Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney

[2019] NSWSC 1324

Supreme Court

New South Wales

Medium Neutral Citation:

Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324

Hearing dates:

2, 3 and 4 September 2019

Date of orders:

01 October 2019

Decision date:

01 October 2019

Jurisdiction:

Equity

Before:

Bell P

Decision:

1.   Declare that Juan Jose Bernengo is the surviving spouse of the late Shirley Joan Violet Gardner.

 

2.   Grant Juan Jose Bernengo letters of administration in respect of the Estate of Shirley Joan Violet Gardner.

 3.   Direct the parties to file and exchange written submissions in relation to the costs of the proceedings by 4.00pm on                 8 October 2019 with submissions in response to be filed and exchanged by 15 October 2019.

Catchwords:

SUCCESSION – intestacy – whether plaintiff in a domestic partnership with deceased – de facto relationship – “relationship as a couple living together” – “living together” – where plaintiff divided time between deceased’s house in the city and a country property where he spent time by himself – alternative claim for provision from estate

Legislation Cited:

Evidence Act 1995 (NSW) s 140(2)
Family Provision Act 1982 (NSW) s 6
Interpretation Act 1987 (NSW) s 21C
Property (Relationships) Act 1984 (NSW) s 4
Succession Act 2006 (NSW) ss 57, 59, 60, 103, 104, 105, 111, Ch 3

Cases Cited:

Amprimo v Wynn (2015) 15 ASTLR 41; [2015] NSWCA 286
Ball v Newey (1988) 13 NSWLR 489
Bar-Mordecai v Hillston [2004] NSWCA 65
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Drury v Smith [2012] NSWSC 1067
Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477
Forsyth v Sinclair [2010] VSCA 147
Hayes v Marquis [2008] NSWCA 10
Jonah v White (2011) 258 FLR 236; [2011] FamCA 221
Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177; [1973] HCA 8
Mekhail v Hana; Mekail v Hana [2019] NSWCA 197
Miller v Ryan; Payne v Ryan [2015] NSWSC 1713
NSW Trustee and Guardian v McGrath [2013] NSWSC 1894
Petersen v Gregory [2007] NSWSC 8
Piras v Egan [2008] NSWCA 59
Re Fulop Deceased (1987) 8 NSWLR 679
Robson v Quijarro [2009] NSWCA 365
Sammut v Kleemann [2012] NSWSC 1030
Sinclair v Forsyth [2008] VSC 250
Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17
Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137
Vaughan v Hoskovich [2010] NSWSC 706
Ward v Anderson (Supreme Court (NSW), Waddell CJ in Eq, 6 June 1989, unrep)
Weston v Public Trustee (1986) 4 NSWLR 407
Ye v Fung [2006] NSWSC 243

Category:

Principal judgment

Parties:

Juan Jose Bernengo (Plaintiff/Cross-Defendant)
Edward Henry Thomas Leaney (Defendant/Cross-Claimant)

Representation:

Counsel:
R Kako (Plaintiff/Cross-Defendant)
T J Hancock (Defendant/Cross-Claimant)

  Solicitors:
McCabe Curwood Lawyers (Plaintiff/Cross-Defendant)
Harris Friedman Lawyers (Defendant/Cross-Claimant)

File Number(s):

2017/00232992

Publication restriction:

N/A

Judgment

1. These proceedings concern the Estate of the late Shirley Joan Violet Gardner (the Deceased) who died intestate on 19 June 2017, leaving property in New South Wales. She resided in Churchill Crescent, Cammeray (the Cammeray Property).

2. On 11 February 2019, in the Probate List of the Equity Division of this Court, Lindsay J appointed Ms Anthea Mairin Kennedy (Ms Kennedy) to be the interim administrator of the Deceased's Estate. Ms Kennedy has sworn an affidavit deposing that, as at 20 August 2019, the net distributable estate was valued at $3,544,416.48, subject to the payment of the costs of these proceedings and administration of the estate and income tax liability. She further deposes that there are no eligible persons other than the plaintiff, Mr Juan Jose Bernengo, also known variously as John Byron or by his family nickname Marco (sometimes spelt Marko or Maco) whose claim for eligibility is to be determined in these proceedings in the circumstances I shall shortly recount.

3. The plaintiff changed his name to John Joseph Byron a number of years after he immigrated to Australia from Argentina, following some bullying of his son at school on account of his "foreign" name. For convenience, and without intending any disrespect, I shall refer to the plaintiff in the balance of the judgment as Marco.

4. On 7 August 2017, Marco filed a caveat in the Probate List of the Equity Division of this Court claiming an interest as that of a person who was a party to a domestic partnership with the Deceased immediately before her death and who, as the Deceased's surviving spouse, in circumstances where the Deceased left no issue, is entitled to the whole of the Deceased's Estate on intestacy. On 28 August 2017, Mr Edward Henry Thomas Leaney (Mr Leaney) also filed a caveat claiming an interest being "that of a child of Iris Eileen Leaney, a sister of the deceased who predeceased the deceased". The caveat continued:

"The deceased died intestate leaving no spouse and no issue and no parent. I am thereby entitled to a divided share of Iris Eileen Leaney's presumptive share of the estate of the deceased."

5. Marco commenced proceedings on 2 February 2018 naming Mr Leaney as defendant and claimed an order for a grant of letters of administration in respect of the estate of the Deceased to be granted to him, together with a declaration that he is the surviving de facto spouse of the Deceased and is entitled to the whole of her intestate estate.

6. On 20 March 2018, Mr Leaney filed a cross-claim against Marco seeking a declaration that various persons identified in Schedule A of the cross-claim (Schedule A) are entitled to the whole of the Deceased's Estate and an order that letters of administration of the Deceased's Estate be granted to him. Mr Leaney and the persons identified in Schedule A of the cross-claim are all nieces or nephews of the Deceased, or children of now deceased nieces and nephews of the Deceased.

7. Marco's statement of claim has been amended on two occasions, on 28 February 2018 and 9 November 2018, most relevantly to claim, in the alternative, for provision to be made out of the Deceased's Estate for his maintenance, education and advancement in life pursuant to s 59 of the Succession Act 2006 (NSW) (the Succession Act).

8. On 11 February 2019, Lindsay J made orders appointing Mr Leaney as representative in these proceedings of each of the persons identified in Schedule A. Lindsay J also ordered that Mr Leaney be appointed to represent the estate of the Deceased so far as concerns Marco's application for relief under Ch 3 of the Succession Act.

9. The principal issue in these proceedings is whether or not Marco was the "spouse" of the Deceased within the meaning of s 111 of the Succession Act. The claim under s 59 of the Succession Act represents a fall-back position.

10. It is convenient at this point to set out the relevant statutory provisions and identify the relevant case law in relation to the principal issue, in order to set a framework for an analysis of the evidence.

Applicable statutory provisions

11. Section 111 of the Succession Act provides that “[i]f an intestate leaves a spouse but no issue, the spouse is entitled to the whole of the intestate estate”. An entitlement to the “whole of the intestate estate" refers to "so much of the estate as remains after payment of all such funeral and administration expenses, debts and other liabilities as are properly payable out of the estate": s 103 of the Succession Act.

12. Section 104 of the Succession Act defines a spouse of an intestate as a person:

“(a)   who was married to the intestate immediately before the intestate’s death, or

(b)   who was a party to a domestic partnership with the intestate immediately before the intestate’s death.”

13. A domestic partnership is relevantly defined in s 105 of the Succession Act as a “de facto relationship” that:

“(a)   has been in existence for a continuous period of 2 years, or

(b)   has resulted in the birth of a child.”

14. Relevantly for present purposes, a "de facto relationship” is defined in s 21C(2) of the Interpretation Act 1987 (NSW) (the Interpretation Act) and provides that a person will be in a de facto relationship with another person if:

“(a)   they have a relationship as a couple living together, and

(b)   they are not married to one another or related by family.”

15. Section 21C(2) of the Interpretation Act provides that a "de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else."

16. Section 21C(3) of the Interpretation Act provides:

“In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:

(a)   the duration of the relationship,

(b)   the nature and extent of their common residence,

(c)   whether a sexual relationship exists,

(d)   the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

(e)   the ownership, use and acquisition of property,

(f)   the degree of mutual commitment to a shared life,

(g)   the care and support of children,

(h)   the performance of household duties,

(i)   the reputation and public aspects of the relationship.”

This sub-section provides that no particular finding in relation to any of these matters is necessary in determining whether two persons have a relationship as a couple.

17. In Piras v Egan [2008] NSWCA 59, Campbell JA, with whom Giles and Tobias JJA agreed, said (at [146]) that:

“It should be recalled that the list of ‘circumstances’ in section 4(2) [of the Property (Relationships) Act 1984 (NSW)] are reminders of matters that possibly might be relevant in deciding whether two people are in a de facto relationship, but do not state its essence. The essence is to be found in the definition in section 4(1) [of the Property (Relationships) Act 1984 (NSW)]. If two people do not ‘live together as a couple’ they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various ‘circumstances’ listed in section 4(2) [of the Property (Relationships) Act 1984 (NSW)]."

The circumstances in s 4(2) of the Property (Relationships) Act 1984 (NSW) (the Property (Relationships) Act) to which Campbell JA referred are the same as those circumstances in s 21C(3) of the Interpretation Act, set out at [16] above.

18. It follows that, in order to determine whether or not Marco was a spouse of the Deceased, it is necessary to determine whether he was party to a domestic partnership with her immediately before her death, and this in turn requires him to establish that he was in a de facto relationship with the Deceased for a continuous period of at least two years prior to that time. This in turn depends upon him establishing that he and the Deceased had a “relationship as a couple living together” in the relevant period.

19. It is convenient to consider the relevant case law in relation to the components of this expression, although it must be noted that the evaluative question of whether two persons are in a "relationship as a couple living together" should not be dissected into discrete elements, each of which must be satisfied, but instead is to be approached as a comprehensive notion or concept: Hayes v Marquis [2008] NSWCA 10 at [73] (Hayes); Bar-Mordecai v Hillston [2004] NSWCA 65 at [86] and [125] (Bar-Mordecai).

