Re Memos
[2023] VSC 475
•15 August 2023
| 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 of Appeal explained that the test for whether a grant of representation is then revoked is a two-limb test.[1] First, an applicant must establish that there is a ‘case for investigation’ which, if established, would justify revoking probate.[2] Secondly, the power to revoke a grant of probate is discretionary, and the Court must consider all the circumstances, and not just the merits of the case.[3] Although the discretionary considerations are apt to be considered with the prima facie case question, the consideration of the prima facie case is not an exercise of discretion but a legal test.[4]
[1][2019] VSCA 198 (‘Gardiner v Hughes (No 2)’). See also Re Gao [2019] VSC 735; Re Rudebeck [2019] VSC 804.
[2]Ibid [42].
[3]Ibid [43].
[4]Ibid.
In this case, the applicant argues that the grant ought not to have been made because, as the deceased’s domestic partner, she has a greater entitlement to the administration of the deceased’s estate than the deceased’s parents. The applicant’s standing to bring her application therefore arises from the same factual dispute as the substance of her claim; the question which arises from the first limb of the Gardiner v Hughes (No 2) is whether or not the applicant and the deceased were in a domestic relationship at the time of the deceased’s death, such that the applicant is the person to whom a grant of letters of administration ought to have been made.
To establish that she was in a domestic relationship with the deceased at the time of her death, the applicant must show that she: [5]
[5]Administration and Probate Act 1958, s 3(1) (definition of ‘unregistered domestic partner’).
(a) was living with the deceased at the time of her death as a couple on a genuine domestic basis; and
(b) either –
(i) had lived with the deceased in that manner continuously for a period of at least 2 years immediately before the deceased’s death; or
(ii) is the parent of a child of the deceased, being a child who was under 18 years of age at the time of the deceased’s death.
It was uncontentious that subparagraph (ii) did not apply in this matter.
In determining whether persons are unregistered domestic partners of one another,[6] the Court must take into account all the circumstances of their relationship, including any one or more of the matters referred to in s 35(2) of the Relationships Act 2008 as may be relevant.[7] That provision is as follows:
[6]It was uncontentious here that the relationship between the applicant and the deceased was unregistered
[7] Administration and Probate Act 1958, s 3(3).
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.
If the first question referred to in Gardiner v Hughes (No 2) is answered in the affirmative, the Court must then consider the second limb of the test, being whether, in all the circumstances, it is appropriate to revoke the grant of probate.
Submissions
As I have noted, the applicant’s case was that she has greater standing to bring an application for letters of administration than the plaintiffs on the basis that she and the deceased lived as genuine domestic partners within the meaning of the Relationships Act 2008. As the deceased’s partner, the applicant would be entitled to the whole of the deceased’s estate upon intestacy and therefore, as the sole beneficiary of the deceased’s estate, she has the greatest entitlement to the administration of the estate.
The applicant contends that her relationship with the deceased commenced in October 2019, for the purposes of s 35(2) of the Relationships Act 2008, and ended with the deceased’s death on 5 June 2022. She relies on several affidavits of people who knew the applicant and deceased as a couple. The applicant also makes various other allegations against the plaintiffs regarding their actions in applying for a grant of letters of administration which are unnecessary to address.
The plaintiffs emphasised that the onus to prove the existence of the domestic relationship rested with the applicant and submitted that the affidavit material filed by the applicant did not adequately address s 35(2) of the Relationships Act 2008. The plaintiffs are of the view that that the applicant was not in a domestic relationship with the deceased; they believe the applicant to have been the deceased’s friend and housemate.
The plaintiffs accordingly submit that, as the deceased’s parents, they have greater standing than the applicant to administer the estate of the deceased. They also point to instances when the deceased was in hospital and they made decisions about medical treatments on her behalf.
Were the applicant and the deceased in a domestic relationship at the time of the deceased’s death?
The applicant made two affidavits in support of her application for revocation and also relied upon the following seven affidavits made by persons who were either friends, colleagues or relatives of the applicant and/or deceased:
(a) affidavit of Jaimi McNair made 13 January 2023;
(b) affidavit of Sarah Haslam made 6 January 2023;
(c) affidavit of Stephanie Crook made 9 January 2023;
(d) affidavit of Stephen Lewis made 10 January 2023;
(e) affidavit of Tracey Heron made 10 January 2023;
(f) affidavit of Tracy Canning made 10 January 2023; and
(g) affidavit of Patricia Green made 13 January 2023.
Applicant’s evidence
The applicant deposed that she met the deceased at university in 2017. They were friends for approximately two years before commencing an intimate relationship on 19 June 2019. She stated that her relationship with the deceased met the requirements of s 35(2) of the Relationships Act2008 from approximately October 2019, when they moved in together, until the deceased’s death on 5 June 2022. During that time, the deceased and the applicant lived together continuously, first with the applicant’s family in Manor Lakes, then by themselves in Doreen. The applicant exhibited copies of the lease agreement that she and the deceased took over from the applicant’s mother on 12 January 2021, and the lease agreement for their home in Doreen commencing 9 July 2021.
The applicant deposed that she and the deceased wanted a future together and had discussed marriage. She had purchased ‘promise rings’ in February 2022, and had planned to propose to the deceased on their three year anniversary on 19 June 2022. When it was apparent that she would not get the opportunity to do so after the deceased’s stroke, the applicant proposed to her in hospital on 5 June 2022, the day the deceased died. On the day of the deceased’s funeral, the applicant placed an engagement ring on the deceased’s hand so that she could always have it with her.
The applicant’s evidence was that she and the deceased were saving for IVF and planned on having a child after they had both finished studying.
