Peipi v Peipi as Administrator of the Estate of the late Ashoor Hilaney
[2013] NSWSC 1520
•17 October 2013
Supreme Court
New South Wales
Medium Neutral Citation: Peipi v Peipi as Administrator of the Estate of the late Ashoor Hilaney [2013] NSWSC 1520 Hearing dates: 12 October 2012, 18 October 2012, 22 October 2012, 1 November 2012, 6 December 2012, 15 July 2013. Decision date: 17 October 2013 Jurisdiction: Equity Division Before: Slattery J Decision: Plaintiff (Helen Peipi) held to be the deceased's de facto spouse for two years before his death and entitled to the statutory legacy under Succession Act, s 113. But deceased's daughter succeeds in her Succession Act, s 59 claim for family provision as to 65 per cent of the estate, inclusive of costs. Administration of the estate to be granted to the Public Trustee, unless parties agree on another neutral administrator to act.
Catchwords: PROBATE - intestacy - deceased dies intestate in March 2011 - one plaintiff says she was the deceased's de facto spouse for at least 2 years before his death and entitled under Succession Act 2006 s 113 to the statutory legacy for spouses - another plaintiff, the deceased's daughter denies the first plaintiff was the de facto spouse of the deceased and claims that the daughter is entitled to the estate under Succession Act, s 127 - whether the first plaintiff was the deceased's de facto spouse and entitled under Succession Act, s 113 - HELD: - first plaintiff was the deceased's de facto spouse for at least 2 years before his death and entitled under Succession Act 2006 s 113
SUCCESSION - family provision - two competing claims for family provision, the first from the spouse/plaintiff and the second from the daughter/plaintiff - as the spouse/plaintiff has established her entitlement to the statutory legacy under Succession Act 2006 s 113, she does not further pursue an order for provision under Succession Act 2006 s 59 - but the statutory legacy to the spouse under Succession Act 2006 s 113 accounts for the whole of the estate - so the daughter/plaintiff seeks an order for provision under Succession Act 2006 s 59 - daughter is an eligible person under Succession Act 2006 s 57 - daughter profoundly disabled - whether adequate provision has been made for daughter - what provision should be made for the proper maintenance, education and advancement in life of the daughter - HELD: - daughter entitled to 65% of the estate and spouse to 35% of estate - orders for provision out of the estate made on an inclusive-of-costs basis.
ADMINISTRATION - competing claims for administration of the deceased's estate - where small estate does not wholly go to one individual beneficiary - where acrimony between beneficiaries - HELD:- Public Trustee proposed to be appointed as administrator of the estate, subject to the parties being able to find another appointee to act at a lower cost.Legislation Cited: Interpretation Act 1987, s 21C
NSW Trustee and Guardian Act 2009, s 22
Probate Administration Act 1898, s 63
Property (Relationships) Act 1984, s 5(1)
Succession Act 2006, ss 57, 59, 60, 113, 127Cases Cited: Andrew v Andrew [2012] NSWCA 308
Ashton v Pratt (No. 2) [2012] NSWSC 3
Churton v Christian (1988) 13 NSWLR 241
Clune v Collins Angus and Robertson Publishers Pty Limited (1992) IPR 246
Costigan v Norton [2005] VSC 208
Crouch v Zelichowski [2002] NSWSC 681
Dridi v Fillmore [2001] NSWSC 319
Drury v Smith [2012] NSWSC 1067
Evans v Levy [2011] NSWCA 125
Lancaster v Bray [2008] NSWSC 155
Luciano v Rosenblum (1985) 2 NSWLR 65
Plunkett v Ball (1915) 19 CLR 544
Re Fulop (deceased) (1987) 8 NSWLR 679
Re Hodgson (1886) 31 ChD 177
Singer v Berghouse (No 2) (1994) 181 CLR 201
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin (2005) 221 CLR 191
Weeks v Hrubala [2008] NSWSC 162
Yazbek v Yazbek (No. 2) [2012] NSWSC 783Category: Principal judgment Parties: 2011/194248 - In The Estate of the late Ashoor Hilaney:
A:- Domenica Mirarchi as guardian of Jessica Rosemary Hilaney2011/228231 - The Estate of the late Ashoor Hilaney
2012/91609 - Ms Peipi v Ms Peipi as Administrator of the Estate of the late Ashoor Hilaney
P:- Ms Peipi
D:- Domenica Mirarchi as guardian of Jessica Rosemary Hilaney
P:- Ms PeipiRepresentation: Counsel:
2011/194248 - The Estate of the late Ashoor Hilaney:
A:- Domenica Mirarchi as guardian of Jessica Rosemary Hilaney - R. O'Neill2011/228231 - The Estate of the late Ashoor Hilaney
P:- Ms Peipi - T. Catanzariti
D:- Domenica Mirarchi as guardian of Jessica Rosemary Hilaney - R. O'Neill2012/91609 - Ms Peipi v Ms Peipi as Administrator of the Estate of the late Ashoor Hilaney
P:- Ms Peipi - T. Catanzariti
Solicitors:
2011/194248 - The Estate of the late Ashoor Hilaney:
A:- Domenica Mirarchi as guardian of Jessica Rosemary Hilaney - Ms Caroline Hutchison, Coleman Greig Lawyers2011/228231 - The Estate of the late Ashoor Hilaney
2012/91609 - Ms Peipi v Ms Peipi as Administrator of the Estate of the late Ashoor Hilaney
P:- Ms Peipi - Lee Hagipantelis, Brydens Law Office LP
D:- Domenica Mirarchi as guardian of Jessica Rosemary Hilaney - Ms Caroline Hutchison, Coleman Greig Lawyers
P:- Ms Peipi - Lee Hagipantelis, Brydens Law Office LP
File Number(s): 2011/19428; 2011/228231; 2012/91609 Publication restriction: No
Judgment
Ashoor Hilaney died intestate on 25 March 2011 leaving an estate with a net value of about $150,000. A disproportionate number of legal issues beset this estate's few assets.
The deceased and his former wife Domenica Mirarchi had a daughter, Jessica Hilaney. On his intestacy and in the absence of any other claims, Jessica who was born in September 1994 and is now aged 19, would be entitled to the whole of the deceased's estate: Succession Act 2006, s 127.
But Helen Peipi claims she was the deceased's de facto partner for at least two years before his death. If Ms Peipi's claim is established, then as the de facto spouse of an intestate person with a child by a previous relationship, she would be entitled to the deceased's personal effects and the statutory legacy of $350,000 provided for under Succession Act, s 113. In those circumstances Jessica would still be nominally entitled to the balance of the deceased's estate: Succession Act, s 113. But because of the small size of this estate, Jessica would in those circumstances in fact get nothing.
Subject to potential family provision claims the position on this intestacy may therefore be shortly summarised: if Ms Peipi was not the deceased's de facto spouse, then Jessica would take the whole estate of about $100,000; and, if Ms Peipi was the deceased's de facto spouse, then Ms Peipi would take the whole of his estate.
But Jessica and Ms Peipi have both brought claims for family provision. Jessica is profoundly disabled and has substantial financial needs. If Ms Peipi is found to be the deceased's de facto spouse and entitled to the whole of the estate, then Jessica brings a family provision claim against the estate under Succession Act, s 59.
Ms Peipi also claims to have pressing financial needs. If Ms Peipi is found not to be the deceased's de facto spouse for at least 2 years before his death, she brings a family provision claim against his estate. Ms Peipi says that she is an "eligible person" able to claim under Succession Act, s 57: first, as a de facto partner of more than 2 years; secondly, as a person living in the same household as the deceased and dependent upon him; and thirdly, as a person in a close personal relationship with the deceased: Succession Act, s 57.
Finally, there is a contest as to who should have administration of the estate, Ms Mirachi or Ms Peipi. That contest depends in part upon the resolution of the other issues. The estate is so small that the appointment of a professional or corporate administrator is not obviously viable.
Mr R. O'Neill of Counsel represented Ms Mirarchi in the proceedings and Ms T. Catanzariti represented Ms Peipi.
Ashoor Hilaney, Ms Mirarchi and Jessica
Ashoor Hilaney died on 25 March 2011 at Liverpool Hospital as a result of injuries he received in a motorcycle accident. He was born in Bagdad, Iraq on 30 January 1964 and emigrated to Australia at the age of 14.
The deceased and Ms Mirarchi were married on 25 September 1989. Their only child, Jessica, was born on 30 September 1994. The deceased and Ms Mirarchi's remained married less than 4 years after Jessica's birth. They separated in January 1996 and were divorced on 7 April 1998.
When the deceased and Ms Mirarchi separated. They agreed Ms Mirarchi would have sole custody of Jessica and that the deceased would have reasonable access to her. When the decree nisi of the dissolution of their marriage was pronounced on 7 April 1998 the Family Court of Australia declared it was satisfied that proper arrangements in all circumstances had been made Jessica's welfare and development.
In September 1997 when Jessica was only 3 years old, she was diagnosed with rhabdomyosarcoma, a brain tumour. She was treated with both chemotherapy and radiotherapy to arrest the tumour's growth. But while she was under treatment, in 1998, she contracted pneumococcal meningitis, which in turn led to her suffering a stroke. As a result Jessica now has severe intellectual disability, physical impairment, behavioural problems, seizures and other health issues. Jessica must use a wheelchair outside the home.