Living together

20. It is necessary that two persons "live together" in order for them to be regarded as being in a de facto relationship. The case law establishes, however, that the two persons need not live together full time in order to be considered to be "living together".

21. Weston v Public Trustee (1986) 4 NSWLR 407 (Weston) was one of the first cases to be decided following the amendment to s 6 of the Family Provision Act 1982 (NSW) which expanded the number of people who could make an application for provision to include "a person who, where the deceased was a man, was a woman, who, at the time of his death, was living with the deceased as his wife on a bona fide domestic basis". In that case, Young J (as he then was) considered the components of this description and, in particular, with regard to the word "living" said as follows (at 408-409):

“… it seems to me that here we are dealing with the same sort of concept as is involved when one has to consider whether people have been living separately and apart for the purposes of grounds for divorce under the former divorce legislation. There the cases make it quite clear that one was not looking to see whether the parties were physically cohabitating but whether there was a relationship between them which was one which showed that the marriage relationship was still alive. Thus it did not matter that one or other of the parties may have been on holidays or posted overseas for six months or so or may not have been living under the same roof as the other. One had to see whether the two parties had the bond between them and I think that the word ‘living’ in this phrase has the same connotation. Accordingly, it is not fatal to the plaintiff's case that she and the deceased did not physically live in the same place seven days a week, fifty-two weeks a year.”

22. The facts of that case were that the deceased and the plaintiff had a relationship that lasted for over thirty years, the plaintiff having a flat in Homebush and the deceased having a flat in Bondi. The evidence was that, in a typical week, the deceased would stay virtually all weekends and two or three nights a week with the plaintiff at Homebush and then, after he retired, would go back to his flat at Bondi for two to three days during the week but would always ring the plaintiff to let her know whether he was coming back to Homebush or staying at Bondi. Before that, when he was at work, if he was staying the night before he left for work at Homebush and the next night at Bondi, she would prepare a meal for him to have at his Bondi residence. Other features of the relationship included its length, the sharing of a car, the taking of regular holidays together, the sharing of some expenses and the purchasing of things for each other.

23. In reaching his conclusion, Young J (at 410-411) said as follows:

“I thought when I first considered this case it was a borderline case and some of the factors that made me think that it may be on the defendant's side of the line were that the parties had maintained two residences, they seemed to be financially independent, she paid the expenses for her unit and he for his flat. She had only met one of his brothers, though he had two brothers and a sister, and that brother only once, though she did know his sister before the sister died. Also the plaintiff was known by three names, Miss Burnett at work, Mrs Weston at church and Mrs Campbell on holidays, though this is perhaps over-stating the position. Although these are some indications that one goes the defendant's way, as has been pointed out in many of the social security cases it is wrong to dwell on a particular factor or factors and one must look at the whole picture bearing in mind the circumstances in which the parties were living. When both parties had a steady job and were able to support themselves, one does not look for quite the same financial support of one for the other as one does with people on the poverty line who do need to support each other financially much more. With people such as the plaintiff and the deceased, one looks far more to emotional support and commitment to each other. Her evidence shows that their relationship lasted for thirty years. The plaintiff says that it was an exclusive relationship and there is no material to indicate otherwise. The evidence shows that when one was sick, the other one would look after the sick one. The evidence shows that generally speaking, though both the plaintiff and the deceased valued their independence and the deceased to a great degree did what he liked, he would listen to what the plaintiff said as to her wishes and generally fall in with them.

In all the circumstances it seems to me that the plaintiff does qualify as a person who was living with the deceased at the date of his death on a bona fide domestic basis as his wife and hence is an eligible person to be considered under the Family Provision Act 1982.”

24. Some 27 years after his decision in Weston, Young AJ (as his Honour had then become) returned to the question in NSW Trustee and Guardian v McGrath [2013] NSWSC 1894 (McGrath). He observed (at [13]) that "[t]he cases show that there have been many situations other than the situation where a man and a woman share the one residence and live as if they were man and wife for the whole week where a de facto relationship has been held to be made out." Citing the decision of Murphy J in the Family Court of Australia in Jonah v White (2011) 258 FLR 236; [2011] FamCA 221 (Jonah), Young AJ said (at [18]−[19]) that:

"… the concept of living together does not relate to sharing a particular residence but rather what Murphy J said in Jonah v White, whether a couple manifests a relationship of ‘coupledom’ which involves the merger of two lives.

Generally speaking it seems to me that this concept has been picked up in most of the cases that have had this particular problem of a relatively devoted couple who have not shared the one residence for a lengthy period of time".

25. Murphy J had said at [66] of Jonah that "[t]he issue ... is the nature of the union rather than how it manifests itself in quantities of joint time."

26. The facts in McGrath which Young AJ described as another borderline case were that the deceased and the defendant formed a bond following the deaths of their respective spouses which they shared for some 13 years, until the death of the deceased. The relationship was intimate. Relevantly for present purposes, Young AJ held that the definition of a de facto couple was satisfied even though the deceased and the defendant only lived together on the weekends and had an annual two-week holiday together where they stayed at a holiday flat. They also saw each other two other days each week and spoke every night on the telephone when physically apart. They also cared for each other in periods of deteriorating health.

27. In Ward v Anderson (Supreme Court (NSW), Waddell CJ in Eq, 6 June 1989, unrep) (Ward) the plaintiff was held to be in a de facto relationship with the deceased, notwithstanding that they maintained separate residences for much of their relationship. Shortly after the plaintiff and deceased had formed a sexual relationship, they went on an overseas holiday together. Following their trip, the plaintiff lived part of the time with the deceased at his home and part of the time at her house. The properties were about a thirty-five minutes drive apart.

28. Waddell CJ in Eq described the plaintiff's life as having become "centred in the [deceased's] house". The plaintiff stayed at the deceased's home three or four nights a week, and occasionally six nights a week, depending upon how frequently she was rostered on for work at the hospital. The plaintiff had moved most of her clothes and various household appliances to the deceased's home. The plaintiff's own house was used "mainly in association with her employment", particularly when she was on call, it being conveniently located near her work. Occasionally, the deceased would stay with the plaintiff at the plaintiff's house, where he kept some of his clothes. While the pair kept their financial affairs separate, they each paid for household and other expenses as convenient.

29. The plaintiff and the deceased were known to be "living in a husband and wife relationship". She was accepted by the deceased's friends and acquaintances, and both his and her own children, as the deceased's wife. Indeed, the plaintiff was on occasion referred to by the deceased's surname. The deceased had also purchased and given to the plaintiff an engagement ring. Certain of the deceased's children had attended an engagement party for the pair.

25. Waddell CJ in Eq observed "[w]ere it not for the circumstances that the plaintiff kept and used her house … there could be no dispute that the plaintiff was living with the deceased as his wife on a bona fide domestic basis". His Honour held that he was, however, satisfied in any event that the plaintiff and deceased were living together on a bona fide domestic basis.

26. Similarly, in Forsyth v Sinclair [2010] VSCA 147 (Forsyth), Neave JA accepted the primary judge's analysis and found that the respondent was in a relationship with the deceased, notwithstanding that they had kept separate dwellings.

27. The primary judge in that case had found that the plaintiff and deceased had lived on terms of "deep and intimate affection": Sinclair v Forsyth [2008] VSC 250 at [41] (Sinclair). The primary judge considered at [41] that "their love for each other", which he considered to be "the shaping force in their lives", was of "crucial significance" in the circumstances of the case.

28. While neither the plaintiff nor the deceased were dependent on the other, the two combined aspects of their households. The deceased swapped, during the course of his relationship with the plaintiff, his single bed for a large double bed. The plaintiff's belongings were kept in the deceased's home. The plaintiff spent several nights each week at the deceased's home. On other occasions, she would spend nights at her own home, as often with him as without him. The primary judge found that the "[t]he retention of separate residences [was] explicable in part by [the plaintiff's] domestic arrangements with her husband and children, and in part on the basis that each retained a house that was closer to the relevant place of work than the house of the other": Sinclair at [26].

29. The deceased had also concealed most of his relationship with the plaintiff from his brother and sister-in-law. The primary judge described this as "puzzl[ing]" and noted that he was "aware of nothing in his relationship with them which would account for this diffidence": Sinclair at [15]. He concluded that this too was explicable, however, the "most likely answer" being that "[the deceased] believed they did not particularly like [the plaintiff], nor she them": Sinclair at [15].

30. Neave JA on appeal held that "[i]f no-one had been aware of the relationship, [the plaintiff's] evidence would not have been credible, but this was not the case": Forsyth at [49]. There was considerable evidence from witnesses other than the plaintiff regarding her "long standing, close and intimate relationship" with the deceased: Forsyth at [37]. The pair had an exclusive sexual relationship and were regarded as a couple by their friends and the plaintiff's family. They attended social functions and visited and stayed with friends together as a couple. The two expressed their love and affection for one another to a number of witnesses. They received letters and Christmas cards as a couple over a number of years and had told some of their friends of their intention to marry.

31. In Hayes, McColl JA, with whom Beazley JA agreed on this point, stated (at [75]) that "the concept of 'living together' will always be something different from living together as a couple, one of the critical requirements for a de facto relationship". Her Honour said (at [78]) that the concept of "living together" does not require that the parties be sharing a common residence full time. Her Honour noted (also at [78]), however, that "a de facto relationship [within the meaning of s 4 of the Property (Relationships) Act] is one which might ordinarily be expected to emphasise common residence" but that "the significance of a common residence, in determining whether a de facto relationship exists, turns on its nature and extent".

32. White J (as his Honour then was) in Vaughan v Hoskovich [2010] NSWSC 706 (Vaughan), also in the context of s 4 of the Property (Relationships) Act noted at [52]-[53] that:

"In the present case the parties were not separated by countervailing circumstances, such as family or business requirements, that required them to spend time apart. Rather, the parties chose to live together only for a small part of each week.

