Grech v Walsh - [2007] NSWSC 302

No judgment structure available for this case.

CITATION: Samuel Grech v Jack Edward Walsh; Richard John Leonard v Jack Edward Walsh; John Wallace Leonard v Jack Edward Walsh [2007] NSWSC 302

HEARING DATE(S): 29, 30, 31 May,
1, 2 June,
3,4,5,6 October,
20, 21 November 2006

JUDGMENT DATE :
4 April 2007

JUDGMENT OF: Associate Justice McLaughlin

DECISION: 5743 of 2004 Samuel Grech –v- Jack Edward Walsh; 1. I order that the proceedings be dismissed ; 2. I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis; 3. I order that the Defendant be entitled to recoup from the estate of the late Jeanette Irene Walsh (“the Deceased”) the difference between the Defendant’s costs on the indemnity basis and the costs which the Defendant may recover from the Plaintiff pursuant to order 2 hereof; 4. The exhibits may be returned; 5776 of 2004 Richard John Leonard –v- Jack Edward Walsh ; 1 I order that the time for the institution of these proceedings be extended up to and including 25 October 2004; 2 I order that the Plaintiff receive from the estate of the late Jeanette Irene Walsh (“the Deceased”) a legacy in the sum of $40,000, such legacy not to bear interest if paid on or before 4 May 2007, and if not so paid, to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898; 3 I order that the costs of the Plaintiff on the party and party basis, and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased; 4 The exhibits may be returned ; 3211 of 2005 John Wallace Leonard –v- Jack Edward Walsh; 1 I order that the time for the institution of these proceedings be extended up to and including 30 May 2005; 2 I order that the Plaintiff receive from the estate of the late Jeanette Irene Walsh (“the Deceased”) a legacy in the sum of $54,000, such legacy not to bear interest if paid on or before 4 May 2007, and if not so paid, to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898; 3 I order that the costs of the Plaintiff on the party and party basis, and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased ; 4 The exhibits may be returned

CATCHWORDS: Succession. Family Provision. Intestacy. Claims by two soi-disant de facto partners of Deceased and by an adult grandson. One of the alleged de facto partners was the paid carer of Deceased. Status of each Plaintiff as an eligible person. Financial and material circumstances of each Plaintiff. Whether each Plaintiff has been left without adequate provision for his proper maintenance. Factors which warrant the making of each application.

LEGISLATION CITED: Family Provision Act 1982
Property (Relationships) Act 1984

CASES CITED: Blore v Lang (1960) 104 CLR 124
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191

PARTIES: Samuel Grech (Plaintiff 5743 of 2004)
Richard John Leonard (Plaintiff 5776 of 2004)
John Wallace Leonard (Plaintiff 3211 of 2005)
Jack Edward Walsh (Defendant in each matter)

FILE NUMBER(S): SC 5743 of 2004; 5776 of 2004; 3211 of 2005

COUNSEL: Mr R. Bell (Plaintiff Samuel Grech 5743 of 2004)
Mr D. Williams (Plaintiffs Richard John Leonard 5776 of 2004 and John Wallace Leonard 3211 of 2005)
Mr S. Reuben (Defendant in each matter)

SOLICITORS: Benetatos White Solicitors (Plaintiff Samuel Grech 5743 of 2004)
Herbert Weller (Plaintiff Richard John Leonard 5776 of 2004, Plaintiff John Wallace Leonard 3211 of 2005)
Lincoln Smith & Company (Defendant in each matter)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Wednesday, 4 April 2007

5743 of 2004 SAMUEL GRECH –v- JACK EDWARD WALSH

5776 of 2004 RICHARD JOHN LEONARD –v- JACK EDWARD WALSH

3211 of 2005 JOHN WALLACE LEONARD –v- JACK EDWARD WALSH

JUDGMENT

1 HIS HONOUR: These are three proceedings under the Family Provision Act 1982.

2 By summons 5743 of 2004 filed on 22 October 2004 Samuel Grech claims an order for provision for his maintenance, education or advancement in life out of the estate or notional estate of the late Jeanette Irene Walsh (to whom I shall refer as “the Deceased”).

3 By summons 5776 of 2004 filed on 25 October 2004 Richard John Leonard claims an order for provision for his maintenance and advancement in life out of the estate of the Deceased.

4 By summons 3211 of 2005 filed on 30 May 2005 John Wallace Leonard claims an order for provision for his maintenance and advancement in life out of the estate of the Deceased.

5 On 16 September 2005 orders were made by consent of all parties that the three proceedings be heard together and that the evidence in each proceeding be treated as evidence in the other two proceedings.

6 The Deceased died intestate on 24 April 2003. Letters of administration of her intestate estate were on 23 July 2004 granted to Jack Edward Walsh, son of the Deceased (who is the Defendant to the present proceedings).

7 The inventory of property discloses the following assets and the estimated values thereof:

1584 Wisemans Ferry Road, Maroota $550,000

Moneys recoverable from Lucille Marshall, in an amount unable to be determined

8 The estate had the following liabilities:

Rates and taxes outstanding $26,137

Funeral expenses $3,736

9 In order to meet the ongoing costs of the administration of the estate and to effect a cleaning and improvement of the properties at Maroota for the purpose of bringing them into an appropriate condition for sale it was necessary for the Defendant to borrow $100,000, secured by mortgage over the property at 1584 Wisemans Ferry Road, Maroota.

10 The cost of the clean up and removal of rubbish and detritus from the properties totalled $47,045. Subsequently the Defendant sold 878 Wisemans Ferry Road for $475,000, that sale being completed on 11 August 2005. The net proceeds of sale, after payment of legal fees and outstanding rates, amounted $472,849.

11 The property at 1584 Wisemans Ferry Road consists of two lots. The Defendant has sold as Lot 1, 1584 Wisemans Ferry Road for $515,000, and subsequently, since the commencement of the present proceedings, has sold Lot 2, 1584 Wisemans Ferry Road for a net amount of $454,450. At the present time the assets of the estate total about $1,181,500, consisting of an amount of $1,150,000 held in a term investment account (which is earning interest of about 6 percent per annum) and the balance of about $31,500 held in the estate cheque account.

12 Many of the details of the Deceased’s life and circumstances are in dispute or are uncertain.

13 The date of birth of the Deceased is uncertain. Apparently she provided various dates to various entities and authorities. According to the Defendant and his sister Jill (Mrs. Borck), the Deceased was aged 90 at the time of her death, although ages ranging between 56 and 83 are also indicated in various items of documentation relating to her.

14 The Deceased on 18 May 1929 married Jack Walsh (who appears to have changed his surname from Gunderston or Gundersen) to Walsh in about 1946). She remained married to him until his death on 24 October 1981, although they had little contact after about 1969 or 1970.

15 At least eleven children were born to the Deceased, of whom only five survived her (being the Defendant and his sisters, Kathaleen Anne (Mrs Evans), Jill Irene (Mrs Borck), Lucille (Mrs Marshall) and Pamela Mary). The only one of the deceased children of the Deceased to leave any children was Yvonne, who died on 7 March 1997 and who was survived by three children. In consequence, upon the intestacy of the Deceased, each of her five surviving children is entitled to a one-sixth share of her estate and each of the three children of Yvonne is entitled to a one-eighteenth share of the estate.

16 In addition to the various pieces of real estate at Maroota, the Deceased also had an interest in certain land at Tenterfield and in certain land in Queensland. That latter property was held by the Deceased in co-ownership with her daughter Lucille. A dispute has arisen as to the interest of the Deceased in that land, and proceedings are still on foot in the Supreme Court of Queensland between the Defendant as administrator of the estate of the Deceased and Lucille concerning that land.

17 In calculating the value of the estate available for distribution the costs of the present proceedings must be taken into account, since the Plaintiffs (or one or more of them) if successful will be entitled to an order for their costs out of the estate, whilst the Defendant, irrespective of the outcome of the proceedings, will be entitled to an order for his costs out of the estate.

18 It should here be recorded that it was originally estimated by the legal representatives of the parties, they being the persons who would be expected to have the best knowledge in that regard, that the hearing would occupy five days. However, that estimation was not accurate. The hearing, in the event, occupied eleven days.

19 It is estimated that the costs of the Plaintiff Samuel Grech will total $110,000; that the costs of the Plaintiffs Richard John Leonard and of the Plaintiff John Wallace Leonard will total $138,000; whilst the costs of the Defendant in all three proceedings will together total $151,555 (of which it would appear that almost $97,000 has already been paid).

20 That is, it is estimated that the totality of the costs of all parties will amount to almost $400,000 (of which almost $97,000 of the Defendant’s costs have already been paid). Thus the Court should appropriately proceed upon the basis that the value of the estate available for distribution will be an amount of about $878,000. It follows that, unless one or more of the Plaintiffs establishes an entitlement to an order for provision, each of the surviving children of the Deceased will, upon her intestacy, be entitled to receive about $146,000 and each of the three children of Yvonne will be entitled to receive about $48,800.