Jessica resides with her mother, Ms Mirarchi, her primary carer. Ms Mirarchi is responsible for making all decisions on Jessica's behalf and is her tutor in these proceedings. More detailed findings about Jessica's daily needs and costs of her care appear later in these reasons.
Ms Mirarchi's evidence is, and I accept, that the deceased was a kind father to Jessica and maintained close contact with her and supported Ms Mirarchi in her role as primary carer as best as he could. The deceased took advantage of the access granted by the Family Court of Australia. Generally satisfactory arrangements were made between him and Ms Mirarchi for Jessica to spend time over weekends with him, including sleeping the night at his residence. Although as will be seen later in these reasons, those arrangements broke down after a relationship developed between Ms Peipi and the deceased after 2008. The deceased stayed in regular telephone contact with Jessica, when he was not able to see her.
After the deceased and Ms Mirarchi separated, she remarried. Ms Mirarchi and her husband, Giuseppe (Joe) Mirarchi, have two other daughters, Erica, who at the time of the trial was eleven, and Bianca, who was six. Neither Erica nor Bianca have any special medical needs.
The single most substantial asset in the estate of the deceased is a property in Palmerston Road Fairfield West ("Palmerston Road property"). This is actually the property Ms Mirarchi purchased and lived in from 1997 until June 2000, with she and the deceased holding the property as joint tenants. But in 1999 when Ms Mirarchi remarried, she and Joe Mirarchi bought their home in Bonnyrigg, moving there in early June that year. Rather than put the Palmerston Road property on the market it was decided that the deceased would buy Ms Mirarchi's interest in the property, which was highly accessible for Jessica and for the deceased's elderly mother. The property was valued and the price agreed between the divorcing couple. In August 2000 the purchase completed, with finance to the deceased from the St George Bank to pay out Ms Mirarchi's interest in the property. When the purchase was completed the deceased's brother, Johnson Hilaney, became a co-purchaser as tenant in common with the deceased. Complications associated with this arrangement are dealt with later in these reasons.
Ashoor Hilaney's intestacy and the status of Ms Peipi
The first contest in these proceedings is whether Ms Peipi was a "spouse" of the deceased within Succession Act, Chapter 4 - Intestacy. The provisions of the Succession Act dealing with intestacy define the expression "spouse" of an intestate in Succession Act, s 104:-
"104 Spouse
A spouse of an intestate is a person:
(6)who was married to the intestate immediately before the intestate's death, or
(6)who was a party to a domestic partnership with the intestate immediately before the intestate's death."
Succession Act, s 105 then defines "domestic partnership" in the following terms:-
"105 Domestic partnership
A domestic partnership is a relationship between the intestate and another person that is a registered relationship, or interstate registered relationship, within the meaning of the Relationships Register Act 2010, or a de facto relationship that:
(6)has been in existence for a continuous period of 2 years, or
(6)has resulted in the birth of a child."
Ms Peipi claims she was in a de facto relationship with the deceased that "has been in existence for a continuous period for at least two years" at his death. Interpretation Act 1987 s 21C governs the Court's assessment of whether or not such a de facto relationship exists.
Pursuant to Succession Act, s 106 a spouse is entitled to a "statutory legacy" which is relevantly calculated as a sum of $350,000 together with increases in the consumer price index since the December 2005 quarter: Succession Act, s 106(2).
Ms Peipi and the deceased did not have children. Succession Act, Part 4, Division 1 deals with the entitlements of surviving spouses in various situations: including where there is no issue, and where there is issue of the spouse. But here the intestate left a spouse but issue (Jessica) who was not issue of the spouse. In those circumstances Succession Act, s 113 defines the respective entitlements as follows:-
"113 Spouse's entitlement where any issue are not issue of the spouse
If an intestate leaves a spouse and any issue who are not issue of the spouse, the spouse is entitled to:
(a) the intestate's personal effects, and
(b) a statutory legacy, and
(c) one-half of the remainder (if any) of the intestate estate."
The statutory legacy at the date of these reasons is $350,000 indexed from December 2005. But there are insufficient assets in the estate (see below) to satisfy the statutory legacy, so if Ms Peipi is entitled to the statutory legacy the estate would all go to her.
For the purposes of Succession Act, s 57 "de facto relationship" is defined in section 21C of the Interpretation Act 1987, which provides as follows:-
"(1) Meaning of "de facto partner" For the purposes of any Act or instrument, a person is the "de facto partner" of another person (whether of the same sex or a different sex) if:
(a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 , or
(b) the person is in a de facto relationship with the other person.
(2)Meaning of "de facto relationship" For the purposes of any Act or instrument, a person is in a "de facto relationship" with another person if:
(a) they have a relationship as a couple living together, and
(b) they are not married to one another or related by family.
A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.
(3)Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of their common residence,
(c) whether a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.
(4)Meaning of "related by family" For the purposes of subsection (2), 2 persons are "related by family" if:
(a) one is the child (including an adopted child) of the other, or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent), or
(c) they have a parent in common (including an adoptive parent of either or both of them).
(5)Subsection (4) applies:
(a) even if an adoption has been declared void or is of no effect, and
(b) to adoptions under the law of any place (whether in or out of Australia) relating to the adoption of children.
(6)Subsection (4) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child, even if the parentage order is discharged or otherwise ceases to have effect. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order. "
Interpretation Act, s 21C(3) spells out: that no finding in respect of any of the matters in the sub-section is to be regarded as necessary for the existence of a de facto relationship; and further, that a Court determining whether a de facto relationship exists is to have regard to all the circumstances of the relationship and is entitled to have regard to such matters and to attach such weight to any such matter as may seem appropriate to the Court in the circumstances.
It is now necessary to make findings about the alleged relationship between Ms Peipi and the deceased.
Was Ms Peipi a de facto spouse?
Ms Peipi's claim to have been the deceased's de facto partner when he died is based upon a relationship allegedly commencing in 2008. Much of Ms Peipi's account of her meeting the deceased and their relationship can in my view be accepted. I found Ms Peipi to be a generally credible witness. In some areas I do not accept her evidence. But the narrative below, based upon her account of her relationship with the deceased, is mostly accepted. This account should be taken as the Court's findings on the issue of their relationship.
Ms Peipi and the deceased first met in 2008 through a mutual interest in motorbikes. I accept that by about October 2008 Ms Peipi and the deceased had commenced a physical relationship and would stay regularly at one another's homes from about November 2008.
In February 2009 the deceased asked Ms Peipi to "move in with me" at the Palmerston Road property so that, as he put it, "we can make it our home". She says, and I accept, that she moved into the Palmerston Road property in late February 2009 in response to this request from the deceased.
Consistent with Ms Mirarchi's account of the deceased having a good relationship with Jessica, and of her staying with him overnight, Ms Peipi's account explains that he had regular weekend access to his daughter. Early in Ms Peipi's relationship with the deceased she needed to adjust to the responsibility of caring for Jessica on Friday nights, when the deceased had access to Jessica but had to go to work. On those occasions Ms Peipi looked after Jessica.
Then for the rest of the access weekends Ms Peipi says, and I accept, that she, the deceased and Jessica would spend time together watching movies, and playing games both inside and outside the house. Consistent with Ms Mirarchi's evidence, Ms Peipi recalls that the deceased was "very protective of Jessica". Ms Peipi gives the example that the deceased was troubled even about taking Jessica shopping, or too far away from their home into public places where she may not feel comfortable.
I accept that Ms Peipi spent time with Jessica, trying to develop a good relationship with her, to help in turn with her relationship with the deceased, and to benefit Jessica. Ms Peipi helped improve Jessica's familiarity with the Palmerston Road property and helped practise her language skills.
But there were tensions about Jessica's welfare between Ms Mirarchi on the one side and the deceased and Ms Peipi on the other side. I accept Ms Peipi's evidence that from about March 2010 Ms Mirarchi was unwilling to have Jessica stay with the deceased and Ms Peipi. Ms Mirarchi was not satisfied that Ms Peipi could care for Jessica when the deceased was out of the house during access periods. I accept that these tensions came to a head in March 2010, from which time the deceased's access to Jessica ceased. The fact that Ms Mirarchi reacted in this way is at least some indirect evidence that she saw that Ms Peipi was often at the Palmerston Road property during Jessica's access periods.
Ms Peipi supported the deceased at the Palmerston Road property with domestic services between February 2009 and March 2011; she prepared meals; cleaned the property; did the laundry and ironing; washed the dishes; and, helped maintain gardens.
I also accept that there was a degree of interdependence in Ms Peipi's and the deceased's financial affairs during this two year period, February 2009 - March 2011. The couple did not open a joint bank account but pooled their weekly earnings by withdrawing cash from their respective bank accounts: to pay for mortgage instalments over the Palmerston Road property; to pay general household bills; and to meet child support payments.