In my view, the fact that they lived together only for a small part of each week does not mean that they cannot be said to have lived together as a couple. Whether they lived together as a couple, must of course take into account all of the circumstances, including those listed in [s 4(2) of the Property (Relationships) Act]. But it seems to me that the maintenance of separate residences is not inconsistent with the parties living together as a couple, provided that there is sufficient shared residence over a long enough period to amount to ‘living together’. Parties can live together for part of a week and also live apart, for part of a week. Although living apart for some periods, they can still live together as a couple if all the circumstances indicate that they are ‘a couple’. I accept that the phrase ‘living together as a couple’ connotes that the persons will live together in a place which can be said to be their home, but a person can have more than one home (Cardiacos v Cooper Consulting and Constructions Services (Aust) Pty Ltd [2009] NSWSC 938 at [27]-[29] and cases there cited.) ... "

38. In Amprimo v Wynn (2015) 15 ASTLR 41; [2015] NSWCA 286 at [77], Meagher JA observed:

“It may be accepted that the activity of living together does not require that the living occur at or from a single place or that the relevant people spend all of their time living together at that place or those places. However, the expression describes a relationship that has an ongoing aspect of closeness or intimacy about it that is not necessarily physical or sexual.”

39. In Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477, Lindsay J observed at [32]-[33]:

"Ample authority demonstrates that, although the concept of 'living together' may have locational and temporal dimensions, persons may be ‘de facto partners’ without living only in a single residence and without spending all their time each in the company of the other: Vaughan v Hoskovich [2010] NSWSC 706 at [49]-[53], [56], [58] and [65]-[67]; Amprimo v Wynn [2015] NSWCA 286 at [77].

The expression 'living together', no less than the rest of section 21C(2)(a) [of the Interpretation Act], must be read in context. It suggests a degree of proximity or commitment, of one sort or another, which points towards the existence of 'a relationship as a couple' in the nature of a marriage-like, family relationship: a 'marriage' relationship, a union between two people involving a merger of lives, de facto not de jure."

40. Later, at [36], Lindsay J noted that a determination about the existence and subsistence of a de facto relationship requires an empirical investigation of facts and cited the observations of Hallen AsJ (as he then was) in Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137 at [82] as follows:

“Whilst the concept of a de facto relationship is complex and diverse, such a relationship can, and should, be distinguished from the relationship of two people, who live apart, but who have a sexual relationship, and who sleep over at one another's house; and also from the relationship of two people, who share a house, but who do not have a romantic commitment to each other and who have other sexual partners. The fact that one provides the other, on occasions, with financial, or other, assistance, such as accommodation, to alleviate hardship does not mean that they are in a de facto relationship. In this way, a de facto relationship is different from friendship, or courtship, which has not matured into the commitment where there is a merging of lives so that there is a mutual commitment to a shared life. It is also different from simple companionship."

Relationship as a couple

41. In the present case, of course, the concept of "living together" is to be understood in the context of the extended phrase "living together as a couple". The expression "as a couple" adds an important element to the notion of simply "living together".

42. Certain cases emphasise an element of love or intimacy in relationships of "couples" properly so called. In Ye v Fung [2006] NSWSC 243 (Ye v Fung), Gzell J held (at [71]) that a de facto relationship within the meaning of s 4(1) of the Property (Relationships) Act, which relevantly uses the same terminology as s 21C(2) of the Interpretation Act set out in [14] above, was "limited to relationships between non-married adults in heterosexual or homosexual romantic relationships. To live together as a couple requires a romantic relationship between the persons constituting the couple."

43. Barrett J in Petersen v Gregory [2007] NSWSC 8 (Petersen) considered (at [11]) that a diminution of the initial "romantic characteristic[s] to which Gzell J referred [in Ye v Fung]" will not of itself mark the end of two persons living together as a couple. Similarly, White J in Vaughan, again in the context of s 4 of the Property (Relationships) Act, held (at [49]) that "[f]or two people to live together as a couple means that they live together and that, at least initially, they be united by love or be living together in a romantic relationship". White J continued (at [49]), "[a]t least if the partners remained living together, the fading of love or romance need not spell the end of a de facto relationship."

44. It has also been noted by Barrett J in Petersen and the Court of Appeal in Bar-Mordecai that de facto relationships (like marriages) need not be perfect. Unloving acts or acts that are in some sense in conflict with the alleged relationship, such as infidelity, do not undermine or compromise the de facto status of a relationship which would otherwise properly be characterised as such: Petersen at [11]; Bar-Mordecai at [125]; see also, Robson v Quijarro [2009] NSWCA 365 at [15] and [47].

Background

45. The Deceased had three marriages during her lifetime.

46. The first was to Mr Arthur Pitts on 29 July 1950. This marriage ended in divorce in or around 1963. The Deceased and Mr Pitts had one child by the name of Ms Gaye-Marie Pitts (Gaye-Marie), who died on 9 April 2007, thus predeceasing the Deceased by a period of a little over 10 years.

47. After her divorce from Mr Pitts, the Deceased married Mr Frank Bowles (Mr Bowles) on 6 March 1964. Mr Bowles had two daughters, Helene and Maggi. They became step-daughters of the Deceased on her marriage to Mr Bowles. Some 15 years after that marriage, in or around 1979, Mr Bowles adopted Gaye-Marie, the Deceased's daughter from her marriage to Mr Pitts, and Gaye-Marie took the surname Bowles. Mr Bowles died on 9 September 1984. The Deceased and Mr Bowles lived together at the Cammeray Property.

48. Some 14 years later on 28 July 1998, the Deceased married for a third time to Mr Clarence Gardner (Mr Gardner), but he died shortly after that marriage on 6 October 1998. They had, apparently, lived together for a number of years at the Cammeray Property prior to their marriage.

49. Apart from Gaye-Marie, the Deceased had no other biological children. Being one of six siblings, the Deceased had a large number of nieces and nephews. There were 18 nieces and nephews in total but two of these, Ms Diana Lockett and Mr Anthony John Leaney, predeceased the Deceased. Each of the two deceased nieces and nephews were survived by two children.

50. In 1988, Gaye-Marie, the Deceased's daughter then about 29 years old, met and subsequently entered into a de facto relationship with Marco who was approximately 20 years her senior, then being aged approximately 49 years. That de facto relationship continued for almost 20 years until Gaye­-Marie's death as a result of a brain tumour in April 2007, at which point she was aged 48 years and Marco aged 69 years. At that point in time, the Deceased was 77.

51. It may be observed, at this point, that Marco was in fact significantly closer in age to the Deceased than he was to her daughter and his late partner, Gaye-­Marie.

52. The Deceased at all material times lived at the Cammeray Property which was a house with a self-contained downstairs unit or apartment. Marco lived with Gaye-Marie about three to four days per week in that self-contained apartment from some time after the commencement of their relationship in 1992 whilst spending the other days at a flat he rented at Milsons Point from the Housing Commission, which was also his employer. He was, until being made redundant in about 1997, the resident manager in the Housing Commission building at Milsons Point.

53. In 2001, Marco used money he received from a redundancy to purchase a block of land in his and Gaye-Marie's joint names at Rylstone where they planned to build a home (the Rylstone Property). A concrete slab was poured for the purposes of building a house on this property in approximately 2004. However, in November 2004, Gaye-Marie was diagnosed with the brain tumour that ultimately killed her.

54. From November 2004, Marco continued to live in the flat at the Cammeray Property, although he continued to maintain his flat at Milsons Point, returning to check on it only about once a week. In the approximately two and half years between Gaye-Marie’s diagnosis in November 2004 and ultimate death in 2007, Marco and the Deceased spent considerable time together, attending to Gaye-Marie in hospital and comforting each other. It was during this time, according to Marco, that he and the Deceased became close, got to know each other very well and formed common bonds which he maintains ultimately developed into a relationship (including with a sexual dimension) that is the foundation of his principal claim in these proceedings. This did not commence, however, until about April 2008. Having previously lived in the flat under the Cammeray Property (and continuing to do so at the Deceased's invitation after Gaye-Marie's death), in about November 2007, about six months after Gaye-Marie's death, the Deceased asked Marco to move upstairs into the house with her, which he did.

55. Marco described the development of his relationship with the Deceased after he moved upstairs in the Cammeray Property as follows:

"By the time I moved into the bedroom next to Shirley's, the two of us were going out on a regular basis, approximately three times a week. We would often go to the movies to see thrillers, crime, or romantic comedies. After seeing a movie, we would normally go out to dinner. Some of the restaurants we would go to regularly included Xenos in Crows Nest, Danny's in La Perouse, the North Sydney Leagues Club (the Club), and our local Chinese restaurant. On Shirley's birthday, we would either go to Xenos or to the Club for dinner. Shirley would order champagne, chips and oysters. Helene would frequently join us for dinner at Xenos or the Club. This continued throughout my relationship with Shirley, with Helene joining us for dinner out or at home approximately once a fortnight."

56. The "Helene" referred to in this passage was the Deceased's step-daughter and one of the two daughters of her second marriage to Mr Bowles. I shall refer to Helene hereafter in these reasons as Mrs Scarf. She gave evidence in support of Marco's case which was corroborative of Marco's evidence generally including that passage of his evidence extracted above at [55].

57. One of the complicating factors in this case is that, in the years following Gaye-Marie's death, and partly using the proceeds of her relatively modest estate (of which he was the principal beneficiary), Marco completed the construction of a house on the Rylstone Property. This was done by about 2010. Thereafter, he divided his time between the Rylstone Property and the Cammeray Property.

58. It is not seriously disputed that there was some form of relationship between Marco and the Deceased. What is at issue is the nature of that relationship and whether, as Marco contends, it is properly characterised as falling within the meaning of "spouse" for the purposes of s 111 of the Succession Act or, as Mr Leaney contends in his representative capacity, simply that of a companion and, more particularly, as the Deceased's son-in-law, being the former partner of the Deceased's late daughter, Gaye-Marie.

