Pollock v NSW Trustee & Guardian

[2022] NSWSC 923

Supreme Court

New South Wales

Medium Neutral Citation:

Pollock v New South Wales Trustee & Guardian [2022] NSWSC 923

Hearing dates:

7, 8, 9 and 15 June 2022

Date of orders:

14 July 2022

Decision date:

14 July 2022

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court:

(1) Directs the parties, within 10 days, to provide, in hard and soft copy, Short Minutes of Order that reflect these reasons.

(2) Orders that the proceedings be stood over for directions at 9:00 a.m. on Thursday, 28 July 2022 to enable the determination of costs.

(3) Orders that if agreement is reached, signed the Short Minutes of Order may be forwarded to the Court, for consideration, in Chambers, so that the orders proposed may be made, and entered, and the adjourned date vacated.

Catchwords:

SUCCESSION – Family Provision – Claim by Plaintiff as a person with whom the deceased was living in a de facto relationship at the time of the deceased’s death – Dispute as to this ground of eligibility –Question whether the de facto relationship had ended and, if so, when – No dispute that the Plaintiff was a member of the household of which the deceased was a member and that she was, at that time, partly dependent upon him – No dispute that having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application – On either basis of eligibility, no dispute that at the time when the Court is considering the application, adequate provision for the proper maintenance, education, or advancement in life of the Plaintiff has not been made by the Will of the deceased – Nature and quantum of the provision to be made for the Plaintiff

Legislation Cited:

Evidence Act 1995 (NSW) s 140(2)

Family Law Act 1976 (Cth) s 4AA(1)

Family Provision Act 1982 (NSW)

Interpretation Act 1987 s 21C

NSW Trustee and Guardian Act 2009 (NSW) ss 5, 6, Sch 1 par 3(1)(d)

Succession Act 2006 (NSW) ss 3, 13, 55, 57-59, 60-61, 65-66, 72, 74-77, 83-84, 91 & 99

Cases Cited:

Alexander v Jansson [2010] NSWCA 176

Ashton v Pratt (No 2) [2012] NSWSC 3

Ballard v Multiplex [2012] NSWSC 426

Bartlett v Coomber [2008] NSWCA 100

Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35

Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327

Crabtree v Crabtree (1963) 5 FLR 307

Dakin v Sansbury [2010] FMCAfam 628

Dion v Rieser [2010] NSWSC 50

Diver v Neal [2009] NSWCA 54

Estate of the Late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324

Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477

Evans v Braddock [2015] NSWSC 249

Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)

Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31

H v P [2011] WASCA 78

Hayes v Marquis [2008] NSWCA 10

Hibberson v George (1989) 12 Fam LR 725; [1989] NSWCA 100

Hooper v Winton [2002] NSWSC 1071

Hopes v Hopes [1949] P 227

Howland v Ellis [2001] NSWCA 456

Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160

in Lewis v Warner [2016] 3 WLR 1545; [2016] EWHC 1787 (Ch)

In the Estate of Puckridge, Deceased (1978) 20 SASR 72

In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547

Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep)

Jonah & White (2011) 258 FLR 236; (2011) 45 Fam LR 460

Kogan v Martin [2019] EWCA Civ 1645

Lachaux v Lachaux [2017] 4 WLR 57; [2017] EWHC 385 (Fam)

Light v Anderson [1992] NSWCA 136

Longman v R (1989) 168 CLR 79; [1989] HCA 60

Lynam v Director General of Social Security (1983) 52 ALR 128

McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82

Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303; [2016] FCAFC 5

Na v Tiu (No 2) [2017] FamCAFC 269

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

Nominal Defendant v Smith [2015] NSWCA 339

Onassis and Calegoropoulos v Vergottis [1968] 2 Lloyd’s Rep 403

Petersen v Gregory; Estate Glenn Alfred Petersen [2007] NSWSC 8

Piras v Egan [2008] NSWCA 59

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14

Quijarro v Robson [2008] NSWSC 818

Re Dennis (Deceased) [1981] 2 All ER 140

Richardson v Armistead [2000] VSC 551

Robson v Quijarro [2009] NSWCA 365

S v B (No 2) [2005] 1 Qd R 537; (2004) 32 Fam LR 429; [2004] QCA 449

Sadiq v New South Wales Trustee and Guardian [2015] NSWSC 716

Sadiq v NSW Trustee and Guardian [2016] HCASL 180

Sadiq v NSW Trustee and Guardian [2016] NSWCA 62

Saravinovska v Saravinovski (No 6) [2016] NSWSC 964

Schneider v Kemeny; Kemeny v Schneider [2021] NSWSC 524

Scragg v Scott (2006) 25 FRNZ 942; [2006] NZFLR 1076

Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677

Smoje v Forrester [2017] NSWCA 308

Smyth & Pappas [2011] FamCA 434

Sun v Chapman (No 2) [2021] NSWSC 1231

SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1; [2015] FCAFC 69

Thomas v The Times Book Co [1966] 2 All ER 241; [1966] 1 WLR 911

Vaughan v Hoskovich [2010] NSWSC 706

Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123

Webb v Ryan [2012] VSC 377

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; (2003) 77 ALJR 1598; [2003] HCA 48

Ye v Fung [2006] NSWSC 243

Zahra v Francica [2009] NSWSC 1206

Texts Cited:

P McClellan, “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655

Shorter Oxford Dictionary (2007, 6th ed)

Category:

Principal judgment

Parties:

Christine Winifred Pollock (Plaintiff)
NSW Trustee & Guardian (Defendant)

Representation:

Counsel:
P Wallis (Plaintiff)
L Ellison SC and Ms A Djukanovic (Defendant)

Solicitors:
Selvaggio Lawyers (Plaintiff)
NSW Trustee & Guardian (Defendant)

File Number(s):

2021/197063

Publication restriction:

Nil

Judgment

Introduction

1. These proceedings concern the estate of Geoffrey James Benfield (the deceased) and the claim brought by the Plaintiff, Christine Winifred Pollock, for an order seeking provision under Ch 3 of the Succession Act 2006 (NSW) (the Act), and an order for her costs of the proceedings to be paid out of the estate.

2. A family provision order is one for the maintenance, education, or advancement in life of an eligible person. Relevantly, the Act applies in respect of the estate and notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.

3. The deceased died on 26 September 2020, aged 70 years. He married his wife, Beverley Dawn Benfield, in March 1972 and they separated in 1996. A divorce order was made in relation to their marriage on 12 January 1999 and it became effective on 13 February 1999 (Ex. D1).

4. There were three children of the marriage being, Trenton James Benfield, who was born in April 1974, Dean Andrew Benfield, who was born in June 1976, and Wayne Mark Benfield, who was born in July 1979. Each was a witness, whose affidavits were read in the Defendant’s case, and each of them was cross-examined.

5. For the sake of convenience and clarity, I shall refer to the witnesses, after introduction, by his, or her, given name. No undue familiarity is intended.

6. The deceased left a duly executed Will made on 13 October 1978, in which he appointed the Public Trustee in, and for, the state of New South Wales, as the executor and trustee of his estate. Paragraph 3(1)(d) of Schedule 1 to the NSW Trustee and Guardian Act 2009 (NSW), which commenced on 1 July 2009, provides that a reference to the Public Trustee is to be read as a reference to the NSW Trustee and Guardian. By Paragraph 11 of Schedule 1, the NSW Trustee and Guardian is to be taken, for all purposes, to be a continuation of the Public Trustee. The NSW Trustee and Guardian is constituted as a corporation by s 5 and has the status of a NSW Government agency by s 6 of the NSW Trustee and Guardian Act.

7. This Court, on 27 April 2021, granted Probate of the deceased’s Will to the NSW Trustee and Guardian, which is the named Defendant.

8. In the Will, the deceased left the whole of his estate to Beverley. In the event that she did not survive him by 30 days, the whole estate was left to his then two children, and any other child, in equal shares.

9. As a result of s 13(1)(a) of the Act, the divorce of a testator revokes, relevantly, a beneficial disposition to the testator's former spouse made by a Will in existence at the time of the divorce. No contrary intention appears in the deceased’s Will: s 13(2). Pursuant to s 13(4) of the Act, if a disposition is revoked by the section, the Will takes effect, in respect of the revocation, as if the testator's former spouse had died before the testator. In this case, it follows that the whole of the deceased’s estate passes to his three, now adult, children, in equal shares.

10. In the circumstances, no provision was made for the Plaintiff by the Will of the deceased.

11. The hearing was listed for four days, commencing on 7 June 2022, and was completed within that time. Mr P Wallis of counsel appeared for the Plaintiff, and Mr L J Ellison SC, with Ms A Djukanovic of counsel, appeared for the Defendant.

Formal Matters

12. The Plaintiff’s Summons was filed on 9 July 2021, within the time prescribed by the Act (that is, not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.

13. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. The Plaintiff asserted, and the Defendant disputed, that she is a person with whom the deceased was living in a de facto relationship at the time of his death: s 57(1)(b) of the Act. The Defendant did accept, however, that the Plaintiff had been a person with whom the deceased was living in a de facto relationship for a period of time, but asserted that the relationship had ended by December 2012, that is to say, before the time of the deceased’s death.

14. The Defendant also accepted that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(e) of the Act, namely that she was a member of the household of which the deceased was a member and was wholly, or partly, dependent on him at that particular, or any other, time. (The Plaintiff relied upon this ground of eligibility in the alternative.)

15. In their written submissions, counsel for the Defendant wrote that the Plaintiff is an eligible person within s 57(1)(d) of the Act, namely that she is “a former spouse” of the deceased. Whilst it is not necessary to determine whether that submission is correct, it seems to me, that the concession is not one that should be accepted as a matter of construction of the section. Section 57 differentiates between a person who was the spouse of the deceased at the time of his, or her, death (s 57(1)(a)) and a person with whom the deceased person was living in a de facto relationship at the time of the deceased's death (s 57(1)(b)). Had it been intended to include the latter person in s 57(1)(d), which refers only to a former “spouse” of the deceased person, one might have expected that the words “or the person with whom the deceased person was formerly living in a de facto relationship”, or some similar wording, would have been included in s 57(1)(d) of the Act.

16. In the case of a person who is an eligible person by reason only, relevantly, of sub-paragraph (e) of the definition of "eligible person" in s 57, the Court must also be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application: s 59(1)(b) of the Act. That turns on whether she would be generally regarded as a natural object of the deceased’s testamentary recognition.

17. The Defendant did not dispute that, relevantly, and if it was necessary to establish this precondition to the making of an order, there are factors warranting the application (as an eligible person under s 57(1)(e) of the Act). That concession was properly made.

18. Assuming that the Court is satisfied that the Plaintiff is an eligible person and, if it is necessary, that there are factors warranting the making of her application, the Court must then be satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life, of the applicant, has not been made by the Will of the deceased: s 59(1)(c) of the Act.

