Thompson v The Public Trustee of New South Wales - [2010] NSWSC 1137

No judgment structure available for this case.

CITATION: Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137

HEARING DATE(S): 30 September 2010
1 October 2010
5 October 2010

JUDGMENT DATE :
14 October 2010

JUDGMENT OF: Hallen AsJ

DECISION: 1. The Plaintiff is an eligible person and there are factors warranting the making of his application.
2. In the circumstances of this case the Plaintiff, having received a lump sum of $5,000 in the Will, out of the deceased’s estate, has been left with inadequate provision for his proper maintenance and advancement in life.
3. The time for the making of the Plaintiff's application should be extended to the date of the filing of the summons.
4. A lump sum, which equates to 7% of the net residue of the Estate, in addition to the provision made for him in the Will of the deceased, would be adequate, and proper, in all the circumstances.
5. The lump sum should not be paid to the Plaintiff in full. There should be paid, on his behalf, an amount that equates to no more than 1% of the net residue to enable him to purchase clothing and furniture. His debts should be paid also. If he requires an additional amount, that will be in the discretion of the trustee who should hold that balance on similar terms to the trust for the deceased's daughter.
6. As requested by counsel during final submissions, I shall not make any orders today, but shall allow the parties to have an opportunity to come to a precise arrangement as to what orders are to be made in accordance with these reasons.
7. Stand the matter over for two weeks for making the orders that the parties are able to agree upon.
8. If the parties cannot reach agreement on the appropriate orders, or the order for costs, I shall hear competing submissions on the adjourned date.

CATCHWORDS: SUCCESSION - family provision - claim by asserted de facto partner of deceased - status of Plaintiff as de facto partner is disputed by Defendant - whether Plaintiff otherwise an eligible person - whether factors warranting the making of the application - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance and advancement - application not made within prescribed period - whether sufficient cause shown for application not having been made within prescribed period - competing claim of beneficiary - nature of provision to be made for Plaintiff

LEGISLATION CITED: Family Provision Act 1982
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Property (Relationships) Act, 1984
Civil Liability Act 2002

CATEGORY: Principal judgment

CASES CITED: Alexander v Jansson [2010] NSWCA 176
Amaca Pty Ltd v Novek [2009] NSWCA 50
Ball v Newey (1988) 13 NSWLR 489
Bar-Mordecai v Hillston [2004] NSWCA 65
Brown v Faggoter (Court of Appeal, 13 November 1998, unreported)
Burton v Moss [2010] NSWSC 163
Campbell v Chabert-McKay [2010] NSWSC 859
Churton v Christian [1988] NSWCA 23
Coates v National Trustees Executors and Agency Co Ltd & Anor (1956) 95 CLR 494
Collins v McGain [2003] NSWCA 190
Dion v Rieser [2010] NSWSC 50
Diver v Neal [2009] NSWCA 54
Dridi v Fillmore [2001] NSWSC 319
Durham v Durham [2010] NSWSC 389
Foley v Ellis [2008] NSWCA 288
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Green v Green (1989) 17 NSWLR 343
Hayes v Marquis [2008] NSWCA 10
John v John [2010] NSWSC 937
Kalmar v Kalmar [2006] NSWSC 437
KQ v HAE [2007] 2 Qd R 32
Lewis v Lewis [2001] NSWSC 321
Light v Anderson (1992) DFC 95-120
Penfold v Perpetual Trustee Co Ltd [2002] NSWSC 648
Petrohilos v Hunter (1991) 25 NSWLR 343
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Porthouse v Bridge [2007] NSWSC 686
Re Estate of Sigg (dec'd) [2009] VSC 47
Re Fulop Deceased (1987) 8 NSWLR 679
S v B (No 2) [2004] QCA 449
Scragg v Scott [2006] NZFLR 1076
Sharpless v McKibbin [2007] NSWSC 1498
Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677
Singer v Berghouse (No2) [1994] HCA 40
Skinner v Frappell [2008] NSWCA 296
Sullman v Sullman [2002] NSWSC 169
Taylor v Farrugia [2009] NSWSC 801
Thompson v Mulligan [2009] NSWSC 399
Vigolo v Bostin [2005] HCA 11
Williams v Legg (Court of Appeal, 16 March 1993, unreported)
Ye v Fung [2006] NSWSC 243