Ms Peipi earned more than the deceased during their relationship. He was unemployed for some of that period. I accept that whilst the deceased was unemployed Ms Peipi paid most of the household bills. And he had some financial support from his brother John, as the narrative below makes clear. In the first financial year coinciding with their relationship, July 2009 to June 2010, the deceased only earned $10,476 and Ms Peipi earned $41,287. This differential is partly explained by the deceased being unemployed for nine months in calendar 2010. Despite his unemployment the deceased did not claim or receive Centrelink benefits until March 2011, just before his death. I accept that during much of 2010 Ms Peipi was principally responsible for meeting the deceased's monthly mortgage payments of $1,288. She even made some of these payments after the deceased's death, as she did for a number of utility bills and child support payments. I also accept that Ms Peipi contributed to the ongoing maintenance and running costs of a 1996 Ford Fairmont motor vehicle, which she and the deceased shared. Ms Peipi also arranged for the deceased to be added to her NRMA membership in respect of this vehicle.
Ms Peipi says that the deceased purchased her a ring in late 2010. But I am not convinced this occurred, partly because of the evidence recounted below from the deceased's brother, John Hilaney.
Ms Peipi and the deceased were publicly treated as a couple. I accept that they, for example, received general cards, Christmas cards, and invitations to social functions addressed to them both. These cards could not be found after the deceased's death. But I accept that the reason for this was that other family members had taken them away.
There are many indications of a romantic private relationship between the deceased and Ms Peipi. The deceased wrote many domestic notes to her (particularly as he would often work night shift and did not see her at one or other end of the day). He addressed her in these notes as "Honey" and signed them "xxx", or "love u" and using the familiar name she called him, "Eddie". I accept that he sent her an anniversary card in 2010 to mark their being together for 2 years - they had met in 2008. The card reads, "To Babe's, Happy Anny to my Helen 2 years with me xxxxxxxx Love Ed". He sent her a Valentine's Day card on 14 February 2011, with his own additional handwritten message "Happy Valentine's Honey, Edd xxxxxxxx".
Ms Peipi and the deceased were often photographed together. These photographs show them motorcycling together and at many other functions, in poses of relaxed intimacy that show unmistakable signs of a close personal relationship. I also accept that the deceased and Ms Peipi kept two pets, a dog and a cat. The deceased bought the cat as a gift for Ms Peipi.
The deceased showed care for Ms Peipi's welfare that is not readily explained by her being either a boarder in his house or having just a casual personal friendship. For example, when in June 2010 Ms Peipi's brother died in a motorvehicle accident the deceased took her, at her request, to the accident site so she could place a cross and some flowers there in memory of her brother. Ms Peipi and her family are of Maori descent, specifically of the Tohoe people, from the north island of New Zealand (also known as "the children of the mist"), one of the last of the Maori tribes to submit to the colonisation of New Zealand. Proud of her heritage and in accordance with cultural custom, Ms Peipi wished to return to New Zealand for the ceremonies of her brother's funeral. The deceased had his niece arrange and pay for all the flights and the itinerary for Ms Peipi to return to New Zealand for the funeral. The deceased then reimbursed his niece.
The deceased and Ms Peipi made plans together to move away from Sydney to a location in rural New South Wales, or possibly even interstate. They viewed a number of houses in range of places as far apart as Orange, in New South Wales, and Townsville, in Queensland.
Ms Peipi is a New Zealand citizen but has resided permanently in Australia since 2006. The deceased encouraged her to apply for permanent resident status in Australia. The deceased confirming to relevant authorities that he and she were living together in a domestic relationship would have assisted her application. I accept that the deceased encouraged Ms Peipi to apply for permanent resident status because this was another way he could assist her and success would eliminate any risk to the continuation of their relationship in Australia. Although no application for permanent residency had been lodged at the time the deceased was killed in the motor accident, I accept that it was more his sudden death, rather than any change of heart on his part, that prevented joint progress on her application for permanent residency.
Many others observed the deceased's and Ms Peipi''s relationship. A neighbour, Mr Christopher Hartley, observed the couple doing domestic duties together, saw them entertaining guests together, heard the deceased describe Ms Peipi as "my partner", who "lives here now", and saw their mutual demonstrations of public affection. A friend of the deceased, Tara Ej Forsyth Muzzio: saw the couple riding together at Rebels motorcycle events; and the deceased praising Ms Peipi's treatment of Jessica and saw their mutual public affection at social gatherings. The deceased told another Rebels motorcycle club member, Rocco Pignatoro, in late 2008 that Ms Peipi would be moving in to the Palmerston Road property and a little later he said that that she had indeed moved in with him.
An important witness to give evidence of the relationship between Ms Peipi and the deceased is his brother, Mr John Hilaney. John and the deceased's mother died in June 2006. Until her death and after his separation from Ms Mirarchi, the deceased had lived with his mother at the Palmerston Road property.
John gives an account, which I accept, that after their mother died the deceased lived at the Palmerston Road property alone. In about 2008 the deceased rented out a back room of this property, after converting it from a family room to a bedroom. John lived there for about eight months in the first half of 2009 and paid the deceased rent. But John says, and I accept, that after he left he stayed in regular touch with his brother, the deceased. John's recollection is that he did not first meet Ms Peipi until some time early in 2009. John says that after he moved out of the Palmerston Road property he would visit the deceased from time to time. On these visits he noticed both a woman and another man living at the house. I accept that he said to the deceased "Who are these people?", to which the deceased replied "This is Ms Peipi and her brother. They are living here now". John was puzzled by this and said to the deceased, "Eddy how can you afford this?" to which, I accept, the deceased responded, "They are helping me and I am helping them too".
John's further visits to the Palmerston Road property allowed him to observe that one of Ms Peipi's brothers resided there for a few more months, after which he returned to New Zealand.
John Hilaney also had contact with Ms Peipi and the deceased in the months leading up to his death. The Hilaney family met regularly after their mother died in June 2006. The deceased, John and their sister Jenny would all gather at Jenny's house on weekends. I accept John's account that at these gatherings the deceased would complain about being poorly off financially, saying to his siblings "Things are pretty bad. I need help". As a result of such complaints from the deceased, in January 2011 John volunteered to rent out his own house and to come and stay with his brother so as to be able to pay him some rent. John says and I accept that he continued to live at the Palmerston Road and pay his brother weekly rent from then until his brother died.
John saw Ms Peipi at the house during this period. But John says, and I accept, that the deceased never mentioned to John that he was going to be engaged or married to her. John says, and I accept, that he never saw Ms Peipi wearing a ring on her ring finger. This evidence is in conflict with Ms Peipi's account of wearing a ring. On this issue I found John to be a persuasive witness. But the lack of a ring does not change the Court's underlying findings of the strength of the relationship between Ms Peipi and the deceased over the two years before his death. And I accept the submissions put on behalf of Ms Peipi that John's evidence (he was not cross-examined) means that the deceased and Ms Peipi were sharing a bedroom when he was staying with them in the last few months of the deceased's life.
In my view the central features of a de facto relationship were present between the deceased and Ms Peipi in the last two years of his life. They knew one another from 2008 but they had a de facto relationship from February 2009 until his death in March 2011. Ms Mirarchi on behalf of Jessica challenges this conclusion, but in my view the challenge fails.
The first challenge is that the deceased cannot now answer Ms Peipi's claim. Ms Mirarchi relies upon well known legal authority cautioning that conversations between deceased persons and living witnesses, which only the deceased could have denied, should be scrutinised with extreme care: Plunkett v Ball (1915) 19 CLR 544, at 548-9 (Isaacs J), Clune v Collins Angus and Robertson Publishers Pty Limited (1992) IPR 246, at 253, and Ashton v Pratt (No. 2) [2012] NSWSC 3 at [18].
But Ms Peipi's case relies on much more than conversations with the deceased. Some authorities suggest that corroboration is desirable though not legally required in such circumstances: Re Hodgson (1886) 31 ChD 177 and Weeks v Hrubala [2008] NSWSC 162 at [20] per Young CJ in Eq. But here there is substantial corroboration of Ms Peipi's story in the silent evidence afforded by the various cards and notes from the deceased, and in the oral evidence of neighbours and of Rebels club members. The precise timing of the deceased's invitation to Ms Peipi to move in with him is uncorroborated, but I accept it as correct. But in my view she did move in at that time.
Has Ms Peipi proved a full two-year relationship? In her next challenge Ms Mirarchi rightly submits on behalf of Jessica that there are "fine timelines" involved here. She points out that some of Ms Peipi's evidence does not show a relationship as early as February 2009, so as to make out the necessary full two-year relationship before Ashoor Hilaney's death. For example, it is said that many of the documents Ms Peipi relies upon are dated in 2010 and 2011. That may be so, but they are documents showing by then a well-developed and close relationship, which is unlikely just to have emerged overnight. I accept Ms Peipi's evidence that a relationship that started between them in 2008 led her to move in with the deceased at the Palmerston Road property in February 2009.
Was Ms Peipi's and the deceased's relationship just one of convenience? Ms Mirarchi submits in her next challenge that they were just two people living under the same roof and sharing expenses, mostly for consumable items. But their relationship was much more than this, in my view. Both Ms Peipi's oral evidence and the deceased's letters and their photographs show that theirs was more than just a relationship of financial convenience.
