Re Gunn; Thomas v Gunn
[2019] VSC 772
•25 November 2019
| 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 no partners. Section 70ZH(1) provides that ‘[i]f an intestate leaves more than one parent but no partner, child or other issue, the residuary estate must be distributed equally between the parents’.
The question of which of s 70J(1) or s 70ZH(1) applies in this case turns on the meaning of ‘partner’ and, in particular, whether the applicant was the deceased’s ‘partner’ at the time of her death.
Section 70B defines ‘partner’ of an intestate as ‘the person’s spouse, domestic partner or registered caring partner at the time of the intestate’s death’. Section 3(1) defines ‘domestic partner’ of a deceased as ‘a registered domestic partner or an unregistered domestic partner’ of the deceased.
Section 3(1) defines ‘registered domestic partner’ of a deceased as ‘a person who, at the time of the person’s death, was in a registered domestic relationship with the person within the meaning of the Relationships Act 2008’. It is common ground that the applicant does not fall into this category.
Section 3(1) also defines ‘unregistered domestic partner’ of a deceased as follows:
a person (other than a registered domestic partner of the person) who, although not married to the person—
(a)was living with the person at the time of the person’s death as a couple on a genuine domestic basis (irrespective of gender); and
(b) either—
(i)had lived with the person in that manner continuously for a period of at least 2 years immediately before the person’s death; or
(ii)is the parent of a child of the person, being a child who was under 18 years of age at the time of the person’s death.
Section 3(3) provides that:
in determining whether persons were unregistered domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.
Section 35(2) of the Relationships Act 2008 provides:
In determining whether a domestic relationship (other than a registered domestic relationship) exists or has existed, all the circumstances of the relationship are to be taken into account, including any one or more of the following matters as may be relevant in a particular case—
(a) the degree of mutual commitment to a shared life;
(b) the duration of the relationship;
(c) the nature and extent of common residence;
(d) whether or not a sexual relationship exists;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
(f)the ownership, use and acquisition of property;
(g) the care and support of children;
(h) the reputation and public aspects of the relationship.
The question whether two people were domestic partners is necessarily a question of fact that depends on the length and circumstances of the relationship.[2] As Cummins J observed in Dow v Hoskins, the question ‘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.’[3]
[2]Dow v Hoskins [2003] VSC 206, [32] (Cummins J).
[3]Ibid.
The onus of proving the existence of a domestic relationship lies with the person asserting its existence. That person must prove positively the existence of the defining characteristics of the relationship, rather than the other party being required to prove the negatives.[4] Where one of the alleged partners is deceased, the Court should adopt a cautious attitude to making a determination that a person was a domestic partner of the deceased.[5] The rationale is that the deceased is not available to give evidence to demonstrate or rebut the existence of the relationship.[6]
[4]H v P [2011] WASCA 78, [58] (Murphy JA, Pullin JA and Buss JA agreeing), citing S v B [2005] 1 Qd R 537, 549 [48]–[50] (Dutney J, McPherson and Williams JJA agreeing).
[5]Re Gleeson [2019] VSC 589, [31] (McMillan J).
[6]Re Sigg [2009] VSC 47, [14] (Pagone J).
Evidence in support of the application
In support of his application, the applicant relies on the following nine affidavits:
(a) affidavit of Gavin Leslie Thomas filed 21 June 2019;
(b) second affidavit of Gavin Leslie Thomas filed 2 August 2019;
(c) affidavit of Peter Gordon Thomas filed 21 June 2019;
(d) affidavit of Elizabeth Helen Georgiou filed 28 June 2019;
(e) second affidavit of Elizabeth Helen Georgiou filed 2 August 2019;
(f) affidavit of Christopher Brian Crouch filed 2 August 2019;
(g) affidavit of Gerardo Salvador Vecchio filed 2 August 2019; and
(h) affidavit of Alice Georgie Milner filed 5 August 2019;
(i) affidavit of Aaron Joel Waters filed 6 August 2019.
At the hearing of the application on 30 August 2019, the applicant did not give any oral evidence or call any witnesses, opting instead to rely on the affidavits filed in support of his application.
On 30 September 2019, the Court asked the respondent to serve any objections to the affidavit evidence filed by the applicant by 11 October 2019 and the applicant to serve responses to any objections by 18 October 2019. The objections have been determined on the papers.