21 The Plaintiff Samuel Grech asserts that he was the de facto partner of the Deceased at the time of her death, and that he had been such since about 1997. The Plaintiff John Wallace Leonard also asserts that he was the de facto partner of the Deceased at the time of her death and had been such since 1977. The Plaintiff Richard John Leonard asserts that he is a grandchild of the Deceased (being the son of the Deceased’s daughter Lucille), but that he was, in effect, brought up by the Deceased as if he were her son, rather than her grandson.

22 It will be necessary for the Court, in due course, to make findings concerning the foregoing asserted status of each of the Plaintiffs. It will appreciated that, unless the Plaintiff Samuel Grech can establish that he was the de facto partner of the Deceased at the time of her death, he is not an eligible person in relation to the Deceased (unless he can establish that he comes within some other paragraph of the definition of “eligible person” contained in section 6(1) of the Family Provision Act), and thus he does not have the standing to bring the present proceedings.

23 Further, if Samuel Grech can establish that he was the de facto partner of the Deceased at the time of her death, not only is he an eligible person in relation to the Deceased, and thus has the standing to bring the present proceedings, but, more importantly, he is entitled upon her intestacy, pursuant to section 61B (3B) of the Wills, Probate and Administration Act 1898, to receive the household chattels (as defined in section 61A (2) of the foregoing statute), the prescribed amount of $200,000 and one half of the balance of the estate. That is, he would receive $200,000 plus one half of the balance of the estate less that $200,000, (being one half of $600,000, such one half being an amount of $300,000). It follows that if Mr Grech was the de facto partner of the Deceased at the time of her death, then he is entitled, upon her intestacy, to receive about $500,000 in the estate of the Deceased.

24 Similarly, the foregoing comments have equal application to the Plaintiff John Wallace Leonard, who also asserted that he was the de facto partner of the Deceased at the time of her death.

25 Further, it is only if the Plaintiff Richard John Leonard can establish that not only was he a grandson of the Deceased, but also was wholly or partly dependent upon her, that he is an eligible person in relation to the Deceased, and thus has the standing to bring the present proceedings.

26 The Plaintiff Samuel Grech was born on 1 July 1955 and is presently aged 51. Although never married, he has two adult children, who are not dependent upon him. He asserted that he met the Deceased in about 1990 or 1991 when he was aged about 35. By the time of her death he believed that the Deceased was aged about 75 or 80, although he earlier believed, from what she had told him of being at school with John Leonard, that the Deceased was considerably younger.

27 Regarding the Deceased’s age, it should be noted that the Deceased’s driver’s licence shows her date of birth as being 17 October 1920. Samuel Grech said that he had given that date to the Department of Social Security as being her birthdate (although in his affidavit of 5 April 2005 and in his oral evidence he said that her Social Security records indicated 1926 as being the year of her birth). The Deceased’s marriage certificate discloses her age as being sixteen when she married at St. Mary’s Cathedral, Sydney on 18 May 1929. Those dates would mean that she was born no later than May 1913 and no earlier than May 1912. Those dates are consistent with her being aged 90 at the time of her death.

28 In a complaint and summons for apprehended violence issued at the instance of the Deceased on 10 April 2001 her date of birth is shown as 17 October 1947 and her age is shown as 54 years.

29 According to Samuel Grech’s evidence he was in a de facto relationship with the Deceased from 1997 until her death on 24 April 2003. From 1997 until her death Samuel Grech was the full-time paid carer of the Deceased, receiving a carer’s pension from Centrelink. Indeed, it would appear that, somewhat curiously, Mr Grech continued to receive that carer’s pension for six months after the death of the Deceased. Criticisms were made by the Defendant of the manner in which Mr Grech fulfilled his duties and responsibilities as the Deceased’s full-time paid carer.

30 Mr Grech and the Deceased were making a visit to Mr Grech’s brother at Leura when the Deceased died. After her death Mr Grech returned to the Maroota property on only three occasions, for brief visits, in (according to him) attempts, albeit unsuccessful, to retrieve his belongings and effects from that property.

31 After living in his motor car for several weeks Mr Grech obtained accommodation from the Department of Housing. He currently resides alone in a Department of Housing apartment at Cartwright, for which he pays rent of $51 a week, that amount being deducted from his pension. Mr Grech, who is largely unable to read or write, is in receipt of unemployment benefits, known as a NewStart Allowance, in an amount of $382 a fortnight. After deduction of his rent, Mr Grech receives a net amount of $280 a fortnight from his NewStart Allowance. Mr Grech expressed a desire to acquire a residence of his own, to have his teeth attended to, to acquire some new furnishings and new clothes, and to acquire a new, more reliable motor vehicle.

32 Apart from a 1985 Ford Laser motor car and his personal effects, Mr Grech has no assets. He has no savings, and the entirety of his income is expended on maintaining himself. His furniture was acquired from the St. Vincent de Paul Society. Mr Grech is currently pursuing a reading and writing course at Liverpool.

33 John Wallace Leonard (to whom I shall for convenience, and without intending any disrespect, refer as “John” or “John Leonard”) was born on 3 August 1941 and is presently aged 64. He suffers serious hearing impairment. In 2003 he underwent an amputation of his left leg and some of the toes on his right foot. In consequence, he has no independent ambulatory ability, and is confined to a wheelchair. He also suffers from epilepsy, experiencing intermittent attacks once every one or two years. In consequence, he was deprived of his driver’s licence. He suffers from skin cancers.

34 On account of a deterioration in his health, resulting from the foregoing problems and disabilities, John Leonard departed the Maroota property in 2001 and removed to Windsor, where he could be closer to appropriate medical facilities. John Leonard is unable to read or write.

35 John Leonard presently resides in a Housing Department flat, for which he pays a net rent of $55.90 a week. (The rental is in an amount of $145 a week, towards which Mr Leonard receives a subsidy credit of $89.10, with the consequence that the amount of rent actually paid by him is in the foregoing amount of $55.90.) He is in receipt of a disability pension in an amount of $488.90 a fortnight. Accordingly, after the deduction of his rent John Leonard receives a net amount of $368 a fortnight. The entirety of his income is expended in maintaining himself. He has no assets other than personal effects and his furniture, which he said was old and in need of replacement. He has less than $100 in his bank account.

36 Richard John Leonard (to whom I shall for convenience, and without intending any disrespect, refer as “Richard”) was born in 1972. In his primary affidavit, that of 15 December 2004, he states his date of birth as 7 May 1972. However, a Form of Information of Birth and of Still-Birth (annexure A to Richard’s affidavit of 19 May 2005) discloses the birth of a male child named Richard Maurice Walsh on 6 October 1972, to Lucille Cora Walsh and John Kelly. Richard accepts that he is the child referred to in that document.

37 It is asserted in Richard’s primary affidavit that he was the grandson of the Deceased and that his mother was Lucille Mary Walsh. The Form to which I have already referred names the mother of the child whose birth is the subject of that Form as being Lucille Cora Walsh. According to the evidence of John Leonard, Lucille Walsh (who later became Mrs Marshall) changed her given name from Lucille to Vicki and is now known as Vicki Marshall. Richard said that he had never known or had any contact with his father. He was unaware of the suggestion that John Leonard was his father. No party sought to place any evidence before the Court from Lucille concerning the identity of Richard’s father. (There was even a suggestion from John Leonard that the Deceased was Richard’s biological mother.)

38 It was the case for Richard that the Deceased brought him up and that he regarded her as his mother. He said that he did not become aware until he was aged 17 that Lucille, and not the Deceased, was his mother. Richard’s earliest recollections were of residing in an old grey bus located on the property of a Mr Dickson (sometimes referred to in the evidence as “Pop” or “Poppy” Dixon, to whom I shall shortly make further reference), in which he resided with the Deceased.

39 The extent of the Deceased’s involvement in the upbringing of Richard, as well as the extent of Richard’s participation in the life and activities of the Deceased, were disputed by the Defendant.

40 Richard appears never to have been in permanent employment, although he said that over the years he had obtained casual work as a labourer in various jobs. He said that for most of the time since 1991 he has been on a disability pension, presently in an amount of about $530 a fortnight.

41 According to his affidavit evidence, Richard has no assets other than personal effects.

42 However, on 6 October 1998 Richard settled proceedings in the District Court of New South Wales arising out of a motor vehicle accident in which he had been involved in 1987 (said to have been on his fifteenth birthday), by consenting to judgment in his favour for $150,000 plus costs (exhibit 24). Richard’s primary affidavit evidence made no reference to that award, or to what Richard did with those verdict moneys.

43 A considerable quantity of evidence was placed before the Court from reports and other documents relating to Richard’s personal injury proceedings and relating to various criminal matters in which he had been involved.

44 The claim of each Plaintiff must be approached in the light of the competing claims of those persons who are entitled to share the Deceased’s estate upon intestacy. Those persons are the five surviving children of the Deceased and the children of her deceased daughter Yvonne. No detailed information has been placed before the Court concerning the respective financial and material circumstances of each of those persons.

45 It is in the light of the foregoing facts and circumstances that the Court must approach the claim of each Plaintiff.

46 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties.

47 At the outset it will be appreciated that for an applicant to have the standing to make a claim for an order for provision under the Family Provision Act the applicant must establish that he comes within one or more of the categories of eligible person defined in section 6(1) of that statute.