TEXTS CITED: Government Gazette No. 38 of 20 February 2009

PARTIES: Desmond John Thompson
The Public Trustee of New South Wales

FILE NUMBER(S): SC 2009/289020

COUNSEL: R Wilson (Plaintiff)
A Hill and M Pringle (Defendant)

SOLICITORS: Lees & Givney (Plaintiff)
NSW Trustee & Guardian (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALLEN AsJ

14 October 2010

2009/289020 THOMPSON v PUBLIC TRUSTEE

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982 (“the Act”) even though that Act has been repealed, effective from 1 March 2009. Under clause 11(2) of Schedule 1 of the Succession Act 2006, the provisions of the Act “continue to apply in relation to the estate of a person who dies before the commencement of this clause, in so far as they are not affected by the operation of this Part.” That clause commenced on 1 March 2009: s 2(1) of the Succession Amendment (Family Provision) Act 2008 and Government Gazette No. 38 of 20 February 2009, page 1036.

2 Maryse Jeanne Geralde Mattei (hereafter called “the deceased”) died on 7 December 2006.

3 The Plaintiff, Desmond John Thompson, commenced these proceedings by summons filed on 29 May 2009. He seeks a family provision order out of the actual estate of the deceased as well as consequential orders. The proceedings were not commenced within the time period prescribed by s 16 of the Act (18 months from the date of death). The claim is about 11 months out of time. Accordingly, the Plaintiff also seeks an order that the time for the making of the application be extended.

4 The deceased left a Will that she made and published on 1 December 2006, probate of which was granted, on 2 April 2007, by the Supreme Court of New South Wales, to the Public Trustee (“the Defendant”), the executor appointed under the Will.

5 In the deceased’s Will, she left a legacy of $5,000 to her “friend”, the Plaintiff, “for the care and support provided in the past years”; she devised a property at Woodstock, to her niece, Erin Jane Mattei, and left the residue of her estate, after the payment of estate liabilities (as defined in the Will), upon a discretionary trust for her daughter, Martine Daniele Cawley, “to provide for the welfare and happiness of Martine” until her death, or until the capital of the trust was used up. In the event of any capital remaining on the death of her daughter, that capital was to be divided equally between three nieces, namely, Erin Jane Mattei, Joanne Mattei, and Jacqueline Mattei, and a nephew, Andrew Mattei, each of whom survived the deceased.

6 In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased’s estate, at the date of death, was disclosed as having an estimated, or known, value of $934,468. The principal asset was real estate, situated at Marrickville, said to have an estimated, or known, value of $500,000. Another property, at Woodstock, mistakenly, was disclosed as having an estimated, or known, value of $250,000, when it actually had a value of $25,000.

7 The estate liabilities were debts of the deceased totalling $1,093.

8 Clause 4 of the deceased’s Will specifically directed the Defendant to sell the property of the deceased forming the residue of her estate, and to hold the net proceeds on the trust referred to. The Defendant has not caused the real property at Marrickville to be sold, as that is where the deceased’s daughter presently lives with a friend and the friend’s two children.

9 The Marrickville property is a freestanding three bedroom Californian bungalow, with an attached granny flat and detached rear garage /carport and shed. Two of the three bedrooms have built in wardrobes. There is a lounge and dining area with an eat-in kitchen, a bathroom and an externally accessed laundry. The granny flat comprises one bedroom and a kitchen. The property is described as being in fair condition, with the bathroom and kitchen requiring some refurbishment.

10 There have been some distributions out of the estate. The legacy of $5,000 has been paid to the Plaintiff and the car was transferred to the deceased’s daughter. Various advances have been made to the deceased’s daughter, including an amount of $450 per fortnight, which is described as “fortnightly advance of maintenance”. (Once proceedings were commenced, these payments were no longer made.)

11 The estate bank accounts have been collected and the estate liabilities paid. The estate property, in New South Wales, at the date of hearing, consists of the Marrickville property ($950,000), the property at Woodstock ($27,000), units in a unit trust ($32,390), and moneys held in the trust account of the Defendant ($48,550). The total value of the estate in New South Wales is estimated to be $1,057,940.

12 The Defendant’s estimated commission and administration expenses, as yet unpaid, total $15,000. Subject to the payment of costs of the proceedings, the value of the estate in New South Wales is, therefore, in the order of $1,042,940.