59. The evidence before the Court falls into a number of categories:

1. video evidence of the funeral;

2. evidence of a meeting at a solicitor's office shortly after the funeral at which Marco, Mrs Scarf and Mr Leaney attended;

3. evidence in relation to an inspection of the Cammeray Property;

4. documentary evidence of financial transactions and telephone calls that allow an objective assessment to be made as to how Marco divided his time between the Rylstone Property and the Cammeray Property;

5. telephone records showing the degree of interaction between Marco and the Deceased when they were not together;

6. Marco's bank and superannuation records;

7. other miscellaneous documents of Marco;

8. the Deceased's medical records;

9. Marco's medical records;

10. photographic evidence;

11. affidavit evidence led on behalf of Marco; and

12. affidavit evidence led on behalf of Mr Leaney.

60. I will review this evidence in light of the considerations set out in s 21C(3) of the Interpretation Act and the case law I have considered at [20]−[44] above.

The Deceased's funeral

61. The Deceased died on 19 June 2017. Her funeral was held on 26 June 2017. Marco paid for the funeral and was assisted in its organisation by Mrs Scarf. The cost of the funeral was $10,329.08.

62. During the course of the hearing, portions of a video of the Deceased's funeral were played in court. What follows reflects my observations derived from the video.

63. Shortly after the service commenced, Marco, together with his son David from a marriage that had broken up prior to the entry into his relationship with Gaye-Marie, entered the chapel and was escorted down to the front row on the right hand side, immediately before the lectern. At that stage, Mr Leaney and a number of his relatives were at the lectern. The funeral service had only just commenced. The video records Mr Leaney saying "Oh Marco, thank God you're here. Here, come down. Sit right there mate."

64. Marco took his place in the front pew, with David sitting next to him. A number of people got up and approached him, presumably to pass on condolences or greetings. These included Mrs Scarf and a further lady who Marco identified in his evidence as one of the Deceased's relatives. She was subsequently identified as Ms Janice Mangleson, one of the Deceased's nieces, who kissed Marco on the cheek.

65. One of the eulogies was delivered by Mrs Scarf. A transcript of the eulogy, or the text from which she read, was in evidence. Relevantly, for present purposes, she said in her eulogy that:

"Darling Gaye-Marie passed away 10 years ago in 2007. She was diagnosed with a brain tumour two and half years prior to her death. She was a special girl and she lived with her partner of 12 years, John Byron known to us all as Marco. Marco, Shirley and I spen[t] many hours at Royal North Shore Hospital in the two and a half years leading up to Gaye-Marie's death. Whenever I arrived at the hospital Marco would have his eyes closed holding Gaye-Marie's hand and deeply meditating. His compassion towards Gaye­-Marie placed him in very high regard for Shirley and me.

He and Shirley would arrive at the hospital around 9am and leave at around 7pm every day for two and a half years. Gaye-Marie had a few short stints at coming home but in no time at all she was back in hospital. Shirley became very depressed and suffered tremendously after Gaye-Marie's death, she never got over it! There wasn't a day that went past without Shirley thinking of Gaye-Marie. The three of us would always remember Gaye-Marie's birthday, and the day of her death with tears and sad memories.

Marco and Shirley stayed by each other's side while they both grieved the loss of Gaye-Marie, and over the years that followed, they became very close.

Marco and Gaye-Marie were living in the flat at Shirley's house for about 12 years but after Gaye-Marie's death Shirley asked Marco to move upstairs into the main house at […] Churchill Crescent.

For the last 10 years Marco has divided his residency between Churchill Crescent [the Cammeray Property] and Rylstone. If he was in Rylstone he and Shirley phoned each other every morning to make sure all was well! [A]nd he would jump into his car at the slightest hint that Shirley wanted him back in Sydney.

The three of us would enjoy a meal every time Marco came down and our choice of restaurant was always [Xenos] at Crows Nest. Ordering flathead with chips and if you know Shirley those chips better be hot! We also polished off a bottle or 2 of Jan[s]z sparkling." (emphasis added).

66. Towards the end of her eulogy, Mrs Scarf said this:

"On the long weekend just gone by, I popped in to see Shirley and Marco with some oysters for Sunday breakfast. Shirley said you can only stay till 11am as Marco and I are off to a big family doo at Sutherland with a cast of thousands."

67. In the course of her remarks to the people gathered at the funeral, Ms Iris Giurietto, a niece of the Deceased, said:

"We are very grateful to Marco for all the assistance he has given to Shirley over the years, in Shirley's less young days. We wish to thank you Marco, for all the help you have given Shirley for many, many years. You've been there for her. We thank you."

68. During or towards the end of the second sentence extracted above, Mr Leaney's voice can be heard on the video, endorsing this acknowledgment of Marco.

69. A further extract of the funeral was then played to the Court which consisted of a photographic collage on a loop set to music evidently chosen by the Deceased. The photographs covered the Deceased's life but a good number of the photographs included Marco.

70. One of the photographs towards the end of the photographic collage was a photograph of the Deceased sitting in front of a cake and waving at the photographer. When this image came up on the screen in Court, I observed Marco, who was at that time in the witness box and following the photographic collage closely on the screen, to wave fondly at the image of the Deceased. This appeared to me to be entirely natural, unaffected and not contrived.

71. At the conclusion of the Lord's Prayer, the footage showed Marco having collapsed temporarily and the celebrant saying, "I'll just wait for Marco to feel better because it is important that he is part of this."

72. Following the Benediction, Marco was escorted to the casket by the celebrant, Mrs Scarf and his son David, and stood with the casket for between 20 and 30 seconds before returning to his seat. He was the only person in attendance to do this. The curtains in the funeral chapel then closed to conceal the casket. Marco was the first to leave the service, accompanied by Mr Leaney, with other members of the gathering waiting for him to leave first, assisted by Mr Leaney.

73. Counsel for Marco submitted, with some force in my opinion, that the only reason why Marco exhibited such grief during the funeral and why family members of the Deceased were comforting and in some respects deferring to him during the funeral was because there existed a loving relationship between him and the Deceased at the time of her death. That he paid for the funeral was also consistent with that submission.

Meeting at solicitor's office

74. Mr Beach Thomas (Mr Thomas) is a solicitor whom the Deceased had consulted in 2014 about drawing a will for her (a previous will having been revoked by her marriage to Mr Gardner). Mr Thomas made notes of the meeting, and I will refer to those more fully when I come to consider his affidavit evidence. The Deceased did not proceed, however, to give Mr Thomas any instructions to draw up a will after the 2014 consultation.

75. On the day following the Deceased's death, Mrs Scarf contacted Mr Thomas to enquire if he held a will for the Deceased. He told her that he did not. An appointment was made for Mrs Scarf and Marco to meet Mr Thomas on 29 June 2017 to discuss the estate and how to go forward. This was confirmed by an email of 20 June 2017.

76. Mrs Scarf acknowledged this email on 25 June 2017 writing:

"John Byron [Marco] and I will be attending the meeting. I'm the youngest of two step daughters of the second marriage, and both my sister and I lived at the home with Shirley and Dad and Gaye at various times growing up. (Gaye was Shirley's daughter before she married Dad and who Dad adopted and she sadly passed away 10 years ago). John Byron was Gaye's partner for twelve years and since Gaye's death he has cared for Shirley and became a constant companion to Shirley."

Mrs Scarf was cross-examined about the last sentence of this email and agreed that it accurately described her understanding of Marco’s relationship with the Deceased.

77. The meeting referred to in the email went forward, as arranged, on 29 June 2017 and was also attended by Mr Leaney.

78. According to Mrs Scarf’s account of the meeting, Mr Thomas explained that "[b]ecause Shirley has not left a valid Will, everything goes to her blood relatives". Mrs Scarf then asked "[w]here does that leave Marco?". Mr Thomas then said "[it] will be up to [Mr Leaney] to negotiate something with Marco".

79. Marco's account of this meeting included Mr Leaney saying words to him to the effect of "[d]on't worry Marco, we are going to consider you". Mr Leaney did not give any evidence in relation to this meeting but did not contradict in his affidavit evidence the accounts of either Mrs Scarf or Marco.

80. Not long after this meeting, Mr Thomas advised Mr Leaney to change the locks on the Cammeray Property, which he then did. This was apparently actuated by a concern that certain documents had been taken from the house. Mr Leaney was also under the apprehension (wrong as it transpired) that the Deceased's car had been taken. Text messages sent shortly after the locks had been changed disclosed that the car was parked up the street rather than in the garage.

81. The changing of the locks on the Cammeray Property undoubtedly introduced a sour note in relations between Marco and Mrs Scarf, on the one hand, and Mr Leaney and his siblings and cousins, on the other hand. This souring is reflected in certain text messages that were exchanged between Mrs Scarf and Mr Leaney. I set them out in this judgment because they do contain some statements which bear upon one of the principal questions in this matter. The first was sent from Mr Leaney to Mrs Scarf on 4 July 2017 at approximately 11.51am:

"Hi Helene

I am unwell with the flu and struggling at work I have acted strictly on Beach's instructions in regard to the locks. He was very insistent I am anxious to contact Marco to tell him what has happened to save him the an unnecessary trip from his home. Can you provide me with any contact details for him a land line no would be great. Beach also questioned me as to the where Shirley's car is and when you will send to him the briefcase of documents that you took from the house. I have not conducted a thorough search of the property but it would appear [that] Shirley's jewellery is missing. He was very unhappy that these things were removed from the house and I had to admit that I had no knowledge of any of [her] things except that you had the briefcase. Any information about these items would be gratefully received. I will call you later today when I get on top of things a little.

Regards

Ted”

Mrs Scarf replied on 4 July 2017 at approximately 2.44pm:

“Hi Ted, I'm sorry you locked Marco out of the house he has been living in for the past 22 years. Shirley[']s car is parked in the Street up the road from the house [and] the keys are in the laundry. The only jewellery I have of Shirleys is what she was wearing when she died that the hospital gave me when I went to identify the body half an hour after she died. As to the brief case in my possession, I borrowed it seeing that it was Clarence's trying to find anything that Elizabeth[,] Clarence's daughter had asked for. Mostly her father['s] medals and ashes. I can drop it off to Beach next week. Naturally, when White Lady pass on the Death Certificate and I collect the ashes I'll pass them on to Beach. Remember I loved Shirley too and had dinner with her and Marco every fortnight for the last twenty years.