48 Before I proceed to deal separately with the claim of each Plaintiff, it is appropriate that I should make some preliminary observations and comments concerning the Deceased and her lifestyle and the nature of the respective relationships between each Plaintiff and the Deceased, and the impact of those relationships upon each of the three claims.

49 According to the Defendant, the Deceased in 1960 acquired in her sole name the property at 1584 Wiseman’s Ferry Road (known within the family as “the Orchard” or as “Mum’s Place”). The Deceased’s husband from about 1961 to 1965 owned and operated a Caltex service station at Glebe Island in Sydney. For that reason, he resided in rented premises in Sydney throughout that period, whilst the Deceased spent most of her time either at the Orchard or at the residence of her daughter Yvonne at Gladesville (later at Hunter’s Hill). After ceasing to operate the service station the Deceased’s husband remained in Sydney, visiting the Orchard from time to time, although, by about 1969 or 1970 he had little or no contact with the Deceased.

50 For some years from the mid-1960s it would appear that the Deceased and her husband also maintained a residence in Parramatta.

51 According to the Defendant, at some time before 1970 the Deceased had struck up a friendship with William Horace Dixon, who at that time owned and resided on a property on Wiseman’s Ferry Road, Maroota about 7 kilometres from the Orchard. That property, now known as 878 Wiseman’s Ferry Road, was referred to in the family as “Pop’s Place”. The Defendant said that although, to the best of his knowledge and belief, Mr Dixon had no romantic involvement with the Deceased, he was very good to her and her children, and gave them financial support. Mr Dixon died in 1980, aged about 90 years. In about 1974 the Deceased and two of her daughters moved into residence with Mr Dixon, spending most of their time at Pop’s Place. It was the understanding of the Defendant that Mr Dixon supported them financially and did not charge them any rent or board.

52 Upon the death of Mr Dixon in 1980 the Deceased inherited Pop’s Place. Shortly after the Deceased had first moved onto Pop’s Place in about 1974, Mr Dixon erected a second dwelling upon that property. He occupied one of the two houses, whilst the Deceased (and whoever might have been living with her from time to time) occupied the other house and one or more of a number of caravans standing on the property. It would appear that one of the reasons why the Deceased and several of her children relocated to Mr Dixon’s property in about 1974 was that the residence upon the Deceased’s own property, the Orchard, had by then been destroyed by fire. Even after removing to Mr Dixon’s property, the Deceased still continued to maintain a somewhat peripatetic lifestyle, disappearing for days or weeks at a time, with total disregard to her responsibilities towards her children. Those responsibilities largely devolved upon Mr Dixon. After Mr Dixon’s death the Deceased appears to have continued to maintain a ramshackle existence, but mainly centring upon the property at 878 Wiseman’s Ferry Road. It would appear that at various times during her life, especially whilst her children were growing up, the Deceased spent periods in psychiatric hospitals.

53 The picture which emerged of the domestic and residential arrangements of the Deceased, especially in her later years, was a somewhat unusual one. The property at 878 Wiseman’s Ferry Road, Maroota (having an area of about 30 acres) appears to have comprised something in the nature of a compound, upon which there were located various structures (according to Ms Borck, four dilapidated houses and a number of sheds), in varying stages of dereliction, and various motor vehicles, most in a state of mechanical disrepair and not capable of being driven, as well as a number of caravans. Members of the Deceased’s family, and other persons, from time to time appear to have been in the habit of resorting to the Deceased’s property, and residing there for varying periods, either in the Deceased’s own house or in one of the other structures, or in one of the caravans or other vehicles, situate on the property.

54 Despite attempts by the Plaintiffs (especially by Mr Grech) to suggest that the Deceased lived in comfortable physical and domestic circumstances, it is apparent from the evidence (which included a number of photographs) that the Deceased, at least in her declining years, lived in a situation which can be described as being one of utter squalor, and in a house verging on a state of total dereliction and decay, which appears to have been hardly fit for human habitation. Whether or not the Deceased was, as was alleged by the Plaintiffs, satisfied with the physical circumstances and environment in which she subsisted during her declining years, it is quite apparent that those who had any degree of responsibility for looking after her failed in fulfilling that responsibility. Whatever might have been the Deceased’s true age at the time of her death, she was certainly by then a very old lady, who was totally dependent upon other persons.

55 I would here observe that the respective assertions of Samuel Grech and John Leonard that each was the de facto partner of the Deceased at the time of her death are totally inconsistent. Since John Leonard departed the Maroota property some four years before the death of the Deceased, it is apparent, even upon the case now asserted by him, that he was not the de facto partner of the Deceased at the time of her death. I will, in due course, proceed to a consideration of whether he was, in any event, an eligible person in relation to the Deceased, within one of the other paragraphs of the definition of that phrase contained in section 6 (1) of the Family Provision Act.

56 The fact that John Leonard was not, and, as the hearing proceeded, appeared to concede that he was not, the de facto partner of the Deceased at the time of her death does not of itself establish that Samuel Grech was the de facto partner of the Deceased at that time.

57 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208-210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of a testator or (as here) in consequence of the intestacy of the Deceased each of the Plaintiffs has been left without adequate provision for his proper maintenance. It should also be emphasised that each Plaintiff must establish his own claim upon its own merits. The claim of an applicant cannot be enhanced by establishing that one or more of the persons entitled upon intestacy would, if that person himself or herself were an applicant for an order for provision, be unsuccessful in such application.

58 In this regard it is appropriate that I should set forth the following salutary admonition of Windeyer J in the High Court of Australia in Blorev Lang (1960) 104 CLR 124 at 137,

Testator’s Family Maintenance Act

Family Provision Act

59 Further, consonant with the foregoing admonition of Windeyer J, it should be emphasised that an order for provision is not made as a reward for past services on the part of an applicant. Neither is an order for provision withheld as punishment for perceived bad conduct on the part of the applicant.

60 I will now proceed to deal separately with the claim of each Plaintiff.

61 The Plaintiff Samuel Grech asserts that for a period of about six years, from 1997, he was a person with whom the Deceased was living in a domestic relationship at the time of the Deceased’s death. The phrase “domestic relationship” has, by section 6(1) of the Family Provision Act, the same meaning as in the Property (Relationships) Act 1984. Section 5(1) of that latter statute defines a domestic relationship as,

(b) 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.

62 Subsection (2) of that section provides,

63 Mr Grech asserted that he was throughout the relevant period in a de facto relationship with the Deceased.

64 It was the case for Mr Grech that he first met the Deceased in 1990 or 1991, when he helped her with her motor car, which had broken down. Subsequently, a friendship developed, and in about 1991, about a year after their first meeting, Mr Grech commenced to reside in a caravan on the property at 878 Wiseman’s Ferry Road (which, apparently, at that time was known as 114 Wiseman’s Ferry Road). According to Mr Grech, at that time John Leonard was residing in another structure on the property. It was the understanding of Mr Grech that John Leonard had formerly been the de facto partner of the Deceased.

65 Mr Grech said that at the outset he and the Deceased were just friends. However, while the Deceased was residing in the main house upon the property and Mr Grech was residing in a caravan near the house, they ate most of their meals together. Mr Grech said that as the Deceased became more frail in her physical condition, he began to take on increasing responsibility for her care, performing grocery shopping, cooking, house cleaning, and driving the Deceased to appointments. Mr Grech said that after about three years he departed the property, and throughout that period he and the Deceased had had what he described as “a very casual sexual relationship”.

66 Mr Grech returned to the property in about 1995. By that time John Leonard had departed. Mr Grech said that in 1997 his relationship with the Deceased developed a more intimate character. He was still living in the caravan and he said that the Deceased with increasing frequency came to stay overnight with him in the caravan. At some stage Mr Grech moved into the house, while the Deceased remained in the caravan. He said that ultimately the two of them were residing in the house.

67 It was asserted by Mr Grech that throughout the period from about 1977 until her death in April 2003 he lived in the same house as the Deceased upon her property at Maroota, that throughout that period a sexual relationship obtained between them, that they occupied the same bedroom and the same bed. It was not the case for Mr Grech that he was in a close personal relationship with the Deceased other than a de facto relationship. (As to these two concepts and the distinction between them, see Ye Fung [2006] NSWSC 243.) In any event, if he were now to assert the existence of a close personal relationship other than a de facto relationship, the fact that he was the full-time paid carer of the Deceased would, consequent upon the provisions of subsection (2) of section 5, preclude the existence of such a close personal relationship.

68 Mr Grech (who, as I have already recorded was born on 1 July 1955) was aged 42 years at the time when he said that the alleged de facto relationship commenced in 1997. I have already observed that the Deceased herself gave various inconsistent dates regarding her birth. Mr Grech appears to have accepted that the Deceased’s birthdate of 17 October 1920, which appeared on her driver’s licence, was the correct date. Thus, in his own mind, the age difference between himself and the Deceased was thirty-five years. That age difference of itself does not preclude the existence of a de facto relationship between Mr Grech and the Deceased. However, such a great disparity in age requires the Court to scrutinise with care the assertion that at the age of about 77 the Deceased entered into a de facto relationship with a man aged 42.