13 In calculating the value of the estate available for distribution, the costs of the present proceedings must also be taken into consideration, since the Plaintiff, if successful, normally, will be entitled to an order that his costs be paid out of the estate of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that its costs be paid out of the estate.

14 The Plaintiff’s costs and disbursements, including counsels’ fees, calculated on the indemnity basis, have been estimated to be in the order of $92,285 (inclusive of GST and upon the basis of a two day hearing). The costs and disbursements of the Plaintiff, including counsel’s fees, calculated on the ordinary basis, are estimated to be $80,292. It is suggested, because the case drifted into a third day, that $5,000 should be added for counsel and instructing solicitor.

15 The Defendant’s costs and disbursements, including counsels’ fees, calculated on the indemnity basis, are estimated to be $92,500. It is suggested, because the case drifted into a third day, that $7,000 should be added for counsel and instructing solicitor.

16 For the purposes of the hearing, the Defendant has estimated that the net distributable value of the actual estate, in New South Wales, is $943,440. However, in calculating this amount, only the Defendant’s estimated costs, the further commission, and the unpaid administration expenses have been notionally deducted. If the Plaintiff’s costs and disbursements of $85,292 are deducted, the net distributable estate in New South Wales is $858,148. The parties seemed to accept that there may be $28,148 in costs and expenses of sale of the Marrickville property, leaving a net estate of $830,000.

17 The parties’ legal representatives were content, if I come to the conclusion that the Plaintiff succeeds, that he should receive a lump sum which equates to a percentage of the net residuary estate, after all expenses are paid. The parties do not agree that the lump sum, if any, ordered by way of provision should be subject to a protective trust. I shall deal with this aspect later in the Judgment.

18 The Defendant, by counsel, states that it is not intended to sell the Marrickville property unless an order for provision, or for costs, is made for the Plaintiff. The real estate will not be sold to meet the costs and expenses of the Defendant of the litigation, or to pay the estimated commission and administration expenses. I gather that this course is being followed at the request of the deceased’s daughter and the remainder beneficiaries, although this is not entirely clear.

19 The deceased, at the date of her death, was the owner of a studio apartment in Frejus, near St Raphael, France. The deceased’s daughter, Martine has inherited this property. The value of this property is said to be $90,000, but it is subject to a claim of the body corporate of 857.11 euros (AUS$1,180). There were moneys on deposit in a bank account at the BNP Bank at St Raphael, France, which appear to have been used to pay French death duties. Any such amount is not disclosed in the affidavit evidence.

20 In addition, there may have been moneys held in an account in New Caledonia, which were also used to pay death duties. Any such amount is not disclosed in the evidence.

21 The deceased’s daughter received just under $60,000, being the proceeds of a life policy. She states that this amount has been spent.

22 The only persons who are, or who may be, eligible persons, are the Plaintiff and the deceased’s daughter. The deceased’s daughter previously filed a Summons seeking further provision from the deceased’s estate, but that Summons was dismissed without a hearing because it was not prosecuted with due despatch by her. However, the daughter gave evidence in the present proceedings.

23 The persons described as persons to whom the Notice of Claim under Schedule J of the Supreme Court Rules, Clause 9(2), has been given, are the daughter of the deceased, and the nieces and nephew of the deceased. Each has been served, by post, with the Notice of Claim. Other than the daughter, none of the remainder beneficiaries has given evidence.

24 In such an application under the Act, the Court must determine, first, whether the plaintiff is an eligible person; depending upon the category of eligibility into which the plaintiff falls, an additional question may then be whether there are factors warranting the making of the application; next, whether the time for the making of the application should be extended; then, whether the plaintiff has been left with adequate provision for his, or her, proper maintenance, education and advancement in life; and, finally, if not, what, if any, provision (or further provision) ought to be made out of the estate for those purposes?

