Re Gunn; Thomas v Gunn - [2019] VSC 772

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2019 06948

IN THE MATTER OF THE ESTATE OF SANDRA MICHELLE GUNN, deceased

BETWEEN

GAVIN LESLIE THOMAS	Applicant
v
VIVIEN MARGARET GUNN	Respondent

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2019
DATE OF JUDGMENT:	25 November 2019
CASE MAY BE CITED AS:	Re Gunn; Thomas v Gunn
MEDIUM NEUTRAL CITATION:	[2019] VSC 772

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WILLS AND ESTATES — Intestacy — Application for revocation of letters of administration — Whether applicant partner of deceased — Whether applicant and deceased lived together as couple on genuine domestic basis for period of at least two years immediately before deceased’s death — Administration and Probate Act 1958 (Vic) pt IA — Relationships Act 2008 (Vic) s 35.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms R Grayson Morison	Dawes & Vary Riordan Pty Ltd
For the Respondent	Ms U Stanisich	Barbayannis Lawyers

HER HONOUR:

Introduction

The deceased, Sandra Michelle Gunn, died intestate on 28 March 2019. She is survived by her mother, Vivien Margaret Gunn, who is the respondent in this proceeding, and her father, Peter Gunn. At the time of her death, the deceased was not married. She had no children.

On 8 May 2019, the respondent filed an application for a grant of letters of administration upon an intestacy. She did so on the basis that she and Mr Gunn were each entitled to one half of the deceased’s estate and that the deceased did not leave behind a domestic partner.

An inventory of assets and liabilities filed with the respondent’s application shows that the estate has a gross value of $775,438.10 and liabilities of $385,910.45. The assets of the estate include real property valued at $395,000 and superannuation death benefits valued at $361,477.64.

On 14 May 2019, the respondent obtained the grant of letters of administration upon intestacy.

By summons filed 11 June 2019, the applicant, Gavin Leslie Thomas, seeks an order to revoke the grant. He contends that he was the deceased’s domestic partner at the time of her death, which would entitle him to the whole of the deceased’s residuary estate under pt IA of the Administration and Probate Act 1958 (‘the Act’).

Legislative context

To put the evidence into context, it is useful first to set out the relevant provisions of the Act and some applicable principles that are not in dispute.

Part IA of the Act provides for the distribution of an estate of a person who dies without leaving a will.[1] Part IA div 3 concerns the distribution of the estate if the intestate leaves a partner. Section 70J(1) provides that ‘[i]f an intestate does not leave a child or other issue but leaves a partner, the partner is entitled to the whole of the intestate’s residuary estate’.
[1]Administration and Probate Act 1958 (Vic) s 70A(1)(a).

Part IA div 6 concerns the distribution of the estate if the intestate leaves…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Re Gunn; Thomas v Gunn

Details

AGLC: Re Gunn; Thomas v Gunn [2019] VSC 772
Case: [2019] VSC 772
Decision Date: 25 November 2019

CaseChat Overview and Summary

The parties involved in the case were Thomas, the applicant, and Gunn, the respondent, who was the executor of the deceased’s estate. The dispute centred around the revocation of letters of administration granted to Gunn. The matter was heard in the Supreme Court of Victoria. Thomas sought to be recognised as the deceased's de facto partner to claim entitlement to the estate, asserting that he had lived with the deceased for a period of at least two years on a genuine domestic basis. The central legal issues were whether Thomas was the de facto partner of the deceased and, if so, whether this entitled him to the revocation of letters of administration granted to Gunn.

The court examined the statutory definitions provided by the Administration and Probate Act 1958 (Vic) and the Relationships Act 2008 (Vic) to determine the eligibility criteria for a de facto partner. The court considered the evidence provided by Thomas regarding the nature of his relationship with the deceased, including the length of time they had lived together and the characteristics of their domestic partnership. The court assessed whether the relationship met the legal threshold for a genuine domestic partnership, specifically whether it was a relationship of at least two years' duration. The court concluded that Thomas had not met the requirements under the Relationships Act to be recognised as the deceased's de facto partner, as the evidence did not support a genuine domestic partnership for the requisite period. Consequently, the court found that Thomas was not entitled to the revocation of the letters of administration.

The court ordered that the application for revocation of the letters of administration be dismissed. The court held that Thomas had failed to establish that he was a de facto partner of the deceased within the meaning of the Relationships Act. The decision underscored the stringent requirements for establishing a de facto partnership, particularly the necessity of a relationship that meets the two-year duration criterion and other specified characteristics of a genuine domestic partnership.

Orders