Regards [H]elene." (emphasis added).

82. The reference to "Clarence" was a reference to the Deceased's third husband, Mr Gardner.

Inspection of the Cammeray Property

83. Because of the lockout to which I have referred, Marco did not have access to the Cammeray Property from a time shortly after the funeral until just before the trial when an inspection of the property was made in the presence of the interim administrator (Ms Kennedy), legal representatives for both parties and Marco and Mrs Scarf. Evidence of that inspection was given both by Marco and a solicitor from the firm representing him in these proceedings. Those accounts were not relevantly challenged.

84. Marco said that, on this inspection, he saw multiple possessions of his in the garage, as he had left them when he was last in the Cammeray Property. These included two of his jackets hanging in the garage including the suit he wore to the Deceased's funeral and wake, together with a blue mariner's jacket, a backpack of his containing one of his towels that he used when he went to the sauna and various tools and hardware that he and the Deceased had accumulated together for work on the Cammeray Property, including tools that he had brought from the Rylstone Property.

85. He gave evidence that, on entering the house, he observed dust and cobwebs and, in entering the Deceased's room, found it "difficult to be in Shirley's bedroom again". He then referred to his bedroom which adjoined the Deceased's bedroom and observed that it was in the state that he had last left it (over two years before) with the sheet pulled back and two of his pullovers on the bed. He observed a number of possessions on the desk and in the drawers including a clock radio, headphones, a collection of his books, his deodorant and perfume, a note to himself reminding him to pay his Telstra bill and approximately $130 in cash next to the handwritten note which he proposed to use to pay that bill at the post office in June 2017. In the wardrobe, which he said appeared to have been untouched, he said he observed his shirts and three of his jackets, his shoes, underwear, singlets and T-shirts in a drawer, expired medicine for his heart, prostate, piles, and blood pressure, and a collection of five to ten envelopes or letters.

86. In other parts of the house, and in particular the lounge room, he said he observed cobwebs and dust and said that it looked to him as though termites had been at the house. He said that, "it was Shirley's and my practice to organise fumigation for the Cammeray house approximately once a year." He also explained that going through the house was emotionally difficult for him.

87. This account was confirmed by Ms Andrews, the solicitor who attended the inspection. She described the wardrobe in Marco's bedroom as "full of men's clothing, including shirts, pants and jackets" and said that there was "not much space, if any, between the clothes and the wardrobe."

Evidence going to how Marco divided his time between the Cammeray Property and the Rylstone Property

88. In his affidavit evidence, Marco estimated that he divided his time between the Cammeray Property and the Rylstone Property in the period between Gaye­-Marie's death and the completion of the Rylstone Property in approximately 2010.

89. Another witness, Mrs Beverley Taylor (Mrs Taylor), a neighbour of the Deceased’s, gave evidence that Marco was at the Cammeray Property between 70 and 75% of the time. In her eulogy, Mrs Scarf referred to him as “dividing” his time between the Rylstone Property and the Cammeray Property.

90. Fortunately, documentary evidence in the case allowed a more objective and accurate analysis to be made in relation to the question of Marco's physical whereabouts as between the Cammeray Property and the Rylstone Property than mere estimation. This documentary evidence comprised various credit card and other financial statements which recorded where transactions such as cash withdrawals or supermarket purchases were undertaken. These documentary records were supplemented by telephone records which recorded telephone calls made from Cammeray to Rylstone and Rylstone to Cammeray.

91. The combination of these two sets of business records allowed an accurate if not absolutely precise analysis to be done as to the relevant proportions of time Marco spent with the Deceased at the Cammeray Property.

92. The parties’ analysis of these records revealed that for the two year period preceding the Deceased’s death, for the days for which there was data, 302 days were spent in Rylstone and 241 days in Sydney with about 20 days showing activity in both. This left unaccounted approximately 160 days. The unaccounted days in most cases fell between days when Marco was in Sydney and, in my assessment, were likely to have been days spent in Sydney. This is for two reasons. First, most of Marco’s visits to Rylstone were for more than two days’ duration. Many of the “unaccounted” days were single days between other days where the evidence shows that Marco was in Sydney. Secondly, “unaccounted” days were days for which there was no record of telephone communication. Given that the telephone records show that Marco and the Deceased were regularly in telephone contact when they were apart, I feel comfortable in inferring that, on days when there was no telephone communication, they were most likely together. As the Deceased only went to Rylstone on a couple of occasions, this places the two together, either in Cammeray or on holiday.

93. Taking these matters into account, and noting that it is not possible to be absolutely precise, my assessment is that Marco spent approximately 55% of his time with the Deceased in the last two years of her life. Although the same degree of analysis was not undertaken from the years prior to that, Exhibit P8, which was a summary based on credit card records, showed a broadly similar division of time and location in the period after Marco moved upstairs to live with the Deceased.

Telephone records

94. I have already referred to the forensic use made of telephone records to identify where Marco was at particular times and, in particular, whether or not he was at Cammeray or Rylstone.

95. The telephone records had a further significance, however, as they disclosed the fact that, consistently with Marco's affidavit evidence and that of Mrs Scarf, when he (Marco) was apart from the Deceased, namely at Rylstone, he would ring the Deceased (or she would ring him), often several times a day for extended periods of time. For example, in a 7 day period between 7 and 14 September 2015, the telephone records reveal that Marco rang the Deceased 11 times and she rang him 15 times.

96. In this context, according to submissions filed on Marco’s behalf and not put in issue, Marco rang the Deceased at Cammeray from Rylstone some 1,970 times between 30 January 2011 and 14 June 2017 and the Deceased rang him some 1,413 times from Cammeray to Rylstone in the period between 5 September 2011 and 17 June 2017. Given that these were typically calls when Marco was at Rylstone, these numbers confirm the evidence given by Marco referred to above. It is significant evidence in that it gives some insight into the closeness of the relationship between Marco and the Deceased even when there was physical separation.

Marco's bank and superannuation records

97. The evidence established that once the Rylstone Property had been completed in or about 2010, Marco changed a number of his bank and superannuation accounts so that statements and correspondence were addressed to the Rylstone Property. Counsel for Mr Leaney placed particular emphasis on this.

98. It should be noted, however, that this was not a uniform practice on Marco's part, as Roads and Maritime Services (RMS) E-Toll statements for both his car and the Deceased's car were addressed to him at the Cammeray Property right up until, and indeed after, the death of the Deceased. In other words, there was no uniformity of practice and the evidence was somewhat equivocal, especially when it is appreciated that the change of address for financial records occurred in or about 2010 and does not, in and of itself, say all that much about the nature of the relationship in the two years immediately before the Deceased’s death, which is the critical period for consideration in these proceedings.

Other miscellaneous documents of Marco

99. Exhibit P5 was a folder of documents tendered on behalf of Marco which evidenced various receipts, invoices and correspondence addressed to him at the address of the Cammeray Property.

100. Whilst many of these records were for a period prior to his completion of building the house at Rylstone, these records included the RMS E-Toll statements to which I have already referred at [98]. These disclosed that, at least for those statements, and also in the case of an Ambulance Electronic Medical Record from July 2013 and correspondence from National Hearing Care in June 2017, Marco continued to use the Cammeray Property as the address for the receipt of this correspondence.

101. Again, the practice could not be said to have been uniform.

102. One document that is significant is the will Marco executed on 2 May 2017. This significance lies not so much in the fact that Marco did not leave anything to the Deceased (she was by then 87 and he gave evidence that he had discussed his testamentary intentions with her) but that he referred to her in it as his “mother-in-law”. On the other hand, he appointed the Deceased as his executor. In his affidavit evidence, Marco said that he thought it “most appropriate” to refer to the Deceased in his will as his mother-in-law. He did not explain why, but by the same token, was not cross-examined on this aspect of his evidence.

The Deceased's medical records

103. Exhibit P7 was a collection of medical records of the Deceased over the 10 year period prior to her death. These records were significant because in a large number of them, Marco was described as the Deceased's son-in-law, as opposed to her partner. There were also references in the Deceased's medical records to her "living alone".

104. Mr Leaney placed emphasis on four examples of this from medical records relating to the Deceased in 2016 and 2017. One of these recorded as follows:

"She lives alone in Cammeray in a house and is independent in most of her activities of daily living, except for cleaning when she gets someone in for one hour per week." (emphasis added).

105. Another record, apparently from May 2017, not long before the Deceased died records:

"Patient lives alone in a 3 storey house with 13 +13 x steps between entry and bottom level where patient spends most of her time. Patient was previously independent with all PADLs, however, reported to OT that she would become anxious re showering while being alone at home. Patient informed she was afraid of falling in the shower with nobody else at home. Patient reported she [r]eceived assistance [with] cleaning and lawn mowing however, cared for all other DADLs independently." (emphasis added).

106. Another record, being correspondence from the Haematology Registrar following a consultation on 7 September 2016, relevantly records as follows:

“Thank you for referring Mrs Shirley Gardner to the Haematology Outpatients' Clinic regarding her left parotid mass. I saw her with Dr William Stevenson on 7 September 2016.

As you know Mrs Gardner is a lovely 87-year-old retired lady living in Cammeray .... Socially, she lives alone and is independent with all activities of daily living. She is still driving .... " (emphasis added).

107. A further record, also apparently from 2016 or 2017, headed progress notes, and prepared by Ms Elissa Wong, a physiotherapist, recorded the following:

"Lives alone in double storey home

x 13 steps with rail internally, Nil steps FA

Baseline mobility independent mobility with SPS

lndependent ADL and PADL; cleaning service once weekly

Only family member available: son in law who visits and stays once every 2-3 weeks

Deceased daughter and husband".

108. A further undated progress note records relevantly as follows under the heading "Home Environment":

“Lives: alone, son-in-law lives near Mudgee, visits and stays over every two-three weeks. Patient also reports that son-in-law will assist with transport to medical appointments that are further away from home.” (emphasis added).