69 Mr Grech commenced to receive a carer’s pension in respect to the Deceased in about 1997 – that is, more or less at about the time when, as he now alleges, he entered into a de facto relationship with her.

70 The Defendant disputes that Mr Grech was ever in a de facto relationship with the Deceased, or that his relationship with her was other than as a carer who received a financial benefit for looking after the Deceased in the last six years of her long life.

71 A de facto relationship is defined by section 4(1) of the Property (Relationships) Act as follows,

72 Subsection (2) of that section provides,

73 In disputing the existence of such a relationship the Defendant points to the fact that during the Deceased’s lifetime Mr Grech never said to anyone that he and the Deceased were a de facto couple. Further, in the statement which he gave to the police dated 25 April 2003 in connection with the Deceased’s death (exhibit 10) Mr Grech said, “I was the carer for Jeanette Irene Walsh”. He did not in that statement say to the police that he was the de facto partner of the Deceased. It would have been quite natural (indeed, it would have been expected) for him to have referred to the nature of their relationship if he was reporting to the police upon the death of a woman with whom he was living in a de facto relationship. Indeed, he did inform the police of the nature of their relationship, by saying that he was the carer of the Deceased.

74 Not only did Mr Grech not say anything to the police about his being the de facto partner of the Deceased; he volunteered in his evidence that he was embarrassed to tell the police about any de facto relationship between himself and the Deceased. Whilst one might accept that Mr Grech, during the lifetime of the Deceased, felt a degree of embarrassment concerning a de facto relationship with a woman more than thirty years his senior, nevertheless it is difficult to understand why there should have been any such embarrassment after her death, especially where the statement was being made to the police who were investigating the facts surrounding the Deceased’s death.

75 Neither did Mr Grech tell other persons that he was in a de facto relationship with the Deceased, especially persons in whom he might have been expected to confide (particularly his brother Charlie Grech, from whom no evidence was called, and Lisa Percival, his brother’s de facto partner, who did not say in her evidence that Mr Grech had ever told her that he and the Deceased were in a de facto relationship).

76 In the hearing before the Guardianship Tribunal Mr Grech presented himself as being the carer for the Deceased. The relevant Guardianship Officer, Ms Phillips, had known the Deceased since May 2001 and had visited the Maroota property on more than a dozen occasions. She noted that Mr Grech was in receipt of a carer’s pension in relation to the Deceased, that he had not carried out his part of any agreement with ACAT regarding the Deceased’s care, and that he had obstructed the Deceased’s attendance at the day care centre and had actively discouraged any contact by the Deceased with her family.

77 Among the various criteria which the Court may take into account pursuant to section 4 of the Property (Relationships) Act in determining the existence of a de facto relationship are the reputation and public aspects of the asserted relationship. The lack of any assertion by Mr Grech of the existence of a de facto relationship to any relevant authority (such as the Guardianship Tribunal or the police) or even to the relatives of the Deceased (such a Jill Borck) strongly suggests that the present assertion of Mr Grech is not based upon the true facts, but was only raised after the death of the Deceased for the purpose of enabling Mr Grech to make a claim for provision out of the estate of the Deceased. The Defendant points to the fact that the assertion that Mr Grech was the de facto spouse of the Deceased was not even raised by him until a few days before the expiry of the limitation period of eighteen months from the date of the death of the Deceased.

78 In her affidavit of 9 February 2005 Jill Borck, a daughter of the Deceased, stated that during the entire time that Mr Grech lived on her mother’s property, the Deceased never said to her, and Mrs Borck did not observe any conduct by or between the Deceased and Mr Grech to suggest, that the Deceased was living in a de facto relationship with him. Mr Grech in the present proceedings did not assert that he had ever told Mrs Borck that he was in any form of relationship with her mother. The Defendant, whom I regarded as a truthful and quite impressive witness, said that his mother had introduced Mr Grech to him as her carer and had said that Mr Grech was in receipt of a carer’s pension.

79 The statement made by Mr Grech to the police, that “I am very upset about Jeanette. She was my best friend in a way. We had been together for a very long time and I looked upon her like a mother” is inconsistent with the existence of a de facto relationship. However, it is submitted on behalf of the Defendant that that statement reflects the true position between Mr Grech and the Deceased.

80 The asserted relationship between Mr Grech and the Deceased obtained for no more than six years. For most of that period they did not occupy the same accommodation, although they both resided upon the Deceased’s property. At the outset Mr Grech lived in a caravan, whilst the Deceased lived in the house. Later the Deceased lived in the caravan, whilst Mr Grech lived in the house. It was only towards the end of the asserted relationship, during the period shortly before the Deceased’s death, that according to Mr Grech, both he and the Deceased lived in the house.

81 Mr Grech said that there was a sexual relationship between himself and the Deceased. The only degree of financial dependence between the parties was that in return for being the carer of the Deceased, Mr Grech received a carer’s pension. There was no inter-mingling of their finances.

82 The entirety of the property which was occupied by Mr Grech was owned by the Deceased, and had been owned by her for a considerable period before Mr Grech came into her life. The involvement by Mr Grech in the Deceased’s life appears to have been largely in his capacity as a carer for financial reward, rather than constituting any manifestation of mutual commitment to a shared life between them. There were, of course, no children of the relationship.

83 Although Mr Grech asserted that he performed household duties for the Deceased, including cooking, cleaning and washing, it must be appreciated, first, that he was paid to perform those duties. Further, the evidence discloses that he performed those duties in a totally unsatisfactory fashion. The living conditions on the Deceased’s property in which the evidence disclosed that the Deceased existed (or, more accurately, subsisted) were disgusting. The evidence reveals a situation of absolute squalor. Food was stored in a clothes dryer in the lounge room, apparently in an effort to protect it from cockroaches and other vermin. The caravan in which, from time to time, the Deceased resided leaked during wet weather.

84 On the occasion of the visitation from Australian Council for the Aged Team (ACAT) in May 2001 not only was the caravan leaking but it was infested with cockroaches; and at times it was infested with rats. There was a strong smell of urine, as well as a considerable quantity of rubbish in the vicinity of the caravan. Toilet and washing facilities were located in an outside laundry about twenty-five metres from the caravan. In September 2001, when the Deceased had returned to the house, living conditions there were still poor. On the occasion of the third visitation from ACAT, in January 2003, there was evidence of rat infestation. In the house, the living conditions were still poor, with parts of the floors and ceilings missing, and entry unsafe. The Deceased at the time of those ACAT visits was frail and walked with a frame.

85 Mr Grech in cross-examination did not dispute any of the foregoing descriptions of the living conditions in which the Deceased subsisted during her final years. He acknowledged the existence of cockroaches in the caravan and of rats on the property, which would gain entry into the house. He confirmed the water leaks into the caravan. The foregoing appalling state of affairs was supported by the photographs admitted into evidence.

86 The Defendant, under cross-examination, stated that although he had heard about the appalling living conditions, he found it difficult to comprehend how bad they were until he observed them at first hand upon his inspection of the property after his mother’s death. He said that he was totally amazed that anyone could be living in such conditions, which he found it virtually impossible to describe. He said that the photographs gave only a small picture of the true state of affairs. He said that he could not possibly see why a ninety year old woman would want some eighty-three motor cars (mostly derelict) upon her property, and in excess of thirty or forty trailer loads of rubbish.

87 Despite the assertions of Mr Grech concerning his caring for the Deceased, her meals were delivered to the house by Meals on Wheels. Indeed, after the commencement of those deliveries it appeared that Mr Grech himself did very little cooking on his own account and made do with sandwiches for himself. Each of the Deceased and Mr Grech owned a separate television set, which they were in the habit of watching separately.

88 I have already referred to the absence of any reputation or public aspects of the relationship asserted to have existed between Mr Grech and the Deceased. I have also referred to what I consider to be the significant fact that on no occasion when Mr Grech might have been expected to have stated that he was in a de facto relationship with the Deceased (especially in his statement made to the police after her death) did he assert that he was anything more than a friend to the Deceased.

89 Although Mr Grech was the paid carer of the Deceased, he carried out his duties and responsibilities in that regard badly and inefficiently. He allowed the Deceased to spend her declining years in appalling conditions of insanitary squalor and neglect.

90 Subsection (2) of section 5 of the Property (Relationship) Act, expressly excludes from the definition of a close personal relationship in subsection (1)(b) a person who provides domestic support and personal care to the other person for fee or reward (paragraph (a)), or on behalf of an organisation (including a government agency) (paragraph (b)). In the instant case, although Mr Grech was not paid directly by the Deceased, he was receiving a carer’s pension paid to him by a government agency, Centrelink. Whatever care Mr Grech was providing for the Deceased (such care being minimal, incompetent and irresponsible, and heedless of the physical well-being or the health of the Deceased) he was properly recompensed for. In this regard it should be observed that the Guardianship Tribunal in its reasons for decision (page 5) noted that the Deceased was attached to Mr Grech, but that she did “not understand the extent to which he has neglected her”. Further, Mrs Borck in her affidavit evidence gave an account of conversations with her mother in which the Deceased reported to her that the Deceased had suffered physical, emotional, and financial abuse from Mr Grech. In his oral evidence Mr Grech denied any physical assault upon the Deceased.