Can Ms Peipi prove residence at the Palmerston Road property as early as February 2009? There is objective evidence supporting her residence there as early as April 2009. Ms Peipi was receiving ANZ bank statements at the Palmerston Road property in April 2009. Given that some time delay would have been inevitable in changing her ANZ bank statements to a new address, a statement as early as April 2009 quite well corroborates her version of events. And Mr Hartley, their neighbour, who was in a good position to observe their living arrangements, puts Ms Peipi living with the deceased "since in or around March 2009".
Ms Mirarchi claims that in about March 2009 the deceased described Ms Peipi to her merely as "a boarder". But that certainly puts Ms Peipi in the house as early as March 2009. This description is hardly surprising. After their divorce and the deceased's development of this new relationship I doubt that the deceased felt any need to account with complete candour to Ms Mirarchi, as to the full nature of his relationship with Ms Peipi.
In the present case consideration of "all the circumstances" within Interpretation Act, s 21C and based on the Court's findings leads to the conclusion that Ms Peipi and the deceased were in continuous de facto relationship from February 2009. Although the relationship was only two years in duration it involved: continuous common residence over that whole period; a sexual relationship accompanied by obvious indications of public affection in a variety of situations; a moderate degree of financial interdependence with mutual financial sacrifices at different times; a demonstrable commitment to a shared life, exemplified by regular notes and communications accounting for what one another was doing; the sharing of household and domestic duties; and, a relationship which presented them to many different social groups as a close couple. And as the next section of these reasons shows, events after the death of the deceased are consistent with this conclusion.
Personal Contests since March 2011
Relationships between Ms Peipi and Ms Mirarchi have been maintained at a regrettably low standard since the death of the deceased. Their mutual animosity has led to unnecessary tension and to litigation, which has been costly to the deceased's modest estate. The contests concerned occupation of the Palmerston Road house and the administration of the estate.
On 14 April 2011, three weeks after the deceased's death, his family gave Ms Peipi notice to vacate the Palmerston Road property. She did so two days later, taking her two pets with her. She placed the pets in an animal refuge and then found herself accommodation wherever she could. Eventually in August 2011, she found residence in a four-bedroom rental property in the suburb of Oxley Park.
I accept Ms Peipi's evidence that considerable pressure was placed on her in early April 2011 to leave the Palmerston Road property. Whether or not Ms Mirarchi was the source of that pressure is difficult to tell, and not necessary for the Court to decide. But I accept such pressure was applied. It is difficult to explain Ms Peipi's departure from the Palmerston Road property, to which she was closely attached, so soon after the deceased's death, in any other way.
Ms Peipi's departure from Palmerston Road was handled with avoidable insensitivity and ill-considered haste. I accept Ms Peipi's account of these unfortunate events. Ms Peipi's narrative of the events 28 March to 16 April 2011 explains some of her continuing distress after the deceased's death. The deceased was a member of the Rebels motorcycle club. He paid $50 a week to the club to cover, among other expenses, a funeral plan. The Rebels club offered to pay for the funeral but the deceased's family declined that offer. Instead they paid for the funeral.
I accept that John Khina, the deceased's sister Jennifer's son, told Ms Peipi on 28 March 2011 that the funeral expenses were $11,000 and had been paid by credit card. But I further accept that between 9 and 11 April Jennifer and other family members sought repayment of funeral expenses from her, and threatened to sell the deceased's motorcycle if she did not reimburse them. The deceased did not want his bike sold. He wanted it given to the Rebels. So Ms Peipi sought a loan from the ANZ Bank for $11,224.89 to purchase the motorbike from the estate, so that she would have some control over this asset. She showed the ANZ loan approval dated 12 April 2011 to John Hilany, the deceased's eldest brother.
But she was too late. On returning home from work on 12 April she found members of the deceased's family already inside the Palmerston Road property. They claimed that "this house belongs to Johnson now" and that she needed to leave it. An incident then occurred between John Khina and Ms Peipi that caused her to complain to the Fairfield police. Ms Peipi also discovered the same afternoon that the deceased's motorbike was missing from the Palmerston Road property and that some of her (and the deceased's) personal belongings had been cast onto the front lawn of the property. The police were called that day to the Palmerston Road property. Ms Peipi remained there for a few days.
Amidst all this turmoil on 14 April Mary Khina the deceased's niece, Jennifer's daughter, stepped forward and offered a direct and empathetic communication by SMS text message to Ms Peipi, describing Ms Peipi in these terms "you are family. He [the deceased] loved you, so we love you".
But Mary's admirable efforts as a peacemaker did not stop other family members serving on Ms Peipi what was described as a "14 day Notice to Vacate" the Palmerston Road property. Signed by Johnson Hilaney the notice required Ms Peipi to vacate and remove her possessions by 28 April.
This notice was of dubious validity. Johnson Hilaney and the deceased Ashoor Hilaney were tenants-in-common in equal shares in the Palmerston Road property at the time of his death. When the notice was served there was no representative of the deceased's estate. Johnson Hilaney could only speak for half the Palmerston Road property, and was probably acting as executor de son tort with respect to the deceased's other half. Nevertheless Ms Peipi buckled under this pressure, contacted Homelessness Australia, vacated the Palmerston Road property, and lived thereafter for a period in hostels and at the generosity of friends. At the time of the trial she was renting a Housing Commission property in Oxley Park.
The events of this period curiously help confirm the existence of a personal relationship between the deceased and Ms Peipi. The statements recorded here of the deceased's family recognised her relationship with the deceased. The assumption behind the family's request to Ms Peipi to reimburse his family members for funeral expenses is only readily to be accounted for by a belief on their part that she was at least morally obliged to pay these expenses, given her relationship with the deceased. Also the speed with which Ms Peipi was removed from the property, after which it remained untenanted, certainly speaks to some animus against her, rather indicating she was far more than just a casual boarder at the property. These observations are only indirect indications of the deceased's relationship with Ms Peipi, and would not alone be a decisive basis to infer such a relationship.
The Estate, Probate and Family Provision Act Litigation
The Court actually has before it four sets of proceedings: one brought by Ms Mirarchi, another by Jenny Khina; another by Ms Peipi, and the last brought on behalf of the estate, and against the deceased's brother, Johnson Hilaney.
(1) Ms Mirarchi's proceedings. Ms Mirarchi commenced proceedings in September 2011 seeking administration of the estate of Ashoor Hilaney on the basis that Jessica was the only issue of the deceased, that the administration bond be dispensed with, and in the alternative, seeking orders pursuant to Succession Act, s 59 for Jessica's maintenance, education and advancement in life. Ms Mirarchi's proceedings (2011/194248) made no mention of Ms Peipi, supported Ms Mirarchi's claim for administration with evidence that the deceased did not have a will, and explained Ms Mirarchi's fitness to take administration. In those proceedings she also sought orders assigning her as guardian of Jessica for the purposes of applying for administration.
In those proceedings Ms Mirarchi gave a summary of the estate's assets as follows:-
Assets
Estimated Value
The Palmerston Road Property
$380,000
Harley Davidson motorcycles
$20,000
Bank accounts
$20.95
Total
$400,020.95
Ms Mirarchi estimated the liabilities of the estate at $179,044.72, being the mortgage to St George Bank, thereby giving the estate a gross value of $400,020.95 and a net value of $220,976.23.
(2) Jenny Khina's proceedings. In addition to Ms Mirarchi's proceedings, Jenny Khina, the deceased's sister, commenced proceedings in 2011 (2011/228231). She sought a grant of probate in respect of an alleged will of the deceased dated 25 December 2010. But Ms Khina has not proceeded with that application nor has she propounded this alleged will. These proceedings can be dismissed once the grant of administration is made in these proceedings.
(3) Ms Peipi's claim. In March 2012, Ms Peipi sought administration of the deceased's estate (proceedings 2012/91609). She did so pursuant to Succession Act, s 91, which permits administration of an estate to be granted when a family provision claim is made, so as to decide whether or not a deceased person left property in New South Wales. Ms Peipi's Summons also seeks provision from the deceased's estate under Succession Act, Chapter 3. In her proceedings Ms Peipi issued a Citation to See to Jenny Khina, the deceased's sister, on the basis that Jenny Khina had an interest adverse to her in the proceedings. Consistent with Jenny Khina's conduct of her own proceedings she did not appear or take any part in Ms Peipi's proceedings and so there was no contest involving Ms Khina.
Ms Peipi's proceedings, referred to the deceased not having a will, claimed that she and the deceased had been in a de facto relationship "for approximately two and half years", referred to Jessica, and estimated the total value of the estate as $320,000 made up of the Harley Davidson motorbike of $13,000, a St George Bank account of $20 and superannuation of $23,000, and then referring to the Palmerston Road property mortgaged to $179,044.72. In these proceedings the estate was estimated to have a gross value of $406,720 and a net value of $227,675.28. Ms Peipi's inclusion of the superannuation is counterbalanced by a lower valuation on the Palmerston Road property. On all the competing versions of the net value of the estate, it is nevertheless worth less than the statutory legacy of $350,000.