109. Counsel for Mr Leaney submitted, not unreasonably, that it was to be inferred that the Deceased was the source of both the description of Marco as her son-in-law and her status as "living alone". Prima facie, both of these matters pointed strongly against Marco's case.

110. Marco gave evidence, both in his affidavits and also when under cross-examination, that he and the Deceased did not publicly refer to each other as partners or as being in a relationship because, he said, the Deceased did not want her family, which was apparently a strong Catholic family, to find out about the relationship, particularly given its origins (following the death of the Deceased's daughter and Marco's then partner) and the ages of the Deceased and Marco.

111. In para 106 of his principal affidavit, Marco said that the Deceased had said to him that "if there was a suspicion that we are together, my family will banish me." I will consider this explanation and refer to further evidence more fully later in these reasons, but it is significant to note that, notwithstanding that there are a significant number of references to Marco being the Deceased's "son-in-law" in the Deceased's medical records, there is one medical record from May 2013 in which he is described as her husband ("[Patient] to be discharged to home with husband" [Tab 64 of Exhibit P7]). Unlike the descriptions of Marco as the Deceased’s son-in-law, unless this was a mistake, there appears to me to be no explanation for his being described as the Deceased’s husband other than the fact that the pair were indeed in a relationship as a couple. Even if this was a mistake, this entry would, on that hypothesis, appear to reflect how the pair presented.

112. As to a number of statements in the Deceased's medical records that she was "living alone", those statements are not really accurate in light of the objective evidence that, for approximately half of the time, the Deceased was living with Marco, at least in the sense of sharing a house with him (see [88]−[93] above).

113. Marco's evidence in relation to statements in the medical records that the Deceased was "living alone”, was that, to his knowledge, the Deceased said this to nurses and physiotherapists because it was more likely to secure for her more support than if the hospital and hospital staff thought that she was living in the company of another person (which, of course, she was for a significant amount of the time). Thus Marco gave evidence, in para 132 of his principal affidavit, that:

"On more than one occasion Shirley and I had a conversation with words to

the effect of:

Shirley:   ‘I have told the hospital I live alone. If I say that someone is with me, a nurse will not visit my home to check up on me, and if I need help while you are in Rylstone I want to make sure that someone is dropping by.'

Me:   ‘OK’.”

Marco was not challenged on this evidence.

Marco's medical records

114. Exhibit P3 contained a number of medical records relating to consultations and some hospital admissions which Marco had had in the 10 year period leading up to the death of the Deceased. As with the Deceased's medical records, a number of Marco's medical records prima facie undermined his case insofar as they described the Deceased as his "mother-in-law".

115. Mr Leaney relied on entries in a number of medical records in support of his contention that Marco was not the spouse of the Deceased. One of these comprised handwritten notes relating to the hospital admission of Marco on 10 March 2017 in which the person who has prepared the note has recorded, presumably on instructions from Marco, that he "lives alone in a farm 3 hours away from Sydney, regularly visits mother-in-law (lives in Camry), wife deceased."

116. As with the Deceased's medical records referred to at [111], however, two of Marco's medical records in fact refer to the Deceased as his wife (see Tabs 5 and 6 of Exhibit P3), being admission and discharge notes from an admission to Royal North Shore Hospital in May 2016 which recorded, inter alia, that "[he] lives with his wife". On the other hand, one of these records gave the Rylstone address.

117. These entries, by which I include the entries in Marco's medical records and those of the Deceased referred to at [111], where they are respectively referred to as “husband” and “wife”, are particularly significant, in my opinion. They are either mistakes or disclose the true nature of the relationship.

118. If they are not mistakes, they tend to confirm that other statements made to medical authorities as to the status or nature of the relationship between Marco and the Deceased were part of a conscious pattern of concealing to the outside world the true nature of the relationship between Marco and the Deceased.

119. In this context, one of the Royal North Shore Hospital records (Tab 2 of Exhibit P3) recorded that Marco was a rural patient who lived "alone on [a] farm in [W]estern NSW" and was "[c]urrently staying wit[h] mother-in-law in Sydney". Another record (Tab 4 of Exhibit P3) recorded that he "[l]ives alone on a 1 acre property near Mudgee."

120. Those descriptions do not, in my opinion, reflect the reality of the living arrangements of the Deceased and Marco as they are disclosed by both the objective evidence and that of Mrs Scarf and Mrs Taylor as referred to more fully below. On the other hand, they need to be carefully considered as part of the overall assessment of the relationship.

Photographic evidence

121. A significant number of photographs were in evidence showing Marco and the Deceased in various social settings. These included large group photographs with members of the Deceased's extended family who were represented by Mr Leaney in these proceedings. Significantly, Marco was included in these family gatherings (despite him not being a blood relative of any of the Deceased, Mr Leaney, his siblings or cousins).

122. That Marco was regularly included in family gatherings and celebrations involving the Deceased and her extended family was confirmed by any number of affidavits filed on behalf of Mr Leaney.

123. Other photographs show the Deceased and Marco together in various social settings including at the beach, at various shows or performances and in the Cammeray Property.

Affidavit evidence led on behalf of Marco

124. Marco swore numerous affidavits in these proceedings. His evidence was supported by two substantive affidavits, namely those of Mrs Scarf and Mrs Taylor, a neighbour and good friend of the Deceased who lived two doors up from the Cammeray Property.

125. I will endeavour to summarise key aspects of this evidence, noting that, although Mrs Scarf and Mrs Taylor were cross-examined, no attack was made on their credit and, insofar as their cross-examination allowed me to form an assessment of the value and reliability of their detailed written affidavit evidence, I was left with the impression that Mrs Scarf and Mrs Taylor had regular contact with, and a regular opportunity to observe, the Deceased and Marco and their interactions with each other. I accept their evidence and its value for the purposes of my task was enhanced by the regularity of their contact with Marco and the Deceased.

126. I also accept Marco's evidence which was not, in my opinion, undermined in cross-examination. To the extent there was an attack on his credit, it was confined to the fact that he had denied the existence of any sexual relationship with the Deceased to a number of the Deceased’s friends and it was submitted that this showed that he was prepared to lie. This was evidence which he volunteered in his affidavit, saying that the Deceased had asked him to do this. I do not consider that this affects his credibility in any material way, especially in circumstances where he volunteered the evidence. Marco was also candid about claiming a pension as a single man. He had volunteered that he never declared his relationship with the Deceased to the Government, and that it did not cross his mind to do so.

Marco's evidence

127. I have already referred to some of Marco's evidence both in relation to the “Background” and also in the context of discussing various relevant considerations. I now turn to it in a little more detail.

128. Marco gave detailed evidence of his day-to-day life with the Deceased including their routines, their division of tasks in the household (she did most of the cooking and he was responsible for maintenance around the house and most of the gardening) and their social life together. He detailed their shopping habits, estimating that he contributed about 30% to the purchase of groceries in the household. He explained that he never paid any rent at the Cammeray Property and that the Deceased never suggested it.

129. There was also evidence as to regular visits to movies and restaurants, to the beach, to their respective television watching habits, to preferences in wine and to a number of holidays together to destinations such as Magnetic Island, the Gold Coast, the Blue Mountains, the Central Coast and the South Coast. He also regularly accompanied her to family occasions and celebrations.

130. Much of the evidence given by Marco had a level of detail which gave it considerable verisimilitude which was only, in my assessment, reinforced in cross-examination.

131. In paras 70−73 of his affidavit, Marco gave evidence as to physical aspects of his relationship with the Deceased. That evidence was as follows:

“Shirley also loved musicals, and there was often a show that she would want to see. We would go to see shows in the city at the Star Casino, the State Theatre, and the Capitol Theatre. I would normally buy the programme which Shirley would keep as a memento. I expect that these programs would probably still be in the House at the Cammeray [P]roperty, to which I no longer have access. At page 167 of Exhibit JJB-1 are photographs of myself, Shirley, and Helene attending the musical Matilda on 26 December 2015 at the Star Casino Sydney, and the Fiddler on the Roof on 7 May 2016 at Capitol Theatre.

After approximately six months of living in the second bedroom in the House, being in or around April 2008, Shirley and I began a sexual relationship. I would have been approximately 68 at the time, and Shirley was approximately 78. I think it was a natural occurrence of the circumstances. The two of us were both lonely and lived in close proximity to each other. Shirley was only ten years older than I, and we had many things in common. I felt that I could share things with Shirley that I could not share with a younger woman. All of these things added to the spice and intimacy of our relationship.

Shirley was always very veracious, outgoing, and had a thirst for life. She enjoyed eating exciting food, drinking alcohol, dancing, and sex, which she described to me as being 'the other complement of life'. I would describe Shirley as a woman with no limits, particularly for food and wine. Shirley was a lot of fun to live with. She was also a great conversationalist. Shirley loved to talk and I loved to listen to her.

At the start of our relationship there were often long stretches of time where we would share a bed. However, Shirley could be a loud snorer and also like to have the radio on while she slept, so as the relationship went on I would sleep in my own bed more often. Whilst we maintained two separate bedrooms, we would have moments of intimacy before retiring to our separate bedrooms to sleep."

132. At para 97 of his affidavit, Marco said:

"As I grew older I started to suffer from prostatic hyperplasia, which is a growth in my prostate. This, combined with my age, meant that Shirley and my sexual activity became less frequent. However, we remained intimate in other ways, such as spooning in bed and cuddling, until Shirley's death."

133. Marco was cross-examined about this aspect of his evidence and gave the following evidence:

“Q.   We understand your evidence. Your relationship, your sexual relationship with her diminished over time, is that your evidence?

A.   Yes. Sexual as in - how can I put it in this so that all those people −

Q.      Let me ask you this question?

A.      Yes.

His

Honour:   Sorry, do you want to - have you finished your answer?

A.   I mean, at the start of our relationship, sexual relationship, yes I was able to perform my masculinity and have a relationship. That over the past years, maybe ten years, was diminish, but I think many old couple are - what is sexual intercourse diminish over the year and finally cease, but the tenderness, the sharing things that you be together, the cuddling, the spooning, they all those things that go with it, which is - there is a hell of a lot of sexual gratification in that. Yes, we keep on - that what that exist and did exist in my relationship with Shirley. Sexual intercourse, sexual parts connecting intimately, well that, that goes with the years. But the other thing, the other thing that stay there, and probably they are meant, they become bigger, more important to show, to demonstrate and to be shown that you are love[d], that somebody cared for you. That's all.”