91 Regarding what has been referred to as financial abuse, there was evidence from Mr Grech in relation to his financial arrangements with the Deceased concerning various motor vehicles on the property. For example, in 1997 Mr Grech purchased a Holden Statesman Caprice motor car. Although registered in the name of Mr Grech, the purchase price of $3500 was provided by the Deceased. In May 1998 Mr Grech purchased for $1500 a car trailer, which was purchased with money from the Deceased’s bank account. On 4 June 1999 Mr Grech purchased a Holden Caprice motor car for $1000. He said that he had paid for that motor vehicle, which in November 1999 he had sold to his brother, Charlie Grech, for $500. In May 2000 a document in the handwriting of the Deceased recorded that Mr Grech gave that motor car to her as security for a loan of $1000 which she provided to Mr Grech. (I observe that at that time Mr Grech no longer owned the motor vehicle.)

92 A Holden utility motor vehicle was allegedly sold by Mr Grech to the Deceased for $600. In November 1998 Mr Grech sold an unregistered panel van (but with a pink slip) to the Deceased for $300. It emerged from documentary material and from cross-examination of Mr Grech that he was charging the Deceased for parts and labour in respect to repairs to a white Holden utility, a Gemini motor car and a Ford truck.

93 Mr Grech in his statement to the police referred to a motor vehicle owned by himself in April 2003.

94 Mr Grech kept records of financial transactions between himself and the Deceased. They maintained separate bank accounts, into which they deposited their respective pension entitlements. At no stage did they ever conduct a joint bank account. Neither did they make any conjoint purchases (of motor vehicles, or the like). Mr Grech acknowledged that he had never deposited any money into the Deceased’s bank account, although he said that when he had his money and saved it, he used to give it to the Deceased for safe keeping.

95 Mr Grech also maintained a record of transactions when he spent money on the occasion when he collected the Deceased in Queensland. An appropriate inference to be drawn from this record is that Mr Grech maintained it for the purpose of obtaining reimbursement from the Deceased.

96 Evidence was given by Mr Grech (both by way of affidavit and under cross-examination) concerning the asserted desire on the part of the Deceased that they marry. He said that, despite many requests from the Deceased, he always said “No”. Under cross-examination Mr Grech said that it would be quite false to suggest that it was he who kept asking the Deceased to marry him. Lisa Percival recounted a statement made to her by the Deceased to the effect, “Sam keeps asking me to marry him. I don’t know. I think I’m too old to do something like that. What would people think?” Mrs Percival said that the Deceased repeated the statement, “Sam keeps asking me to marry him” on another occasion.

97 It was submitted on behalf of the Defendant that, in reality, it was Sam Grech who was requesting the Deceased to marry him, and that the Deceased refused.

98 It was submitted on behalf the Defendant that both the Defendant and Mrs Borck presented as witnesses of truth, who made no attempt to exaggerate or overstate the case for the estate, and that each of them demonstrated an ability to face up to and accept the reality of the somewhat eccentric lifestyle which their mother had adopted at various stages in her life. I agree with the submission on behalf of the Defendant that where there was a conflict between the evidence of the Defendant and Mrs Borck on the one hand and that of Mr Grech on the other hand, the evidence of the Defendant and Mrs Borck should be preferred.

99 The only witness called by Mr Grech in support of his assertion that there was a de facto relationship between himself and the Deceased was Lisa Percival. I am in agreement with the submission on the part of the Defendant that the evidence of Mrs Percival was unreliable and demonstrated a desire to assist Mr Grech’s case. The position adopted by Mrs Percival in her affidavit of 19 January 2006 was directly contradicted by a letter which she wrote to the Defendant (annexure A to his affidavit of 16 March 2006) , in which Mrs Percival made a number of comments on and accusations against Mr Grech regarding his relationship with the Deceased. Attempts by Mrs Percival in her oral evidence to explain those comments were difficult to follow.

100 I am satisfied that Mr Grech was the paid carer of the Deceased and nothing more. He has not persuaded me that he was in a de facto relationship with the Deceased at the time of her death or at any time. Even if Mr Grech on occasion had sexual intercourse with a woman thirty-five years his senior, that fact does not constitute a de facto relationship between them.

101 Whether he might otherwise have been in a close personal relationship with the Deceased at the time of her death does not arise, since the receipt by him of a carer’s pension in respect to the Deceased precludes the existence of a close personal relationship between Mr Grech and the Deceased.

102 It follows, therefore, that Mr Grech is not an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Family Provision Act. There remains, however, the question of whether Mr Grech is an eligible person within paragraph (d) of the foregoing definition, in that it is asserted that he was a member of the same household as the Deceased and that he was totally or partly dependent upon the Deceased.

103 It was only for the last few years of the Deceased’s life that Mr Grech was residing in the same residence as the Deceased, being the house upon the property at 878 Wiseman’s Ferry Road. To the extent that he was provided with free accommodation, it could be argued that Mr Grech was partly dependent upon the Deceased. Further, It was on account of the Deceased that Mr Grech was in receipt of a carer’s pension. However, since that pension was provided by a governmental instrumentality, and was provided in return for services which should have been (but were not) performed by Mr Grech for the Deceased, it might be also be argued that he was in that regard also partly dependent upon the Deceased.

104 Accepting, therefore (but not deciding), that Mr Grech was an eligible person within paragraph (d) of the foregoing definition, it is still necessary for him, pursuant to section 9(1) of the Act, to establish that there are factors which warrant the making of the present application.

105 I am not satisfied that there are such factors. The arrangement between Mr Grech and the Deceased was essentially a commercial one. Mr Grech was to provide certain services (which, as I have already observed, he performed badly and incompetently) for financial reward.

106 I summarise, therefore, my foregoing views concerning the claim of Mr Grech for an order for provision out of the estate of the Deceased. Mr Grech has not established that he was at any time the de facto partner of the Deceased. Since he was in receipt of a carer’s pension in respect to the Deceased, he cannot be heard to assert that their existed between him and the Deceased a close personal relationship. Whilst it may be argued that Mr Grech was a member of the same household as the Deceased and was partly dependent upon the Deceased (for at least his accommodation), nevertheless, I am not persuaded that, even if he be an eligible person within paragraph (d) of the foregoing definition, there are factors which warrant the making of the application.

107 Even if (contrary to my foregoing conclusion) there were such factors, I would not be disposed, in the exercise of my discretion, to make an order for provision in favour of Mr Grech. He benefited from his position as the paid carer of the Deceased. Someone who was paid to care for the Deceased, but did not do so, and who took advantage of the Deceased for his own benefit, should not receive an additional benefit by way of an order for provision out of the estate of the Deceased. But, in any event, as I have already concluded, there are no factors which warrant the making of the application, and in the absence of such factors, I am precluded from making an order for provision in favour of Mr Grech.

108 Accordingly, the claim of Mr Grech will be dismissed.

109 I pass now to the claim of John Wallace Leonard.

110 Although it was at the outset asserted by Mr Leonard that he was the de facto partner of the Deceased at the time of her death, nevertheless at the hearing he did not persist in that claim. Such a claim would have been impossible to maintain, since it was acknowledged by Mr Leonard that he had ceased to reside upon the Deceased’s property some four years before she died, and that throughout that period he had lived separately and apart from the Deceased.

111 Mr Leonard asserted that he had previously been the de facto partner of the deceased. It appeared to be being suggested on the part of Mr Leonard that he had been in a de facto relationship with the Deceased from about 1977 until 1999 (after a motoring trip which he and the Deceased had made to Queensland in that year).

112 Nevertheless, despite the assertion of the existence of a de facto relationship obtaining over about 22 years, Mr Leonard’s evidence was either totally silent or largely inadequate regarding many of the matters referred to in section 4(2) the Property (Relationships) Act.

113 In regard to the care and support of children it should here be recorded that John Leonard had a son (as appears from in the medical records which are annexure J to his affidavit of 26 May 2006).

114 After the motoring trip to Queensland the Deceased said that she did not want to have anything more to do with John Leonard. In his evidence he agreed that it was at that time that he commenced to reside separately from her. He also agreed that any kind of de facto relationship which he alleged had existed between himself and the Deceased came to an end in 1999.

115 John Leonard also under cross-examination agreed that throughout the entire period of the asserted relationship, over 22 years, there had never been any talk about marriage; that it was just a relationship “that kind of happened” after he took up a sexual relationship with the Deceased; that he was free to leave the property at Maroota at any time; that money was not a problem, because he was receiving the pension from 1979; that he never enquired as to the source of the Deceased’s money, as he did not regard it as his business to ask her where she was getting her money; that they never bought any property together, not even a television set or anything of a personal nature; that he was living upon the Deceased’s property because it was a convenience for himself.

116 The Defendant disputed that Mr Leonard and the Deceased were in a de facto relationship from 1977 to 2001, although he was prepared to accept that they were in a de facto relationship from 1980 to 1985.