19. Counsel for the Defendant did not dispute that adequate provision for the proper maintenance, or advancement in life, of the Plaintiff had not been made by the Will of the deceased.

20. What must then be determined is, what order for provision out of the estate of the deceased, if any, ought to be made for the maintenance or advancement in life of the Plaintiff, having regard to the facts known to the Court at the time the order is made: s 59(2) of the Act. The Defendant submitted that what provision ought to be made depends upon the category of eligibility that is established. (It may be that this reason provides a basis for the matter being so strenuously defended.)

21. Section 65(2) of the Act requires the Court to specify, relevantly, how the provision is to be made, including by payment of a lump sum of money. There was no dispute that the Court should require the provision to be made in this way. Again, the Defendant only disputed the amount of the lump sum of money that would be specified in the family provision order.

22. As the deceased dealt with all his estate in his Will, there is no scope for the operation of the rules of intestacy, with the result that it is only necessary to refer to the Will of the deceased.

23. An order may be made in relation to property that is not part of the deceased’s estate, but which is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

24. There was no property that could be designated as notional estate of the deceased. It follows that it is only necessary to refer to the estate of the deceased.

25. The eligible persons, within the meaning of that term in s 57 of the Act, include the three children of the deceased. Whilst none of them has commenced proceedings for a family provision order, each, as a beneficiary, has given evidence of the bases, financial, and otherwise, of his claim, respectively, upon the bounty of the deceased. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though he, or she, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and his, or her, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty. I shall refer to each beneficiary’s situation in life, later in these reasons.

26. The other eligible person identified is the deceased’s former spouse, Beverley, who is the mother of the three children. A notice of the application, and of the Court's power to disregard her interests, in the manner and form prescribed by the regulations or rules of court, was served on her, by the Defendant, on 29 July 2021. Perhaps, unsurprisingly, she has chosen not to make an application for a family provision order. However, she is a witness whose affidavit was read in the Defendant’s case, and she was cross-examined. In the circumstances, the Court will disregard her interests as a person who has not made an application: s 61 of the Act.

27. In this case, as the deceased made a Will, the family provision order that is to be made takes effect, unless the Court otherwise orders, as if the provision was made in a codicil to the Will of the deceased: s 72(1)(a). There is no reason to make an order otherwise.

Background Facts

28. In a claim for a family provision order, factual context is necessary. It is convenient, next to set out some of the background facts, since these provide that context. Many of these facts are taken from the affidavits read in the proceedings and are not in dispute. In relation to any factual matters that were in dispute in those affidavits, or otherwise, to which I refer, the facts set out hereunder should be regarded as the findings of the Court.

29. The deceased was born in February 1950. At the time of his death, in September 2020, he was 70 years old.

30. The Plaintiff was born in August 1951 and is now almost 71 years old.

31. The Plaintiff first met the deceased in 1968 when they were both teenagers.

32. In April 1972, the Plaintiff married Ross Pollock. I have already noted that the deceased and Beverley married in March 1972. All four remained friends, during the respective marriages. They attended the home of the other, went out to dinner, and otherwise socialised together.

33. The deceased and Beverley moved to the Glenorie property in about 1979. I have already referred to the three children of the marriage.

34. The Plaintiff and Ross had two children, namely, Bettina Helen Pollock, who was born in July 1978 and Sarah Jane Pollock, who was born in May 1981. The deceased was the godfather to Bettina. The affidavits of each were read in the Plaintiff’s case, and each was cross-examined.

35. In about 1988, Ross accepted a job in Adelaide and the Plaintiff, he, and their two children, relocated there. On occasions, the deceased and Beverley would visit them there, and the Plaintiff and Ross would visit the deceased and Beverley when they visited Sydney.

36. In April 2000, the Plaintiff and her husband agreed to separate and in June 2000, Ross left the family home. (There was no evidence of their subsequent divorce.)

37. In about September 2000, almost 2 years after his divorce, the deceased and the Plaintiff formed a romantic relationship.

38. In June 2001, the Plaintiff sold the former matrimonial home in Adelaide and returned to Sydney with her two children. The Plaintiff and her daughters lived in a home she purchased, in early April 2002, at Kellyville. However, she would spend most weekends with the deceased, at the Glenorie property, and she also visited him there during the week.

39. In about March 2009, the Plaintiff sold the home at Kellyville and moved into the Glenorie property with the deceased. It is not in dispute that the Plaintiff was a person with whom the deceased was living in a de facto relationship between 2009 and late 2012. Whether that relationship continued thereafter, and if so, for how long, is the subject of dispute in these proceedings.

40. There were no children of the relationship of the deceased and the Plaintiff.

41. From the proceeds of sale of the Kellyville property, the Plaintiff gave each of her children a sum of $100,000, which was used towards the purchase of a property by each of them. This was done with the knowledge, and encouragement, of the deceased. (There was an issue raised about the amount given to Bettina and whether it was lent back to the Plaintiff. There was no specific contemporaneous evidence of the existence of a loan.)

42. It is not entirely clear whether there was any agreement made between the Plaintiff and the deceased to keep their assets separate, but it was undisputed that the deceased paid for most, if not all, of their joint expenditure. They travelled together, on holidays, both in Australia and overseas.

43. The deceased was an avid motorcycle rider. He was injured, in motorcycle accidents, a number of times, twice seriously, before his death. One of the areas of disharmony that came to exist between the Plaintiff and the deceased was said to be the Plaintiff’s refusal, after about 2012, to go riding, as the pillion passenger, with the deceased, on his motorcycle.

44. The Plaintiff admitted that there was discord between them between about 2013 and 2015, which seemed to escalate in the period between 2015 and 2017. She acknowledged that “our relationship would’ve suffered between mid-late 2013 to mid-late 2015 (…) due to the stress and anxiety”, which she attributed, at least in part, to some relationship, and pregnancy, issues that Bettina was going through. She gave evidence, in cross-examination, that the deceased had not been supportive of her during this period. Indeed, he had complained, more than once, that she was devoting more time to her two children, and her grandchild, than she was devoting to him.

28. The Plaintiff gave evidence that, in about July, or August 2015, the deceased told her that he was taking another woman to dinner. She expressed her displeasure at this revelation. However, this did not cause the deceased to change his plans. Apparently, a relationship with the other woman lasted for about 6 weeks thereafter. Unsurprisingly, this caused, and continued to cause, some tension in the relationship. However, it did not cause the deceased to terminate the relationship with the Plaintiff.

The nature and value of the deceased’s estate

46. On 3 May 2022, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

1. the assets and liabilities of the estate at the date of death;

2. the assets and liabilities of the estate at the date of the schedule;

3. the estimated costs and expenses of any property that is to be sold;

4. the estimated costs of each party calculated on the ordinary, and on the indemnity basis, inclusive of GST; and

5. any costs of any party that have been paid, and in relation to the Defendant, whether those costs have been paid out of the estate of the deceased.

47. The Schedule that was provided to the Court in hard copy, was marked as Ex JS1.

48. At the commencement of the hearing, when the Court went through Ex JS1, senior counsel for the Defendant stated that he had a different version of the document and that there was a dispute whether one of the assets (with an estimated value of $2,470,637) would be able to be realised for that amount, or at all. This meant that on the Defendant’s case, the value of the deceased’s estate, at the date of the Schedule, was different from that appearing in the Schedule.

49. It was obvious that the value of the estate, at the date of the hearing, would be significantly affected if the relevant asset was of lesser, or no, value (as the Defendant seemingly asserted). Agreement between the parties on this topic, could not be immediately reached and the case proceeded with the parties, and the Court, not knowing the value of the deceased’s estate at the date of the hearing. The parties were requested to resolve any question relating to this dispute as soon as possible.

50. The Court raised the question of the value of the deceased’s estate again several times during the hearing, and senior counsel for the Defendant, on one occasion, stated that his instructing solicitor would attend the Court later in the day (after witnesses who were giving evidence remotely had concluded giving evidence) with an amended Schedule.

51. (During submissions, I indicated that the evidence of the value of the shares in a private company that was said to be in dispute (as to its realisable value), was in the order of $2.4 million and I would use the estimate of value to estimate the value of the estate (see Tcpt, 8 June 2022, p 99(26)-100(10).)

52. At approximately 1:45 p.m. on 9 June 2022, senior counsel for the Defendant provided a copy of an amended Schedule to the Plaintiff’s counsel and to the Court. The Court then endeavoured, once again, to clarify the nature and value of the estate at the date of the amended Schedule. This was not able to be resolved as there appeared to be material differences between the amended Schedule and Ex JS1 that were unable, then, to be explained.

53. In the circumstances, the Court had no choice but to allow the legal representatives of the parties a further opportunity to provide an updated Schedule to the Court, after the conclusion of the hearing.

54. At approximately 1:30 p.m. on Friday, 10 June 2022, another Schedule identifying the assets and liabilities of the estate at the date of the Schedule, was provided to the Court in Chambers. Without objection, this document was marked as Ex JS2.

55. In proceedings in which a claim for a family provision order is sought, at the pre-trial directions hearing, usually held 1 month before the hearing commences, the Court makes a direction in the terms set out above in order, amongst other things, to avoid unnecessary time being spent, at the hearing, debating the nature and value of the estate (or notional estate). One might be forgiven for thinking that careful, and considered, advice could not be provided to the parties, or beneficiaries, if, prior to the commencement of the hearing, if not well before, the legal representatives are not able to agree upon the nature and value of the deceased’s estate (and notional estate), or, at least, identify the value of the assets in dispute between them.

56. I have taken what follows from the Agreed Schedule, dated 26 May 2022 (Ex JS1), from discussions with counsel during the course of the hearing and the Amended Agreed Schedule, dated 10 June 2022 (Ex JS2). (I have omitted and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)

57. The deceased’s estate, at the date of death, comprised the real property at Glenorie, a suburb of Sydney, about 44 kilometres north-west of the Sydney central business district ($1,900,000) (the Glenorie property), monies in the bank ($204,848), interests in several family companies including, Rynever Pty Ltd ($2,470,637), one share in Benfield Investments Pty Ltd ($1.00), an interest in Alliance Metal Solutions Pty Ltd ($330,432), and a death benefit in Benfield Investments Staff Super Fund ($934,942). In addition, there was the deceased’s interest in the Benfield Family Trust ($469,057). The estimated gross value of the deceased’s estate, then, was $6,309,916.

58. The liabilities of the estate, at the date of death, which totalled $20,228, included a debt to Ambulance NSW ($549), the costs of obtaining a death certificate ($49), credit card debts ($6,310), and reimbursement of the funeral expenses ($13,320).

59. The funeral expenses were mostly those paid by the Plaintiff, but also partially paid by the deceased’s sons, see Ex JS2. As at the date of the hearing, the Plaintiff had not been reimbursed for the funeral expenses that she had paid: Tcpt, 9 June 2022, p 199(1-3).

