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

---

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

---

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

---

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

---

HIS HONOUR:

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.

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.

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.

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.

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.

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).

In the case of Dow v Hoskins,[1] Cummins J said that the determination of whether…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Re Estate of Sigg (dec'd) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] VSC 47
Decision Date: 9 February 2009

CaseChat Overview and Summary

The case of Re Estate of Sigg (dec'd) dealt with the probate and intestacy issues following the death of an individual in Australia. The deceased left behind a domestic partner, who sought to claim a share of the estate under the relevant statutory provisions. The court was tasked with determining the eligibility of the domestic partner to receive a portion of the estate under section 51(1) of the Administration and Probate Act 1958.

The primary legal issue before the court was whether the domestic partner of the deceased was entitled to claim a share of the estate as a "spouse" for the purposes of section 51(1). The court had to interpret the definition of "spouse" and examine whether it included a domestic partner who was not married to the deceased. This interpretation involved examining the legislative intent, the relationship between the deceased and the domestic partner, and the application of relevant case law.

The court determined that the term "spouse" in section 51(1) of the Administration and Probate Act 1958 did not include a domestic partner who was not married to the deceased. The court held that the statutory language was specific and did not encompass relationships outside of marriage, even if the relationship was of a long duration and akin to a marriage. As a result, the domestic partner was not entitled to claim a share of the estate under the intestacy provisions of the Act.

The court's decision was final, and the domestic partner's claim was dismissed. The estate was distributed according to the statutory intestacy rules applicable to unmarried individuals. This ruling underscores the importance of statutory interpretation in probate matters and highlights the limited scope of the intestacy provisions for domestic partners under the Act.

Orders