Affidavits of Gavin Leslie Thomas
The applicant deposes that he was the genuine domestic partner of the deceased from February 2017 until her death in March 2019. He and the deceased met on an online matchmaking app. At the time, the applicant had been living with his brother in an apartment in Mooroopna, near Shepparton, while the deceased had been living in a property she owned in Kialla. They arranged to meet in person in February 2017 and afterwards started to spend all their free time together, accompanying each other to visit his and the deceased’s friends. They also attended dance lessons and rode on the applicant’s motorcycle.
The applicant also deposes that, in or around March 2017, the applicant and the deceased started staying over at each other’s house every night, except when the applicant worked night shifts. Within about two weeks of meeting, they said that they would see each other exclusively. When they stayed over at each other’s house, they shared the same bed. During this time, they started to engage in a sexual relationship.
Around this time, the applicant and the deceased declared their love for each other and began to talk about their future together as a couple. The applicant recounts a dinner that he had with the deceased in a restaurant in Shepparton at which the deceased said that she wanted to live with the applicant and to share her life with him. The applicant said to the deceased that he felt the same way about her.
The applicant introduced the deceased to his brother, father, stepmother and friends as his partner. They hosted dinners and barbecues at their houses and invited their friends. The deceased also introduced the applicant to her parents.
The applicant and the deceased planned holidays together. They spent time in Melbourne, Queensland and Adelaide. The applicant had also booked a trip to visit a wildlife sanctuary in Canberra in April 2019, but the deceased had died by then.
The applicant deposes that he and the deceased had discussed moving in together ‘in conversations held over several months’. They discussed the logistics of how to deal with their respective furniture and pets. They did not talk about having children, but it was important to both of them that their dogs could live together. As well as considering whether one should move into the property of the other, they discussed the possibility of purchasing a block of land and building a house together. In August 2017, they viewed a display home built by a residential builder, Cavalier Homes, who prepared a floor plan for them in September 2017.
In October 2017, the applicant moved into the deceased’s home in Kialla on a permanent basis. He has been living there ever since. He still retains his apartment in Mooroopna and leases it to others. The applicant and the deceased had shared the rental income from the apartment.
After the move, the applicant and the deceased arranged for both of their names to go on the utility bill. They took turns to pay for food and other items, but otherwise had no fixed arrangement in place. He gave her $100 each week to contribute to her mortgage repayments. He also allowed her to use his fuel card to fill up her car. The deceased also had a flybuys account to which she linked the applicant. The applicant gave evidence that his and the deceased’s finances became commingled after they commenced living together.
The applicant and the deceased also renovated the home. They put up an outdoor entertainment area, worked on the backyard and installed a stone benchtop. The applicant repaired the solar panels. Both contributed financially to the purchase of the materials they used.
From June to September 2018, the deceased cared for the applicant when he became ill with an infected hiatus hernia. He spent one month in a hospital in Bendigo. During this time, he gave the deceased his credit card so that she could pay for accommodation near the hospital.
The deceased had been diagnosed in cancer in 2015 and was in remission at the time she met the applicant. However, in late 2017, she suffered a relapse and was required to attend regular medical appointments and to undergo surgery. The applicant attended all of the medical appointments that he was able to attend while working, and he was at hospital when she had surgery. On 27 March 2019, the deceased received radiation therapy and died in hospital in the early hours of 28 March 2019. The applicant was present when she died.
The applicant deposes that he intended to ask the deceased to marry him on 5 April 2019, the date of his fiftieth birthday. He and the deceased had been discussing getting married as they both wanted it and knew that the deceased might not have very long to live. The applicant had given the deceased a ring that he intended to be the wedding ring.
The applicant deposes that, in early 2019, he and the deceased discussed having their wills prepared. The deceased told the applicant that she wanted to ensure that the respondent was repaid an amount of $50,000 that she had borrowed from her, that she wanted to give her car to her brother, Chris, and that the applicant would receive the remainder of her estate.
The applicant and the deceased had made an appointment with Dawes & Vary Riordan Lawyers to give instructions for the preparation of the wills. The appointment was to take place on the day that the deceased died. The appointment was cancelled because the deceased had to attend medical appointments.
