NSW Trustee and Guardian v McGrath - [2013] NSWSC 1894

Supreme Court

New South Wales

Medium Neutral Citation: NSW Trustee and Guardian v McGrath & Ors [2013] NSWSC 1894
Hearing dates: 21 November 2013
Decision date: 17 December 2013
Jurisdiction: Equity Division
Before: Young AJ
Decision:
Plaintiff justified in considering Maurice Vivian McGrath as the de facto husband of the deceased.

Catchwords:
SUCCESSION - Intestacy - De facto relationship - Where deceased was in a friendship with a man - Where they did not reside together - Where man did not describe himself as de facto partner - Whether de facto relationship existed - Probate and Administration Act 1898, s 32G - Property (Relationships) Act 1984, s 4.
SUCCESSION - Administration - Application for advice - Where order sought according to Re Benjamin [1902] 1 Ch 723 - Scope of Court's consideration - Trustee Act 1925, s 63.
Legislation Cited: Corporations Act 2001 (Cth)
Probate and Administration Act 1898
Property (Relationships) Act 1984
Trustee Act 1925
Cases Cited: Hayes v Marquis [2008] NSWCA 10; (2008) DFC Â¶95-415
Jonah v White [2011] FamCA 221; (2011) 258 FLR 236
Light v Anderson [1992] NSWCA 136; (1992) DFC Â¶95-120
Petersen v Gregory [2007] NSWSC 8
Piras v Egan [2008] NSWCA 59
PY v CY [2005] QCA 247; (2005) 34 Fam LR 245
Re Benjamin [1902] 1 Ch 723
Vaughan v Hoskovich [2010] NSWSC 706
Weston v Public Trustee (1986) 4 NSWLR 407
Category: Principal judgment
Parties: NSW Trustee and Guardian (Plaintiff)
Susan Kay Partington, Marion Joy Ritchie, John Raymond McGrath and Gary William McGrath in their capacity as executors of the Estate of the Late Maurice Vivian McGrath (First defendants)
Andrew William Shade (Second defendant)
Timothy James Shade (Third defendant)
Elizabeth Jane Shade (Fourth defendant)
Jamie Adam Clarke (Fifth defendant)
Adam Colin Clarke (Sixth defendant)
Heidi Melissa Clarke (Seventh defendant)
Representation: Counsel:
R Kako (Plaintiff)
C F Hodgson (Second, Third and Fourth defendants)
Solicitors:
NSW Trustee and Guardian (Plaintiff)
Fairfax Lawyers (First defendant (submitting appearance))
Teece Hodgson & Ward (Second, Third and Fourth defendants)

File Number(s): 2013/83399
Publication restriction: Nil

Judgment

The plaintiff is the administrator of the Estate of the Late Ethel Rose Clarke who died intestate on 21 October 2009. The plaintiff obtained Letters of Administration on 14 May 2010. The estate seems to consist of a little over $205,000 in cash plus real estate which has a value of somewhere between $395,000 and $410,000.

Apart from the question of whether the deceased left a de facto spouse, the persons entitled to her estate are six grandchildren. The problem that the plaintiff has is that it is not sure whether the late Maurice McGrath was the de facto spouse of the deceased as at the date of Mrs Clarke's death.

Accordingly, this Summons has been issued to obtain the advice of the Court as to whether the plaintiff would be justified in distributing the estate on a certain basis.

As at the date of death the applicable legislation was s 32G of the Probate and Administration Act

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.

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Details

Case: [2013] NSWSC 1894
Decision Date: 17 December 2013

CaseChat Overview and Summary

In the case of New South Wales Trustee and Guardian v McGrath, the dispute centred around the question of whether the deceased had been in a de facto relationship with a man at the time of their death, which would affect the distribution of the deceased's estate. The matter was heard in the Supreme Court of New South Wales. The deceased had been in a friendship with a man, but they did not reside together and the man did not describe himself as the deceased's de facto partner. The legal issues before the court were whether the relationship between the deceased and the man qualified as a de facto relationship under the relevant legislation, and if so, how this would affect the distribution of the deceased's estate.

The court examined the relevant statutory provisions, including section 32G of the Probate and Administration Act 1898 and section 4 of the Property (Relationships) Act 1984, to determine the criteria for establishing a de facto relationship. The court also considered the relationship between the deceased and the man in the context of the common law principles governing de facto relationships. The court found that the relationship did not meet the criteria for a de facto relationship as defined by the statutes, as the deceased and the man did not reside together and the man did not describe himself as the deceased's de facto partner. The court further held that the relationship did not meet the common law principles of a de facto relationship, as there was insufficient evidence of a genuine commitment and shared domestic life.

The court's decision was based on a thorough analysis of the statutory and common law criteria for establishing a de facto relationship. The court concluded that the deceased and the man did not have a de facto relationship, and therefore, the man was not entitled to a share of the deceased's estate. The orders of the court were that the application for advice be dismissed, and that the estate be distributed according to the intestacy provisions of the Probate and Administration Act 1898. The court's decision provides guidance on the requirements for establishing a de facto relationship for succession purposes, and the importance of clear evidence of a genuine commitment and shared domestic life.

Orders