117 As I have already observed, it is apparent from the evidence, and, indeed, Mr Leonard no longer asserts otherwise, that whatever may have been the nature of the relationship between himself and the Deceased, that relationship came to an end when Mr Leonard departed the Maroota property and went to live in his present residence at South Windsor. The reason for that change of accommodation was the deterioration in the health of Mr Leonard, who needed to be close to his treating medical practitioner and to a hospital. In the two years before the death of the Deceased he spent more than half that period in various hospitals. He underwent amputation of his left leg in 2003 and amputation of several toes of his right foot. According to Mr Leonard, he has suffered health problems for most of his life. He said that he was diagnosed with epilepsy at the age of 18, with the consequence that he ultimately lost his driver’s licence.

118 It was the evidence of Mr Leonard that when he departed the Deceased’s property at Maroota and moved into the Housing Department accommodation at South Windsor, he was always intending to return to be with the Deceased. Nevertheless, Mr Leonard said that he did not learn of the Deceased’s death until 2004, almost a year after the event, when Richard Leonard communicated this information to him, shortly after Richard himself became aware of that fact.

119 Mr Leonard currently resides in Housing Department accommodation situate at 10/38-40 Church Street, Windsor. He is in receipt of a disability support pension, presently in an amount of $480 a fortnight. Since the amputation of his left leg in 2003 (as a result of the onset of gangrene after a blockage in the blood supply) Mr Leonard has been confined to a wheelchair.

120 Mr Leonard said that he was unable to read or write, as he had attended Meadowbank High School only up to first year, leaving that school in 1956. He then worked for a number of years, first as a dye boy, and later as a fork lift driver, residing with his parents at Ryde throughout that period. Mr Leonard said that it was during the period of his employment as a dye boy that he met Jack Walsh, the then husband of the Deceased, and, ultimately, met the Deceased in about 1965. He said that he formed a relationship with the Deceased at that time, since she had by then separated from her husband.

121 According to Mr Leonard, he moved into residence at 878 Wiseman’s Ferry Road, Maroota in about 1977, residing in a house upon that property with the Deceased and Richard. Mr Leonard said that Pop Dixon lived on another house on the same property. Upon the death of Mr Dixon in 1990, he left his property (referred to within the family and his acquaintance as “Pop’s Place”) to the Deceased. As has already been recorded, the Deceased at that time owned a rural estate about 7 kilometres further down the road, at 1584 Wiseman’s Ferry Road, Maroota (known in the family as “the Orchard” or as “Mum’s Place”). A number or residential structures stood upon Pop’s Place. Mr Leonard said that after Mr Dixon’s death he, the Deceased and Richard moved into what had previously been Mr Dixon’s residence upon that property.

122 Mr Leonard gave evidence concerning the relationship between himself and the Deceased on the one hand and Richard Leonard on the other hand. I shall, in due course, when dealing with the claim by Richard, refer in greater detail to Mr Leonard’s evidence in this regard. It should here be recorded, however, that it was not asserted by Mr Leonard that he was the biological father of Richard.

123 According to Mr Leonard, for much of the time while he and the Deceased shared the same house they occupied the same bed, although he said that for the last few years before he removed to South Windsor the Deceased usually slept on the lounge whilst he slept in a separate bedroom. He said that they had talked about marriage on occasion, but they never took that step. However, they always had their meals together and the Deceased carried out such domestic duties for Mr Leonard as cooking and washing.

124 Mr Leonard said that his disability support pension of $480 a fortnight is entirely expended on rent, food, household supplies, electricity and other household outgoings. He has no savings, and his only assets are the furniture and contents in his residence, which he said were very old and in need of replacement. His only other asset is an old caravan, which is still located on the Maroota property, and in which he lived for some months when he first moved onto that property. He originally paid $1200 for that caravan. Mr Leonard owns what he described as a personal shop rider, costing $750, which he acquired by obtaining a loan from Centrelink. He still owes $500 to Centrelink in respect of that loan, that indebtedness being paid off by the deduction of $38.50 a fortnight from his pension.

125 Mr Leonard recognised that his health situation was such that it would not be practical for him to move back to Maroota. However, at the outset of the hearing he expressed a desire to acquire a suitable villa residence in the Windsor area, costing between $300,000 and $400,000. He also expressed a need to purchase new furniture, a new television and microwave, and some home modifications (in the event that he were to remain in his present accommodation). He estimated that such acquisitions and improvements would cost at least $30,000. He also expressed a need for an emergency fund of $50,000, so that he could have a holiday once a year, and could on occasion go out and have a meal and some entertainment. He also said that he needed funds to cover medical and dental care which is not covered by his pension entitlement.

126 It was ultimately the case for Mr Leonard that he was an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act, in that he was partly dependent upon the Deceased and was a member of the same household as the Deceased for a period of twenty-five years, from 1976 until 2001, for most of that period being the de facto partner of the Deceased, at least until 1999.

127 The Defendant was not prepared to agree that Mr Leonard and the Deceased were in a de facto relationship from 1977 to 2001, although, as I have already recorded, the Defendant was, however, prepared to accept that they were in a de facto relationship from 1980 to about 1985.

128 It emerged from the evidence that the true reason why Mr Leonard left the Deceased’s Maroota property was that he had applied for public housing for himself in 1994 (that despite his allegation that at that time he was in a de facto relationship with the Deceased). He said that he told the Deceased at that time that he was seeking public housing for himself, and that the Deceased responded that he could stay at the Maroota property until a flat became available. That did not happen until 2001.

129 The Defendant disputed that there was any degree of dependency at any time by Mr Leonard upon the Deceased. He pointed to the fact that between 1977 and 1979 Mr Leonard was performing odd jobs. When he was living in the house from about 1977 he was buying food until 1980, when Mr Dixon died. According to Mrs Borck, Mr Leonard was in employment in the 1980s, whilst he was living with the Deceased. She said that Mr Leonard at that time liked to go to clubs and pubs and that he liked being in town. She said that he did not remain in the residence with the Deceased all the time, and that on her visits to Mudgee (to see Mrs Borck) the Deceased was not accompanied by either Mr Leonard or Richard. She also said that when it suited him Mr Leonard resided elsewhere in Windsor.

130 In his application to the Department of Housing (exhibit 20), dated 20 May 1994, Mr Leonard said that he was at that time residing in his mother’s house, 21 Bird Street, Ryde, and that he had been living there for some time. He also in that application said that when his mother went into a nursing home, he was looking after the house and was paying rent, and at that time, 1994, he was looking to obtain a home unit in Windsor, if possible. Also in that application Mr Leonard said that his occupation at that time was looking after his mother, and that he was looking for housing assistance for himself because his mother had gone into a nursing home. It appears that Mr Leonard’s mother did not ever leave the nursing home to return to her own residence at Ryde.

131 Whilst it may be a correct summary of the foregoing evidence, especially concerning the application by Mr Leonard for public housing accommodation, that up to the time when his mother went into the nursing home in 1994 Mr Leonard was essentially living in his mother’s residence at Ryde; nevertheless, in his years of poor health in the late 1990s and until he moved into his present accommodation in 2001, the Deceased allowed Mr Leonard to remain free of charge upon the Maroota property. To that extent he was partly dependent upon the Deceased. As I have already recorded, it was not disputed by the Defendant that for a period of about five years, from 1980 to 1985, Mr Leonard and the Deceased were in de facto relationship. During at least that period, I am satisfied that Mr Leonard was unquestionably a member of the same household as the Deceased.

132 Throughout that period Mr Leonard was partly dependent upon the Deceased, in that she provided him with accommodation, free of charge. For most of that period Mr Leonard assisted the Deceased on the property, and they conjointly undertook responsibility for the upbringing of Richard, the grandson of the Deceased. Both the Deceased (on occasion) and Richard (permanently) assumed Mr Leonard’s surname.

133 It follows from my foregoing conclusion that Mr Leonard is an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, he has the standing to bring the present proceedings.

134 However, since Mr Leonard is an eligible person only within paragraph (d), he must, pursuant to section 9(1) of the Act, establish that there are factors which warrant the making of the present application.

135 The essential factor relied upon by Mr Leonard is that he had formerly been the de facto partner of the Deceased.

136 Despite the submission on behalf of the Defendant to the contrary, it seems to me that the fact that Mr Leonard had been the de facto partner of the Deceased for at least five years, and possibly longer, is a significant factor warranting the making of the present application. Other factors relied upon by Mr Leonard were his present physical incapacity, resulting from his amputations, and his present lack of mobility, as well, of course, as his present and very modest financial and material circumstances. In Re Fulop (1987) 8 NSWLR 679 McLelland J (as he then was) said, at 681, that the factors referred to in the subsection “are factors which when added to facts which render the applicant ‘an eligible person’ give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased”.

137 In the instant case, I consider that a former de facto partner of the Deceased, having been in such a relationship for at least five years (and possibly for considerably longer), who on account of serious health problems departed the residence of the Deceased and who now lives in extremely modest circumstances, would generally be regarded as an natural object of testamentary recognition by the Deceased. I am satisfied, therefore, that there are factors which warrant the making of the application by Mr Leonard.

