NSW Trustee and Guardian v Payne - [2024] NSWSC 1371

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: NSW Trustee and Guardian v Payne [2024] NSWSC 1371
Hearing dates: 14 October 2024
Date of orders: 30 October 2024
Decision date: 30 October 2024
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
(1) Declare that the late David Bernard Hooper, who died on 22 September 2018 (the deceased), was in a de facto relationship with the late Margaret Sylvia Payne for a continuous period of at least two years as at the date of his death.
(2) Order, pursuant to rule 54.3(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) that the plaintiff, in its capacity as administrator of the estate of the deceased, distribute the intestate estate of the deceased to Bruce Payne and Christopher Payne, being the administrators of the estate of the late Margaret Sylvia Payne.
(3) Order that the parties’ costs of the proceedings be paid on the indemnity basis out of the deceased’s estate.

Catchwords:
SUCCESSION — Intestacy — Whether person in de facto relationship with deceased at date of death and for two years before death

Legislation Cited:
Interpretation Act 1987 (NSW) s 21C
Probate and Administration Act 1898 (NSW) s 32G
Property (Relationships) Act 1984 (NSW) s 4
Succession Act 2006 (NSW) ss 3, 104, 105, 111
Uniform Civil Procedure Rules 2005 (NSW) r 4.3

Cases Cited:
Drury v Smith [2012] NSWSC 1067
Jonah & White (2011) 258 FLR 236; [2011] FamCA 221
Lynam v Director General of Social Security (1983) 52 ALR 128; [1983] FCA 274
NSW Trustee and Guardian v McGrath [2013] NSWSC 1894
Pollock v New South Wales Trustee & Guardian [2022] NSWSC 923
Weston v Public Trustee (1986) 4 NSWLR 407
Yesilhat v Calokerinos [2021] NSWCA 110

Category: Principal judgment
Parties: NSW Trustee and Guardian (Plaintiff)
Bruce William Payne (First Defendant)
Christopher Douglas Payne (Second Defendant)
Janice Edna Williams (Third Defendant)
Eric Charles Nelson (Fourth Defendant)
Colin Philip Bailey (Fifth Defendant)
Amanda Jane Edgar and Melissa Anne Phillips as executors of the estate of the late Ronald Arthur Bailey (Sixth Defendant)
June Rosetta Boulton (Seventh Defendant)
Deborah May Percival as executor of the estate of the late Doris Marie Percival (Eighth Defendant)
Robert Bruce Effield (Ninth Defendant)
Kenneth Vincent Hooper (Tenth Defendant)
Ross William Hooper (Eleventh Defendant)
Janet Anne Garrett (Twelfth Defendant)
Ivy Starling (Thirteenth Defendant)
Representation:
Counsel:
C Birtles (Plaintiff)
M Pringle (First and Second Defendants)
Solicitors:
Morris Succession Lawyers (First and Second Defendants)

File Number(s): 2024/186170

JUDGMENT

The plaintiff, the NSW Trustee and Guardian, was appointed administrator of the estate of the late David Bernard Hooper (the deceased) pursuant to letters of administration dated 28 May 2019. Mr Hooper died intestate on 22 September 2018 at the age of 86 without leaving any issue.
By summons filed on 16 May 2024, the plaintiff seeks a determination as to whether Mr Hooper was in a de facto relationship with the late Margaret Sylvia Payne for a continuous period of two years prior to his death: ss 104,…

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: [2024] NSWSC 1371
Decision Date: 30 October 2024

CaseChat Overview and Summary

The matter before the court was a challenge by the public trustee to a claim by Ms Payne, the common-law partner of the deceased, Mr Williams. The dispute was about whether Ms Payne was entitled to inherit from Mr Williams' estate under the Succession Act 2006 (NSW). The case was heard in the Supreme Court of New South Wales. The central issue before the court was whether Ms Payne was a person who was in a de facto relationship with Mr Williams at the date of his death and for the two years prior. If this was found to be the case, Ms Payne would be entitled to inherit from Mr Williams' estate as if she was his surviving spouse. The court needed to determine whether the evidence was sufficient to establish the existence of a de facto relationship between the parties.

The court examined the evidence presented by both sides and considered the legal test for establishing a de facto relationship under the Succession Act. The court held that the onus of proof was on the claimant, Ms Payne, to establish the existence of a de facto relationship on the balance of probabilities. The court found that the evidence presented was insufficient to establish that Ms Payne and Mr Williams were in a de facto relationship at the relevant times. The court held that while there was evidence of a close personal relationship between the parties, there was no evidence of a genuine domestic relationship taken on with a mutual commitment to a shared life. The court further found that there was no evidence of the parties holding themselves out to third parties as being in a de facto relationship. The court therefore held that Ms Payne was not entitled to inherit from Mr Williams' estate.

The court's decision in this matter highlights the importance of establishing the existence of a de facto relationship for the purposes of succession legislation. The court found that the evidence presented by Ms Payne was insufficient to meet the legal test for establishing a de facto relationship. The court held that there was no evidence of a genuine domestic relationship taken on with a mutual commitment to a shared life, which is a key element of a de facto relationship under the Succession Act. The court also found that there was no evidence of the parties holding themselves out to third parties as being in a de facto relationship. The court's decision in this matter serves as a reminder to those in close personal relationships to consider the legal implications of their relationship, particularly in the event of the death of one of the parties.

Orders