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Richardson v Kidd

Richardson v Kidd

Case [2002] NSWSC 306 17 April 2002

Domestic Relationship

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Reported Decision:
(2002) DFC 95-245

New South Wales

Supreme Court

CITATION: RICHARDSON v KIDD [2002] NSWSC 306

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2847 of 2001

HEARING DATE(S): 21/03/02, 22/03/02

JUDGMENT DATE: 17 April 2002

PARTIES :

WENDY RICHARDSON v FRANCES JOY KIDD (Estate of Eric Alfred Dudeney)

JUDGMENT OF: Master Macready at 1

COUNSEL : Miss J. Pentelow for plaintiff
Mr C. Harris for defendant

SOLICITORS: Marsdens for plaintiff
Maclarens for defendant

CATCHWORDS: Family Provision. Application for declaration that plaintiff was living with the deceased as his de facto partner at the date of death. Declaration refused. Application under Family Provision Act. - Held no domestic relationship as parties not living together but plaintiff was an eligible person as part of household and partly dependent. Order for legacy in favour of plaintiff.

DECISION: Paragraph 73

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Wednesday 17 April 2002

No 2847/ 2001 WENDY RICHARDSON v FRANCES JOY KIDD
– ESTATE OF ERIC DUDENEY

JUDGMENT

1 MASTER: This is an application brought by the plaintiff in which she seeks, first, a declaration that the defendant holds the estate of the late Eric Alfred Dudeney upon trust for the plaintiff absolutely. In the alternative she seeks orders pursuant to section 7 of the Family Provision Act 1982 out of the estate of the late Eric Alfred Dudeney. A Judge of the Court has referred the trial of the matter to a Master.

2 The deceased died on 28 August 2000 aged 46 years. He had never married and had no children. His closest relative was the defendant, his sister. He was also survived by the plaintiff who submits that she lived with him at the date of his death as his de facto partner.

3 As there is an intestacy, absent the claim of the plaintiff, the whole of his estate would normally pass to his sister, the defendant. At the date of his death the deceased owned a home unit at Queensborough Road, Croydon Park which had an estimated value of $130,000. The unit has been sold and the proceeds resulting from the sale, after allowance of expenses, amount to $116,758.44. The deceased also held superannuation interest in respect of his employment with Telstra. The Trustee has determined that the total benefit, namely, $94,600 shall be paid as to 80% to the estate and 20% to the plaintiff. Accordingly, the estate will receive $75,680. There are a number of other minor assets and some small liabilities for costs and other matters.

4 There is some doubt as to whether or not income tax will be payable on the superannuation payout to the estate. In the event that tax is not payable the estate will comprise $181,993.85. In the event that income tax will be payable the estate will comprise $170,641.85. Both parties have incurred costs in the matter. The plaintiff's costs are estimated at $37,920 and those of the defendant are estimated at $24,223.…

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 Richardson v Kidd

Details

AGLC: Richardson v Kidd [2002] NSWSC 306
Case: [2002] NSWSC 306
Decision Date: 17 April 2002

CaseChat Overview and Summary

Richardson v Kidd involved a dispute regarding the eligibility of a plaintiff to receive a legacy under the Family Provision Act. The plaintiff sought a declaration that she had been living with the deceased as his de facto partner at the time of his death. This application was brought to the Family Court of Australia. The plaintiff contended that she was entitled to a declaration of her status as a de facto partner and sought to be recognised as such under the Act.

The court had to determine whether a domestic relationship existed between the plaintiff and the deceased, which would entitle the plaintiff to a legacy under the Act. Additionally, the court had to decide if the plaintiff qualified as an "eligible person" as defined by the Act, even if no de facto partnership was established. The court considered the nature of the relationship and the degree of dependency and financial support provided by the deceased.

The court found that while the plaintiff and the deceased were not living together as a couple, the plaintiff was an eligible person under the Act because she was part of the deceased’s household and partly dependent on him. The court held that the plaintiff's relationship with the deceased did not qualify as a domestic relationship, but she was eligible for a legacy due to her status as part of the household and her partial dependency. The court ordered that a legacy be paid to the plaintiff.

Orders