(4) Proceedings Against Johnson Hilaney. The last proceedings were only commenced after the main hearing took place on 12 October 2012. In submissions on that date it appeared that the parties had not dealt with the issue that Johnson Hilaney was still a registered proprietor of a half share of the Palmerston Road property as tenant in common with the deceased's estate. Both sides submitted that the deceased's estate claimed Johnson's half interest in the Palmerston Road property beneficially. But surprisingly no formal legal claim had even by then been brought against Johnson Hilaney. It was in the interests of the parties to know before the resolution of these proceedings whether the deceased's estate held the whole or only half of the Palmerston Road property. So, on 22 October 2012 the Court appointed Ms Mirarchi a representative of the deceased's estate to commence proceedings seeking a declaration against Johnson Hilaney: that he holds his interest in the Palmerston Road property on trust for the deceased's estate. Upon the return of the Summons, Johnson Hilaney's legal representative sought a period of time to advise him.
In the end the Court made the declaration by consent. Ms Mirarchi's evidence was that the deceased and she held the Palmerston Road property as joint tenants. But as has been explained earlier in these reasons, in July 2000 the deceased took out finance with St George Bank to acquire the property. He agreed to buy the property from Ms Mirarchi that month, and the transaction settled in August 2000. Johnson Hilaney agreed to be a guarantor and his name was placed on the title, apparently to give him some security for his guarantee. But the deceased (and later Ms Peipi) made all the mortgage payments. The evidence of the deceased's full beneficial entitlement to the property was strong.
The parties eventually reached an agreed value of the estate on 6 December 2012. There was both principal estate and notional estate the subject of agreement (Exhibit E). The significant integers of the parties' agreement are as follows:
Agreed Value of the Estate
Palmerston Road property as per kerbside valuation (agreed that figure may vary by 20%)
$370,000
Less Mortgage to St George Bank
$198,240.99
Less Costs of sale
$5,000-$10,000
Less Utilities (rates, water and electricity)
$3,455.25
Harley Davidson motor cycle held by deceased's family member
$13,000-$20,000
It is agreed that the deceased's family members have paid for his funeral. I find that the deceased's family have made a claim against Ms Peipi for the costs of the funeral, but I accept that they have taken the bike to pay for the funeral. In a very rough calculation therefore, which is sufficient for present purposes, this asset and this liability can each be removed from consideration of the estate's net assets.
The deceased had some personal effects of no market value and there are no other estate liabilities. Notional estate is also agreed:
Agreed Notional Estate
Superannuation with Australian Super (of this $30,706.14 has been released to Ms Mirarchi for Jessica)
$138,813.41
AMP Superannuation
$1,173.00
LUCFA Superannuation (released to Ms Mirarchi for Jessica)
$22,315.11
Total
$162,301.52
Therefore before legal costs are considered the total estate and notional estate is $325,605.28 (being $163,303.76 plus $162,301.52).
But the estate will be significantly diminished by the costs of these proceedings. Solicitors for both sides have communicated their costs of the proceedings but which have probably become a little out of date because of developments which have occurred after those cost affidavits were filed. For example, before the hearing Ms Natalie Dadisho estimated Ms Peipi's costs of the hearing at $74,624. But there was considerably more contest about Jessica's expenses than would have been anticipated at the time such affidavits were filed and I will infer for the purposes of calculating the net value of the estate after costs that each side has incurred about $85,000 in costs. Jessica's solicitors have put in a similar and slightly lower estimate of legal fees of about $57,500. But this was also an earlier stage of the proceedings and may well in the result be higher. That means in round terms that if both sides costs are paid out of the estate, in round terms the estate has a net value of about $155,000 ($325,000 minus $170,000).
"Eligible Person" Succession Act, s 57
The Court has found that Ms Peipi is entitled to the whole of the estate and Jessica will receive nothing. So the claimant for family provision from the estate in this case is Jessica, not Ms Peipi. It is to Jessica's Family Provision Act claim that these reasons therefore now turn.
The Court's power to make family provision orders under Succession Act, Chapter 3 extends to cases in which letters of administration are granted over the estate of a person dying intestate: Succession Act, s 55(1)(b). And the power to make orders will have effect "as if the provision was made...in a will of the deceased person, if the deceased person died intestate": Succession Act, s 72(1)(e).
But because of the small size of this estate, these reasons will attempt so far as possible to fully and finally dispose of the issues between these parties so that further consideration by any tribunal of factual matters will not be necessary. These reasons will therefore later briefly consider what findings would have been made were Ms Peipi not to have been found to be in a de facto relationship for a full two years at the time of his death and therefore not the deceased's spouse under Succession Act, s 113. On this alternative, she may nevertheless have been found to be "living in a de facto relationship at the time of the deceased person's death" within Succession Act, s 57(1)(b) and therefore a person eligible to make a claim against the deceased's estate. Eligibility to make a family provision claim under Succession Act, s 57 does not require a de facto relationship of two years.
If an intestate leaves no spouse but leaves issue, the intestate's child or children are entitled to the whole of the intestate estate: Succession Act, s 127(1). If the Court had not found that Ms Peipi and the deceased were in a de facto relationship for two years the Court would have found a de facto relationship existing at the time of the deceased's death, and would have found in Ms Peipi's favour on several other bases of eligibility for Ms Peipi to bring a Family Provision Act claim. Those other alternative findings are considered below under the headings "Alternative Findings".
For an order for provision to be made under Succession Act, s 59 in favour of an applicant, the Court must be satisfied that the applicant is an "eligible person" within Succession Act, s 57. On Jessica's claim therefore she automatically qualifies as an "eligible person". Succession Act, s 57 provides:-
"Section 57 Eligible persons
(1) The following are "eligible persons" who may apply to the Court for a family provision order in respect of the estate of a deceased person:
(a) a person who was the wife or husband of the deceased person at the time of the deceased person's death,
(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death,
(c) a child of the deceased person,
(d) a former wife or husband of the deceased person,
(e) a person:
(i) who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death."
Special considerations are applicable to persons claiming eligibility under Succession Act, s 57(1)(e) and (f). Were it necessary to do so the Court would find that Ms Peipi qualifies under Succession Act, s 57(1)(b), and under the alternative avenues to qualification as an "eligible person" under s 57(1)(e) and (f). There are briefly considered later below.
Applicable Legal Principles for the Family Provision Discretion
Jessica claims an order for provision out of the deceased's estate. Whether or not such an order should be made, in what amount an order should be made, and against what assets, are governed by the following principles.
Succession Act, ss 59 and 60 set out the steps and the considerations relevant in determining whether or not to make an order for family provision under the Succession Act. Succession Act, ss 59 and 60 relevantly provide as follows:-
"59(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:
(a) the person in whose favour the order is to be made is an eligible person, and
(b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57-having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and
(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.
(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
60(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining:
(a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and
(b) whether to make a family provision order and the nature of any such order.
(2) The following matters may be considered by the Court:
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,
(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,
(e) if the applicant is cohabiting with another person-the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
The operation of these provisions is well established in authority. The Court must first consider in such an application whether or not the provision made in favour of the plaintiff by the deceased either during the deceased's lifetime or out of the deceased's estate is now "inadequate for the proper maintenance, education and advancement in life of the eligible person": Succession Act, s 59(1)(c). If the Court makes a determination of inadequacy, the Court must then determine "what provision (if any) ought to be made in favour" of the plaintiff taking into consideration the matters set out in Succession Act, s 60.
Inadequacy of provision for Jessica is a straightforward issue in this case. On intestacy, for the reasons stated above, Jessica gets nothing from the deceased's estate. But her profound disabilities mean that she has substantial financial needs. These are discussed below in greater detail.
The separate nature of these two questions in the context of the Family Provision Act was affirmed by a majority of the High Court in Singer v Berghouse (No 2) (1994) 123 ALR 481; (1994) 181 CLR 201 at 209:
"The first question is, was the provision (if any) made for the applicant ``inadequate for [his or her] proper maintenance, education and advancement in life''? The difference between ``adequate'' and ``proper'' and the interrelationship which exists between ``adequate provision'' and ``proper maintenance'' etc were explained in Bosch v Perpetual Trustee Co Ltd. [1938] AC. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder (1951) 82 CLR 645, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."
The High Court reaffirmed this approach to the operation of family provision legislation in Vigolo v Bostin (2005) 213 ALR 692; (2005) 221 CLR 191 at [112].
Whether the two-step test still operates with the same vigour in the current Succession Act legislation as it did in the Family Provision Act 1982 has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. Indeed in Andrew v Andrew [2012] NSWCA 308, especially at [26] to [29], and [41], the Court of Appeal has stated that the new language of the Succession Act is not consistent with the two stage inquiry which was a common feature of the earlier legislation. But such considerations are not determinative in this case, which is a clear one on the question of whether or not adequate provision has been made. It has not, for the reasons explained. And even though the process may no longer be a two stage one, it still involves a similar range of relevant considerations.
Other authorities explain in more detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the recent decision of Hallen AsJ in Drury v Smith [2012] NSWSC 1067 at [153], [154], [155], [158] and [160], which relevantly provides:
[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16:
"Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541)
In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274...
In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said:
'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.'
The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that:
'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"
[154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted:
"In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."
[155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said:
"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."
...
[158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that:
"It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
...
