Re Estate of Sigg (dec'd)

[2009] VSC 47

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. prob 05 of 2009

IN THE MATTER of the estate of PETER DOUGLAS SIGG, deceased

DIANA JEANNE CAMPBELL Plaintiff

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JUDGE:	PAGONE J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2009
DATE OF JUDGMENT:	9 February 2009
CASE MAY BE CITED AS:	IN THE MATTER of the Estate of Peter Douglas Sigg (deceased)
MEDIUM NEUTRAL CITATION:	[2009] VSC 47

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Probate – Intestacy – Domestic partner – s 51(1) Administration and Probate Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr H. Fraser	Henderson and Ball

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HIS HONOUR:

1. The application before me was commenced by originating motion filed on 18 August 2005. The applicant, Ms Campbell, relies upon s 51(1) of the Administration and Probate Act 1958 to bring the application.  She does so on the basis that she is the domestic partner of the deceased, Mr Sigg. 

1. The affidavit she made on 8 July 2005 said that the deceased had never married at the date of the death but that he did leave a person who, at the time of the death, was a domestic partner.  The affidavit goes on to say that she was “living with the deceased as a couple on a genuine domestic basis”.  The passage that I have read out is of course a statement tracking the legislative provision and to that extent makes a statement of conclusion based on a mixed fact and law and provides, little independent evidence for the conclusion drawn, namely, that Ms Campbell was, as she states, the domestic partner within the terms of the section.

1. The test for whether a person is a domestic partner is one which must satisfy the statutory provision.  The section says that a domestic partner of a person who dies means a person who, relevantly, was living with the person at the time of the person's death, as a couple on a genuine domestic basis irrespective of gender.

1. The provision is designed primarily to ensure that people who are domestic partners are not denied rights merely because they had not formally become married to each other.  Its primary focus, therefore, is to ensure that not having gone through a marriage ceremony does not disentitle a person if, in a real and practical sense, the people were living together as a couple. 

1. The section, of course, also seeks to prevent discrimination on the grounds of gender preference by ensuring that people who are living together in a same sex relationship have the same rights as a heterosexual couple would have.

1. The model, however, that might be thought to be the focus of the provision, is that of what might be regarded as a traditional relationship where what the legislation seeks to remove is the legal impediment of not being married (whether in fact or because marriage is not permitted between the same sex).

1. In the case of Dow v Hoskins,[1] Cummins J said that the determination of whether a person was living with the deceased should not be construed on narrow, formal, pedantic or merely geographical criteria, but should be considered taking into account the human reality of the personal, emotional and cultural complex.[2]  In that case his Honour took the view that he should approach the matter in that broader context.  I agree with those observations and would add that it would be wrong to assume that the test of whether people are living in a genuine domestic relationship is to be judged against a model of a couple living together full‑time, sharing fully domestic, financial and other responsibilities.  That would place people claiming under these provisions at the very disadvantage which the provision is designed to remove.  That would be so because people who are legally married live in married relationships in circumstances which vary dramatically from one couple to another, and it would be quite wrong to require that a couple seeking to invoke the provisions of s 51 should be judged by reference to a static model which may not bear a sufficient relationship to the reality of life and the diversity of arrangements existing between legally married couples.

   [1][2003] VSC 206.

   [2]Ibid, [32].

1. In this proceeding, Ms Campbell has filed a number of affidavits, one as recently as today, in which she relates details of a close, intimate and caring relationship with Mr Sigg.  That affidavit goes a substantial distance in establishing the kind of domestic relationship that partners might have in an idealised form as of a traditional relationship.

1. However, there are some aspects of the relationship recounted by her that might put her, at best, in the position of his closest friend at the time of his death with whom she enjoyed physical relations.  The relevant provisions do not purport to confer upon a deceased’s closest friend the rights and expectations of a domestic partner.

1. What I think in this case assists me in reaching the conclusion required by the legislation is the affidavits of others filed in this proceeding, in particular the affidavit of Kevin Bradner who, in paragraph 5, says that he had many opportunities over the relevant period to see the two and that they certainly appeared to him, and also to his wife, as a couple, domestic partners and a good domestic relationship. 

1. Perhaps in a more positive vein is the affidavit of Jane Anne Fowkes who says that over the 20 years of her friendship with the two, she always considered the two to be in a relationship as if they were husband and wife and that they certainly related to her and to others who were present on any other social occasions, as a couple and domestic partner and that that is how they conducted themselves to her and to others.

1. Some of the other affidavits are perhaps not as strong although they are not inconsistent with that view.

1. I should say finally that applications such as these are difficult because there is a real risk that a determination will be made with the potential to affect third party rights inadvertently and without a full and adequate testing of the material and of the evidence.

1. Courts should be cautious when being asked to make a determination that a person was the domestic partner of a deceased.  I say that because the deceased is not here to give evidence and one of the facts relevant to the determination is that the deceased and a person in the applicant's position, did not take the step of becoming domestic partners by going through a form of marriage.

1. This case is also a little unusual because the parties were not living with each other physically over the period, in the kind of model that one might have in an idealised form.

1. Applications of this kind, however, are frequently made without contest, without a controverter challenging the factual claims made by an applicant and the assertions made by an applicant.  For these reasons also a court should be reluctant to make determinations too readily. 

1. In this case, however, it seems to me that the independent evidence of third parties added to that of Ms Campbell is sufficient to warrant the conclusion and I will accordingly make the orders in the form in which it has been handed to me.

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