Before the deceased died, the respondent told the applicant that the deceased had told her that he would receive her entire estate and reminded him that the deceased owed her $50,000.
The applicant also deposes that the relationship was recognised publicly. He points to an obituary of the deceased published in the Shepparton News on 16 April 2019, which refers to the applicant as the deceased’s partner and states that the two had ‘cherished the years they had together’.
Affidavit of Peter Gordon Thomas
Mr Thomas is the applicant’s brother. He moved into the applicant’s property in October 2016 and moved out in January 2018.
Mr Thomas deposes that, in February 2017, the applicant told him that he had met someone and that they had been talking to each other since then. In March 2017, Mr Thomas met the deceased at the applicant’s apartment while she was visiting. According to Mr Thomas, on that day, the applicant and the deceased were sitting on the couch, holding hands and often kissing each other.
Mr Thomas deposes that, from March 2017, the applicant and the deceased began to stay over at each other’s house when the applicant was not working a night shift. They spent nearly all their time together, and the applicant moved into the deceased’s house in October 2017.
Affidavits of Elizabeth Helen Georgiou
Ms Georgiou is a counselling psychologist who saw the applicant and the deceased as patients.
Ms Georgiou deposes that they had met with her in conjoint sessions on 10 June 2017, 10 August 2018 and 22 November 2018. The deceased had requested that she and the applicant meet with Ms Georgiou together to discuss the impact of her illness on both of them.
At the first session, Ms Georgiou made the following notes:
This feels right — fell for each other very quickly, but kept it quiet.
We are committed, our dogs get on, and we’ve been basically together since beginning of March. [The deceased] stays with [the applicant] (who lives in a house in Mooroopna with his twin brother), or he’s at [the deceased’s] place in Kialla.
According to Ms Georgiou, the applicant and the deceased said that they were in a loving relationship and ‘cohabiting’ in each other’s house since the beginning of March 2017. Ms Georgiou deposed that either the applicant or the deceased told her that they were keeping their relationship away from social media in its early stages as they had concerns about security issues arising out of the applicant’s occupation as a prison guard.
Affidavit of Alice Milner
Ms Milner deposes that she and the deceased were friends. She met the deceased at the start of 2018 at the launch of the Fairley Leadership Program, a local leadership program of which the deceased was a member.
Ms Milner deposes that the deceased told her that she and the applicant were living together as a couple in Kialla and that they were co-parenting their two dogs.
Ms Milner met with the deceased on 12 March 2019. The deceased told Ms Milner that her cancer treatment was not working and that she wanted to access her superannuation as she would not be able to continue working. They talked about having their wills prepared, and the deceased mentioned that she did not have a will and that she needed to make one to ensure that ‘Gav was looked after and at least had a place to live’.
Affidavit of Christopher Crouch
Mr Crouch is a friend and neighbour of the deceased. Mr Crouch met the deceased in 2016 when she purchased the property opposite to his.
Mr Crouch deposes that the applicant regularly visited the deceased’s property from early 2017 and noticed that his car was parked in the deceased’s driveway overnight. Mr Crouch observed later in 2017 that the applicant moved into the deceased’s house permanently.
Mr Crouch became close friends with the deceased through the Fairley Leadership Program. The deceased was the program’s facilitator until the time of her death.
Mr Crouch deposes that, through his conversations with the deceased and her communication with the cohort in the leadership program, the deceased considered herself and the applicant to be in a loving relationship and that they were living out life as a de facto couple. In this respect, Mr Crouch deposes to the following statements made by the deceased to him:
(a) at a retreat organised by the leadership program in February 2019, the deceased on several occasions said words to the effect that she was very grateful to have the applicant in her life;
(b) the deceased said words to the effect that the applicant was the love of her life, that she was happy that they had found one another, that she loved their life together, that she was happy to have the applicant as her life partner and that she felt very safe with him; and
(c) the deceased mentioned how happy she was that the applicant supported her while she was ill, and she did not worry when she was away for treatment because the applicant looked after her dogs.
Mr Crouch further deposes that it was apparent that the applicant and the deceased were a committed couple that had a shared commitment to life together. Mr Crouch often saw them working together on landscaping, carrying out improvements to their house, walking their dogs together around nearby lake paths, shopping together and at events.
