Estrella v McDonald - [2012] VSC 62

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2009 7757

ESTRELLA	Plaintiff
v
McDONALD AND ORS	Defendant

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 7, 8, 9, 10, 14 June 2011
DATE OF JUDGMENT:	29 February 2012
CASE MAY BE CITED AS:	Estrella v McDonald and ors
MEDIUM NEUTRAL CITATION:	[2012] VSC 62	1^st Revision 2 March 2012

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TESTATOR’S FAMILY MAINTENANCE-Plaintiff claims as domestic or de facto partner of the deceased-No provision for plaintiff in the will- four children beneficiaries-plaintiff and deceased not living together at the deceased’s death-covert relationship-homosexual relationship-whether it is necessary to establish a de facto relationship under s. 91 of the Administration and Probate Act 1958-significance of Relationships Act 2008-whether or not a domestic partnership or de facto relationship-promises made by deceased to make financial provision for the plaintiff-whether the plaintiff a person for whom the testator had a responsibility to make provision-further provision ordered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R B Phillips	Johansson Solicitors
For the First and Second Defendants	S F McNab	D J Thwaites
For the Third and Fourth Defendants	R H Miller	Michael Kelly & Co

TABLE OF CONTENTS

INTRODUCTION

POWER TO AWARD PROVISION: THE LAW

Is it necessary to establish a de facto relationship?

Relationships Act 2008

Is it significant the relationship was said to be a homosexual one?

BACKGROUND

The deceased’s marriage and children

The deceased’s wills and the estate

RELATIONSHIP BETWEEN THE PLAINTIFF AND THE DECEASED: EVIDENCE

Early years 1978-1983

First visit to Australia 1983

The plaintiff moves to Australia 1985

Working in Australia away from Melbourne 1996-2000

Melbourne 2000-2002

Overseas work from 2002

2003

2004

2005-2006

2007

2008

The evidence of the deceased’s family as to his relationship with the plaintiff

Business proposals

Assessment of the plaintiff’s evidence in relation to business proposals

Evidence of the deceased’s accountant

Conclusions as to the business proposals

The plaintiff’s witnesses

THE PLAINTIFF’S RELATIONSHIP WITH THE DECEASED: DISCUSSION AND FINDINGS

1985-1996

From 1996

ASSESSMENT OF S 91(4) FACTORS

Section 91(4)(e): any family or other relationship between the deceased and the plaintiff, including the nature of the relationship and, where relevant, the length of the relationship

Section 91(4)(f): any obligations or responsibilities of the deceased to the plaintiff and beneficiaries

Section 91(4)(g): the size and nature of the estate and any charges or liabilities to which it is subject

Section 91(4)(h): financial resources (including earning capacity) and the financial needs of the plaintiff and any beneficiary at the time of the hearing and for the foreseeable future

Section 91(4)(i): any physical, mental or intellectual disability of the plaintiff or any beneficiary

Section 91(4)(j): the plaintiff’s age

Section 91(4) (n): liability of any other person to maintain plaintiff

Section 91(4)(k): any contribution (not for adequate consideration) by the plaintiff to the building up of the estate or the welfare of the deceased or family of the deceased

Section 91(4)(l): any benefits previously given by the deceased person to…

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 Estrella v McDonald

Details

AGLC: Estrella v McDonald [2012] VSC 62
Case: [2012] VSC 62
Decision Date: 29 February 2012

CaseChat Overview and Summary

In the matter of Estrella v McDonald, the plaintiff, Estrella, sought maintenance from the estate of the deceased, McDonald. McDonald had passed away without leaving any provision for Estrella in his will, which instead named four children as beneficiaries. The crux of the dispute was Estrella’s claim to be McDonald’s domestic or de facto partner, a relationship which was covert and homosexual. The fundamental legal issue the court needed to resolve was whether Estrella needed to establish a de facto relationship under section 91 of the Administration and Probate Act 1958 to be eligible for maintenance. Given the enactment of the Relationships Act 2008, the court had to consider its implications on determining whether Estrella and McDonald had a domestic partnership or a de facto relationship. Additionally, the court examined the promises made by McDonald regarding financial provision for Estrella and whether he had a responsibility to make such provisions.

The court found that under the Administration and Probate Act 1958, a de facto relationship needed to be established to qualify for maintenance, even in light of the Relationships Act 2008. The court analysed the nature of the relationship between Estrella and McDonald, considering the covert and homosexual nature of their partnership. It determined that the key factor was whether McDonald had a responsibility to make provision for Estrella. The court acknowledged the promises made by McDonald and the nature of their relationship, ultimately finding that McDonald had a responsibility towards Estrella. Consequently, the court ordered further provision for Estrella from McDonald’s estate, recognising her as a person for whom the testator had a responsibility to make provision.

The court’s decision underscored the importance of the nature of the relationship and the promises made by the deceased in determining maintenance claims. By granting further provision to Estrella, the court affirmed that covert and homosexual relationships could qualify for maintenance under the Administration and Probate Act 1958, provided the deceased had a responsibility to make such provision. The court's ruling highlighted the need for a comprehensive assessment of the relationship dynamics and the testator's obligations.

Orders