60. The estimated net value of the deceased’s estate, then, was $6,289,688.

61. The deceased’s estate, at the date of Ex JS2, comprised the Glenorie property ($2,800,000), monies in the bank ($204,847) (pending collection), interests in several family companies including, Rynever Pty Ltd ($2,416,637) (pending sale/transfer), the share in Benfield Investments Pty Ltd ($1), the Death Benefit in the Benfield Investments Staff Super Fund ($640,884), the interest in the Benfield Family Trust ($442,333) (yet to be paid), cash held by the Defendant ($266,313), shares in IAG ($4,195), and household contents ($24,915). The gross value of the estate, based on these estimates, is $6,800,127.

62. The liabilities of the estate, excluding the costs of the proceedings, which had already been paid out of the estate totalled $389,911. The unpaid liabilities were said to total $184,130.

63. The parties also agreed that another liability to be paid will be the costs and expenses of sale of the Glenorie property (estimated between $53,780 - $63,180), if it is sold. At the hearing, they agreed that the mean of the two estimates ($58,480) should be taken to be the estimated costs and expenses of sale: Tcpt, 7 June 2022, p 10(10-18).

64. It follows that, subject to the orders for costs, if any that are made, the estate of the deceased has a value, at the date of hearing $6,557,517. It is a large estate.

Costs of the Proceedings

65. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

66. Usually, in calculating the value of the deceased’s estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

67. The Plaintiff’s costs, calculated on the indemnity basis, were estimated to be $130,500 and, calculated on the ordinary basis, to be $91,350 (in each case, inclusive of GST, and based upon a hearing of 4 days duration). Costs of the proceedings, totalling $2,817, have been paid by the Plaintiff. 

68. The solicitor for the Plaintiff stated in his affidavit of costs that there was a conditional costs agreement made with the Plaintiff. At the hearing, and from the Bar table, without objection, the Court was informed that the costs agreement did not include any uplift factor: Tcpt, 7 June 2022, p 16(37-41).

69. The Defendants’ costs, calculated on the indemnity basis, were estimated to be $139,365 (inclusive of GST, and based upon a hearing of 4 days duration). Costs or disbursements, totalling, $15,365, have been paid from the deceased’s estate, leaving $124,000 left to be paid.

70. Accordingly, if the estimated costs of the parties ($215,350) are ordered to be paid out of the estate, and if the estimate of each party’s costs proves to be accurate, the value of the net distributable estate out of which an order for provision can be made is $6,342,167. It remains a large estate even after the payment of costs (if orders for costs are made).

71. At the commencement of the hearing, the Court asked whether how costs are to be paid could be determined as part of these reasons, to which counsel replied that there may be documents that are relevant to the determination of costs. It follows that there may have to be further consideration given to the issue of costs following these reasons being published.

72. When I deliver these reasons, I shall stand the matter over for a period of time to allow the parties to see if agreement as to the costs orders that should be made, including, in the case of the Plaintiff, whether a specified gross sum instead of assessed costs, can be reached. If agreement cannot be reached, it will be necessary to list the matter for the hearing of argument.

Some general principles regarding evidence

73. It is obviously impracticable to set out the contents of the affidavits or the cross-examination in full. However, this is a case that is particularly fact sensitive. It follows that credit findings assume a greater significance. The Court is required to determine, on the balance of probabilities, taking into account s 140(2) of the Evidence Act 1995 (NSW), whether the Plaintiff has proved her case.

74. Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 wrote at [48]:

“When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] ALR 334 at 342.”

75. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, speaking with the concurrence of McColl and Bell JJA, McDougall J, similarly, had expressed the view, at [44]-[52], that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurred; with “a probability in excess of 50%”. His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426 at [126].

76. The credibility of a witness and her, or his, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to her, or his, motives, and to the overall probabilities: Armagas Ltd v Mundogas SA (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1 at 57 (Robert Goff LJ). Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] (Black J).

77. For example, as will be read, a de facto relationship means a relationship which exists in fact, and that is established by determining what the parties to the alleged relationship have done, or not done, as the case may be. The evidence about the nature of their relationship mostly came from the Plaintiff. Other witnesses were only able to give evidence about her, or his, role in the life of the Plaintiff and/or the deceased, her, or his, observations of the relationship between them, and what the deceased said to him or her.

78. On the question whether I accept the evidence, I remember that in Thomas v The Times Book Co [1966] 2 All ER 241 at 244; [1966] 1 WLR 911 at 916, Plowman J stated:

“... [N]ot only in this case is the onus of proof on the defendants, but I am enjoined by authority to approach their story with suspicion, having regard to the fact that the other actor in this story, the late Dylan Thomas, is dead and cannot therefore give his own version of what took place.”

79. (The Defendants in that case were in the position of the Plaintiff in this case, bearing the onus of proof.)

80. There is also the need for careful scrutiny to which evidence of conversations involving a person subsequently deceased, should be subjected: Plunkett v Bull (1915) 19 CLR 544 at 548-549; [1915] HCA 14 (Isaacs J). The deceased is not available, at the hearing, to directly confirm, or deny, the specific statements made by the witnesses.

81. Also, I remember what Bryson AJ wrote in Zahra v Francica [2009] NSWSC 1206 at [1]:

“In these proceedings the plaintiff makes claims against the deceased’s estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]:

‘... in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available.’”

82. In assessing the evidence and making findings of fact, I also bear in mind what Hansen J wrote in Richardson v Armistead [2000] VSC 551 at [36]:

“... [I]n such circumstances the self-interest of a claimant to give evidence favourable to his or her case is obvious... in such a case much caution is exercised before the evidence of the claimant is accepted.”

83. Whelan J in Webb v Ryan [2012] VSC 377 at [22], referred to the difficulties in assessing evidence, in such circumstances, stating:

“An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined.”

84. Also see, Ashton v Pratt (No 2) [2012] NSWSC 3 at [18] (Brereton J).

85. I remember, also, that the process of litigation, itself, subjects the memories of witnesses to powerful biases: Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [19] (Leggatt J).

86. In Lachaux v Lachaux [2017] 4 WLR 57; [2017] EWHC 385 (Fam) at [36], citing Onassis and Calegoropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, it was noted by Mostyn J that:

“Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance… "

87. I also refer to what McHugh J, as a member of the High Court, wrote in Longman v R (1989) 168 CLR 79 at 107; [1989] HCA 60:

“The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented. The longer the period between an ‘event’ and its recall, the greater the margin for error. Interference with a person's ability to ‘remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling.”

88. Experience dictates that greater weight is usually accorded to contemporaneous documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 at [157] (Kenneth Martin J); Evans v Braddock [2015] NSWSC 249 at [74]. This is not an admonition against placing any reliance at all on the recollections of witnesses. It simply “emphasises the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed”: Kogan v Martin [2019] EWCA Civ 1645 at [88] (Floyd LJ).

89. Evidence given against interest, or which is inherently probable, is more convincing: Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 at [467] (Kunc J).

90. What Kirby J, although in dissent, wrote in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; (2003) 77 ALJR 1598; [2003] HCA 48 at [119]-[120], must also be remembered:

“… Some judges in the past regarded untruthful evidence - even about peripheral or irrelevant matters - as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties’ morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial. If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that the falsehoods be ignored as irrelevant or immaterial to the decision-maker’s ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from - or even contrary to - that advanced by the party, because such is the legal entitlement of the person concerned.

Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of not real importance. In consequence, they may sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law.” [Footnotes omitted]

91. I should also refer to an article by the former the Chief Judge at Common Law, P McClellan entitled “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the “Guidelines Relating to Recovered Memories” (2000) of the Australian Psychological Society:

“Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval.”

92. These observations were described by Leeming JA, in Nominal Defendant v Smith [2015] NSWCA 339 at [82], as uncontroversial and “supported not merely by one’s ordinary experience but also by a body of psychological evidence”.

93. I have also had regard, amongst other things, to whether the evidence given is inherently plausible or implausible; whether it is evidence that is specific as to time and otherwise consistent; whether, in a material way, it is, or is not, conformable to other evidence in the case including the available contemporaneous documents; and whether it is contradicted by other evidence which is undisputed or indisputable. I have endeavoured to consider the evidence, not only in its context, but in the context of the total evidentiary mosaic. Common sense and ordinary experience in life is also applied.

94. It is important to repeat that in cases where there is a dispute about whether a de facto relationship exists, that “it is conceivable that two people intimately connected to each other in one way or another, can see the same thing in entirely different ways”: Smyth & Pappas [2011] FamCA 434 at [14] (Cronin J).

95. Finally, I should refer to a part of what was written by Windeyer J in Quijarro v Robson [2008] NSWSC 818 at [36]:

“As in many of these matters, the evidence adduced by either side, although it seems to some extent contradictory, is often generally truthful. It is just that people see things partly as they want to see them or as they think they should see them and partly in accordance with statements made to them by the persons involved in a relationship. It is usually not possible to reject the evidence of witnesses of one side and accept the evidence of witnesses of another in coming to a decision as to whether or not a de facto relationship has been established. It is also necessary to bear in mind [that] it is incorrect to think that perfection and harmony is [sic] a necessary requirement in de facto relationships but not in married relationships: Bar-Mordecai v Hillston [2004] NSWCA 65. Nevertheless for a de facto relationship to continue to exist it is necessary for there to be a sense of commitment on both sides.”

Contemporaneous documentary evidence about the relationship

96. There was no dispute that in 2015, the Plaintiff sought advice from a solicitor, Ms S Foote, of Collins & Thompson, in Hornsby, about her rights.

97. In circumstances that were not fully explained, a copy of the file of the solicitor who the Plaintiff saw in 2015, was not produced until the second day of the hearing and provided to the legal representatives of the parties.

98. The delay in obtaining the file, and the necessity for the legal representatives to consider its contents, required the cross-examination of the Plaintiff to be interrupted, and for her to be recalled, on the third day of the hearing, for further cross-examination, on the documents that had been produced.

99. During the cross-examination, a copy of part of the solicitor’s file was provided to the Plaintiff and was subsequently tendered in the Defendant’s case: Ex. D6. She was cross-examined on the contents of some of the documents.

100. I take what follows from her evidence and the solicitor’s file. I do not include a reference to all of the documents forming the exhibit, which I have otherwise carefully read and considered.

101. The first document, being a handwritten file note dated 29 September 2015 of the solicitor, discloses a conference between the Plaintiff and Ms Foote for 30 minutes. It includes the following information:

“2 Separation = Dec 2013

4 De facto – 2009

6 (H) Geoffrey James Benfield

8 [H] Real Estate (W) Not much

9 Written letter separation

10 Super $500K

11 (H) made (W) sell house, 2009 Sold home $400K – Gave children $100K ea, BMW in Benfield name � (H) “made” (W) sell car. Gave her BMW

17 Physical address

18 (The Glenorie property address)

21 Daughter’s: address for postage

22 ### Kellyville 2155

102. There is then a copy of the letter, which other evidence confirmed had been handed by the deceased to the Plaintiff shortly after she told him that she had sought advice from a solicitor. It is not necessary to repeat the whole of the letter verbatim, but the important parts of the letter are set out below:

“What happened to our almost perfect world. Both of us healthy, apparently happy, contended and without being real wealthy, were financially secure. We could have holidayed, travelled, wined, dined and generally lived a comfortable, financially unrestricted life together, forever. Why has it turned to shit?

