Re Memos - [2023] VSC 475

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2022 19911

LAURA ROSE SHERIDAN	Applicant
v
CON MEMOS and SOFIE MEMOS	Plaintiffs

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers by written submissions.
DATE OF JUDGMENT:	15 August 2023
CASE MAY BE CITED AS:	Re Memos
MEDIUM NEUTRAL CITATION:	[2023] VSC 475

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WILLS AND ESTATES – Application for a revocation of grant of letters of administration – Where applicant alleged domestic partnership with deceased – Where letters of administration upon intestacy had been granted to her parents – Whether applicant had better standing to apply for a grant of letters of administration on intestacy – Whether applicant established she and the deceased lived together on a genuine domestic basis for two years prior to the deceased’s death – Gardiner v Hughes (No 2) [2019] VSCA 198; Relationships Act 2008 s 35(2).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Gordon Legal
For the Plaintiffs	Coulter Legal

HIS HONOUR:

This proceeding is an application for the revocation of a grant of letters of administration upon intestacy in the estate of the late Elisabeth Memos.

Background

Tragically, Elisabeth Memos died from a stroke which she suffered while playing football on 5 June 2022. She was 23 years of age. Unsurprisingly for someone so young, she did not have a will.

The deceased’s parents, the plaintiffs, applied for a grant of letters of administration on intestacy on the basis that, as her parents, they were the persons most entitled to benefit from her intestacy. They filed an inventory of assets and liabilities stating the value of the deceased’s estate was approximately $50,000.

The plaintiffs’ application was granted by the Registrar of Probates on 7 November 2022.

On 30 November 2022, the applicant filed a summons for revocation of the grant of letters of administration. The grounds of the application are that she was the deceased’s domestic partner and had greater standing than the plaintiffs to be granted letters of administration of the deceased’s estate. The applicant seeks that the grant of letters of administration should be revoked so that she may then file her own application for a grant of letters of administration.

In support of her application, the applicant filed two affidavits made by her, as well as seven affidavits made by friends of her and the deceased. The plaintiffs filed two affidavits in opposition, and also relied upon two affidavits filed in support of their application for letters of administration.

The parties agreed for the Court to determine the application on the papers without a hearing.

Legal principles

In accordance with order 11 of the Supreme Court (Administration and Probate) Rules 2014, a person may make application to the Court for the revocation of a grant of representation if they can demonstrate that their rights will or may be affected by the grant being revoked. In Gardiner v Hughes (No 2), the Court…

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 Memos

Details

AGLC: Re Memos [2023] VSC 475
Case: [2023] VSC 475
Decision Date: 15 August 2023

CaseChat Overview and Summary

The case of Re Memos involves an application by the applicant, who alleged a domestic partnership with the deceased, for a revocation of the grant of letters of administration. The letters of administration upon intestacy had been granted to the deceased's parents. The primary issue before the court was whether the applicant had better standing to apply for a grant of letters of administration on intestacy. Additionally, the court had to determine whether the applicant had established that she and the deceased lived together on a genuine domestic basis for two years prior to the deceased’s death.

The court considered the relevant statutory provisions, including s 35(2) of the Relationships Act 2008, which outlines the criteria for determining the existence of a domestic partnership. The court also referred to the case of Gardiner v Hughes (No 2) [2019] VSCA 198 to ascertain the requirements for establishing a domestic partnership. The applicant argued that she had a closer relationship with the deceased and that her standing as a potential beneficiary under the deceased's will, if admitted, would be superior to that of the deceased's parents. The court examined the evidence presented regarding the nature and duration of the relationship between the applicant and the deceased.

After evaluating the evidence, the court found that the applicant had not sufficiently demonstrated that she and the deceased lived together on a genuine domestic basis for the requisite period. The court concluded that the applicant had not established the elements necessary to prove a domestic partnership under the applicable legislation. Consequently, the applicant's application for revocation of the letters of administration was dismissed.

The final orders of the court were that the application for revocation of the letters of administration was dismissed, and the letters of administration granted to the deceased's parents remained in effect.

Orders