25 I shall return to these questions later in this Judgment.

Background Facts

26 I set out some history of the Plaintiff and of the deceased. I am satisfied that the following facts are either not in dispute or each has been established by the evidence:

(b) The deceased was born in December 1941 and was aged 65 years at the date of her death;

(c) The deceased’s son, Michael, was born in September 1969; however, he died, in 1991, at the age of 22 years;

(d) The deceased’s daughter, Martine, the residuary beneficiary, was born in June 1970; she is aged 40 years;

(e) The Plaintiff has never been married, and as far as he is aware, he is not the father any child;

(f) The Plaintiff finished Year 10 at Marcellin College, Randwick;

(g) Between October 1974 and August 1984, the Plaintiff worked at Readers Digest as a machine operator, storeman and sorter; whilst working at Readers Digest, he met the deceased;

(h) The Plaintiff’s relationship with the deceased commenced in about 1981. At that time, the deceased was married to David Cawley. At first, the relationship of the Plaintiff and the deceased was a sexual one only;

(i) The deceased and her husband separated in 1985. She and the Plaintiff then moved in together;

(j) In 1987, the deceased’s father purchased a property for the deceased at Edinburgh Road, Marrickville (“property 138”). The Plaintiff assisted in the renovations of that property and when those renovations were completed, the deceased moved in. Until he moved in, the Plaintiff would stay at property 138 about four nights a week;

(k) In March 1999, the Plaintiff sold property 138 for $253,000;

(l) In 2003, the deceased’s father died and the Plaintiff moved in with her mother at another property in the same street (the Marrickville property);

(m) In 2003, the Plaintiff moved into the Marrickville property and assisted the deceased in looking after her mother;

(n) In September 2004, the Plaintiff applied for a carer’s pension in respect of his mother;

(o) In August 2005, the deceased’s mother died and the deceased inherited the Marrickville property, which was transmitted to her in December 2005;

(p) In 2005, the Plaintiff’s mother died; he inherited $100,000, which he had spent, by July 2009;

(q) the legacy paid to him out of the deceased’s estate has also been spent.

27 The Plaintiff asserted in his first affidavit, that “[I]n 1985, after the deceased separated from her husband … we commenced to live together and we lived together continuously and in the same residence until late 1997”. He accepts that this evidence is wrong. Even without this concession, I would be satisfied that the Plaintiff and the deceased did not live together continuously and in the same residence, from at the latest, December 1992. In this regard, I note, by way of example, that in Ex 1, in the handwriting of the deceased, there appears, in relation to the Plaintiff, “Moved in on 18 August 1992” and “Des left 138 on Mon 26 Oct 92 owing rent + food money +electricity”.

28 It is also clear that the Plaintiff told Centrelink, at different times, that he was not in a de facto relationship. (Statements to a government authority, apparently inconsistent with a party’s case, may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances: Bar-Mordecai v Hillston [2004] NSWCA 65 (at [118]); Hayes v Marquis [2008] NSWCA 10 (at [99]).)

29 There is other evidence, which I accept, that the Plaintiff lived at different places for different periods of time, after December 1992. It is unnecessary to set out the different places at which he lived, and which he disclosed to Centrelink (see, Ex. 4 and the summary of pages relied upon).

30 There is no dispute that the Plaintiff lived apart from the deceased between late 1997 and mid 2000.

31 The Plaintiff asserts also, that from mid 2002 until after the deceased’s death, he lived at the Marrickville property. Once again, it is accepted that this evidence is incorrect. I do not accept that he lived with the deceased continuously in that period. For example, it is clear that, throughout most of 2005, and until the middle of February 2006, the Plaintiff lived in his mother’s property, at Bondi, although, on occasions, he may have visited the deceased at the Marrickville property or she may have visited him whilst he was living there.

32 There is really no dispute that the Plaintiff lived in the Marrickville property between about the middle of February 2006 until the deceased’s death, and with the consent of the deceased’s daughter, until about 2008. About 6 weeks after the deceased’s death, he paid her daughter $280 per fortnight as rent. He also paid some of the electricity bills. There is no evidence that he paid any board or rent to the deceased in the period prior to her death.

33 There is a real dispute about the nature of the Plaintiff’s relationship with the deceased in 2006. It is not in dispute that for most of this period, he slept in the front of the Marrickville property, whilst the deceased slept in the granny flat. However, the Plaintiff says that the reason for these sleeping arrangements was the state of health of the deceased; the Defendant says that those arrangements were demonstrative of the relationship.

34 The Plaintiff says that he owns a campervan ($10,000), has some household goods (with a value of $100) and has $5 in the bank. He owes his sister, Bridget Mulligan, $900, and her husband, Patrick, $4,000. He has some superannuation of a few hundred dollars but does not know the fund in which it is held.