Affidavit of Gerardo Salvador Vecchio
Mr Vecchio deposes that he met the deceased in 2016 when she was appointed as chief executive of the Better Together Alliance of four secondary colleges in Shepparton.
Mr Vecchio and his wife teach dance classes in Tatura, and they first met the applicant at rock-and-roll lessons about five years ago. They socialised with the applicant regularly at the classes, social events and fortnightly dances.
Mr Vecchio deposes that, from early 2017, the applicant and the deceased attended the dance classes and social functions together. Around that time, the applicant told Mr Vecchio that he and the deceased were living together.
Mr Vecchio also deposes that, sometime in 2017, he and his wife attended the home of the applicant and the deceased for dinner, during which the deceased pointed out some renovations to the house that the applicant had undertaken.
Affidavit of Aaron Joel Waters
Mr Waters deposes that he and the applicant were very close friends and that he has known the applicant for many years, their having played football together.
The applicant introduced the deceased to Mr Waters shortly after they met in 2017. The applicant invited Mr Waters to his house in Mooroopna for dinner, which the deceased and the applicant’s brother attended. Mr Waters said that the deceased was the first person whom the applicant dated to whom the applicant introduced Mr Waters. Mr Waters deposes that he saw less of the applicant after the applicant met the deceased.
Mr Waters deposed that the applicant confided in him about his relationship with the deceased. The applicant told Mr Waters that he and the deceased went away together for weekends, that they spent most of their time together and that they stayed at each other’s house and were engaged in a sexual relationship.
Mr Waters also attended dinners and barbecues at the deceased’s house, where he observed the applicant and the deceased interact and sit on the couch next to each other with their hands on each other’s legs.
Consideration
The applicant bears the onus of proving that, at the time of the deceased’s death, he met the definition of ‘unregistered domestic partner’ within the meaning of s 3(1) of the Act. That definition requires the applicant to show a prima facie case that:
(a) he and the deceased lived together as a couple on a genuine domestic basis at the time of her death; and
(b) they did so continuously for a period of at least two years immediately before the deceased’s death.
For the purposes of a prima facie case, the respondent concedes that the applicant and the deceased were living together as domestic partners from October 2017 until the deceased’s death in March 2019 — a period of approximately 17 months. However, the respondent submits that the applicant and the respondent did not live together as a couple on a genuine domestic basis for at least two years immediately before the deceased’s death, that is, from 28 March 2017.
In order to determine whether the applicant and the deceased lived together as a couple on a genuine domestic basis as at 28 March 2017, all the circumstances of their relationship are to be taken into account, including any relevant matters referred to in s 35(2) of the Relationships Act.
The affidavits on which the applicant relies primarily cover the period from early 2017, when the applicant and the deceased met, to the deceased’s death on 28 March 2019. Most of the evidence recounted events and conversations that took place during that time. In recollecting events over a lengthy period of time, obvious difficulties arise from fading memories and the tendency for a witness to tailor the evidence to suit his or her case.[7]
[7]Re Gleeson [2019] VSC 589, [33] (McMillan J).
The evidence goes some way towards showing that the applicant and the deceased had some mutual commitment to a shared life and that a sexual relationship existed. It is apparent, reading the evidence as a whole, that the applicant and the deceased were a loving couple in an exclusive relationship. Within one to two weeks of meeting, the applicant and the deceased commenced a sexual relationship and agreed to see each other exclusively. From March 2017, they began to stay over at each other’s house every night, except when the applicant worked night shifts. They spent a significant amount of time together, socialised and took part in recreational activities. Within two months, after initially keeping their relationship private, they had introduced each other to their families and friends. These facts also demonstrate the reputation and public aspects of their relationship.
A point of contention between the parties is the nature and extent of any common residence between the applicant and the deceased. This criterion is but one factor to take into account in deciding whether the applicant and the deceased lived together as a couple on a genuine domestic basis. The applicant emphasises several matters in this respect. First, since March 2017, he and the deceased stayed over at each other’s house every night, having commenced a sexual relationship and agreed to exclusivity. Second, they spent most of their free time together. Third, sometime in March 2017, they declared their love for each other and discussed their future living arrangements over several months. Fourth, they held themselves out to their friends as a couple that lived together.