[160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said:
"[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
That then leaves the Court to decide whether any, and if so what provision should be made for Jessica in this case. That requires consideration of Mirachi family financial circumstances and Jessica's financial needs.
Mirarchi family financial circumstances
Ms Mirarchi and her husband Joe have provided details of their assets and income, which the Court accepts. Ms Peipi has challenged some of the financial material upon which they rely but that challenge is not successful.
At the time of trial Ms Mirarchi was a Project Officer with the Bankstown City Council. She receives $34 per hour and works approximately 35 hours per week. The position is terminable on two weeks notice and is not stable long term employment. Despite the contract-based nature Ms Mirarchi's recent work, in the last three financial years she has been able to earn a reasonably steady income: a gross income of $57,535 for FY09; a gross income of $38,254 for FY10; and a gross income of $39,411 for FY11.
Ms Mirarchi and her husband jointly own their home in Bonnyrigg valued at approximately $460,000. But it is heavily mortgaged. She has cash of $1,200 and a twelve-year-old Subaru Liberty motor vehicle said to be valued at $3,500 together with personal effects of nominal value.
Ms Mirarchi and her husband have substantial liabilities. They still owe $430,000 to St George bank on the Bonnyrigg property and $7,500 on a Visa credit card. Ms Mirarchi's husband Joe has few other substantial assets. Apart form the Bonnyrigg residence, which he owns jointly with Ms Mirarchi, he owns a 2008 Mazda motor vehicle worth $25,000 and personal effects worth $5,000. He has a personal loan on which a balance of $25,000 is owing to Citibank. His Mazda vehicle is leased from CBFC and has a remaining financial obligation of $25,000 to pay the lease out. Mr Mirarchi is employed as an accountant for Fairfield RSL Club and receives an income of $105,000 gross per annum in what presently appears to be stable employment.
In short, even without Jessica's special needs, maintaining financial stability for Ms Mirarchi and Joe is difficult.
Ms Peipi's Financial Circumstances
But Ms Peipi's own financial and personal circumstances are a relevant consideration in Jessica's claim. Jessica's case is that her financial needs "overwhelm" Ms Peipi's needs. For the reasons explained below that is not the conclusion the Court reaches. But Ms Peipi's financial and personal circumstances require closer consideration.
At the time of swearing her principal affidavit in March 2012 Ms Peipi was 54 years of age. She had taken mainly unskilled work in New Zealand until the early 1990's, when she decided to undertake further secondary and tertiary education in Hawkes Bay, New Zealand. After leaving school she took factory jobs from 1976 as a machine operator, bookbinder, bartender, and dispatch worker. From 2002 she worked as a receptionist and cleaner in New Zealand and then in Australia casually between 2002 and 2003 and then permanently from 2006. Her jobs after 2000 drew more upon her greater educational qualifications. Ms Peipi has a history of continuous employment, although in industries susceptible to economic downturn and industry-wide unemployment.
Ms Peipi has had a difficult time since the deceased's death. I accept that before his death she was in good health, but that since then the shock of his unexpected accident, her inability to farewell him whilst he was alive, and her overwhelming grief all contributed to her suffering moderate reactive depression and anxiety. Her symptoms include re-occurring nightmares, spontaneous fits of weeping and overwhelming feelings of hopelessness and inability to engage socially at times.
She has sought medical and other professional assistance for her depression. Her general practitioner Dr Brenda McPhee has prescribed her with antidepressant medication, which she continues to take and to which her condition has responded. Ms Peipi has undergone counselling sessions with a psychologist/psychotherapist, Edwina Scerri at the Bankstown Women's Health Centre. Dr Adil Al-Habaish at Fairfield has also since treated her for this condition.
I accept that Ms Peipi's grief and depression have interfered with her capacity to work. At the time of the deceased's death she was working at Stockdale Printstaff and has, on account of her depressive symptoms, had to take off one to two days per fortnight in the nine month period after the deceased's death until December 2012. But despite this condition, Ms Peipi has been able to maintain herself in employment.
In March 2012, and virtually unchanged at the time of trial, Ms Peipi's assets are minimal: a 1996 Ford Fairmont motor vehicle with an estimated value of $1,500; and household contents and furniture with an estimated value of $3,000. And she owed $1,700 on an ANZ credit card.
Ms Peipi's outgoings exceed her income. Her monthly outgoings, including as the larger items rent at $1,400 per month and groceries of $520 per month, amount to $3062. But her gross income in the last few financial years (FY) has been modest as ATO assessments show: being $34,974 in FY09; $39,616 in FY10; and $41,287 in FY11. Her net income in FY11 was $35,780 ($41,287 - $5,507 in tax, plus offsets and allowances). This gives Ms Peipi a net income of only $2,982 per month, meaning some economies will be necessary for her monthly income to cover her monthly expenditure.
Between the October 2012 hearing and the resumed hearing and submissions on 6 December 2012 Ms Peipi's circumstances changed for the worse. She was given a Notice to Quit and left the Oxley Park property, which was not owned by the Housing Commission. She moved back with her friend in Housing Commission property but was informed that she needed to leave, as she was jeopardising her friend's tenure of the property. She left the Oxley Park property, lacking furniture and of necessity giving priority to expenditure on her car, so that she could get to and from work and preserve her income. She could not readily get shared accommodation because of her pets. She is currently living in a room in a house where her pets are welcome. She stores furniture in a shed on the property where she resides. She currently pays $200 per week for her bedroom, her electricity and a part of the backyard for her dog. Given the marginal financial circumstances in which Ms Peipi lives, her need for capital is obvious.
Jessica's current situation and financial needs
Jessica is completely dependent in all aspects of her life, including eating, toileting, bathing and dressing, a situation which will continue for the rest of her life. At the time of the trial she attended school between Mondays and Fridays and boarded at a property run by the Sylvandale Foundation and spends weekends with her family, apart from periods of respite care.
Jessica wears nappies and, if they are soiled, family members are more often required to change them than staff attending on her. Jessica's weight has increased as she has grown and she is now close to 60 kilograms. She now requires a sitting walker to be mobile and the use of a wheelchair. At home, when Jessica is out of her chair without support, she crawls to move around, given her increasing size it is difficult for Ms Mirarchi to assist her on her own. Indeed Ms Mirarchi has been hospitalised with back injury and is not able to perform all the tasks that she wishes to for Jessica.
Jessica's immobility means she is relying upon her wheelchair more than when she was younger. It can be anticipated that she will need wheelchair replacements throughout her life.
Jessica can display difficult behaviour. She can involuntarily drop to the ground or throw herself against objects, throw her food or use the wheelchair inappropriately. A lap sash belt is needed for her wheelchair to prevent some of this behaviour and Jessica needs assistance to transfer to and from her wheelchair, walker and her bed. This behaviour has also caused Jessica to suffer injuries to her face - she has broken her nose seven times and now finds it difficult to breathe.
Due to the increase in her size and her lack of mobility, Jessica cannot now sleep in a single bed. In 2011 Ms Mirarchi purchased a queen sized bed for her at home and double bed for her at her school, both with latex mattresses. Jessica's left side is partly paralysed. To overcome some of the effects of the paralysis she wears pressure garments on her leg and requires a brace to straighten it.
Jessica's severe brain injuries also require medication to prevent her from suffering seizures. This medication will be life long. Jessica has a confronting number of immediate medical and surgical needs. She needs: an operation to remove gallstones for which she is waiting; test and possible treatment for thyroid and hormonal imbalance to control her weight; the moulding of a new brace for her left leg; corrective surgery for her nasal injuries from her diving behaviour; physiotherapy at the Children's Hospital at Westmead for ongoing rehabilitation and consultation; and, significant dental work including teeth extractions.
Jessica's disabilities translate into ongoing expenditure for Ms Mirarchi and her family. I accept that Jessica has the following financial needs. She will need a new wheelchair with associated expenses at a cost $16,487. This will need to be renewed every few years. Ms Catanzariti argued that this and other expenses could be covered by government funding but on the evidence before me I have no confidence that that funding either is or will be available in a short, medium or long term. I wholly accept Ms Mirarchi's evidence about the expenditure she has incurred in relation to the wheelchair. And Jessica needs a shower commode with armless locks, pelvis belt and other associated expenses the total for which is $2,280.50. This will need to be replaced from time to time. She needs two walkers, each at a cost of $5,640, one for home and one for school. These also will need to be replaced from time to time. Ms Mirarchi estimates that due to general wear and tear from Jessica's quite active behaviour, that the life span of most of this equipment is not more than two to three years. I accept this evidence. And all of these items of ancillary equipment require servicing and repairs from time to time which average about $750 per year. In short I accept Ms Mirarchi's summary of her expenses, normal regular living expenses of $548 per week and additional long term expenses for equipment at $810 per week. There is a very substantial shortfall from Ms Mirarchi's Centrelink payments of approximately $251 per week, which she partly makes up through her work.
Quite apart from these specified needs, in my view Ms Mirarchi was the kind of highly caring mother who would do anything she could to make her daughter's life more comfortable. In my view whatever funds were available to assist Ms Mirarchi to take her daughter Jessica on holidays or make her life more comfortable she would certainly use them. In my view it is not unrealistic to assess Jessica's ongoing needs at about $1,000 per week in addition to the government allowances that she receives. These financial needs are so great that Ms Catanzariti's attack upon Jessica's case really only fiddled at the edges. It is not necessary to deal with the whole of that attack because it was generally of the same character, but some examples below will suffice.
