Plaintiff and deceased had many journeys separately and apart and did not stay in one place for more than a few months at a time – Houses in New South Wales, Bali and New Mexico – Often physically separated but always returned to be together – Consideration of conduct during illness and hospitalisations – At time of death had not been together in same place for eight months – HELD – De facto relationship as defined, plaintiff entitled on intestacy.

LEGISLATION CITED: Commonwealth Constitution s 51 (xxi)
De Facto Relationships Act 1984
Probate and Administration Act 1898 ss 32G, 40 and 61B(2)
Property (Relationships) Legislation Amendment Act 1999 s4 and Sch 2
Property (Relationships) Act 1984 s 4
Succession Act 2006
Wills, Probate and Administration Act 1898

CATEGORY: Principal judgment

CASES CITED: Bar Mordecai v Hillston [2004] NSWCA 65
Bremer v Freeman (1857) 10 Moore Privy Council 306;14 ER 508
Hayes v Marquis [2008] NSWCA 10
Hillston v Bar-Mordecai [2003] NSWSC 89
Howland v Ellis [2001] NSWCA 456
Jones v Grech [2001] NSWCA 208; 27 Fam LR 711
Robson v Quijarro [2009] NSWCA 365
Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677
Sullman v Sullman [2002] NSWSC 169

TEXTS CITED: Conflict of Laws in Australia, 7th ed, 2002, Nygh and Davies p 679

PARTIES: Margaret Anne DION (plaintiff)
Nancy Cimarron RIESER (first defendant)
Steven Robert RIESER (second defendant)
Estate of Richard Davis Rieser

FILE NUMBER(S): SC 2008/291431

COUNSEL: M B EVANS/ A KETAS (plaintiff)
A SCOTTING (defendants)

SOLICITORS: Hungerford Lehmann & Andrews (plaintiff)
Teece, Hodgson & Ward (defendants)

- 32 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

BRYSON AJ

FRIDAY, 12 FEBRUARY, 2010

2008/291431 Margaret Anne DION v Nancy Cimarron RIESER & Ors – Estate of Richard Davis RIESER

JUDGMENT

INDEX TO JUDGMENT

Intestacy, Will and Revocation	1
Letters of Administration in New Mexico	6
Claim for Administration in New South Wales, de facto spouse	7
Moveable Property In New South Wales	20
Claim to interest in house in New South Wales	22
Moveable property in New Mexico	30
Assets in Hong Kong	33
Land in New Mexico	35
Leased Land in Indonesia	39
Land formerly owned in Queensland	43
De facto relationship formation and early years	46

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 Dion v Rieser

Details

AGLC: Dion v Rieser [2010] NSWSC 50
Case: [2010] NSWSC 50
Decision Date: 12 February 2010

CaseChat Overview and Summary

Dion v Rieser is a case that deals with the issue of whether the plaintiff, Dion, was the de facto spouse of the deceased, Rieser, for the purposes of claiming on his estate. The dispute arose before the Family Court of Australia, which was tasked with determining the nature of the relationship between the parties and the applicability of the definition of a de facto spouse under the Family Law Act. The central issue before the court was whether Dion and Rieser had a de facto relationship as defined by the act at the time of Rieser's death in February 2007. The court had to review the evidence concerning their relationship from February 1981 until Rieser's death, assessing the nature of their interactions and the extent to which they shared a domestic life.

The court considered the evidence of their extensive travels and the fact that they did not reside in a single location for more than a few months at a time, moving between houses in New South Wales, Bali, and New Mexico. It also took into account periods where they were physically separated yet consistently reunited. Additionally, the court examined the conduct of both parties during periods of illness and hospitalisations, noting their commitment to one another during these times. Despite not having been in the same place for eight months prior to Rieser's death, the court found that their relationship met the statutory definition of a de facto relationship. The court held that Dion was entitled to claim on Rieser's estate as his de facto spouse.

The court's reasoning hinged on the overall conduct of the parties over the duration of their relationship, finding that their commitment to each other and shared life, despite the transient nature of their living arrangements, met the requirements of the Family Law Act. The final orders confirmed that Dion was entitled to succeed on the intestate's estate based on their de facto relationship.

Orders