While this evidence may be accepted, it falls short of finding that the applicant and the deceased lived together as a couple on a genuine domestic basis as at 28 March 2017. Before the applicant moved into the deceased’s home permanently in October 2017, they maintained distinct households. In March 2017, they began to stay over at each other’s house. For all intents and purposes, it was a peripatetic state of affairs. Far from living in a common residence, they spent time between the applicant’s apartment and the deceased’s house. The applicant acknowledges as much in his affidavits. Each of them also owned separate furniture and cared for one or more dogs at any given time.
The conversations between the applicant and the deceased in or around March 2017 were premised on the understanding that the applicant and the deceased did not live together. Indeed, the content of the conversations strongly suggests that they did not consider themselves to be living together. Sometime in March 2017, they declared their love for each other and began to talk about their future as a couple. They expressed a desire to live together and identified three possible places: the applicant’s apartment, the deceased’s house, or a house to be built after purchasing a block of land. For several months, they faced logistical difficulties with respect to their furniture and dogs. Taking the evidence at its highest, the most that can be said is that, as at March 2017, the applicant and the deceased intended to live together as a couple on a genuine domestic basis at some unknown time in the future.
A number of other matters weigh in favour of the conclusion that the applicant and the deceased did not live together as a couple on a genuine domestic basis as at 28 March 2017. At no point during the relationship did the applicant and the deceased maintain a joint bank account, engage in any joint investments together or acquire or maintain any property jointly. It is true that they viewed a display home and received a floor plan from a residential builder with a view, perhaps, to building a house of their own one day. However, these events took place in August and September 2017, well after 28 March 2017. Due to the unfortunate circumstances of the deceased’s illness and her eventual death, their plan never came to fruition.
There is no evidence that the applicant and the deceased were financially interdependent or otherwise put in place any arrangements for financial support before October 2017. On the contrary, the applicant deposes that his and the deceased’s finances became commingled after they commenced living together in October 2017, from which point the respondent accepts that they were living as a couple on a genuine domestic basis. It was from October 2017 that the applicant began to contribute to the deceased’s mortgage repayments and split utilities and other expenses with the deceased. The absence of any arrangements for financial support until that point in time is quite understandable in light of the fact that the applicant and the deceased were not living in a common residence.
Other aspects of the evidence on which the applicant relies carry little weight for the purposes of determining whether he and the deceased were living as a couple on a genuine domestic basis as at 28 March 2017. For example, the applicant intended to ask the deceased to marry him in April 2019, and he and the deceased had discussed getting married. There is no evidence that these discussions took place in or around March 2017, or, for that matter, before October 2017.[8] The same observation may be made for the evidence with respect to the preparation of their wills and the surrounding representations about the share of the deceased’s estate that the applicant would receive.
[8]In any event, an intention to marry does not justify the conclusion that the applicant and the deceased were living together as a couple on a genuine domestic basis. While it may be accepted that their relationship was blossoming, the fact remains that it had not matured into a commitment whereby their individual lives merged into one. See KQ v HAE [2007] 2 Qd R 32, 38 [20] (McMurdo P, Keane and Holmes JJA).
The language used by the legislature in the definition of ‘unregistered domestic partner’ in s 3(1) of the Act is tolerably clear. In this proceeding, the applicant must show that he and the deceased lived together as a couple on a genuine domestic basis at the time of her death and that they did so continuously for a period of at least two years immediately before the deceased’s death. While the first of these requirements may be satisfied, the temporal difficulties with the evidence relating to the second requirement are insurmountable. The applicant and the deceased did not live together as a couple on a genuine domestic basis for a period of at least two years immediately before the deceased’s death.
Conclusion
The Court is not satisfied that the applicant has made out a prima facie case that he was the deceased’s unregistered domestic partner at the time of her death. As the applicant was also not the deceased’s registered domestic partner at the time of her death, he does not meet the definition of ‘domestic partner’ in s 3(1) of the Act. As he was also neither the deceased’s spouse nor registered caring partner at the time of her death, he also does not meet the definition of ‘partner’ in s 70B, with the result that s 70J(1) does not apply. Under s 70ZH(1), the deceased’s residuary estate must be distributed equally between her parents.
If the parties are not in agreement on costs, short written submissions are to be forwarded to the Court by 9 December 2019.
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