138 It will be appreciated, however, that the claim by Mr Leonard was made by the filing of his summons on 30 Mary 2005, that being more than seven months after the expiry of the limitation period of eighteen months from the date of the death the Deceased, provided by section 16(1) of the Family Provision Act.

139 Nevertheless, subsection (2) of the foregoing section enables the Court to extend that prescribed period, subject to the requirement contained in subsection (3) that sufficient cause be shown for the application not having made within that period.

140 In his affidavit of 29 June 2005 Mr Leonard said that he did not learn of the death of the Deceased until some time in January 2004. That was well within the period of eighteen months from the death of the Deceased. However, it was not until he saw his present solicitor, Mr Herbert Weller, on 5 April 2005, that he became aware that he had a right to make an application for provision out of the estate of the Deceased. When he became so aware, the prescribed period had already elapsed. The present proceedings were instituted reasonably promptly thereafter, within about seven weeks of Mr Leonard seeing Mr Weller.

141 It was conceded by Counsel for the Defendant that the Defendant is not prejudiced by the institution of the respective claims by Mr Leonard and Richard Leonard after the expiration of the prescribed period of eighteen months from the date of the death of the Deceased.

142 I am satisfied that, on account of fact that Mr Leonard was not aware of his entitlement to make any claim for provision from the estate of the Deceased until after the expiration of the prescribed period, sufficient cause is shown for his application not having been made within that period. Accordingly, in the event that I be satisfied that Mr Leonard is entitled to an order for provision, I will also order that the prescribed period be extended to the date of the filing of the summons.

143 I have already recorded that, although at the outset Mr Leonard was seeking an order for provision which would enable him to purchase in his own name a residential property, nevertheless at the hearing he did not persist in such a claim.

144 Mr Leonard is secure in his present accommodation, and there is no reason why he should not continue to reside therein. It is appropriate for his present needs and circumstances. He is able to pay the rent from his disability pension.

145 However, as I have already observed, Mr Leonard’s lifestyle and circumstances are modest in the extreme. He has need for the acquisition of new furniture and furnishings for his residence (at an estimated cost of $4000) and the acquisition of new electrical items (such as a new television, washing machine, dryer, refrigerator, microwave, at an estimated total cost of $4000), a shop rider scooter (for $4500), a new wheelchair ($600). In addition, Mr Leonard seeks an emergency fund in an amount of $50,000.

146 I am satisfied that Mr Leonard should receive from the estate a legacy of an amount which will enable him to acquire the foregoing items of furniture and equipment (costing a total of $14,000); and should receive a fund which will enable him to enhance his present modest lifestyle, (by, for example, enabling him to have an occasional meal at a restaurant or at his local club, or to participate in some other form of entertainment), or even to have an annual holiday; as well as to provide a fund to meet unforeseen contingencies. A fund in an amount of about $40,000 appears to me to be appropriate for such purposes. Accordingly, I consider that Mr Leonard has established an entitlement to receive from the estate of the Deceased a legacy in the sum of $54,000.

147 However, that legacy must be approached in the context of the entitlement of the other persons who have a claim upon the testamentary bounty of the Deceased. Those other persons are the persons who are entitled upon the intestacy of the Deceased, being her various children and grandchildren. There was some general information before the Court regarding the material circumstances of at least some of those persons. Since the present assets of the estate have a value totalling almost $1,200,000 (although that amount will be significantly reduced by the costs of the present proceedings), I am of the view that the competing claim of those persons entitled upon intestacy cannot have the effect of reducing, let alone extinguishing, an order for provision in favour of Mr Leonard in the sum of $54,000.

148 I pass now to the claim of Richard John Leonard.

149 Richard was born on 6 October 1972, and is presently aged 34. He is a grandson of the Deceased, his mother, Lucille Mary Marshall, having been a daughter of the Deceased. (I have already referred to the absence of any evidence regarding Richard’s paternity and also the suggestion that the Deceased herself, rather than the Deceased’s daughter, was Richard’s biological mother. In the absence of direct evidence supporting such a suggestion, I consider that the Court should accept the prima facie evidence disclosed in the Form of Information of Birth or of Still-Birth, to which I have already referred, that Richard’s parents were Lucille Cora Walsh and John Kelly, labourer.) However, Richard was brought up by the Deceased (and, to a large extent, by Mr Leonard), as if the Deceased had been his mother, rather than his grandmother. He regarded the Deceased and Mr Leonard as if they were his own parents. I have already recorded that Richard assumed Mr Leonard’s surname and that, on occasion, the Deceased also assumed that surname, being known, at times, as Jeanette Leonard.

150 Richard can neither read nor write, despite the fact that he attended school to the age of fifteen.

151 Richard was involved in a motor accident, said to have occurred on his fifteenth birthday. It is to the injuries which he suffered in that accident that most of the problems which Richard has experienced throughout his life are now attributed. However, it is apparent that before that accident he was either incapable of being educated or chose not to be educated. Nevertheless, despite many shortcomings, both in his relationship with the Deceased and in his conduct towards various members of his family and towards the community in general, I am in agreement that allowance should, at least to an extent, be made for his mental and psychological deficits.

152 It was submitted on behalf of Richard that he is an eligible person within paragraph (d) of the definition of that phrase contained in section 6 (1) of the Family Provision Act, in that, first, he was dependent upon the Deceased, and, second, he was a grandchild of the Deceased and he was also a member of the same household as the Deceased.

153 There is no doubt that Richard was brought up by the Deceased as if he were her own son. He was totally dependent upon his grandmother at least until he arrived at the stage of early manhood. He was a member of the same household as the Deceased until that time of life. I am satisfied that Richard is an eligible person within paragraph (d) of the foregoing definition. As such, he has the standing to bring the present proceedings.

154 As in the case of Mr Leonard, Richard, being an eligible person only within paragraph (d) of the foregoing definition, must establish that there are factors which warrant the making of the application.

155 I consider that the fact that Richard was brought up by the Deceased as if he were her own son, rather that her grandson, constitutes a significant factor which warrants the making of the application. Accordingly, in the event that Richard otherwise establishes an entitlement to an order for provision, I am satisfied that such an order should be made.

156 Richard, like Mr Leonard, did not institute his present claim within the prescribed period of eighteen months from the death of the Deceased. His summons was filed on 25 October 2004, being one day outside the time prescribed by section 16 (1) of the Act. Richard’s solicitor, Mr Herbert Weller, in his affidavit of 4 April 2005, explained the circumstances in which the summons was filed one day late, after the Court had earlier rejected a summons which had been sent to it for filing within time.

157 Counsel for the Defendant conceded that the Defendant was not prejudiced by the late filing on behalf of Richard.

158 Accordingly, in the event that Richard establishes that an order for provision should be made in his favour, I propose to make an order extending the time for the making of his application until the date of the filing of the summons.

159 I have already recorded that Richard attended Windsor High School until 1987. It would appear that he has had little full-time or regular employment since his involvement in the motor accident on 7 May 1987.

160 In 1990 Richard entered into a de facto relationship with Lisa Pursey. Of that relationship were born two daughters, Amber (who is now aged nine) and Rebecca (who is now aged six). He continued to reside at the Deceased’s property for at least part of the time from the commencement of that relationship until April 1995, when he removed to Lower Portland. He returned to the Deceased’s property in 1999 when he and Lisa Pursey separated. According to Richard, in about mid-2002 he was forced to leave the property in consequence of threats by Mrs Borck.

161 For most of his adult life Richard has been in receipt of a disability pension (currently in an amount of $530 a fortnight), although he occasionally has obtained casual employment. He has no savings, and no assets of any value.

162 Somewhat curiously, despite the fact that Richard cannot read or write, in 1996 (when he was aged about twenty-four) he received from the Richmond TAFE a certificate in a course for Reading and Writing for Adults.

163 Richard expressed a desire to purchase a small truck and some equipment, in order to establish his own business of cutting sandstone (an activity which he has been performing for an employer in a part-time capacity).

164 The desire of Richard to acquire a truck to set up a small business in sandstone cutting is somewhat impractical because he does not hold, and has never held a driver’s licence. He suggested that his current girlfriend (or de facto partner) would be able to drive any truck which he might acquire.

165 Richard was cross-examined concerning the many occasions when he has been in trouble with the law, for such charges as receiving stolen goods, riding motorbikes without a licence, smoking cannabis, and numerous firearms offences. In addition, he was convicted of malicious wounding in about 1994 and 1995 and was also convicted on a charge of common assault. He admitted that at one stage, in 1996, he had alcohol and drug problems. On occasion he still smokes cannabis, a substance which he has been smoking since 1990.

166 Richard presented as a most unimpressive and unreliable witness. Where his evidence was in conflict with that of any other witness in the proceedings, I am not prepared to accept the uncorroborated and unsupported evidence of Richard.

