Nelligan v Crouch - [2007] NSWSC 840

CITATION: Nelligan v Crouch [2007] NSWSC 840

HEARING DATE(S): 31 July 2007

JUDGMENT DATE :
31 July 2007

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE: 31 July 2007

DECISION: Paragraph 69

CATCHWORDS: Family Provision. Claim by same sex partner. De facto relationship had terminated by date of death but plaintiff entitled as she had been part of household and dependent upon the deceased. Legacy provided for plaintiff.

PARTIES: Marlene Francis Nelligan v Beryl Julie Crouch (Estate of late June Maud Ford)

FILE NUMBER(S): SC 3143 of 2006

COUNSEL: Mr RD Wilson for plaintiff
Mr GA Rich for defendant

SOLICITORS: Eddelbuttel Law for plaintiff
Merrick Spicer & Associates for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 31 JULY 2007

3143/06 - MARLENE FRANCIS NELLIGAN v ESTATE OF THE LATE JUNE MAUD FORD & ANOR

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late June Maud Ford, who died on 15 October 2005 aged 73 years. The plaintiff claims to be a de-facto partner of the deceased at the date of her death.

The will of the Deceased

2 The deceased made a will on 25 July 2002. The deceased appears to have used a home-drawn form and in that she appointed her sister, Beryl Judy Crouch, the defendant, as executrix. She gave a bequest to Beryl Judy Crouch of $7,500 and gave the residue of her estate to the Royal Flying Doctor Service of Australia. Unfortunately Beryl Crouch has witnessed the will and, accordingly, the gift to her would be void and the whole estate would pass to the Royal Flying Doctor Service.

Assets in the Estate

3 At the date of death the deceased had her property on the North Coast. That has now been sold and the estate has been got in and reduced to cash. The amount of the estate is $232,422 26. Costs have been incurred in this matter and the defendant's costs to the end of the hearing are estimated at $24,000. Those of the plaintiff are estimated at $39,980 and there is GST on that amount of $3,998.

Family History

4 The deceased was born on 24 July 1932 and the plaintiff was born on 3 November 1938. They first met in April 1975 when they were co-workers working for Telecom in Canberra. In 1975 they had a holiday together in Cairns and in 1978 they had a holiday together in Tasmania. In June of 1978 the plaintiff and the deceased commenced to live together in rented accommodation at 5 McHugh Street, Evatt, where they lived for some four years. In June 1982 the deceased was promoted and she moved to Roseville, the plaintiff still living in the Australian Capital Territory. The evidence shows that on her weekends the plaintiff would travel to visit the deceased in Sydney.

5 It was in 1983 that the deceased…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Nelligan v Crouch

Details

AGLC: Nelligan v Crouch [2007] NSWSC 840
Case: [2007] NSWSC 840
Decision Date: 31 July 2007

CaseChat Overview and Summary

Nelligan v Crouch was a case brought before the court concerning a claim for family provision under the Succession Act 2006 (NSW). The plaintiff, Nelligan, sought a provision from the estate of the deceased, Crouch, her former same-sex partner, despite the de facto relationship having ended prior to the deceased's death. The dispute arose from the deceased's will, which made no provision for the plaintiff, despite the fact that they had been part of the same household and the plaintiff had been dependent on the deceased during the relationship.

The central legal issues the court needed to address were whether the plaintiff qualified for a family provision claim under the Succession Act and whether the de facto relationship, despite having ended, was sufficient to establish dependency and household status. The court also had to consider whether the deceased's will adequately provided for the plaintiff's reasonable financial needs.

In its decision, the court held that the plaintiff was entitled to make a claim under the Succession Act. It found that the de facto relationship, even though it had terminated prior to the deceased's death, was sufficient to establish that the plaintiff had been part of the household and was dependent on the deceased. The court emphasised the importance of the household and dependency factors in determining eligibility for a family provision claim. Additionally, the court determined that the deceased's will did not adequately provide for the plaintiff's reasonable financial needs, thereby justifying a claim under the Act. The court ordered that the deceased's estate should provide a suitable financial provision for the plaintiff.

Orders