CITATION: Gollege v Donnachie [2005] NSWSC 16
HEARING DATE(S): 16, 17 November 2004
JUDGMENT DATE :
8 February 2005JURISDICTION: Equity Division
JUDGMENT OF: Master Macready at 1
DECISION: Paragraph 72
CATCHWORDS: Family provision and maintenance - claim by a de facto partner - dispute as to whether plaintiff was a de facto partner - appropriate provision was a life interest with particular attributes to prevent dissipation.
PARTIES: William Gordon Gollege v Patricia Donnachie & Anor (Estate of Mary Anne Bell)
FILE NUMBER(S): SC 4867 of 2002
COUNSEL: Mr M. Gorrick for plaintiff
Mr J.S. Drummond for defendantsSOLICITORS: The Legal Aid Commission of NSW for plaintiff
Beazley Singleton for defendants
LOWER COURT JURISDICTION:
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
Master Macready
Tuesday 8 February 2005
4867/02 William Gordon Golledge v Patricia Donnachie and Elizabeth Borg
JUDGMENT
1 Master : This is the hearing of an application under the Family Provision Act 1982 in respect of the estate of the late Mary Ann Bell who died on 2 April 2001. The plaintiff was at one stage the de facto partner of the deceased. The defendants are two of the children of the deceased by her marriage.
Last will of the deceased
2 On 19 April 1984 the deceased made her last will and testament. In that will clause 2 was as follows:
- “I give my house No. 48 Macauley Street Leichhardt and the furniture and furnishings therein unto my trustees upon trust to permit my friend WILLIAM GORDON GOLLEDGE (provided he shall be living with me as at the date of my death upon a bona fide domestic basis ) and my son David Anthony Bell (hereinafter called the permitted occupants) and no other person to enjoy the personal use and occupation of the said house furniture and furnishings during their respective lives while they shall respectively remain unmarried and so long as they respectively shall not enter into any de facto relationship in either of which events he or they shall forthwith vacate the house and I DIRECT my trustees to take any necessary steps to ensure that they do so.”
3 Thereafter the will provided in clause 4 for the home to be sold and to be divided equally between the four children of the deceased.
4 On 30 January 1996 the deceased executed a codicil amending clause 2 by deleting the reference to 48 Macauley Street, Leichhardt and inserting the premises known as 14 Warman Street, Pendle Hill. Apart from this amendment there were no other changes to the will.
The assets in the estate
5 The deceased owned the property at 14 Pendle Hill that has a present value of $417,000 and she had cash of about $5,756. The cash has been used to pay some of the administration expenses of $20,801 with the executors paying the balance. They still hold the house which is occupied by the defendant and the executors have met all the rates and taxes…
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- Case
- [2005] NSWSC 16
- Decision Date
CaseChat Overview and Summary
The court had to determine several key legal issues. Firstly, whether a de facto relationship existed between Gollege and Donnachie. Secondly, if such a relationship existed, whether the plaintiff was entitled to maintenance and family provision. Finally, if a life interest was granted, the court needed to decide what attributes it should carry to prevent dissipation.
In delivering the judgment, the court found that a de facto relationship did indeed exist between the parties. It was determined that Gollege was entitled to maintenance and family provision. The court found that a life interest in the property with specific attributes would be appropriate to ensure that the benefit derived from the relationship was not dissipated. The court held that the life interest should include the right to occupy the property, a sum to cover reasonable living expenses, and provisions to ensure that the benefit was not lost through dissipation. This decision provided clarity on the extent of entitlements for de facto partners in property disputes.
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