I loved, cherished, and doted on you, up to and well after the Xmas Day at Lyn and Steve’s, which turned to shit. A truth surfaced that day. The venom in your voice and words, uncovered your true feelings towards me and our relationship.

You had already begun to shut me out. Meaningful affection, kisses and cuddling, were gone. Then, before long, sex, something I thought we both shared and mutually enjoyed, was taken off the table. It became obvious to me then, that I had been asleep at the wheel. Our romantic relationship was over. All that remained, was a fully funded relationship of convenience and security, for you.

Going back, I offered you the opportunity to move into my home, sell up and give the girls an advanced inheritance to get started. You had by far exceeded what anyone I knew, including me, had done, or could do for their children. You gave them both a big start in life, the deposit to buy their own homes.

Your responsibilities as a parent, were more than done at that point. You and I should now be enjoying a happy senior’s life. We should be living outside our children’s lives, looking in. Not living in their lives, day in, day out.

(…)

I was absolutely gutted when you told me you’d seen a solicitor, to find out if and how much, you could legally steal from me, after I opened my life, my home, my possessions, my monies and all other assets, to share with you.

There is around $347K in Benfield Investments Staff Super Fund in your name. As you know, because of my belief and trust in you, that money was strategically placed in your name to minimise tax liability on MY earnings, creating a nest egg, for OUR life in retirement.

The fact that it’s in your name, does give you a case for legal entitlement, but surely you don’t truly believe you have a moral entitlement to that money.

With very little income over the last two years, I have spent a substantial amount from the Super Fund money in my name, paying household bills and Benfield Investment outgoings. In most cases, expenses borne by four of us.

I’ve done nothing but unconditionally support you, both morally and financially, since even before you moved back to Sydney. I’ve never asked or wanted anything in return.

My choice, you haven’t been asked to pay for anything since we’ve been together. No household expenses, motor vehicle expenses, medical expenses, holiday expenses, many personal expenses, and until very recently not even groceries. You’ve had absolutely no outgoing expenses, within our time together, I’ve paid for everything. While on the other hand, anything you’ve earned, has always been yours.

I’ve always insisted that your money was yours. Lump sum Compensation, house sale money, inheritance, cleaning money, car sale money, etc. etc. Any money that you came into, was yours. With up to $300 cash, plus extras per week, coming in from Andrew and Sala since around 2006, with no outgoings. You should have saved more than $100K, from that source alone.

Back to us. What do you want to do about us? Besides being secure and having your life paid for by me and to a lesser extent, Sala, what are your expectations for our/your future?

I want to enjoy the rest of my life. I want to turn the clock back, go out wining dining, movies, shows, cruises, car trips, bike trips, ski trips, dive trips, etc. I want to do these things sooner than later, and I’d like to do them with a romantic female partner, or partners.

I still have feelings for the Christine I used to know and trust and as the devil I know, you’re still my first choice of romantic partner.

If what we had for so long is not what you want, please move on, so I can get on with my life.

If you choose to move on, I sincerely hope that you’ll have a happier, more comfortable, and fulfilling existence within your other world, The Pollock Women’s Club, being Christine, Sarah, Tina, Billy and the very generous and probably soon to be much wealthier, Sala.

Over to you!”

103. (“Andrew” or “Sala” is not referred to by any of the witnesses in evidence, nor by counsel for either party. Although there was evidence that a “Sala Siaosi” did make deposits into the Plaintiff’s bank account in 2013, there was no evidence given as to his, or her, identity or the role he, or she, played in the lives of the deceased and the Plaintiff: Affidavit, Christine Winifred Pollock, 27 September 2021, Annexure A.)

104. There is then, in the file, a copy of a letter, dated 22 April 2015, from W L Browne & Associates Pty Ltd, addressed to the deceased and the Plaintiff, relating to the 2014 Financial and Income Tax return of Benfield Investments Staff Super Fund. Relevantly, it shows that each of them was a member of the Fund. The letter is said to have enclosed his, and her, individual Tax Return for 2014.

105. There is a handwritten file note, dated 4 November 2015, which identifies a telephone conference, between the Plaintiff and Ms Foote. It reveals the following:

“T/C from client.

Tentative – send letter on Friday. /Email client

Client has resigned from company.”

106. It should be noted that there is no evidence, in the solicitor’s file, or otherwise of the date when the letter referred to in the file note, was actually sent to the deceased. Nor is there any evidence disclosing its contents. However, there is a draft letter, dated 22 October 2015, included in the bundle of documents that was tendered, which was in the following terms:

“We have been consulted by Christine in relation to the division on your property under the Family Law Act 1975.

This letter is sent in accordance with schedule 1 of the Family Law Rules 2004 a copy of which is enclosed. The rules provide that parties should try to settle any disagreement they have in relation to the division of property prior to instituting proceedings in the court.

Often the parties negotiate a settlement through their solicitors and we encourage you to seek legal advice and give this letter to the solicitor you choose.

If this is not the course of action that you wish to take then in a further attempt to have the financial matter settled, mediation is suggested with a family relationship centre.

Any agreement reached in mediation can then be made into consent orders in the court or a binding financial agreement. Consent orders or a binding financial agreement are binding on you both and may have the effect of avoiding any stamp duty on consequential property transfers.

We would appreciate a response to this letter within 14 days of receipt.”

107. It was accepted by counsel for the Defendant that there was no original, or copy, of the final letter that was sent to the deceased in evidence.

108. There is then another handwritten file note, dated 19 November 2015, which refers to a telephone conference between the Plaintiff and Ms Foote, and which file note, relevantly, states:

“Geoffrey denies the de facto relationship.

Slept in separate rooms.

Noted on tax return as spouse etc

Private health cover.

(…)

Prepared to spend half of what he owns to fight.

(…)

Wait until 1/12/15.”

109. (In cross-examination, the Plaintiff agreed that following receipt of the solicitors’ letter, the deceased had told her that he was prepared to spend half of what he owned to fight any claim that she made. She could not, otherwise, remember any further details of her conversation with the deceased following receipt of the solicitors’ letter: Tcpt, 9 June 2022, p 265(1-9); 266(17-23).)

110. Reference should also be made to a handwritten file note, dated 17 December 2015, which reveals another telephone conference between the Plaintiff and Ms Foote, the solicitor, which, relevantly, states:

“Geoffrey threw letter away.

Send letter to O/S when client calls mid-January.

Husband being very nice”

111. There is no file note recording any conversation, held between the Plaintiff and the solicitor, in January 2016. Nor is there any other document that reveals any subsequent instructions given by the Plaintiff to Ms Foote at that time. However, there is no copy of any letter, sent to the deceased, in 2016.

112. Finally, there is a copy letter, dated 9 November 2017, addressed to the Plaintiff, from Ms Foote, which indicated that the solicitors had not heard from her, and that the file would be closed if the Plaintiff did not contact the firm within 14 days. (This letter corroborates the Plaintiff’s evidence that she took no further steps in relation to separation from the deceased after 2015.)

113. It will be necessary to return to the Plaintiff’s evidence of what followed her seeing the solicitor later in these reasons.

114. What is important about the letter from the deceased to the Plaintiff, in part quoted above, is that the Plaintiff accepted that the parts quoted above reflected the relationship as it was in about 2015 and continuing, generally, until 2017: Tcpt, 7 June 2022, p 91(45)-93(6).

115. What is equally important, is that, despite the deceased having been told that the Plaintiff had seen a solicitor, he did not state, unequivocally, that he regarded their relationship as at an end, but rather, he sought her view, about what she wanted to do. There is no evidence that, in response to the question posed, she stated that she regarded the relationship as at an end.

116. The deceased also stated in the letter that “you’re still my first choice of romantic partner”. This does not suggest that he wished to terminate their de facto relationship.

117. There was also no dispute that following receipt of the letter from the deceased, the Plaintiff did not terminate the solicitor’s instructions. In fact, her solicitor, upon instructions from the Plaintiff sent a letter to the deceased. As has already been discussed above, a copy of that letter is not in evidence. Yet, there was no evidence that, following the sending to, and receipt by, the deceased of the letter, either the Plaintiff, or the deceased, said to the other that the relationship was at an end. Indeed, they continued to live in the Glenorie property until the death of the deceased.

118. During the hearing, a number of other contemporaneous documents were tendered. It is necessary to refer to them.

119. There were tendered several copy medical documents. The Plaintiff tendered a copy of two Healthscope documents, one of which was titled “Healthscope Informed Financial Consent” and one which was titled “Discharge Summary” and was dated 25 October 2019 (Ex P4). The first document indicates that the deceased had the “Couple Gold Premium Hospital and Premium Extras” level of health cover. The second document, on page two, under the heading “Clinical Management” stated that “Mr Benfield lives with his partner”.

120. The Plaintiff also tendered a letter dated 5 February 2021 (Ex P5) from RT Health to the Plaintiff. Relevantly, the letter states “Thank you for your recent advice regarding the passing of your husband Geoffrey”.

121. (In respect of the Healthscope documents, the reference to the Plaintiff as the “partner” of the deceased may have some significance. However, in relation to the letter from RT Health, I would infer that describing the deceased as her husband was the way in which the Plaintiff described herself.)

122. On the third day of the hearing, there was tendered an agreed statement regarding Benfield Investments Staff Superannuation (Ex D2), which revealed that the Plaintiff had been listed as a second member of the Fund until the financial year ending in 30 June 2016. In the financial years ending in 30 June 2017 and 30 June 2018, the only listed member was the deceased. No information regarding the 2019 and 2020 financial years was included in the exhibit.

123. The Defendant tendered, without objection, a summary of the individual tax returns of the Plaintiff for the years ending 30 June 2019, 30 June 2020 and 30 June 2021 (Ex D3). The summary revealed that in each of those years, the Plaintiff did not disclose having a spouse or declare any spousal income.

124. Additionally, the Defendant tendered a summary of the information of the deceased’s taxation returns from 2015-2021 (Ex D4) as well as a copy of the deceased’s tax returns the financial years ending 2015 to 2021 (Ex D5). These documents reveal that in his income tax return for the financial year ending 30 June 2015, the deceased had disclosed a spouse, and spousal income, totalling $14,319. However, in each of the following financial years (2016 to 2021), the deceased did not disclose any spouse, or spousal income.

The deceased

125. Before going to the evidence of the witnesses, it is important to try to gain an understanding of who the deceased as a person. Inevitably, in a case against a deceased’s estate, an important witness cannot give evidence. That person’s character, knowledge and intentions, have to be discerned from the evidence of others.