35 The Plaintiff has relied upon an affidavit sworn 17 October 2009 from his sister, Bridget. Ms Mulligan states that the deceased kept in contact with her from the 1980’s and that she expressed a keen interest in the Plaintiff and his family. She says that she was particularly concerned about the Plaintiff’s mother and that the deceased would often speak to her by telephone. She says that the Plaintiff would come to her home at Christmas, the last such occasion being in 2005.

36 It became clear, from the oral evidence given by Ms Mulligan, that following the death of the Plaintiff’s mother, proceedings were commenced by two of the Plaintiff’s brothers seeking a family provision order out of her estate. Ms Mulligan was the sole Defendant in those proceedings. There is no dispute that in those proceedings, the Plaintiff did not apply for further provision. Bryson AJ heard those proceedings in May 2009 and the citation for the judgment delivered is [2009] NSWSC 399.

37 Although Ms Mulligan was unsure about the precise periods when the deceased and the Plaintiff lived together, and although some of the matters about which she gave evidence related to events that, undoubtedly, took place in the 1980’s, I accept her evidence that she kept in contact with the deceased; that the deceased and the Plaintiff would attend family gatherings on “most Christmases”, the last of which was in 2005; that the deceased enquired about the Plaintiff’s mother; and that the Plaintiff and the deceased had lived together “off and on” since the 1980’s and that “they’d been an item”.

38 I also accept the evidence of Ms Mulligan that she heard the deceased and the Plaintiff discussing marriage. However, her evidence is that this was in the “1980’s and 1990’s a couple of times”, and that on these occasions they were joking around.

39 Ms Mulligan also confirmed the evidence of the Plaintiff that he had been living at their mother’s home, in Bondi, in 2005, and that after he had access to the legacy given to him by his mother, he used some of it to repay a debt to the deceased and to effect repairs to the Marrickville property.

40 There was a conflict of evidence between the Plaintiff’s sister and the deceased’s daughter as to a conversation said to have taken place after Christmas in 2006 regarding the sale of the Marrickville property. Ms Mulligan asserts that the deceased’s daughter said that she was looking to sell that property and move to Wollongong and that the Plaintiff could move with her.

41 The conversation stated by Ms Mulligan was not denied in the affidavit of the deceased’s daughter, although when it was put to her in cross-examination, she did deny that any such conversation had taken place. She said that she had never wanted to sell the Marrickville home.

42 I am more inclined to accept the evidence of the Plaintiff’s sister on this topic. The conversation alleged occurred at a time shortly after the deceased’s death. No doubt, at that time, the deceased’s Will had been read and the terms of Clause 4 were apparent. It was likely that it was thought that the Marrickville property would have to be sold and that the proceeds of sale would be available to purchase another property in which the deceased’s daughter could live.

43 The Plaintiff has relied upon an affidavit sworn 11 August 2010 from his friend, Alan Robert Sparks. Mr Sparks, who was not required to attend for cross-examination, states that he knew the deceased and the Plaintiff from before 1984; that he saw them reasonably regularly between 1984 and 2000: he considered them to be a couple; between 2000 and 2006, he saw them less frequently, although when he did, he still considered them to be living in a de facto relationship; that he spoke with the deceased a day or so prior to her death, and she said to him that the Plaintiff “is taking good care of me like a faithful old dog”.

44 The Defendant has placed in evidence a copy of the Defendant’s Will Information Form that is dated 1 December 2006. That document confirms the deceased’s instructions stated in the Will that the legacy to the Plaintiff was “for support and care provided in the past years”. It also confirms that the deceased’s real estate (which, in the circumstances, should be taken to mean the Marrickville property) “to be sold and invested”.

45 The Defendant relies upon an affidavit sworn 10 May 2010 of Jacques Rene Paul Mattei, the brother of the deceased and the father of two of the remainder residuary beneficiaries. He stated that, to his knowledge, the deceased had a number of different sexual partners in Sydney and elsewhere during the period after 1981; that he had met a number of them, one in particular, whom he identified as “Norm”, whom, he said, the deceased had thought of marrying; he states that when the deceased permitted the Plaintiff to move into the Marrickville property, she did so because he had nowhere to live and had financial problems; that when there, the Plaintiff would assist the deceased in looking after their mother and that “this suited everyone”.

