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Petersen v Gregory

Petersen v Gregory

Case [2007] NSWSC 8 29 January 2007

Competing Claims

De Facto Relationship

Letters of Administration

Succession Law

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Reported Decision:
(2008) NSW Conv R 56-207
(2008) ANZ Conv R 8-07

New South Wales

Supreme Court

CITATION: Petersen v Gregory; Estate Glen Alfred Petersen [2007] NSWSC 8

HEARING DATE(S): 13/12/06, 14/12/06

JUDGMENT DATE :
29 January 2007

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Barrett J

DECISION: Letters of administration to be granted to deceased's father

CATCHWORDS: SUCCESSION - intestate estate - competing claims for letters of administration - deceased unmarried and without issue - claim by father - claim by alleged de facto wife - whether claim to have been de facto wife established - WORDS AND PHRASES - "live together as a couple"

LEGISLATION CITED: Property (Relationships) Act 1984, s.4
Wills, Probate and Administration Act 1898, ss.32G, 61B

CASES CITED: Delany v Burgess [2006] NSWSC 1420
Hooper v Winten [2002] NSWSC 1071
Ye v Fung [2006] NSWSC 243

PARTIES: June Dolores Petersen - First Plaintiff
George Petersen - Second Plaintiff
Leanne Catherine Gregory - Defendant

FILE NUMBER(S): SC 114065/05

COUNSEL: Mr M.R. Lawson - Plaintiffs
Mr P.R. Stockley - Defendant

SOLICITORS: Atkinson Vinden Heazlewoods - Plaintiffs
Thomson Bentley & Partners - Defendant

- 21 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

BARRETT J

MONDAY, 29 JANUARY 2007

114065/05 JUNE DOLORES PETERSEN AND ANOR v LEANNE CATHERINE GREGORY - THE ESTATE OF GLEN ALFRED PETERSEN

JUDGMENT

1 Glen Alfred Petersen died intestate on 22 February 2005 at the age of 49 years. He never married and had no children. There are competing claims in these proceedings for a grant of letters of administration of his intestate estate.

2 By statement of claim filed on 6 September 2005, the deceased’s father and mother claimed an order granting them letters of administration. The mother later died and that claim is continued by the deceased’s father (whom I shall call “Mr Petersen”). By statement of cross-claim filed on 16 November 2005, a corresponding claim is made by Leanne Catherine Gregory (“Ms Gregory”). She claims to have been the deceased’s de facto spouse at the time of his death.

3 While the respective claims are, in form, claims to administer the estate, the circumstances are such that each is, in substance, a claim to be recognised as entitled to the whole estate. Each claim is advanced on the basis that “the grant ought to follow the interest”. The interest upon which Mr Petersen relies is that of the two surviving parents under s.61B(5)(a) of the Wills, Probate and Administration Act 1898. The parents take only if the intestate leaves no spouse and no issue. The interest asserted by Ms Gregory is the surviving spouse’s right to the whole estate under s.61B(2) in a case where the deceased leaves a spouse but no issue.

4 Because it is accepted that Mr Petersen is the surviving parent, the only question the proceedings raise is whether Ms Gregory is to be regarded as the “spouse” of the deceased for the purposes of the rules as to intestate succession…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Petersen v Gregory

Details

AGLC: Petersen v Gregory [2007] NSWSC 8
Case: [2007] NSWSC 8
Decision Date: 29 January 2007

CaseChat Overview and Summary

In the Supreme Court of Queensland, Petersen v Gregory was a case involving the distribution of an intestate estate. The deceased, Gregory, was unmarried and without issue at the time of his death. His father, Petersen, and an individual claiming to be his de facto wife both applied for letters of administration. The court had to determine whether the claim of the alleged de facto wife to have been living together as a couple with Gregory was substantiated.

The court was tasked with resolving the conflicting claims to the estate. The central legal issue was whether the claimant had successfully established that she had been in a de facto relationship with Gregory. The court had to consider the evidence presented by both parties to determine the veracity of the alleged de facto relationship. The relevant legal principles included the interpretation of the phrase "live together as a couple" within the Succession Act 2006.

The court reviewed the evidence provided by both parties and concluded that the claimant had not met the threshold required to establish a de facto relationship. The court found that the claimant had not lived with Gregory in a domestic setting and that their relationship did not meet the necessary criteria. As a result, the court dismissed the claimant's application and granted the father, Petersen, the letters of administration. This decision recognised the father's legitimate claim to the estate as the closest living relative of the deceased.

Orders