126. In this case, the nature, and character, of the deceased was revealed during the hearing by descriptions of him given by a number of the witnesses. The evidence was, broadly speaking, consistent.

127. The deceased was described as a generous and caring man, who was a good listener, particularly in relation to his family and friends: Tcpt, 8 June 2022, 109(35-42); Tcpt, 9 June 2022, 211(38-45); 240(33-34), 251(42-48). He was also described as “matter of fact”, yet “very direct”. He often spoke his mind, which sometimes came across as “stirring” or “antagonising”: Tcpt, 8 June 2022, 107(7-8), 109(23-24), 163(47-49); Tcpt, 9 June 2022, 243(39)-244(4), 251(42-48).

128. He was also described as a person with strong views, who stood up for his position, adopting on occasion a “my way or the highway” attitude: Tcpt, 8 June 2022, 164(1-9), 166(3-4); Tcpt, 9 June 2022, 211(28-33), 241(4-8). He often said “blokes don’t change”: Affidavit, Christine Pollock, 9 July 2021 at par 113, Tcpt, 7 June 2022, p 57(41-46), p 65(42-44).

125. Yet, the deceased’s sister Lyn, stated that his decision-making was not impulsive, but well thought through, often consulting others in important decisions: Tcpt, 9 June 2022, 212(7-20).

126. Some of the witnesses admitted that, at times, the deceased liked to be in control, and, as a result, was, sometimes, selfish and demanding, which could make him difficult to live with: Tcpt, 8 June 2022, 139(26-30), 142(1-12); Tcpt, 9 June 2022, 211(35-36), 251(42-48), 240(39)-241(8). He was also said to be one who took control of his own life, wanting to make sure that he was the master of his own fate: Tcpt, 9 June 2022, p 241(4-15).

127. From the various descriptions given of him, I am not persuaded that the deceased would not have taken steps, unambiguously and unconditionally, to act upon a determination to separate, and, thereby, end the de facto relationship, if that is what he wished to do. The descriptions of him make it difficult to comprehend him taking no concrete steps to end the relationship, by, for example, firmly telling the Plaintiff to vacate the Glenorie property, if, as is asserted by the Defendant, the de facto relationship that had existed, had come to an end.

128. I am also unconvinced that indications of the type relied upon to demonstrate the end of the relationship, such as him not being completely faithful to the Plaintiff, and him having a secret dalliance, or dalliances, at different times, conclusively revealed the end the de facto relationship. It is relevant to note that none of the dalliances were for consistently long periods of time, and, more importantly, to the exclusion of the Plaintiff. She never ceased to reside at the Glenorie property.

129. As will be read, even Ms Sutton, whom he had known for a long time, recognised the role that the Plaintiff played in the deceased’s life.

130. None of the dalliances, when taken with other objective considerations, are inconsistent with the deceased having a commitment to a shared life with the Plaintiff. None clearly demonstrated an intention, on the part of the deceased, to permanently end his relationship with her. The criterion of a commitment to a shared life should not be dismissed as unsatisfied because a person considers himself (or herself) free to have involvements of a sexual nature with another person or persons: Robson v Quijarro [2009] NSWCA 365 (Basten JA, Ipp and McColl JJA agreeing). Indeed, as will be read, some of the evidence demonstrates that the deceased did not feel that he could do as he wished.

The Plaintiff’s evidence

135. Whilst all the circumstances must be considered, the most important witness, it seems to me, who could give evidence, in this case, about the existence of the relationship, is the Plaintiff. She gave evidence about the whole of the relationship, including what she and the deceased was each doing and saying. Overall, whilst I found the Plaintiff to be far from loquacious, answering most of the questions monosyllabically, I tend to the view that she was endeavouring to tell the truth. I found her to be an honest, sincere and reliable witness.

136. The cross-examination, which was necessary, and which covered a range of elements of the relationship, in parts, would have been extremely painful for her, as it involved the conduct of the deceased, about some of which conduct the Plaintiff said she knew nothing at the time it had occurred. She remained calm, and courteous, to senior counsel for the Defendant, and I believe that she did her best to answer the questions asked of her. Indeed, she made concessions when necessary and answered questions in a straightforward and clear way.

137. In my view, whilst the Plaintiff clearly has a personal interest in the outcome of these proceedings, her evidence more closely accords with the objective chronology of events.

138. I tend to the view, accepting her evidence, that between about 2013 and 2017, the relationship was difficult for the Plaintiff and for the deceased. I am satisfied that they navigated the difficult time, each in her, and his, own way, and, thereafter, the relationship improved, although it might not have been as it was, particularly in the period 2009 to 2012.

139. Yet, it is, perhaps, the objective elements, in, and after, 2017, about which she gave evidence, and which were not the subject of real challenge, that give the real colour and significance to the relationship in the years before the deceased’s death and enables the Court to determine the nature of their relationship at the time of his death.

140. The Plaintiff swore three affidavits, the first of which, sworn on 9 July 2021, comprised 220 paragraphs, spanning 33 pages; the second, which was sworn on 27 April 2022, comprised 23 paragraphs, spanning 6 pages; and the third, in reply, which was sworn on 27 September 2021 comprised 43 paragraphs, spanning 7 pages.

141. As has already been stated, it was not disputed that a romantic relationship started in about 2002, that the Plaintiff moved into the Glenorie property, with the deceased in 2009, and that they were in a de facto relationship, at least until 2012 or 2013.

142. In cross-examination, the Plaintiff admitted that when she moved into the Glenorie property, she had given each of her daughters $100,000 and had lodged a caveat over the property subsequently purchased by each, for the purpose of protecting each of them in the event a spouse made a family law property claim.

143. The Plaintiff gave evidence that during this period, she was responsible for cleaning the Glenorie property and for its general maintenance. She said that from 2009, the deceased paid for her private health insurance, car, fuel, and e-tag expenses, and provided a mobile phone and credit card for her benefit. From 2009 until 2016, he had his accountant prepare her income tax returns, and that he had included her as a beneficiary of his self-managed superannuation fund (the Benfield Investment Staff Super Fund): Affidavit, Christine Winifred Pollock, 9 July 2021 at pars 76, 80-84.

144. In October 2009, she asserted that the deceased had bought her a new BMW car, although this was disputed by Dean, who stated that the car was purchased as a corporate car for tax purposes: Affidavit, Christine Winifred Pollock, 9 July 2021 at par 85; Affidavit, Dean Benfield, 2 September 2021 at pars 23-25. In whatever capacity it was purchased, it was the vehicle that the Plaintiff drove.

145. From September 2014 until July 2015, the deceased permitted Bettina, who had separated from her former partner, to live at the Glenorie property: Affidavit, Christine Winifred Pollock, 9 July 2021 at pars 103-104, 108.

146. In about July or August 2015, the Plaintiff became aware that the deceased was taking another woman, only known to her by the name, Narelle, out for dinner. Indeed, he had said to her “Can I borrow your car? I am taking a lady to dinner. I do not want to take her in this car.” Also, at about this time, the Plaintiff discovered emails between the deceased and Narelle. Unsurprisingly, the Plaintiff stated her relationship with the deceased suffered and that they gave each other “the cold shoulder”, socialising with each other less than they had been in the past.

147. In cross-examination, the Plaintiff readily admitted that whilst they were in a relationship, she had trusted that he would have no other relationships and that when he referred to going out with another woman, that constituted a breach of her trust and that he had let her down: Tcpt, 7 June 2022, p 47(38)-48(45). All of this evidence should be accepted.

148. The Plaintiff admitted that their relationship had experienced difficulties from mid-2013 due to a number of factors including, the lack of support from the deceased, communication difficulties, anxiety related to her children’s circumstances, and her decision not to go on motorcycle rides with the deceased. However, she stated that even during this time, they “continued to live together and maintain our relationship”, and that the deceased would only spend nights away from home when he was on a motorcycle trip: Affidavit, Christine Winifred Pollock, 27 September 2021 at par 23; Affidavit, Christine Winifred Pollock, 9 July 2021 at pars 109-114.

149. As stated, in September 2015, the Plaintiff contacted Ms Foote to seek advice about separating from the deceased. She recalled that later in 2015, on her instructions, her solicitors sent the deceased a letter indicating her intention to separate and move out.

150. In cross-examination, the Plaintiff suggested that this letter may have sought $300,000 from the deceased as a sum by way of a property settlement. The Plaintiff agreed that she had given the figure of $300,000 to her solicitor. Initially, in response to a question from the Bench, the Plaintiff stated that the $347,000 that was placed in the superannuation fund was the source of the figure of $300,000 that she had discussed with her solicitor. However, on the third day of the hearing, when the Plaintiff was recalled for cross-examination, she claimed that the figure was not related to her knowledge of the superannuation fund but was the amount she believed she needed, when added to an inheritance that she had received, to purchase another property: Tcpt, 7 June 2022, p 51(48)-53(2), p 87(27-36); Tcpt, 9 June 2022, p 271(46)-272(8).

151. She denied that she had ever asked the deceased for $1,000,000. She agreed that the letter made clear the seriousness of what had happened and conveyed an intention to separate and to move out of the Glenorie property.

152. On the third day of the hearing, there was a further cross-examination of the Plaintiff, which was focussed on the documents produced in the solicitor’s family law file. The Plaintiff agreed that she told the solicitor, Ms Foote, that she had separated from the deceased in December 2013, because the solicitor had asked whether they were living in the same room.

153. The Plaintiff stated that she had all correspondence sent to the home in Kellyville, because she did not want the deceased to have any idea of what she was doing.

154. The Plaintiff acknowledged that she had resigned as a director of the deceased’s company, after her solicitor explained to her the legal implications of being a director, because she was concerned that she would be responsible for the debts of the company and lose the inheritance she had received from her mother, not because they were separating.

155. The Plaintiff admitted that she had been incorrect in some of the dates in her affidavit, and that having perused the documents from the family law file, it was likely that the letter was sent by her solicitor to the deceased in early December 2015, rather than in August or September as she had said in her earlier evidence. While the Plaintiff agreed that she was generally precise about dates, because she kept a diary, she could not locate her diary from this period.

156. The Plaintiff gave evidence that when the deceased received the letter from the solicitor, he was angry, due to her request for $300,000, that he then tore up the letter and that he said, “This is not going to happen”. She said that she understood this to mean that he was communicating that they would not separate, not that he would not pay her the money. Looking at the continuation of the Plaintiff’s occupation of the Glenorie property, and other evidence, I tend to the view that the deceased may have meant both things.