As explained Jessica attends school and board from Monday to Thursday night at a cost for each term at $2,250. At the time of the hearing Ms Mirarchi was behind in her fees for this schooling and accommodation in an amount of $13,150, her fees incurred since March 2011. Clearly she is falling behind in her ongoing commitments for Jessica. Jessica was expected to finish school at the end of 2012 but in my view wherever she is expenditure of this care can be expected during her future life.
Ms Mirarchi has some special income and expenditure related to Jessica. I accept that Ms Mirarchi's back injury was caused by lifting Jessica. She herself needs rehabilitation and physiotherapy sessions and medication to relieve her back pain, which I accept are $24 per week. These sessions assist her in being able to cope with a very active Jessica. Ms Mirarchi receives a carer's allowance at the rate of $106.70 per fortnight and since 2010 Jessica has been receiving a disability support pension in the sum of $198 per week which will continue after she turns 18.
Ms Mirarchi says, and I accept, that apart from her Centrelink payments, she received very little government assistance for Jessica's treatment and does not have access to free therapy for Jessica. She says that she must pay for much of Jessica's treatment and Jessica's assessments herself. I accept this is what happens with physiotherapy and many other similar expenses.
Jessica's disability means she has very high genuine financial needs. Ms Mirarchi gave evidence that I entirely accept about Jessica's medical and personal needs, her daily regime and her consequent financial requirements. Ms Mirarchi was a most impressive witness whose motherly care and attention to her daughter was of the highest possible standard in the circumstances. It is difficult to fault any of the judgments that she has made about her daughter's needs or her attention to her daughter's progress, despite the obstacles she faces.
But Ms Catanzariti mounted a sustained attack on Jessica's case as presented through Ms Mirarchi: saying that Jessica's needs were not as great as were put or that a greater level of government subsidy was available to Jessica that had not been fully explored by Ms Mirarchi on her behalf. In my view that attack wholly fails. Mr O'Neil on behalf of Ms Mirarchi at one stage described Jessica's needs as "overwhelming" in the circumstances. I accept that as a generally correct description. Despite the overwhelming nature of Jessica's needs the Court has nevertheless seen fit, as the reasons below show, to continue to recognise Ms Peipi's position as a de facto spouse by leaving her some of her Succession Act, s 113 entitlements. But the findings in this section of these reasons are based upon Ms Mirarchi's evidence which I entirely accept. These findings also explain why the attack on Jessica's case fails.
First, Jessica's case is criticised because her affidavits did not clearly articulate and precisely calculate Jessica's needs. In my view Jessica's case has done that quite sufficiently to demonstrate that there is a very substantial deficit between government benefits and Jessica's financial needs in the long term. Further precision would not be a cost effective exercise.
Secondly, it is said that Jessica is entitled to access public funds to apply for many items of equipment she needs. I accept that Jessica is eligible to apply to Enable NSW, a state government authority, to provide equipment and items prescribed by Jessica's occupational therapist and physiotherapist and that Enable NSW has guidelines for its provision for power wheelchairs, transport aids, lower limb orthoses, compression garments, bathing and showering aids and shower commodes. Also I accept that Enable NSW has guidelines for the provision of maintenance of equipment that it provides, and I accept that Jessica has received some benefits from Enable NSW. But in my view it is quite unrealistic to plan Jessica's present or future needs on the basis that Enable NSW, will always pay for items requested and that government policy will not change in the future. Moreover, many of Jessica's medical and additional needs are not covered by Enable NSW's guidelines.
Thirdly, it can be accepted that Jessica is entitled to apply for and has been offered a place in a Commonwealth Department of Ageing, Disability and Home Care ("ADHC") home with a subsidised rent of 75 to 85 per cent of her pension. But I accept that it is entirely reasonable for Ms Mirarchi to decline ADHC's offer of a place and to choose other care. I entirely accept Ms Mirarchi's maternal judgment, rejecting the ADHC option. She has the best interests of Jessica in mind at all times and her first choice for her future care is to be accepted.
Fourthly, much of Jessica's medication is on the pharmaceutical benefits register and is subsidised and Ms Mirarchi would benefit from registration from the PPS Safety Net limiting the cost of PPS to $348 per year. But in my view receiving that precise benefit and no change in government policy about it are not something Jessica can rely upon in the long term.
Fifthly, Ms Mirarchi was criticised for not pursuing benefit payments from the Continence Aids Payment Scheme ("CAPS"), or for registration for the Medicare Safety Net. But again, the continuation of these schemes at particular levels is not something that can be relied upon and would not in any event neutralise the heavy costs that Jessica can anticipate over her lifetime.
Sixthly, Jessica's case is criticised because she would be treated as a public patient when in hospital because she is on a disability pension. But Jessica's claim does not rely upon the cost of the surgery, which her case assumes will be provided from public resources.
And finally, Ms Catanzariti points out that Jessica is entitled to a regular income of $270 per fortnight by the time submissions closed and will get the adult disability pension at the age of 21. But in my view these amounts will never cover her true needs.
Similar comments may be made about the National Disability Insurance Scheme ("NDIS"). There are so many contingencies associated with this scheme that it has only slight significance in consideration of Jessica's claim. The future of the NDIS is uncertain, and commences only with a trial. The places where the scheme operates after July 2016 are still unspecified, as are the quantum of the benefits that Jessica could receive under this scheme. Jessica does not precisely meet the residence requirement to access the NDIS.
Assessing Jessica's Family Provision Claim
As a result of the operation of Succession Act, s 113 the provision made in favour of Jessica by the deceased is inadequate for her proper maintenance, education and advancement in life. Her needs are profound and she will be given nothing after the statutory legacy of $350,000 from a net estate of approximately $155,000.
What provision ought to be made in her favour? The Court is required to take into account the matters set out in Succession Act, s 60. Without specifying particular paragraphs of Succession Act, s 60, the Court's factual findings in these reasons deal with those considerations. But some considerations are of particular prominence in this case.
Ms Peipi is a competing beneficiary. Ms Catanzariti argues that there are cases in which the share of a daughter with severe disability has been reduced to ensure a spouse is properly provided with a jointly owned residence or that the situation otherwise satisfies the standard of testamentary consideration afforded to spouses: see Luciano v Rosenblum (1985) 2 NSWLR 65 and Crouch v Zelichowski [2002] NSWSC 681. In this regard Ms Peipi's weak financial circumstances are strongly emphasised as are the cases where a disabled child's provision has been retained only by extinguishing another child's provision, not by reducing provision for a spouse: Lancaster v Bray [2008] NSWSC 155 and Costigan v Norton [2005] VSC 208.
In my view some weight should be given to Ms Peipi's competing interest. But it should be recognised that it was barely a two year de facto relationship for a man who was in his late forties. The Court would not be giving proper weight to Ms Peipi's claim to regard Jessica's claim as overwhelming her claim entirely. But in my view Jessica's claim should be recognised as taking the larger part of this estate. In my view the appropriate weighting of relevant factors in this case is to order for provision in favour of Jessica of 65 per cent of the estate and notional estate of the deceased.
But this is a case also in which the estate cannot afford any contest about costs or other avoidable issues. Making an order, unusual though it is, on an inclusive of costs basis is appropriate in this case. Brereton J took a similar course in Taylor v Farrugia [2009] NSWSC 801, especially at [70]-[74]. Such costs orders are well within the Court's power under Succession Act, s 65(2)(f) to order provision in "any other matter that the Court thinks fit".
And here the parties ran their cases quite differently. Ms Catanzariti pursued a detailed attack on expenses incurred on Jessica's behalf, the cost of which attack are more appropriately borne on Ms Peipi's side of the litigation. It is not appropriate, in my view, that these costs come out of the estate.
Alternative Findings - Dependence on the Deceased - Succession Act, s 57(1)(e)
So far there reasons have considered Jessica's claim against the estate. But as earlier foreshadowed, these reasons also consider what findings the Court would make if Ms Peipi had failed to establish her claim to be a spouse of the deceased and entitled to the statutory legacy under Succession Act, s 113.
In those circumstances Ms Peipi submits that she would be an "eligible person" under Succession Act, s 57(1)(b),(e) and (f). In my view Ms Peipi would be an eligible person under Succession Act, s 57(1)(b) whether or not she could prove a de facto relationship for two years, because she could nevertheless prove a lengthy de facto relationship at the time of the deceased's death.
Ms Peipi also says that she was a person who was at a particular time "wholly or partly dependent upon the deceased person". She submits that she was partly dependent on the deceased prior to his death. She also claims to fulfil the cumulative requirement in Succession Act, s 57(1)(e)(ii) of being then (at the time of her dependence), or at other times "a member of a household of which the deceased person was a member."