167 Richard’s denial that in 2001 he had a problem with violent behaviour was totally contrary to a statement signed by the Deceased in March of that year, in support of an application for an apprehended violence order against Richard. ( I would interpolate that in that statement the Deceased gave her age as 54 and said that she was the natural mother of Richard.) Richard’s attempted explanation of the circumstances surrounding that application for an apprehended violence order imputes corruption on the part of the police at Windsor, which, in the absence of any supporting evidence, I am not prepared to accept.

168 Richard participated in membership of a volunteer fire brigade at the time when he was residing at Lower Portland, and continued to participate in the activities of that volunteer fire brigade until 2003. It emerged, however, that he entered that organisation not under his own name, but under the false name of Richard Lennox, and it also emerged that at that time no inquiries were made concerning his extensive criminal record.

169 At the present time Richard is residing with his current de facto partner, Belinda Szymanowicz, whom he has known for about four years and with whom he has been living for about the past two years. Miss Szymanowicz has a child aged ten from a former relationship, who resides with them.

170 Richard currently receives medication to assist him in relaxation and sleep. Richard, whilst admitting that he enjoys a drink, denied that he was an alcoholic.

171 The evidence certainly does not support the picture which Richard attempted to present to the Court of a loving and devoted grandchild, who had been brought up by his grandmother from infancy, and who regarded her more as a mother than as a grandmother.

172 Richard is presently unemployed and remains on a disability pension of about $530 a fortnight (this amount sometimes varying if Richard obtains casual work). He has never filed an income tax return. He has no assets, apart from a few personal belongings. Although he maintains a bank account, he has a credit balance of only $1.

173 Richard’s girlfriend, Belinda Szymanowicz, is also unemployed and is receiving a supporting mother’s benefit.

174 At the time of the commencement of the proceedings in October 2004 Richard was residing with a friend at Vineyard, to whom he was paying rent of $100 a week.

175 Richard sought from the Court a legacy in the sum of $350,000, made up as follow:

Acquisition of a house property (including costs) $300,000

Purchase of a motor vehicle $20,000

Purchase of furniture $20,000

176 I have already observed that I am not satisfied that the relationship between Richard and the Deceased was in any way the loving and harmonious relationship which he would have the Court believe. The application for the apprehended violence order made by the Deceased against Richard, in consequence of him, according to the Deceased’s application, assaulting her (when she would have been aged almost ninety) certainly does not support Richard’s version of the relationship.

177 Richard appears to be able to earn wages, when work is available. He expressed a desire to set up his own business, which I consider no more than an impractical and unrealistic wish on his part.

178 Whilst I recognise the desire of Richard to obtain a residence of his own, I am not satisfied that it is appropriate that the Court, in the exercise of its discretion, should award to him, an adult grandson (albeit brought up as a son), a legacy sufficient to enable him to purchase a house property of his own.

179 I am not unmindful of the medical and psychological problems are said to have resulted from Richard’s motor accident when he was aged fifteen (although medical or psychiatric evidence linking his present problems to the injuries sustained in the accident was absent). Nevertheless, the evidence given by him concerning the disbursement of the not inconsiderable verdict moneys which he received arising from that accident was totally unsatisfactory. Those moneys could well have gone a significant distance towards satisfying the needs which Richard now asserts in his present claim.

180 It seems to me appropriate that Richard should receive from the estate of the Deceased a legacy in a relatively small sum, sufficient to enhance his modest lifestyle, and to provide a fund to meet unexpected contingencies. It should certainly not be in an amount sufficient to enable him to purchase a house property or to attempt to set up a business (which would almost certainly be a financial disaster) or to acquire a motor vehicle, which he would not legally be permitted to drive. I have it in contemplation that Richard should receive from the estate of the Deceased a legacy in the sum of $40,000.

181 For reasons similar to those which I have already expressed in regard to the proposed order in favour of Mr Leonard, I do not consider that the competing claim of those persons entitled upon intestacy will have the effect of reducing, let alone extinguishing, an order for provision in favour of Richard in the sum of $40,000.

182 Accordingly, I make the following orders,

5743 of 2004 Samuel Grech –v- Jack Edward Walsh

1. I order that the proceedings be dismissed.

2. I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis.

3. I order that the Defendant be entitled to recoup from the estate of the late Jeanette Irene Walsh (“the Deceased”) the difference between the Defendant’s costs on the indemnity basis and the costs which the Defendant may recover from the Plaintiff pursuant to order 2 hereof.

4. The exhibits may be returned.

5776 of 2004 Richard John Leonard –v- Jack Edward Walsh

1 I order that the time for the institution of these proceedings be extended up to and including 25 October 2004.

2 I order that the Plaintiff receive from the estate of the late Jeanette Irene Walsh (“the Deceased”) a legacy in the sum of $40,000, such legacy not to bear interest if paid on or before 4 May 2007, and if not so paid, to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898.

3 I order that the costs of the Plaintiff on the party and party basis, and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.

4 The exhibits may be returned.

3211 of 2005 John Wallace Leonard –v- Jack Edward Walsh

5 I order that the time for the institution of these proceedings be extended up to and including 30 May 2005.

6 I order that the Plaintiff receive from the estate of the late Jeanette Irene Walsh (“the Deceased”) a legacy in the sum of $54,000, such legacy not to bear interest if paid on or before 4 May 2007, and if not so paid, to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898.

7 I order that the costs of the Plaintiff on the party and party basis, and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.

8 The exhibits may be returned.

**********

Actions

Download as PDF Download as Word Document

Citations

Grech v Walsh [2007] NSWSC 302

Most Recent Citation

White v O'Neill [2010] NSWSC 1193

Cases Citing This Decision

3

Saravinovska v Saravinovski (No 6) [2016] NSWSC 964

Bayssari v Bazouni [2014] NSWSC 910

White v O'Neill [2010] NSWSC 1193

Cases Cited

3

Statutory Material Cited

2

Singer v Berghouse [1994] HCA 40

Vigolo v Bostin [2005] HCA 11

Singer v Berghouse [1994] HCA 40

CITATION:	Samuel Grech v Jack Edward Walsh; Richard John Leonard v Jack Edward Walsh; John Wallace Leonard v Jack Edward Walsh [2007] NSWSC 302
HEARING DATE(S):	29, 30, 31 May, 1, 2 June, 3,4,5,6 October, 20, 21 November 2006
JUDGMENT DATE :	4 April 2007
JUDGMENT OF:	Associate Justice McLaughlin
DECISION:	5743 of 2004 Samuel Grech –v- Jack Edward Walsh; 1. I order that the proceedings be dismissed ; 2. I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis; 3. I order that the Defendant be entitled to recoup from the estate of the late Jeanette Irene Walsh (“the Deceased”) the difference between the Defendant’s costs on the indemnity basis and the costs which the Defendant may recover from the Plaintiff pursuant to order 2 hereof; 4. The exhibits may be returned; 5776 of 2004 Richard John Leonard –v- Jack Edward Walsh ; 1 I order that the time for the institution of these proceedings be extended up to and including 25 October 2004; 2 I order that the Plaintiff receive from the estate of the late Jeanette Irene Walsh (“the Deceased”) a legacy in the sum of $40,000, such legacy not to bear interest if paid on or before 4 May 2007, and if not so paid, to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898; 3 I order that the costs of the Plaintiff on the party and party basis, and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased; 4 The exhibits may be returned ; 3211 of 2005 John Wallace Leonard –v- Jack Edward Walsh; 1 I order that the time for the institution of these proceedings be extended up to and including 30 May 2005; 2 I order that the Plaintiff receive from the estate of the late Jeanette Irene Walsh (“the Deceased”) a legacy in the sum of $54,000, such legacy not to bear interest if paid on or before 4 May 2007, and if not so paid, to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898; 3 I order that the costs of the Plaintiff on the party and party basis, and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased ; 4 The exhibits may be returned
CATCHWORDS:	Succession. Family Provision. Intestacy. Claims by two soi-disant de facto partners of Deceased and by an adult grandson. One of the alleged de facto partners was the paid carer of Deceased. Status of each Plaintiff as an eligible person. Financial and material circumstances of each Plaintiff. Whether each Plaintiff has been left without adequate provision for his proper maintenance. Factors which warrant the making of each application.
LEGISLATION CITED:	Family Provision Act 1982 Property (Relationships) Act 1984
CASES CITED:	Blore v Lang (1960) 104 CLR 124 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191
PARTIES:	Samuel Grech (Plaintiff 5743 of 2004) Richard John Leonard (Plaintiff 5776 of 2004) John Wallace Leonard (Plaintiff 3211 of 2005) Jack Edward Walsh (Defendant in each matter)
FILE NUMBER(S):	SC 5743 of 2004; 5776 of 2004; 3211 of 2005
COUNSEL:	Mr R. Bell (Plaintiff Samuel Grech 5743 of 2004) Mr D. Williams (Plaintiffs Richard John Leonard 5776 of 2004 and John Wallace Leonard 3211 of 2005) Mr S. Reuben (Defendant in each matter)
SOLICITORS:	Benetatos White Solicitors (Plaintiff Samuel Grech 5743 of 2004) Herbert Weller (Plaintiff Richard John Leonard 5776 of 2004, Plaintiff John Wallace Leonard 3211 of 2005) Lincoln Smith & Company (Defendant in each matter)