Legal Research
Cases
Estate Pamplin; Irwin v Pamplin

Estate Pamplin; Irwin v Pamplin

Case [2017] NSWSC 1477 3 November 2017

Intestacy

De facto spouse

Relationship as a couple living together

Multiple or Separate residences

Succession Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477
Hearing dates: 31 October, 1, 2, 3 and 8 November and 13 December 2016; and 3 February and 1 and 29 March 2017
Decision date: 03 November 2017
Before: Lindsay J
Decision:
(1) DECLARE that the plaintiff, as the surviving de facto spouse of the deceased, is entitled to the whole of his intestate estate.

(2) ORDER that letters of administration of the estate be granted to the plaintiff.

(3) ORDER that the competing application for a grant, made by the defendant as mother of the deceased, be dismissed.
(4) Consequential orders.
Catchwords: Succession – Intestacy – De facto spouse – Relationship as a couple living together – Multiple or Separate residences – Succession Act 2006 NSW, sections 104(b), 105(a) and 111 – Interpretation Act 1987 NSW, section 21C.
Legislation Cited: Interpretation Act 1987 NSW
Succession Act 2006
Uniform Civil Procedure Rules 2005 NSW
Cases Cited: Amprimo v Wynn [2015] NSWCA 286
Piras v Egan [2008] NSWCA 59
Thompson v The Public Trustee of NSW [2010] NSWSC 1137
Vaughan v Hoskovich [2010] NSWSC 706
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Ann Margaret Irwin
Defendant: Marie Pamplin
Representation:
Counsel:
Plaintiff: M Stevens
Defendant: L Ellison SC and R Kako
Solicitors:
Plaintiff: Mersal & Associate
Defendant: Ronald W Winter

File Number(s): 2014/001735872014/00214419
Publication restriction: -

Judgment

INTRODUCTION

Adrian Dennis Pamplin (“the deceased”) died of natural causes, overnight on 23-24 August 2013, at Pitt Town in the state of New South Wales, leaving property in the state but (so far as can be found) no will.
Absent a will, the deceased must be taken to have died intestate: Succession Act 2006 NSW, section 102.
The “intestacy rules” governing beneficial entitlements to the estate of the deceased are found in Chapter 4 of the Succession Act 2006 (sections 101-140).
The deceased was born in March 1966. He was aged 47 years at the time of his death. He never married. Nor did he ever have children. He was predeceased by his father, but survived by his mother, Marie Pamplin; a brother, Lionel Joseph Pamplin (born in August 1967); and Ann Margaret Irwin (born December 1969), who claims to be the deceased’s “surviving de facto spouse”, which is to say, in essence, his “widow”.
Before the Court are competing applications for a grant of administration of the deceased’s intestate estate. By an order made on 23 September 2016, the two applications have been heard together.
In proceedings numbered 2014/00173587(commenced on 11 June 2014) Ann applies for a grant of administration on the basis that, as the deceased’s surviving de facto spouse, she is entitled (under sections 104(b) , 105(a) and 111 of the Succession Act, read with section 21C of the Interpretation Act 1987 NSW) to the whole of his estate as defined by section 103 of the Succession Act (that is to say, so much of the estate of the deceased as remains after payment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Estate Pamplin; Irwin v Pamplin

Details

AGLC: Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477
Case: [2017] NSWSC 1477
Decision Date: 03 November 2017

CaseChat Overview and Summary

The case of Estate Pamplin; Irwin v Pamplin involved a dispute over the estate of a deceased person. The primary issue was whether the respondent, Pamplin, was entitled to succeed to the estate of the deceased as a de facto spouse under the NSW Succession Act 2006. The deceased and the respondent had lived together in separate residences, and Pamplin argued that they were in a relationship as a couple living together. The matter was heard and determined by the NSW Supreme Court.

The court had to address whether the deceased and Pamplin were in a de facto relationship within the meaning of the Act and, if so, whether Pamplin was entitled to succeed to the estate. The primary focus was on the interpretation of "relationship as a couple living together" under section 104(b) of the Act, and whether living in separate residences precluded such a relationship. The court also considered the application of section 105(a) and section 111 of the Act, as well as the definition of "de facto spouse" under section 21C of the Interpretation Act 1987.

The court held that Pamplin and the deceased were in a de facto relationship within the meaning of the Act, even though they resided in separate homes. The court found that the relationship was characterised by emotional intimacy and shared responsibilities, which are indicative of a de facto relationship. The court emphasised that the fact that they did not live in the same residence did not preclude the existence of a de facto relationship. The court determined that Pamplin was entitled to succeed to the estate of the deceased as a de facto spouse.

The court ordered that Pamplin was entitled to the estate of the deceased under the NSW Succession Act 2006, and that the estate was to be distributed accordingly. The court's decision recognised that a de facto relationship could exist despite separate residences, and that the nature of the relationship, rather than the physical living arrangements, was the determining factor.

Orders