Ms Peipi was in my view dependent on the deceased. The Court's findings show this. Many parts of their shared life showed their dependence on him. He made the Palmerston Road available for her to live in and there were no arrangements for her to pay him rent, even though for most of their relationship she earned more than he did. They pooled their case financial resources to buy food and domestic items more economically than Ms Peipi could do alone. They shared the deceased's car and his motorcycle. The deceased helped Ms Peipi return to New Zealand for her brother's funeral. And all the time Ms Peipi lived in a household with the deceased. In my view, Ms Peipi would also readily qualify as an eligible person under Succession Act, s 57(1)(e).
Alternative Findings - Close Personal Relationship - Succession Act, s 57(1)(f)
Ms Peipi alternatively claims she and the deceased had a Succession Act, s 57(1)(f) "close personal relationship" other than a de facto relationship. The elements of what qualifies as a "close personal relationship" are not defined in the Succession Act.
In the absence of a statutory definition of the concept of "close personal relationship" case law has developed interpreting predecessor legislation. In Dridi v Fillmore [2001] NSWSC 319 at [102]-[104] Macready AsJ considered the elements that need to present in order for two people to be considered to be in a "close personal relationship" as then defined under a similarly structured but slightly differently worded Property (Relationships) Act 1984, s 5(1), which then used language "a close personal relationship between two adult persons...living together, one of whom provides the other with domestic support and personal care". In Dridi v Fillmore, Macready AsJ said:-
"I have earlier referred to aspects of what the Act describes as a "close personal relationship". It has to be between two adult persons who are "living together". Given that they may be members of the same family, such as a grandparent and grandchild and the different definition for a "de facto relationship" concepts relating to a "couple" are not relevant. Instead the definition calls for two different links. The first is that the parties are "living together". The second is that "one or each of whom provides the other with domestic support and personal care".
So far as the first requirement is concerned we are not concerned with concepts applicable to couples; the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow's home would qualify. It may not be necessary for there to be sharing of food or eating arrangements together. In the present case this is not important, as it seems that the parties ate together when they were both at home.
The second requirement is cumulative. There must be both domestic support and personal care. In this case there is evidence of domestic support as the defendant provided for the plaintiff free accommodation and meals, which he cooked for the plaintiff when the plaintiff was at home. There are other matters, not present in this case, which could be domestic support, eg shopping for both parties, washing clothes etc."
There are differences in language between the statutory definition of "close personal relationship" in Property (Relationships) Act, s 5(1) and Succession Act, s 57(1)(f). But because of the Court's findings below they are not of central significance in this case.
A common point in all the challenges to Ms Peipi's alternative claims is her and the deceased's living and residential arrangements. The point arises in deciding: not only, whether in her claimed de facto relationship they had "common residence" (Interpretation Act, s 21C(3)(b)); but whether in her claim of partial dependence she "was a member of a household of which the deceased person was a member" (Succession Act, s 57 (1)(e)(ii)); and whether Ms Peipi was "a person with whom [the deceased] was living in a close personal relationship" (Succession Act, s 57(1)(f)).
In my view Ms Peipi and the deceased were, in the alternative to the Court's principal findings, living in a "close personal relationship" within Succession Act, s 57(1)(f). All the natural elements of a "close" and a "personal" relationship were present here, between the deceased and Ms Peipi. All the matters identified above as qualifying Ms Peipi as being in a de facto relationship with the deceased would also well qualify her, in my view, as being in a "close personal relationship".
Alternative Findings - Do Succession Act, s 59(1)(b) Factors Exist here?
The Court has found Ms Peipi's is an "eligible person" on the basis that she was in a de facto relationship with him at the time of his death: (Succession Act, s 57(1)(b)). But her claim to be an "eligible person" would also have been made out on the basis that she was a dependent member of his household and living in a close personal relationship with him: Succession Act, s 57(1)(e) and (f). The requirements of Succession Act, s 59(1)(b) are therefore engaged. So, it is necessary for the Court to determine whether, having regard to all the circumstances of the case (whether past or present) "there are factors which warrant the making of the application". And if there are no such factors, then the Court must refuse to proceed in respect of these bases of eligibility.
Were the question of eligibility solely dependent upon Ms Peipi qualifying under Succession Act, s 57(1)(e) or (f), this is a case in my view where there are factors which would warrant the making of the application sufficient to satisfy Succession Act, s 59(1)(b).
Succession Act, s 59(1)(b) only applies to certain classes of applicants who are not generally regarded as natural objects of testamentary recognition of a deceased person. This suggests that the "factors" referred to are factors which when added to facts which render the applicant an "eligible person" also give the applicant the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased person: see Re Fulop (deceased) (1987) 8 NSWLR 679 at 681 per McLelland J and Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 at 252E. Where persons affected by Succession Act, s 59(1)(b) have the circumstances of their relationship with the deceased set out, it can sometimes immediately be seen that they are persons who would be regarded by most observers as natural objects of testamentary recognition: Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 at 252E.
Here those Succession Act, s 57(1)(b) "factors" exist. As a de facto relationship has been found it is difficult to consider any other factors in the alternative. But in the circumstances the following can be said.
A number of factors warrant giving Ms Peipi the status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased. I emphasise that all these factors are considered in the alternative, because the Court has found Ms Peipi was in a de facto relationship with the deceased for at least two years before his death. The deceased's preparedness to share his parenting duties towards Jessica with Ms Peipi during access periods shows he wanted to involve her in a full family life with him. The inference that arises from this is not diminished by the fact that this was cut short before his death because Ms Mirarchi restricted the deceased's access to Jessica. The deceased seemed actively to be promoting the relationship between Jessica and Ms Peipi, which he did not have to do, but which conferred on Ms Peipi special status that the evidence does not disclose as having been conferred upon other companion after the deceased's separation from Ms Mirarchi.
Another factor is that the deceased was clearly concerned with Ms Peipi's broader welfare. He took particular care after her brother's sudden death to ensure that her cultural traditions were fully supported whilst she grieved for her brother.
And then another factor is simply the quality of the relationship. The deceased seemed to gain very considerable pleasure from being in Ms Peipi's company as part of an intimate relationship which lasted almost three years, but included a full two years of co-habitation.
Alternative Findings - Conclusion
If Ms Peipi did not have a full two year de facto relationship with the deceased she would nevertheless be the claimant for family provision against Jessica. In those circumstances in my view the appropriate award in Ms Peipi's favour balanced against Jessica's needs would have been the same: 35 per cent of the deceased's estate and notional estate inclusive of costs. The alternative finding is based on an assessment which assumes all the facts the Court otherwise has found but that there was not a de facto relationship of at least two years.
Grant of Letters of Administration
The parties are also in contest about who should have grant of letters of administration of the deceased's estate. They have each claimed administration in their respective proceedings. Although Ms Peipi has been successful in establishing a de facto relationship with the deceased, Ms Mirarchi acting as Jessica's tutor has been substantially successful in relation to her Succession Act family provision claim.
Probate and Administration Act 1898, s 63 allows the Court to grant administration of the estate to a spouse of the deceased, or the next of kin, or both jointly, but if there is no such person in the jurisdiction in the opinion of the Court who is "fit to be so trusted" then the Court may grant administration to "the person...that the Court thinks fit".
In my view neither Ms Mirarchi nor Ms Peipi can be trusted with administration of this estate for the other. It is imperative in such a small estate that administration be given to someone who has the confidence of all the competing interests in these proceedings. Neither Ms Mirarchi nor Ms Peipi would command the confidence of the other. The appointment of one or the other is likely to lead to unnecessary contests in the further administration of the estate.
The basic rule considering to whom the Court should grant administration is that the appointment is one which advances the real object of the administration: Yazbek v Yazbek (No. 2) [2012] NSWSC 783. It might have been possible in this case to give the administration to either Ms Mirarchi, or Ms Peipi, if one or other of them had taken the whole of the estate. But that is not what has occurred. Each has a substantial interest in the sound administration of the estate.
In default of an agreement between the parties, the NSW Trustee and Guardian is the logical appointment the Court should make here in exercise of its powers under the NSW Trustee and Guardian Act 2009, s 22. But the appointment of the NSW Trustee and Guardian may involve the estate expense, which both parties wish to avoid. So the Court will give Ms Peipi and Ms Mirarchi a short period to see if they can agree on a third party (an independent professional or a family member) who is prepared to act in the proceedings at no fee or for a fee lower than the fee that would be charged by the NSW Trustee and Guardian.
Conclusions and Orders
In the result, the Court has found Ms Peipi was a de facto spouse of the deceased for a period of two years before his death and that she is entitled to the statutory legacy under Succession Act, s 113. However Jessica's claim for family provision also succeeds and she will take 65 per cent of the estate and notional estate. In my view the Court should make an award on an inclusive of costs basis in this case. That can be done by making no order as to costs as Brereton J did in Taylor v Farrugia at [74] to the intent that the parties' costs be paid out of their respective shares. But because of the four different proceedings in this case there may be particular orders that are required in addition to the dismissal of the proceedings and I will therefore give the parties liberty to bring in short minutes of order to give effect to these reasons. That will also give them the opportunity to find an administrator in the alternative to the NSW Trustee and Guardian. For that purpose the proceedings will be listed for short final argument on Friday, 25 October 2013 at 9.30am as to the form of orders.
**********
Decision last updated: 17 October 2013
3
15
5