134. Marco gave evidence as to conversations with the Deceased as to what they each wanted to happen when they died. He said in para 130 of his principal affidavit that:

"We were [each] other's partner and companion, and we both considered this an important conversation to have. We exchanged words to the effect of:

Me:      'When I die, I want to be cremated’.

Shirley:   ‘I also want to be cremated. I want my ashes to be scattered off Balmoral Beach."'

135. Marco gave evidence that, as the Deceased got older, she would need to attend doctors and visit hospitals on an increasingly frequent basis and he would drive her every week to the GP in Neutral Bay.

136. He said that the Deceased would attend specialists on an increasingly frequent basis, which meant that he would spend less time at the Rylstone Property so he could be there to support her. He said that he would still go up to Rylstone Property once every week or two to deal with the neglect of the house and garden and the trees, but would not go to the Rylstone Property if the Deceased was unwell at the time.

137. He said that in the last few years of the Deceased’s life, she would attend Royal North Shore Hospital for extended periods of time and that he would walk up to visit her and bring her fresh clothes each day.

138. Consistently with this, Marco gave evidence that he and the Deceased supported each other during various periods of hospitalisation and illness. Thus, at paras 122−124 of his principal affidavit, he said:

"In or around March 2017 I had a heart attack. Shirley and I were at home at the Cammeray [P]roperty, when I started to feel severe pain on my left arm, my heart started racing, and I started sweating profusely. I was in bed at the time. When I tried to get up I collapsed on to the floor. I cried out for help and Shirley came in from the next room and called an ambulance. I was taken to Royal North Shore Hospital where I stayed for three days, and received stem surgery on my heart. Shirley visited me twice a day for three days I was in hospital.

After my stay at Royal North Shore Hospital I had two weeks of rehabilitation at the Castlereagh Hospital. Shirley would visit me daily. During her visits, she would take my dirty laundry and provide me with clean clothes. She would also bring me home cooked food, as well as food from the delicatessen, fresh fruit, and fruit salad she had made at home. A photograph of Shirley visiting me at hospital is at page 168 of Exhibit JJB-1.

After l was discharged from the Castlereagh Hospital, Shirley insisted that I spend a further three weeks straight with her at the Cammeray [P]roperty for convalescence. The Rylstone [P]roperty went untended during this time. Over these three weeks Shirley would also drive me to Royal North Shore Hospital for the purposes of observations, and to Chatswood to see my cardiologist, Dr Kozar, for check-ups. It was more than a month before I was well enough to drive to Rylstone to check on the property. At all times when I was unwell Shirley would give me her full attention and love."

139. An important aspect of Marco’s evidence related to the issue of how their relationship presented in public. Thus, at paras 109-112 of his principal affidavit, he said:

“… approximately three or four years into a relationship, Shirley told me that when she and her friends spent time together they would say things that insinuated that there was something going on between the two of us. Shirley raised this with me on a number of occasions and was increasingly concerned that people would find out about the true nature of our relationship.

At one point, I cannot recall exactly when but it would have been three or four years into our relationship, Shirley and I had a conversation with words to the effect of:

Shirley:   ‘Can you please approach each of my friends and deny that we are having sex, and say that nothing is happening between us.’

Me:      ‘I do not want to do this.’

Shirley:   ‘Please do it as my friends are insinuating things when we get together and I want to nip it in the bud.’

Me:   ‘OK’.

I reluctantly agreed to do this … I prioritised Shirley's feelings over my own.

The conversations with Shirley's friends were awkward.”

140. He gave similar evidence in relation to how the Deceased wished him to present to her family. I have already referred to some of the evidence in an earlier part of these reasons. He said that the Deceased was terrified about her friends and family discovering the nature of their relationship. He gave evidence that her family was very conservative and strict Catholics, and gave evidence of the Deceased’s concern that they would react badly if they found out that she was together with her former son-in-law. He said that:

“[o]n more than one occasion, Shirley said to me words to the effect of: ‘My family must not know about us and our relationship, they will kill me spiritually and socially, I'd be ostracised and shut out of my family'.”

141. He said that because of the Deceased’s fear of being ostracised, they had to maintain a fiction to her family and friends that they were not in a relationship. This evidence assumed importance in the case and will be considered in further detail later in these reasons.

Mrs Scarf's evidence

142. I have already referred in passing to Mrs Scarf, being the child of the Deceased's second husband, Mr Bowles. It will be recalled that Mrs Scarf delivered one of the eulogies at the funeral and I have set out extracts of that eulogy in [65]−[66] above.

143. When Mrs Scarf’s father died in 1984, there was a legal dispute as to his estate between the Deceased and Mrs Scarf, in which the Deceased was successful and there was an alteration to the distribution of Mr Bowles' estate. That dispute, perhaps not surprisingly, led to a hiatus in the relationship between the Deceased and Mrs Scarf, but the relationship was rekindled in or about 1998, not long after the death of the Deceased's third husband, Mr Gardner. It appears that the Deceased had seen Mrs Scarf, who breeds horses in the Kangaroo Valley, on a television program and that prompted her to get in touch and reconnect. Thereafter, the evidence is, and I accept, that the Deceased and Mrs Scarf maintained a close relationship. Mrs Scarf's evidence was that she would see the Deceased on a regular basis, no less than once a fortnight, ordinarily on a Thursday when they would have dinner together. She would also drop in from time to time to visit the Deceased at Cammeray and arrange tickets to musicals, outings and family luncheons.

202. Whilst it is correct that evidence as to the Deceased’s coyness emanated from Marco, and I must exercise caution in that regard, it is not without significance that his evidence was volunteered in chief and was not reactive or responsive to evidence led on behalf of Mr Leaney. Indeed, perhaps paradoxically, much of the evidence led on Mr Leaney’s behalf tended to confirm Marco’s evidence, insofar as a number of the affidavits attributed to the Deceased statements about her relationship with Marco that simply did not accord with the objective facts as I have found them to be, in turn supporting an inference that the Deceased was consciously trying to deflect suggestions of a relationship. I refer in this regard to what I have said in [166]−[167], [173], [177] and [187] above. Given that one would not normally expect a son-in-law and mother-in-law to form a relationship as a couple, the statements attributed to the Deceased in various affidavits filed on behalf of Mr Leaney are all the more conspicuous.

203. As to the various descriptions of Marco and the Deceased as son-in-law and mother-in-law respectively, these do point against Marco’s claim as to the true nature of the relationship but they are capable of being explained as part of the consistent and deliberate concealment of the true nature of the relationship to the outer world. This is reinforced by the fact that many of the same records state that Marco or the Deceased “lived alone” when this was demonstrably not the case. It is also necessary to bear in mind that the evidence must be assessed as a whole.

204. In my opinion, taking all the matters I have referred to above into account, and having assessed the evidence presented by both sides, I conclude that Marco was the “spouse” of the Deceased in the requisite statutory sense in the two years prior to her death. Accordingly, in light of the fact that she died intestate, he is entitled to the entirety of her Estate, no other claims for provision having been made upon it. I would also grant him letters of administration in respect of the Deceased’s Estate.

Alternate claim

223. As noted earlier in these reasons, in the alternative to a declaration that he is the surviving spouse of the Deceased and a concomitant grant of letters of administration, Marco seeks an order for provision to be made out of the Deceased’s Estate for his maintenance, education and advancement in life, pursuant to s 59 of the Succession Act.

224. In light of my finding that Marco was the spouse of the Deceased, it is strictly not necessary to deal with this aspect of the claim but I do so against the contingency that my conclusions on the principal issue are challenged.

Statutory regime

225. Section 59 of the Succession Act provides that the court may, on an appropriate application, make a family provision order in relation to the estate of a deceased person in favour of certain “eligible persons” who have not been afforded adequate provision for the proper maintenance, education or advancement of life by the will of the deceased person or by the operation of intestacy rules in relation to the estate of a deceased person.

226. “Eligible persons” is defined in s 57 of the Succession Act relevantly to include “a person who was, at any time, a member of the household of which the deceased person was a member and was, at any particular time, wholly or partly dependent on the deceased person” (s 57(1)(e)) and “a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death” (s 57(1)(f)).

227. In relation to “eligible persons” falling into either of these two categories, s 59(1)(b) of the Succession Act provides that the court may only make a family provision order where, having regard to all the circumstances of the case, “there are factors which warrant the making of the application”. The factors which warrant the making of an application are those that would render the applicant a natural object of testamentary recognition by the Deceased: Re Fulop Deceased (1987) 8 NSWLR 679. In the present case, by written submissions of 5 September 2019, counsel for Mr Leaney has accepted that, if Marco is found to be an eligible person, there are factors warranting the making of an order.

228. Section 59(1)(c) of the Succession Act provides that, for a family provision order to be made, the court must be satisfied that:

“at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.”

As is obvious, on the hypothesis upon which the alternate claim is made, no provision will have been made for Marco by the operation of the intestacy orders.

229. Section 60 of the Succession Act sets out matters that may be considered by the court in determining whether a person is an eligible person, whether to make a family provision order and the nature of any such order. The following constitute matters that the court may relevantly consider:

“(a)   any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b)   the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c)   the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d)   the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

(e)   if the applicant is cohabiting with another person—the financial circumstances of the other person,

(f)   any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g)   the age of the applicant when the application is being considered,

(h)   any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i)   any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j)   any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k)   whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l)   whether any other person is liable to support the applicant,

(m)   the character and conduct of the applicant before and after the date of the death of the deceased person,

(n)   the conduct of any other person before and after the date of the death of the deceased person,

…

(p)   any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.”

230. There are therefore two key matters to consider in the present case:

1. firstly, whether Marco is an eligible person; and

2. secondly, whether the Court thinks an order for provision out of the Deceased’s Estate ought to be made for the maintenance, education or advancement in life of Marco having regard to the facts known to the Court at the time the order is made.