46 Mr Mattei was cross-examined. He explained that he had been told by the deceased, on different occasions, that the Plaintiff was paying (or in some cases, was late in paying) board (the French word the deceased used really meant rent) to the deceased for his occupation of the Marrickville property; that he had been told that the deceased had once thought of leaving the Woodstock property to the Plaintiff, but had changed her mind; and that he had never seen the Plaintiff and the deceased being affectionate to one another. I accept his evidence as truthful.

47 The Defendant also read an affidavit of Norman Wong. Mr Wong was not required for cross-examination. He states that “although [the deceased] and I did travel together as a couple, sharing the one room, on a few short interstate holidays, and once to New Caledonia, our association was more a platonic relationship”. Of course, he does not deny having a sexual relationship with the deceased. He also says that the deceased told him that she had lived with the Plaintiff for a number of years.

48 Overall, on the issue of the Plaintiff and the deceased having a common residence, I am satisfied that the deceased and the Plaintiff may have lived together for a period of time continuously in the 1980’s, and that during that period, they were in a de facto relationship. However, after no later than December 1992, they did not live together, again, other than for relatively short and irregular periods, until early 2006.

49 It seems to me, looking at all of the evidence, that the deceased permitted the Plaintiff to move back into her home, on some occasions, after the end of their de facto relationship, and then, for different periods of time, and for reasons other than because they were in a de facto relationship. It seems to me that, in 2006, and at other times, it suited them both for the Plaintiff to be staying in the Marrickville property with the deceased. For example, in the period following the death of her father, the Plaintiff assisted the deceased looking after her mother, which assistance was acknowledged by her and by the deceased’s family. The deceased provided the Plaintiff with a room and board during this period.

50 I turn to other relevant facts. In s 4(2)(a) of the Property (Relationships) Act 1984, “the relationship” cannot mean “the de facto relationship”. As has been said by Campbell J (as his Honour then was) in Sullman v Sullman [2002] NSWSC 169 at [194]:

51 Approaching the matter in this way, the duration of the relationship was from the early 1980’s until the deceased’s death in December 2006. However, during that time, in my view, the relationship underwent a change from a sexual relationship, to a de facto relationship, to a relationship of friendship.

52 The Plaintiff maintains that he continued to have a sexual relationship with the deceased from the time they met. It is probable that there was a sexual relationship between them, but it seems equally probable that he was not her only sexual partner. In this regard, I accept that the deceased did have a number of different sexual partners.

53 It also seems clear that the Plaintiff and the deceased had some financial interdependence. In Ex 1, the deceased complained that for part of the period he was living with her, he had not paid rent, or board, to her. The deceased’s brother gave evidence, as did the deceased’s daughter, of the Plaintiff paying rent or board to the deceased.

54 However, there is nothing in the evidence to lead to the conclusion that the Plaintiff and the deceased conducted any joint bank accounts (except for a short period in the 1980’s) or that they acquired any property together.

55 I accept that the Plaintiff may have assisted the deceased, and later, her daughter, in maintaining the Marrickville property. The deceased’s daughter asserted, however, that the deceased paid him for mowing the lawns. I do not think that any assistance by him was regular or substantial.

56 The deceased and the Plaintiff did not have any child, or children, to care for or support. There is no suggestion that the Plaintiff assisted in the care of the deceased’s daughter.

57 There is a real dispute about the performance of household duties, the Plaintiff asserting that, at least, for the last 9 or 10 months of the deceased’s life, he performed most of the duties associated with looking after her and the Marrickville property. The Plaintiff’s daughter denies this.

58 I am of the view that the Plaintiff is likely to have assisted the deceased during this period, particularly as she was unwell, although that assistance may not have been to the level he suggested. Indeed, the deceased, in her Will, acknowledged “the care and support” that he had provided “in the past years”. Therefore, I am satisfied that he did provide some care and support to her.

59 There is no doubt that the Plaintiff and the deceased were recognised as a couple by a number of people. The Plaintiff’s sister recognised them as such (at least in the past), as did Mr Spence, who was not cross-examined. The deceased’s family did not regard them in this way, however. I am concerned, in this regard, that any recognition as a couple which may have existed at one time, has become blurred, with such recognition at the date of the deceased’s death.

60 I turn next to matters relating to the beneficiaries named in the deceased’s Will. In Foley v Ellis [2008] NSWCA 288, Sackville AJA at [88] noted that Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 “… strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty. These claimants include other beneficiaries entitled to a share of the deceased’s estate, whether or not they themselves have made a claim under the Family Provision Act.”

