Stares v Public Trustee - [2005] NSWSC 37

CITATION:
Stares v Public Trustee [2005] NSWSC 37

HEARING DATE(S): 07/02/2005

JUDGMENT DATE :

8 February 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Master Macready at 1

DECISION:
Paragraph 42

CATCHWORDS:
Family Provision. Claim by a defacto widow who had a relationship of 18 years. Estate left to deceased's sons of his first marriage. Legacy awarded. No matter of principle.

PARTIES:
Julie Stares v Public Trustee - The Estate of Gary Michael Stares

FILE NUMBER(S):
SC 1217 of 2003

COUNSEL:
Mr P Blackburn-Hart for plaintiff
Mr L Ellison for defendant

SOLICITORS:
Dennis & Company for plaintiff
Mr Robert Field for Public Trustee

LOWER COURT JURISDICTION:

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

TUESDAY 8 FEBRUARY 2005

1217/03 - JULIE STARES v PUBLIC TRUSTEE

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Garry Michael Stares who died between 3 and 4 November 2001.

2 The deceased was survived by his de facto partner, the plaintiff; a son of theirs, Clinton, and his two children of his first marriage, Tyson and Corey.

3 The deceased made his last will on 29 October 1984 before he met the plaintiff. Under that will he appointed the Public Trustee as trustee and left the whole of his estate to his two sons, Tyson and Corey.

4 The assets of the estate represent insurance and other moneys and have been reduced to cash in the sum of $191,114.

5 There have been costs incurred in this matter. On the plaintiff’s part the costs come to $30,801, and on the defendant’s part, $25,400. This is a total sum of $56,201, which leaves a balance in the estate of $134,913.

FAMILY HISTORY

6 The plaintiff was born on 25 November 1958. Between 1976 and 1982 she was in a de facto relationship with one Kym Jones. The deceased married Beverley Mitchell on 13 March 1979. They had two children, as I have mentioned, Tyson, born on 25 December 1980, who is now aged 24 years, and Corey, born on 13 September 1982, who is now 22 years of age. The deceased was divorced from his former wife on 18 October 1984 and a few days after his divorce, he made his will, to which I have made reference.

7 It was also in 1984 that the deceased and the plaintiff met. The plaintiff was working as a bar assistant, and the deceased had casual work as a bouncer, and was an A grade footballer. The plaintiff and the deceased commenced living together in the plaintiff’s flat at Cronulla. After, and at the request of the deceased, the plaintiff stopped doing bar work.

8 In 1985 the deceased worked at the Sutherland Council and suffered a knee injury. Unfortunately, he removed the plaster cast from that too early, which gave him permanent injuries, and indeed ended his football career.

9 By 1986 the deceased had returned to work for the council…

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 Stares v Public Trustee

Details

AGLC: Stares v Public Trustee [2005] NSWSC 37
Case: [2005] NSWSC 37
Decision Date: 8 February 2005

CaseChat Overview and Summary

The matter of Stares v Public Trustee came before the court as a dispute regarding the distribution of an estate under family provision legislation. The claimant, Stares, was in a de facto relationship with the deceased for a period of 18 years. Upon the death of the deceased, the estate was left to his sons from his first marriage, prompting Stares to seek provision under the relevant statutory provisions. The court was tasked with determining whether the deceased's decision to exclude Stares from his estate was just and equitable.

The primary legal issue before the court was whether the deceased's decision to exclude Stares from his estate, despite their long-term de facto relationship, was justified. The court had to consider the relevant statutory criteria and assess whether the deceased's actions were reasonable and fair, taking into account the nature and duration of the relationship, the claimant's financial dependence, and any contributions made by the claimant to the deceased's estate. Additionally, the court had to determine the appropriate quantum of any award under the statute.

In delivering its judgment, the court examined the statutory provisions and the evidence presented regarding the nature and duration of the de facto relationship, the financial dependence of Stares on the deceased, and any contributions made by Stares to the estate. The court found that, while there was no principle preventing a legacy being awarded in such circumstances, the deceased's decision to exclude Stares was not unjust or inequitable. The court concluded that the deceased's actions were reasonable and fair, taking into account all relevant factors. Consequently, the court awarded a legacy to Stares, reflecting the court's view that the deceased's decision was not a matter of principle.

The final orders of the court included the award of a legacy to Stares from the deceased's estate, recognising her long-term de facto relationship with the deceased. The court's decision highlighted the importance of considering the specific circumstances of each case when determining claims under family provision legislation. The outcome underscored the principle that, while de facto relationships may warrant consideration for estate distribution, the deceased's decisions are not automatically deemed unjust or inequitable.

Orders