Eligible Person

231. The first relevant category of eligible person to be considered is whether Marco was a member of the same household as the Deceased and was partly dependent upon the Deceased.

232. The meaning of “household” for the purposes of this category of eligible person was considered in Miller v Ryan; Payne v Ryan [2015] NSWSC 1713. Young AJA in that case noted that “[a]mong other things, living in the same household connotes some element of frequency of contact, some element of mutual support and some element of community of resources”: at [26]. For the reasons I have given in relation to the principal issue, Marco can in my view comfortably and properly be described as having been a member of the household of which the Deceased was a member.

233. Dependency is a question of fact and is not to be given any restrictive meaning: Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [70]–[84] (Spata) and Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [180]. The standard of support is set by the parties and the fact that one party need not have depended on the other in the sense of strict necessity is not to the point: Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 190; [1973] HCA 8; Spata at [81]; Ball v Newey (1988) 13 NSWLR 489 at 492.

234. Marco submitted that he satisfied the second element of the eligible person test in s 57(1)(e) of the Succession Act, in that he was partly dependent on the Deceased for accommodation from about 1992 (when he started living in the flat downstairs at Cammeray with Gaye-Marie rent free) until the date of the Deceased’s death in June 2017, being a period of 25 years. Marco submitted that he was partly dependent on the Deceased by her paying all of the outgoings at the Cammeray Property, the majority of his household expenses, providing to Marco emotional support and sharing in the household chores with Marco. Marco cited Drury v Smith [2012] NSWSC 1067 at [118] for the proposition that dependency includes the receipt of financial and/or emotional support.

235. Mr Leaney submitted that Marco was, by his own evidence, never financially dependent on the Deceased. He drew attention to the fact that Marco and the Deceased maintained separate bank accounts and paid outgoings on their respective properties. The Deceased also emphasised Marco’s two pensions and inheritance from Gaye-Marie’s Estate and submitted that Marco had sufficient income to support himself and his son.

236. I am satisfied that Marco was partly dependent on the Deceased for the reasons submitted on this behalf and set out in [234] above.

237. I now turn to the second (and alternate) basis for Marco’s claim to be an “eligible person”, viz as a person living in a close personal relationship with the Deceased at the time of the Deceased’s death.

238. “Close personal relationship” is defined in s 57 of the Succession Act as a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care not for a fee or reward or on behalf of another person or organisation. Unlike the definition of de facto relationship, the “living” component in this context does not require the Deceased and the person claiming eligibility to have been living together “as a couple”.

239. For the reasons set out above at [202]−[222], Marco also satisfied this definition.

240. Mr Leaney emphasised the domestic and personal assistance the Deceased received from BaptistCare and argued that BaptistCare, and not Marco, provided the Deceased with “personal care” in the form of mobility and personal hygiene assistance. That may have been partly so but was only for a limited period each week and does not negative the provision of care and domestic support that I have found Marco provided to the Deceased.

241. Contrary to Mr Leaney’s contentions, I do consider that Marco, if he were not in a de facto relationship with the Deceased, was living in a close personal relationship with her at the time of her death. The limited provision of personal care by an external service provider does not change the position.

242. In relation to the factors set out in s 60(2) of the Succession Act, Marco submitted the following:

1. That, on the hypothesis that he was not in a de facto relationship with the Deceased, he was regarded as her son-in law;

2. The Deceased’s undertakings, on Marco’s evidence, to mention Marco in her will and not “neglect” him. (This is a reference to Marco’s attribution to the Deceased of a statement to him that she would remember him in her will);

3. The absence of legal or moral obligations owing by the Deceased to her nieces, nephews or great nieces and nephews;

4. Marco’s non-financial contributions to the conservation and improvement of the Deceased’s Estate by way of gardening, maintaining the house and flat at Cammeray, contribution of his views on the Enmore property (a separate property owned by the Deceased) and providing extensive physical, emotional, logistical and household support to the Deceased;

5. The frequent telephone contact between him and the Deceased when he was not with the Deceased at the Cammeray Property;

6. The provision to Marco by the Deceased of rent-free accommodation;

7. The absence of any person or entity (other than the Commonwealth) liable to support Marco;

8. The absence of any conduct or character on the part of Marco that would or should disentitle him from an order for provision;

9. Marco’s need for provision out of the Deceased’s Estate by reason of:

1. His various medical conditions requiring regular visits to specialists and his taking of a range of medications;

2. the constant upkeep required in relation to the Rylstone Property;

3. his need to relocate to Sydney to be closer to his medical practitioners (by which he hopes to return to the Cammeray Property in which he lived for 20 years, is very familiar with and of which he holds fond memories);

4. the possibility that he will need to move into a nursing home (and have the funds to afford such care) if his health were to deteriorate; and

5. the fact that he provides some financial assistance to his son who is on a disability pension.

243. The matters referred to in the last subparagraph above were the subject of Marco’s evidence in an affidavit sworn on 4 April 2018 and were not relevantly in issue. In that affidavit he also stated that his payment of the Deceased’s funeral expenses in excess of $10,000 had left him without a fund available for contingencies.

244. Marco also submitted that Mr Leaney did not adduce evidence from the possible next of kin on intestacy in relation to their financial circumstances, meaning that there were no competing claims on the Deceased’s Estate, and that the Court was therefore entitled to infer that the other prospective competing claimants have adequate resources upon which to live and that they do not wish to advance a competing claim on the Deceased’s bounty: citing Sammut v Kleemann [2012] NSWSC 1030 at [137].

245. In his affidavit of 22 August 2019, Marco updated his “needs” evidence and said at [16]−[20] as follows:

“It remains my intention that I will relocate to Sydney when my medical needs require that I am closer to my doctors and specialists who are located in the Sydney area. The drive between Sydney and Rylstone takes approximately six hours with rest breaks.

In or around October 2018, my driver licence was not renewed due to medical reasons. My driver licence was subsequently renewed in or around November 2018. During this period of approximately 1 month, I was unable to drive to Sydney. Without being able to drive, it was necessary to catch a bus from Rylstone to Lithgow, then a train from Lithgow to Sydney. This trip is difficult on my health, and there is only one outgoing bus and one incoming bus per day between Rylstone and Lithgow. In the event that my licence is not renewed again in the future, I fear that it will be difficult for me to travel between Sydney and Rylstone.

I want to return to live in the home at Cammeray as I have a personal connection to the house having lived there for approximately 20 years and I am familiar with the area. I refer to paragraphs 144 to 147 of my affidavit dated 2 February 2018. I believe that my belongings are still at the Cammeray [P]roperty. It would also mean that I would be closer to my doctors who are located in Sydney. I have also made enquiries online and some of the properties in Chatswood, Cammeray, Neutral Bay and North Sydney that look suitable for my needs (being one-bedroom apartments) that are currently for sale appear to be in between $650,000 and $1,000,000 in value. The reason I have been looking at properties in these suburbs is because they are in vicinity of the Royal North Shore Hospital and my specialists are located in the area. The suburbs are also close to Cammeray and the areas with which I am familiar.

Due to my medical conditions, I may also require care in a nursing home. I am informed by my solicitors, and I believe it to be true, that they have made enquiries on my behalf with various nursing homes to ascertain the estimated costs that I will incur in the event that I need to move into a nursing home in the near future. I am informed by my solicitors, and I believe it to be true, that there are four components of the costs of moving to a nursing home, being the following:

(a)   A basic daily fee, set by the government and reviewed every 6 months, which is as at the time of deposing this affidavit $51.21, which equates to $18,691.65 per annum;

(b)   A means tested daily care fee, the calculation for which is set by the government. A fee estimator for the means tested care fee is available on the 'My Aged Care' government website. When my current financial information is input into the fee estimator it calculates the means tested daily care fee applicable to me to be $11.59, which equates to $4,230.35 per annum;

(c)   Accommodation costs (being the costs of the room itself), the average of which based on the providers my solicitors contacted in Sydney is approximately $600,000.00; and

(d)   Additional services fees, which are approximately $60.00 per day, which equates to $21,900 per annum.

Accordingly, I estimate the total costs of moving into a nursing home to be $600,000 for the accommodation and $44,822.00 per annum in fees.”

246. Against these considerations, Mr Leaney submitted that:

1. Marco’s desire to return to the Cammeray Property for sentimental reasons was not a ‘financial’ need within the meaning of s 60(2) of the Succession Act;

2. Marco has an established home at Rylstone and had not adduced medical or financial evidence to show that he needed to come back to Sydney and had not shown that there were insufficient aged care facilities where he now lives;

3. although the persons whom Mr Leaney represented had filed no evidence as to their particular needs, they are nevertheless persons with a legitimate claim on the bounty of the deceased pursuant to s 129 of the Succession Act and their interests would be affected by the imposition of an order in favour of Marco;

4. Marco made minimal contribution to the value of the Deceased’s Estate which was completely established after the death of Mr Gardner and there was no evidence that her Estate would have been worth less at the date of her death but for contributions by Marco;

5. the Deceased’s indication to Mr Thomas that, although she would like to give something to Marco, she did not want it to go to his son David after his death.

247. It follows from the foregoing discussion that, had I not reached my conclusion in relation to Marco’s status as the Deceased’s spouse, I would have found him to be an “eligible person” within the meaning of the Succession Act.

248. I would also have made provision in his favour from the Deceased’s Estate.

249. Bearing in mind his advanced age, his principal asset in the form of the Rylstone Property in addition to an interest worth approximately USD50,000 in an apartment in Argentina, the income he receives in terms of superannuation and pension and taking into account that, insofar as he has spent well over 20 years at the Cammeray Property, initially in the flat with Gaye-Marie and, over the 10 years prior to the Deceased’s death, upstairs at the Cammeray Property approximately 50% of the time, I would have awarded Marco a life estate in the Cammeray Property together with a lump sum of $400,000. This, together with his other assets, could be deployed by him in aid either of additional assistance in his later years and/or a move from the Cammeray Property into a nursing home.

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Decision last updated: 01 October 2019