61 I am satisfied that the following facts are either not in dispute, or have been established by the evidence in relation to Martine. She is currently unemployed, and receives Centrelink payments of $418 per fortnight. She does not receive any rent from her friend, although the friend assists her by paying some bills, and for food, and is likely to assist with the expenses for utilities.

62 None of the remainder beneficiaries has given evidence in the proceedings. None has made a claim under the Act as she and he is not an eligible person.

63 It is necessary to consider how the Plaintiff says that he has been left without proper provision for his maintenance, education and advancement in life. He presently lives in a campervan that is situated in his employer’s car park. He pays $170 per week for the space. There are no shower or cooking facilities. He earns $370 per fortnight as a driver and receives $525 per fortnight from Centrelink. His expenses are said to exceed his income. He seeks provision that will enable him to buy a property in which to live, which is estimated to cost between $200,000 and $300,000, together with a capital sum which will enable him to meet the shortfall in income over expenses, take out private medical insurance, enable him to buy some necessary furniture, whitegoods and clothing. If he does not receive enough to enable him to buy a property, it has been submitted that he should receive a substantial legacy of $175,000. It is submitted that the deceased’s daughter would still receive about $655,000.

64 Since the only other eligible person has made a claim under the Act, which was dismissed for lack of due despatch, and because she has been given notice of the Plaintiff’s claim, I may disregard her interests: s 20 of the Act. I do not do so. She and each of the remainder beneficiaries named in the Will is a chosen object of the deceased’s testamentary bounty and it is for them that the deceased wished to provide by her Will. She is also the only child of the deceased.

65 The Defendant’s counsel submit that the Plaintiff should receive nothing additional out of the estate of the deceased. They submit that if he establishes eligibility, factors warranting the making of the application, obtains an order extending the time for the making of his application, he should not receive a capital sum, and that any amount he receives should be subject to a protective trust.

66 I have had the benefit of receiving a written outline of submissions from counsel for the respective parties. Those documents will be retained in the Court file.

67 I turn now to the questions that need to be determined.

Eligibility

68 Under the Act, the classes of persons entitled to make an application are defined (see, s 6). Unless the Plaintiff can establish that he is an eligible person in relation to the deceased, he does not have the status to bring the present proceedings, and his claim, therefore, must inevitably be dismissed. He relies upon various subsections of s 6.

69 Section 6(1)(a)(ii) provides that in the Act, except in so far as the context or subject matter otherwise indicates or requires, "eligible person", in relation to a deceased person, means a person with whom the deceased person was living in a domestic relationship at the time of the deceased person’s death. A “domestic relationship” is either a de facto relationship as defined in s 4, or a “close personal relationship” as defined in s 5(1), of the Property (Relationships) Act, 1984. A de facto relationship and a close personal relationship are mutually exclusive, in that a close personal relationship is defined as a relationship, other than a de facto relationship. It may be possible, however, for two people to satisfy each definition at different times, if the nature of their relationship changes.

70 In this case, the Plaintiff asserts that he was in a de facto relationship with the deceased for about 22 years. The existence of a de facto relationship is disputed and is the subject of most of the evidence called by the parties. The evidence on the issue is in conflict. Despite the conflict of evidence, the Defendant acknowledges the deceased’s friendship and cohabitation, on occasions, with the Plaintiff.

71 In the alternative, it is submitted, on behalf of the Plaintiff, that he and the deceased were in a “close personal relationship” at the date of her death. A close personal relationship (other than a marriage or a de facto relationship) is one between two adult persons, whether or not related by family, who are living together, one, or each, of whom, provides the other with domestic support and personal care.

72 It is also submitted that the Plaintiff is an eligible person within s 6(1)(d) of the Act, in that he was a member of the household of which the deceased was a member and was wholly or partly dependent upon her.

73 I shall deal with each of these grounds of eligibility.

De Facto Relationship

74 The expression “de facto relationship” is now common parlance in Australia. It evolved as both a comparison, and a contrast, with the relationship of marriage. A “de facto relationship” was, in ordinary parlance, a relationship which exhibited the characteristics of mutual commitment familiar in the relationship of marriage, save for the solemnities involved in the formal exchange of wedding vows between a man and a woman: KQ v HAE [2007] 2 Qd R 32 at [17].