157. In cross-examination, the Plaintiff denied that if she had received the $300,000, she would have left the deceased.

158. Even though the Plaintiff had wanted to separate, she said that after the deceased read the letter from the solicitor “I didn't want to do it anymore, when I saw his face”. She had written, in her affidavit, that she “had regret and guilt and sadness”. She had also written that she told him that she was sorry and that she had “never truly wanted to separate”. She further described her feelings at the time (Tcpt, 7 June 2022, p 83(24-40), 85(1-10)):

“I felt so evil for doing it when he read that letter to me. I still feel evil that I did it” and “I did not want to leave from that moment”:

159. It was not suggested to the Plaintiff that she had not felt that way, or that her description, did not reflect her true feelings. The evidence demonstrates the extent of her then feelings towards the deceased despite the events that had occurred. She also said that she forgave his conduct, which had been one of the causes of her seeing a solicitor: Tcpt, 7 June 2022, p 60(17-19). It seems that so far as she was concerned, she was in a committed relationship. Indeed, having seen, and heard the Plaintiff give evidence on this topic, I accept her evidence.

160. The Plaintiff gave evidence that between 2015 and 2017, whilst there was not the same level of intimacy and love, she and the deceased continued to eat meals together, they shared household chores, they socialised together, and lived together (except for when the deceased went on his motor motorcycle trips). Whilst she acknowledged that the relationship remained strained, they also continued to have day to day interaction and communication, and that they would chat, briefly, about each other’s day. She also said that they “still shared the bedroom [but that] he didn't sleep there”: Tcpt, 7 June 2022, p 64(10-14). (I accept, in this regard, that she was referring to them continuing to have a sexual relationship.)

161. Overall, the Plaintiff maintained in cross-examination that during this period she remained a person with whom the deceased person was living in a de facto relationship. She expressly denied that they were very much leading separate lives. I accept her evidence in this regard.

162. The Plaintiff also claimed that, from about 2017, she and the deceased had grown close again, and that the relationship was as good as it had ever been. Thereafter, she had no knowledge, or even suspicion, that the deceased was having a relationship with another woman.

163. She confirmed that in answer to the solicitor’s letter, sent to her in 2017, she had responded, informing the solicitor that she did not wish to proceed with the property settlement anymore, stating that their relationship had improved: Tcpt, 9 June 2022, p 267(42)-268(3). That there is nothing else in the solicitor’s file, relating to the matter, corroborates her evidence.

164. In March 2018, the deceased was involved in a serious motorcycle accident. The Plaintiff, in 2018 and in 2019, took the deceased to all of his medical appointments, visited him every day when he was in hospital, and was responsible for giving him care and support. She assisted with showering and providing him with food whilst he was in hospital and she maintained the Glenorie property. She said that what she did, she did out of “loyalty and love”: Tcpt 7 June 2022, p 74(08-11).

165. The Plaintiff stated that when the deceased was in hospital, he and the nurses would refer to her as “his partner”. She also stated that the hospital staff and doctors would sometimes call her “Mrs Benfield”, to which the deceased would respond by winking and smiling at the Plaintiff: Affidavit, Christine Winifred Pollock, 9 July 2021 at par 146. This evidence was not objected to and she was not cross-examined on it. Whilst I do not place undue weight on it, I tend to the view, bearing in mind the regular attendances at the hospital, and the evidence of what she did whilst there, that her evidence had the ring of truth and reflected the reputation and public aspects of the relationship at the time.

166. In 2018, the Plaintiff also bought the McGraths Hill property, and Bettina and Billy moved into that property. She denied that her motivation for purchasing this property was so that she could move out in the event of another confrontation with the deceased.

167. The Plaintiff stated that from 2008 until his death, she and the deceased were physically intimate. She explained that the reason her clothes were in the spare room was because there was insufficient room in the master bedroom to fit all of their clothes and that the deceased showered downstairs because that shower was more accessible. Again, in cross-examination, the Plaintiff maintained that she and the deceased shared a bedroom, but conceded that following his injuries in 2006, the deceased mostly slept in his chair downstairs: Tcpt, 7 June 2022, p 64(1-14).

168. The Plaintiff gave evidence that throughout 2018 and 2019 she and the deceased had attended a number of family events: Affidavit, Christine Winifred Pollock, 9 July 2021 at pars 124-125, 127-129, 140, 147-148.

169. It was put to the Plaintiff, that basically after 2017, the Plaintiff did domestic work, cleaning work, attending to the house, but that she was no longer the de facto wife of the deceased. She agreed that she did those things but denied that she was not in a de facto relationship with the deceased: Tcpt, 7 June 2022, p 66(28-31). She also gave evidence that the deceased continued to fully fund the relationship as he had done previously.

170. The Plaintiff denied being aware of all of the emails passing between the deceased and Ms Sutton after 2017. She said that she saw one but did not confront the deceased about it. Whatever he was doing with Ms Sutton, the Plaintiff said it was being done behind her back. She said even if he had a relationship with Ms Sutton, he continued his relationship with her and that “he had me. He looked after me well”: Tcpt, 7 June 2022, p 73(42-43), 74(13-14).

Bettina’s evidence

171. Bettina affirmed one affidavit in these proceedings, dated 27 September 2021, which comprised 30 paragraphs, spanning 5 pages. The deceased was her godfather: Affidavit, Bettina Pollock, 27 September 2021 at pars 3-5.

172. I accept that Bettina would wish to support the claim made by the Plaintiff. However, I formed a favourable impression of her veracity and did not have any sense, whilst she was giving her evidence that it was being tailored to support the Plaintiff’s case. I accept her as a witness of truth.

173. Following the separation with her partner, Ben, in September 2014, Bettina moved in with the deceased and the Plaintiff at the Glenorie property for a period of about nine months. During this time, she observed that they were having some difficulties in their relationship and that there was occasional tension between them, but that overall, she observed a “happy and loving relationship”. She also noted that the Plaintiff would do most of the domestic duties and cared for the injuries suffered by the deceased: Affidavit, Bettina Pollock, 27 September 2021 at pars 14-17.

174. Bettina gave evidence that the deceased cared for her son, Billy, like his own grandson: Affidavit, Bettina Pollock, 27 September 2021 at pars 28-29, Tcpt, 8 June 2022, p 107(30-41). This was not the subject of any challenge.

175. In cross-examination, Bettina elaborated that between 2015-2017, the deceased “wasn’t very happy because [the Plaintiff] stopped doing a few things that he liked her doing” and that there was “tensions and bickering”: Tcpt, 8 June 2022, p 106(41-48), 111(22-39). She said that there was “maybe some stirring” by the deceased.

176. She also stated that the Plaintiff had told her in 2015 that she had been to see a lawyer, who had then written a letter to the deceased seeking payment of an amount of money. She said she had actually seen the letter, but did not have a copy. However, she said that although the Plaintiff was seeking a payment from the deceased, the Plaintiff had not told her that the relationship with the deceased was over, although agreed that she had said words to the effect of "I'm done with him. I'm telling him to pay me out and I'm going": Tcpt, 8 June 2022, p 110(21)-111(9).

177. Bettina did not discuss the nature of the problems between the deceased and the Plaintiff with him.

178. Bettina gave evidence that even after she had moved out of the Glenorie property, she would see the deceased and the Plaintiff once or twice a week, either at the Glenorie property or elsewhere. They would “often go to dinner at the Glenorie Club”. It was not put to her that the Plaintiff did not go.

406. As was stated by the Court of Appeal in Smoje v Forrester [2017] NSWCA 308 at [42], the state of “living together”:

“will ordinarily include elements of interaction and sharing whilst engaging in activities associated with occupying the same place. Repeated visits for a singular purpose, without more, do not satisfy that description”.

415. The test whether the notion or concept of living together as a couple is satisfied is an objective one. It involves assessing the nature and extent of the claimed common residence as well as other aspects of the relationship. What is important is the nature of the union (as a couple) rather than how it manifests itself in quantities of joint time: Jonah & White (2011) 258 FLR 236; (2011) 45 Fam LR 460 at [66] (Murphy J).

416. This is not to say that two persons cannot live separately and apart even when they both reside in the one home. In Fairbairn v Radecki at [36], quoting Crabtree v Crabtree at 309 (Sugerman and Dovey JJ), it was pointed out that this “might take place where ‘there is such a forsaking and abandonment by one spouse of the other that the court can say that the spouses were living lives separate and apart from one another’.”

417. Thus, the concept of “living together” must also be read in the context of the concept of “as a couple”. It seems to me, then, that the notion includes the following elements that require evaluation:

1. Co-habitation, although not necessarily fulltime; however, there must be sufficient shared residence, which invites a consideration of such factors as whether the persons said to be living together had a common residential address; where they usually slept at night (for example, when not absent temporarily for holidays, employment or for other reasons); and where they usually kept their clothing, domestic and personal effects; regardless of the number of days or nights spent, perhaps, at another place.

2. There being no present intention of definite or early removal; a continuity of association with the place; remaining for an undetermined period, not infrequently, but not necessarily combined with design to stay permanently.

3. Physical proximity in the same residence, in the sense of simultaneous physical presence.

4. Some personal association with each other.

5. The sharing of facilities of day-to-day living on a regular and recurrent basis, often described as sharing a household, including but not limited to, the performance of domestic tasks.

6. Deciding household questions together and, whilst a social and economic partnership of the parties is not required, there should be some sharing of the burden of maintaining a household.

7. Regarding the place, or places, in which the two adults live as ‘their home’.

8. Whether one party, or both parties, fundamentally acts, or act, contrary to the interests or needs of the other.

418. Whilst each element suggested above does not import any concept of proportion of time, each should exist over a long enough period, to amount to “living together”.

419. If two people do not “live together as a couple”, they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various criteria listed. As Barrett J wrote in Petersen v Gregory; Estate Glenn Alfred Petersen [2007] NSWSC 8 at [11], when considering the phrase living “as a couple”:

“The central concept is one of personal commitment that is mutually acknowledged and of an emotional kind transcending the mere fact of the shared residential setting. It is that which causes two persons residing under the same roof to be living ‘together as a couple’.”

420. Ultimately, the court must consider the nature of their union and whether there was a merger of two individual lives into life as a couple. The search is for such a relationship, as it existed at the date of death, and which had manifested such characteristics for at least two years prior thereto.

421. Once the physical, or factual, aspects, of the relationship have been examined, whether a mental ingredient also existed may be considered. That ingredient involves some commitment, by each of the parties, to their relationship. It need not necessarily be a commitment intended to last forever, or indefinitely. Nor need it be a commitment to a long-term relationship. But it should, at least, be a mutual commitment for the foreseeable future.

422. Common sense dictates that a relationship may change, or develop, over time. Thus, its legal character at one point may not represent its character at another. Furthermore, in assessing the degree of mutual commitment to a shared life, it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship, or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints, grievances, and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with a relationship of two parties having a relationship as a couple living together, but not married to one another.

423. The significance of qualifications of these kinds appears from passages in the leading judgment of Basten JA in Robson v Quijarro and from passages which his Honour cited from Bar-Mordecai v Hillston [2004] NSWCA 65 at [120]-[124].