The applicant deposed that the deceased did not have contact with the deceased’s parents after moving out of home. She referred to instances where the plaintiffs attempted to contact the deceased at her workplace, which attempts were not well-received by the deceased.
Evidence of friends, colleagues and relatives
Jaimi McNair is the applicant’s aunt. She deposed that the applicant told her about her relationship with the deceased in June 2019 and that, due to the volatility of the deceased’s home life, the deceased and applicant were then making plans for the deceased to leave home and live with the applicant.
Ms McNair states that she met the deceased in person for the first time in November 2019. She deposed that, after the deceased moving out of her family home, she and the applicant shared a home, car, and managed their finances together. Ms McNair’s evidence was that she always knew the deceased and applicant as a couple, and that the deceased always attended family functions as the applicant’s partner. She states that, over the three years that she had known the deceased, she had several discussions with her regarding future plans of marriage, children, and building a house.
Sarah Haslam is a university friend of the deceased and the applicant who met the deceased in 2017. Her evidence was that the deceased and applicant became a couple on 19 June 2019 and that they moved in together at the applicant’s family home on 26 October 2019. She states that ‘it was obvious how in love they were’.
Stephanie Crook is a former work colleague and football teammate of the deceased. She deposed that she was aware of the deceased’s relationship with the applicant and that the deceased regularly spoke of the applicant and the life they shared together.
Stephen Lewis is a former work colleague of the deceased. He deposed that he met the applicant as the deceased’s partner in 2019 when they were living together.
Tracey Heron worked with the deceased from June 2019. She deposed that the deceased had left home because her parents did not approve of her relationship with the applicant, and that the deceased and the applicant had moved in together. She deposed that, in February 2022, the deceased had spoken of her intention of marrying the applicant, and that she was happy she could live with the applicant for the rest of their lives.
Tracy Canning is a former work colleague of the deceased. She deposed that she was aware of the applicant’s relationship with the deceased.
Patricia Green is a former work colleague of the deceased. She deposed that she had known the deceased for a little over a year. Ms Green said that when she first met the deceased, the deceased told her about her relationship with the applicant which had been on foot for over three years. She deposed as to what she was told by the deceased about her relationship with her parents, and how she had met the applicant at university. Ms Green said that, a few weeks before the accident that led to the deceased’s death, the deceased had been planning to buy an engagement ring for the applicant, but that the applicant had wanted to be the one to propose.
Plaintiffs’ evidence
The plaintiffs filed two affidavits made 20 September 2022, and affidavits made 27 January 2023 and 1 February 2023.
In their affidavit filed in support of their application for letters of administration, the plaintiffs describe the applicant as a ‘Uni friend/housemate’. In the above mentioned affidavit material, they refer to the applicant as the deceased’s ‘housemate’. Their evidence is that the deceased never told them that she was in a relationship with the applicant, and that they did not know she was gay.
The plaintiffs confirm that the deceased moved out of the family home on 9 October 2019.
The plaintiffs do not depose to having had contact with the deceased between 9 October 2019 and about June 2022, when the applicant notified them of the deceased’s stroke, save for unsuccessfully attempting to make contact with the deceased at her workplace.
The plaintiffs dispute that the deceased and applicant took over the Manor Lakes lease on 12 January 2021, as they state the property was not advertised for lease until November 2021. This discrepancy between the two accounts is unsurprising and readily explained by the applicant’s evidence that the lease was transferred to the couple from the applicant’s mother, (rather than having been entered into following the property’s advertisement on the open market).
The plaintiffs state that the applicant was not financially dependent upon the deceased, and that both the applicant and deceased worked and studied.
The plaintiffs state that the engagement ring referred to by the applicant was purchased after the deceased’s death, and with funds from the deceased’s bank account.
Consideration
The applicant contends that, although her relationship with the deceased began on 19 June 2019, it satisfied the criteria in s 35(2) of the Relationships Act 2008 from October 2019 onwards when they commenced living together. The evidence adduced by the applicant supports the following findings in relation to the applicant and the deceased:
(a) that they were living together continuously for at least two years before the deceased’s death, from 26 October 2019;
(b) that their relationship was intimate;
(c) that they were known as a couple from at least October 2019; and
(d) that at some point during their relationship, they developed serious long term plans for a future together.
The plaintiffs’ evidence does not contradict any of these findings. Given the lack of contact between the deceased and her parents, the plaintiffs are not in a position to give evidence about the degree of financial interdependence between the deceased and the applicant, nor how serious their relationship was, and whether they were known as a couple.
The plaintiffs’ evidence regarding the post-mortem purchase of the deceased’s purported engagement ring is, at face value, troubling. However upon a close reading of the applicant’s evidence at paragraph [14] of her affidavit, the plaintiffs’ evidence is not inconsistent with the applicant’s evidence that she proposed on the deceased’s deathbed, and that she placed an engagement ring on her finger at the funeral. The fact that the ring was purchased from the deceased’s bank account speaks to an inappropriate use of funds before a grant is made, but not to a lack of credibility of the applicant.
I am satisfied that the applicant and the deceased lived together as a couple on a genuine domestic basis at the time of the deceased’s death, and that they had done so for the preceding two years. Accordingly, the applicant is the appropriate person to whom a grant of letters of administration on intestacy of the deceased’s estate should have been made.
In the circumstances, I consider it appropriate to exercise my discretion to revoke the grant of letters of administration made to the plaintiffs dated 7 November 2022 in order that the applicant may proceed to apply for letters of administration on intestacy of the estate of the deceased. I do not perceive there to be any particular matters which militate against the exercise of my discretion in this way.
The parties are to submit proposed orders with respect to costs within 7 days, or in the absence of agreement, short submissions on costs limited to two pages.
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