424. Other cases make it clear that the term “de facto relationship” constitutes a single composite expression of a comprehensive notion or concept. It must be approached by considering the expression as a whole and not in several parts: Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 at 685 (Kearney J); Light v Anderson [1992] NSWCA 136 at 4 (Handley JA, Kirby P and Priestley JA agreeing); Bar-Mordecai v Hillston, at [86], [125]; Hayes v Marquis [2008] NSWCA 10 at [73]-[74] (McColl JA, Beazley JA and Einstein J agreeing). It is the composite picture that must be looked at and individual factors should not be isolated and attributed relative degrees of importance.

425. It follows that the determination of the existence of a de facto relationship is essentially impressionistic. Such a relationship only exists because of the factual circumstances of the parties, unlike marriage, where there is a legal status immediately created at the time of the public ceremony and registration. A value judgment is required to be formed. Accordingly, the Court is often required to assess multiple pieces of circumstantial evidence. If there are sufficient pieces of evidence, when viewed, with care and sensitivity, cumulatively, and with common sense and proper reasoning, which satisfy the finder of fact that the relationship is a de facto relationship, then the statutory test is met: Scragg v Scott (2006) 25 FRNZ 942; [2006] NZFLR 1076 at [64].

426. Ultimately, the conclusion as to the existence, or otherwise, of such a relationship will turn on an evaluative assessment of matters of objective fact. In Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep), the Full Court (Malcolm CJ, Rowland and Ipp JJ) quoted, with approval, the following passage from the judgment of Fitzgerald J in Lynam v Director General of Social Security (1983) 52 ALR 128 at 131:

“Each element of a relationship draws its colour and significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meet the statutory test.”

427. Although the cases referred to in the last paragraph were decided many years ago (as evidenced by the reference to “the opposite sex” in the passage quoted), the general principle stated applies equally now as it did then.

428. In reaching the conclusion about the existence of the relationship, the Court must also be aware of the concept of the diversity of relationships that exist between couples within our society and must not be lulled into social stereotyping. Thus, although said in another context, I agree with Bender FM in Dakin v Sansbury [2010] FMCAfam 628 at [13], that:

“... [T]he nature of the relationship cannot be determined by looking at external societal views of what constitutes a de facto relationship, nor is it determined by what the parties themselves thought their relationship to be.”

429. The concept of a de facto relationship was discussed by Gzell J in Ye v Fung [2006] NSWSC 243, at paragraphs [64]-[65] of the judgment:

“A de facto relationship requires more than adult persons living together. They must live together as a couple. When one thinks of persons as a couple, one thinks of two people in a romantic relationship. That is the first meaning given in the Macquarie Dictionary (4th ed) with reference to people as a couple. The Oxford English Dictionary in defining the word in the sense of the union of two, or a pair, gives as its first meaning with reference to two people: ‘A man and woman united by love or marriage; a wedded or engaged pair.’

In my view the word in the Property (Relationships) Act 1984, s 4(1)(a), in the context of the extension of relief under the Act to persons in a domestic relationship, connotes two adult unmarried persons living together, united by love, or living together in a romantic relationship. The effect of such a construction is that de facto relationships are confined to heterosexual and homosexual romantic relationships.”

430. However, as was pointed out by Allsop CJ, in Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303 at 304-305; [2016] FCAFC 5 at [3]:

“In my respectful view, however, the Tribunal elevated love or tender emotion as a factor in the evaluation that does not find reflection in the Act, regulations or proper evaluative process thereunder. That is not to say that such considerations are not relevant and, especially if found to be present, may not be determinative. To love and be loved is the beauty that founds many, but not all, human relationships in which there is a commitment to live as a couple. … A couple may have a commitment to each other to a shared life together as partners in the absence of what one might call emotional or romantic love. That is not to say that a mere agreement for money or material support in exchange for being in someone’s company and for tending to their needs (domestic and personal) is a mutual commitment to a shared life as partners.”

431. Thackray J (Kent and Watts JJ agreeing) wrote in Na v Tiu (No 2) [2017] FamCAFC 269 at [43]-[44]:

“In making that finding, the Court is required to have regard to all the circumstances of the relationship, including any or all of the circumstances set out in s 4AA(2) of the Act. The use of glosses such as ‘merged lives’, ‘coupledom’, or in this case ‘…imbued with the bilateral dedication of the deeply emotional and financial kind intrinsic to de facto relationships’ are unhelpful because they tend to create a distraction from the basic task required by the statute...

As was observed by this Court in Sinclair & Whittaker (supra) at [94] in relation to such an ‘impermissible gloss’ by a trial judge:

Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss. Thus, it is not appropriate to consider the facts other than in the light of the statutory test.” (Omitting citations)

432. Bell P confirmed in Estate of the Late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324 that a de facto relationship is not required to be perfect, writing at [43]:

“Barrett J in Petersen v Gregory [2007] NSWSC 8 (Petersen) considered (at [11]) that a diminution of the initial ‘romantic characteristic[s] to which Gzell J referred [in Ye v Fung]’ will not of itself mark the end of two persons living together as a couple. Similarly, White J in Vaughan, again in the context of s 4 of the Property (Relationships) Act, held (at [49]) that ‘[f]or two people to live together as a couple means that they live together and that, at least initially, they be united by love or be living together in a romantic relationship’. White J continued (at [49]), ‘[a]t least if the partners remained living together, the fading of love or romance need not spell the end of a de facto relationship.’”

433. It can be seen, from what has been set out above, that the concept of a de facto relationship is complex and diverse. Yet, it is different from friendship, or courtship, which has not matured into the commitment where there is a merging of lives so that there is a mutual commitment to a shared life. It is also different from simple companionship. Importantly, also, unlike a marriage which continues to exist until the dissolution by the Court, there is no presumption, or inference, of continuance of a de facto relationship.

434. A de facto relationship, unlike a marriage, can commence and end without any legal pre-requisite or formality. Furthermore, unlike a marriage, which commences, and ends on a defined day, when a de facto relationship commences, and whether, or when, it ends, can be the subject of some dispute and uncertainty. Often, it is impossible to conclude that the relationship began or ended on a specific day. (In stating the last matter, of course, I omit the circumstance of the death of one of the parties.)

435. The dispute and uncertainty exist because a de facto relationship tends to develop over time. Similarly, it tends to break down over time as well. Nevertheless, in this case, the Court must determine when the de facto relationship commenced and whether it had ended at the time of the deceased’s death. The end of the relationship is often not clear or finite.

436. In this case, it is the Plaintiff who must establish, on the balance of probabilities, that a de facto relationship existed and that it continued until the time of death of the deceased.

437. In Howland v Ellis [2001] NSWCA 456 at [20], Stein JA wrote (Meagher JA and Ipp AJA agreeing):

“However, more than a mere physical separation is required for a de facto relationship to come to an end. The physical separation of the parties must be accompanied by an intention on the part of either partner to permanently end the relationship.”

438. Dutney J, in S v B(No 2) [2005] 1 Qd R 537; (2004) 32 Fam LR 429; [2004] QCA 449 at [33], wrote:

“De facto relationships are by nature fragile. The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement. It has been recognised, however, that the persistence of those indicia are fundamental to the continuance of a de facto relationship. In Hibberson v George Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows:

“There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to ‘live together’ with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.”

439. (I take the reference to the “robustness of marriage” to mean no more than acceptance of the fact that a marriage persists until a court grants a divorce order, whereas a de facto relationship comes to an end as a result of the conduct of the parties or one of them.)

440. At [48], his Honour added:

“Applying the passage of Mahoney JA in Hibberson v George, which I set out earlier, a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision. I do not think it is necessary that the other party agree with or accept the decision. Once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the de facto relationship ceases. The relationship ceases even though one party is still anxious to try to save it.”

441. It is important to note that Mahoney JA in Hibberson v George (1989) 12 Fam LR 725 at 740; [1989] NSWCA 100 added a reference to, “in that sense keeps apart”.

442. There can be little doubt that a de facto relationship, like a marriage, may include periods of separation. But the de facto relationship ends only when one, or both, of the parties form the intention to sever, or not to resume, the relationship and he, she, or they act on that intention. There can be uncertainty about the future, but the de facto relationship persists even though they do not do all of the things together that they had previously done. Keeping apart must have a finality about it and that is best evidenced where the de facto relationship has none of its previous characteristics. The ending of the relationship must have a permanence about it rather than a temporary suspension: Smyth & Pappas at [11] (Cronin J). Indeed, a de facto relationship may continue notwithstanding that the parties may have separated temporarily while they attempt to work through some difficulties encountered in their relationship. An interruption which, in a reasonably long relationship, may be no more than a hiccup, does not, necessarily, bring the relationship to an end. Whether it has ended is a conclusion reached having regard to all the circumstances.

443. Yet, a conclusion that the relationship has ended is not precluded by the presence of an ongoing relationship, or even cohabitation, of some sort. However, as was written in Sun v Chapman (No 2) [2021] NSWSC 1231 at [12], by Emmett AJA, it might be regarded as “unusual that the de facto relationship that appears to have existed came to an end without separation”.

444. Ultimately, whilst “a de facto relationship is inherently terminable at any time [it] continues to exist only insofar as the indicia which give the relationship its … character continue to exist”: H v P [2011] WASCA 78 at [56] (Murphy JA, Pullin and Buss JJA agreeing).

445. As people enter, and decide to remain, in a marriage with a variety of purposes and motives, hopes and anticipations, so, also, can persons who enter, and then, remain, in a de facto relationship. The ultimate test is whether, at the time of the deceased’s death, it can be said that the parties had a mutual commitment to a shared life.

Determination of eligibility

446. As stated, the Defendant submitted that whilst there had been a mutual commitment to a shared life for a period of time, that commitment ceased when the deceased went out with another woman, or women, and acted contrary to his commitment to the Plaintiff.

446. I do not accept this submission. The Plaintiff remained living in the Glenorie property, which she regarded as her home, something which the deceased did not seem to dispute, as he took no steps to have her leave. Indeed, there is no direct evidence that he had ever asked her to leave the Glenorie property, although he may have told some people that she would not leave. Furthermore, there was no evidence, that persuades me that whilst she continued to live there, there were two separate households, not one. A couple are not obliged to spend every waking moment together. Each may engage in activities, see people socially, and attend family events separately.

447. The event in 2015, when he told her that he was taking another woman to dinner, unsurprisingly, one might think, was the catalyst that caused her to see a solicitor, but his liaison with the other woman appeared to last only a matter of weeks.

448. I accept the Plaintiff’s evidence that she did not spend much time away from the Glenorie property, only occasionally going to the McGraths Hill property to assist Bettina and to be with Billy.

449. There does not seem to be any real dispute that she and the deceased continued to eat meals together and continued to communicate one with the other. They appeared to have socialised together (albeit perhaps not as much as they had done previously). The deceased continued to financially support the Plaintiff, as he had done throughout the earlier years of the relationship. The Plaintiff’s two children, and her grandchild, continued to enjoy a close, warm, and loving, relationship with the deceased. Importantly, the Plaintiff continued to look after, and care for, the deceased without the assistance of other family members. I am satisfied that she and the deceased maintained a sexual relationship although with his state of health, after 2018, the nature and intensity of the sexual relationship may have diminished.

450. It is clear that the Plaintiff depended upon the deceased financially, there being no dispute that he paid for most of their joint expenditure. There was some financial independence, there being no evidence of a joint bank account or joint property.

451. I have earlier mentioned the fact that the children of the deceased permitted the Plaintiff, alone, to care for the deceased when he was unwell. Very significant, to my mind, is also the fact that she paid for the deceased’s funeral, and was, it seems, permitted to do so by other family members. (I have earlier noted that she is to be reimbursed out of the estate for those expenses.)

452. These matters do not support the submission that there was “such a forsaking and abandonment by one spouse of the other that the court can say that the spouses were living lives separate and apart from one another.

453. I have dealt with the reputation and public aspects of the relationship and the evidence of the independent witnesses who have no interest in the result of the proceedings.

454. Whilst I have read the documents that formed part of the solicitor’s file notes, the Plaintiff’s request to the solicitor to put things on hold, and then to do nothing, which prompted the communication in 2017, which resulted in the solicitor writing to say that the file would be closed, supports the Plaintiff’s evidence that the relationship between her and the deceased was improving and that the relationship had not ended permanently.

455. Looking at the composite picture, that even though the relationship between Plaintiff and the deceased went through serious difficulties between 2015 and 2017, and perhaps through less serious problems between 2013 and 2015, and whilst they might have lived in a somewhat strained situation, as evidenced by the statement made to her then solicitor that they had separated, in fact, they did not “keep apart”.

456. Bearing in mind all of the facts of the case, I am satisfied that the Plaintiff was a person with whom the deceased was living in a de facto relationship at the time of his death.

457. In light of this finding, it is not necessary to deal with the other ground of eligibility upon which the Plaintiff has relied. In any event, there is no dispute that the Plaintiff is an eligible person within the meaning of s 57(1)(e), being a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time or at any other time, a member of the household of which the deceased was a member.

458. There is also no dispute that there are factors warranting the making of her application.

459. The next question for the Court to determine is whether the Plaintiff has been left with inadequate provision for her proper maintenance or advancement in life in relation to the estate of the deceased.

460. The answer to this question “constitutes a finding of fact, albeit one that is, in light of the subjective character of the matter to be decided, evaluative. Nevertheless, making the finding involves a binary choice – either adequate provision has been made, or it has not. A finding on the issue does not, therefore, involve an exercise of discretion”: Strang v Steiner [2019] NSWCA 143 at [76] (Macfarlan JA); at [131] (White JA); at [190] (McCallum JA).

461. Into whichever category of eligibility the Plaintiff falls, there was no dispute about this element, which is the mandatory legislative imperative that drives the ultimate result. I am satisfied that the making of no provision for the Plaintiff is not proper, and that consideration must be given to making a family provision order “out of the estate of the deceased 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”: s 59(2).

462. Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance, education and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.

463. The question that must next be determined is what, in all the circumstances constitutes adequate and proper provision.

464. "Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34] (Basten JA, Allsop P and Ipp JA agreeing), that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".

465. In Re Dennis (Deceased) [1981] 2 All ER 140 at 145-146, Browne-Wilkinson J wrote:

"The court has, up until now, declined to define the exact meaning of the word 'maintenance' and I am certainly not going to depart from that approach. But in my judgment the word 'maintenance' connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be as appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance."

467. In Vigolo v Bostin (2005) 221 CLR 191 at 228-229; [2005] HCA 11, Callinan and Heydon JJ said of the words "maintenance", "support" and "advancement":

“'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. ‘Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education.”

468. In Alexander v Jansson [2010] NSWCA 176 at [18], Brereton J (with Basten JA and Handley AJA agreeing), said:

“‘Proper maintenance’ is not limited to the bare sustenance of a claimant…but requires consideration of the totality of the claimant’s position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility.”

469. More recently, in Lewis v Warner [2016] 3 WLR 1545 at 1553; [2016] EWHC 1787 (Ch) at [26], Newey J wrote:

“…The word ‘maintenance’ suggests the provision of assistance to enable a person to meet the requirements of his daily life. Someone of ample financial means will not normally need any such help. In principle, however, "maintenance" does not seem to me to be necessarily confined to support with a person's ‘cost of … daily living’ (to quote from the Dennis’ case). It is capable, in my view, of referring to other forms of assistance with the requirements of daily life. If, therefore, a person is in want of a particular thing to sustain a reasonable quality of life, the provision of it could possibly represent ‘maintenance’ regardless of his financial means. In other words, a person can potentially (albeit only very rarely) be in need of ‘financial provision’ for his ‘maintenance’ without being in any way short of money: his money may not be able to secure him what he requires. As a result, there appears to me to be no absolute bar on the provision of something for full consideration representing ‘financial provision’ for a person's ‘maintenance’.”

470. In McCosker v McCosker (1957) 97 CLR 566 at 575; [1957] HCA 82, Dixon CJ and Williams J wrote:

"The presence of the words 'advancement in life' in the... Act in addition to the words 'maintenance and education' is not unimportant... 'Advancement' is a word of wide import."

471. In In the Estate of Puckridge, Deceased (1978) 20 SASR 72 at 77, King CJ wrote:

“The words ‘advancement in life’ have a wide meaning and application and there is nothing to confine the operation of the provision to an early period of life in the members of the family: Blore v Lang, per Dixon CJ at p. 128.” [Footnotes omitted]

472. In Goodman v Windeyer (1980) 144 CLR 490 at 505; [1980] HCA 31, Murphy J wrote:

“Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself.”

473. In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P said (Hodgson JA agreeing):

"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 … at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams…)."

474. In my view, advancement in life may be seen as provision that will improve, and enhance, the material situation of the Plaintiff.

475. In determining the nature of any order for provision, the Court may have regard to the matters set out in s 60(2) of the Act.

476. I have referred to the fact that the estate is of large value. I remember, however, that whilst the value of the estate is a consideration in determining an application for provision, its value does not justify the Court re-writing the deceased’s will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 at [41] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35 at [67] (Hargrave J).

477. I note that the Plaintiff is not cohabiting with another person.

478. Section 60 does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.

479. A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

480. Under s 60(2), attention is drawn to matters that may have existed at the deceased’s death, or subsequently.

Determination

481. As I have determined the question of eligibility, and because there is no dispute that the Plaintiff’s application was made within the time prescribed by the Act, I turn now to the nature of the order to be made in favour of the Plaintiff.

482. I have dealt with the family, or other, relationship between the Plaintiff and the deceased, including the nature and duration of the relationship (which was lengthy); the nature and extent of the deceased’s estate and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered (which is large); the financial resources (including earning capacity (which is limited, particularly bearing in mind the nature of the work that she does and her age) and the Plaintiff’s financial needs, both present and future, as well as those of each of the deceased’s three children, as a beneficiary of the deceased’s estate; the Plaintiff’s age and physical disabilities; the non-financial contribution made by the Plaintiff to the welfare of the deceased over many years (which was significant); the financial provision made for the Plaintiff by the deceased during his lifetime, or made by the estate in permitting her to remain in occupation of the Glenorie property since the deceased’s death (which was generous); that the Plaintiff was being maintained, significantly, by the deceased before his death; that there is no other person liable to support the Plaintiff; the conduct of the deceased; and the testamentary intentions of the deceased, including evidence of statements made by him.

483. I am of the view that the deceased had a significant obligation and responsibility to the Plaintiff as the person with whom he was living in a de facto relationship at the time of his death. In reaching this conclusion, I have considered “the tenor of their relationship and their dealings with each other since its inception”: Schneider v Kemeny; Kemeny v Schneider [2021] NSWSC 524 at [251] (Rees J). I have also borne in mind, that the relationship included the difficult period, particularly between about 2015 and 2017. Yet, almost all of the evidence from disinterested witnesses, in that period, confirms the continuation of a shared life.

484. The obligation and responsibility to each of his children as competing claimants on his bounty, even though it does not appear that any of them had been financially dependent upon him for many years before his death has not been disregarded.

485. In my view, the value of the estate is sufficiently large to satisfy the obligations that the deceased had to each of the eligible persons who must be considered. The question, ultimately, involves an intuitive, or an evaluative, judgment. The measure to be applied is not what has been given to the beneficiaries, but what the Plaintiff needs for her proper maintenance and advancement in life, having due regard to all the circumstances of the case. It is not a mathematical assessment, or one that is dependent upon only calculating the costs of meeting demonstrated need.

486. Whilst I remember that the Act was never intended to enable the freedom of testamentary disposition to be so encroached upon that a will-maker’s decisions expressed in his Will should have only a prima facie effect, the real dispositive power being vested in the Court, and taking into account the matters to which I have referred in s 60(2) of the Act, in my view, the Plaintiff, should receive, by way of provision, a lump sum of $850,000 out of the estate of the deceased. The provision should be provided out of the residuary estate.

487. The lump sum will enable her to pay off her debts (about $300,000) and will leave her with a capital sum of about $550,000 for exigencies of life. She has a home into which she can move if she wishes. She can use the lump sum, after paying offer her debts, to provide an income and/or to assist her to purchase alternative accommodation if that is what she wants to do. At the age 71 years, she requires a reasonable fund to protect her from the vicissitudes of life.

488. It is unnecessary to determine the provision that should be made if I am in error as to the relationship of the Plaintiff as the person with whom the deceased was living in a de facto relationship at the time of his death. It seems to me, however, having regard to the matters set out above, that a lump sum in the same amount could be provided out of the estate to the Plaintiff, if she was a member of the household of which the deceased was a member and was wholly or partly dependent upon him.

489. Even if the de facto relationship did not exist at the time of death, the Plaintiff’s needs remain the same as do, in my view, the obligations and responsibilities of the deceased to her. Accepting the evidence of the Plaintiff and her witnesses, as I have done, in all the circumstances, does not alter, in any significant way, what would be adequate and proper for the maintenance and advancement in life of the Plaintiff in the event that she was a member of the household and wholly or partly dependent upon the deceased.

490. The value of the deceased’s estate that remains, even after the payment of costs, will be significant, and in all probability, no less than about $5,400,000, which should yield about $1.8 million to each of the children of the deceased.

491. It follows that the Plaintiff has been successful in the proceedings. However, I am unable to determine the question of costs. If agreement cannot be reached, counsel should also be heard in relation to the precise form of the orders to be made to give effect to these reasons.

492. The Court:

1. Directs the parties, within 10 days, to provide in hard and soft copy, Short Minutes of Order that reflect these reasons.

2. Orders that the proceedings be stood over for directions at 9:00 a.m. on Thursday, 28 July 2022 to enable the determination of costs.

3. Orders that if agreement is reached, signed Short Minutes of Order may be forwarded to the Court, for consideration, in Chambers, so that the orders proposed may be made, and entered, and the adjourned date vacated.

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Decision last updated: 18 July 2022