75 Section 4 of the Property (Relationships) Act 1984 (NSW) provides:

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship,

(b) the nature and extent of common residence,

(c) whether or not a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

(3) No finding in respect of any of the matters mentioned in subsection (2)(a)–(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.

76 The legislation was recast, so that it no longer used the reference in the earlier definition to living together as “husband and wife”, which terminology could lead to inappropriate search for analogies to the legal relationship of marriage.

77 It is clear, however, that the term constitutes a single composite expression of a comprehensive notion or concept. It must be approached by considering the expression as a whole and not in several parts: Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 at 685; (1987) DFC 95-052, at 75,589; Light v Anderson (1992) DFC 95-120; Bar-Mordecai v Hillston [2004] NSWCA 65, at [86], [125]; Hayes v Marquis [2008] NSWCA 10 at [73] – [74].

78 The legislation does not provide a precise test for the existence of the de facto relationship. None of the matters listed in s 4 of the Property (Relationships) Act is of decisive significance. Some involve public aspects of the relationship and some private aspects. They all suggest a continuing course of conduct and behaviour, not an event at a fixed point of time. No matter how close the involvement in each other’s emotional lives, a conclusion that people are living together as a couple involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element: Dion v Rieser [2010] NSWSC 50 per Bryson AJ at [14].

79 In determining whether a de facto relationship exists, the court is often required to assess multiple pieces of circumstantial evidence. For this reason, the indicia set out in s 4 of the Property (Relationships) Act are inclusive, but not exhaustive. If there are sufficient pieces of evidence, when viewed cumulatively, and with common sense and proper reasoning, which satisfy the finder of fact that the relationship is a de facto relationship then the statutory test is met: Scragg v Scott [2006] NZFLR 1076 at [64]. Ultimately, the conclusion as to the existence, or otherwise, of such a relationship will turn on an evaluative assessment of matters of objective fact.

80 The concept of a de facto relationship was discussed by Gzell J in Ye v Fung [2006] NSWSC 243 at [64] and [65]:

Macquarie Dictionary

Oxford English Dictionary

[65] In my view the words in the Property (Relationships) Act 1984, s 4(1)(a), in the context of the extension of relief under the Act to persons in a domestic relationship, connotes two adult unmarried persons living together, united by love, or living together in a romantic relationship. The effect of such a construction is that de facto relationships are confined to heterosexual and homosexual romantic relationships.

81 As was pointed out, however, in Re Estate of Sigg (dec'd) [2009] VSC 47 at [7]:

Dow v Hoskins

82 Whilst the concept of a de facto relationship is complex and diverse, such a relationship can, and should, be distinguished from the relationship of two people, who live apart, but who have a sexual relationship, and who sleep over at one another’s house; and also from the relationship of two people, who share a house, but who do not have a romantic commitment to each other and who have other sexual partners. The fact that one provides the other, on occasions, with financial, or other, assistance, such as accommodation, to alleviate hardship does not mean that they are in a de facto relationship. In this way, a de facto relationship is different from friendship, or courtship, which has not matured into the commitment where there is a merging of lives so that there is a mutual commitment to a shared life. It is also different from simple companionship.

83 It is important to note that there is nothing in the words of the Property (Relationships) Act that requires the parties to be in an exclusive relationship. Such a relationship can be established even where one, or both, parties are married to others, or in de facto relationships with others, at the same time: see, for example, Green v Green (1989) 17 NSWLR 343; (1989) 13 Fam LR 336. The de facto relationship may be more difficult to establish in such circumstances.

84 Often, as in this case, the parties' relationship may be seen as having gone through different phases. The facts applicable to those phases may be seen as having a bearing on the essential question whether the parties were in a de facto relationship at the date of death. The dominating factor will be whether the parties can be seen as living together as a couple at that time. One may, therefore, consider the facts of the parties' relationship in the different phases and then consider all of the facts. In this regard, there is no presumption, or inference, of continuance of such a relationship: S v B (No 2) [2004] QCA 449 at [2].

85 The onus rests throughout the case on the person asserting the relationship to establish that continuance. Dutney J, in S v B, at [33] said:

Hibberson v George

There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to “live together” with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.

86 I have considered the use of the word “friend” in the deceased’s Will, in describing the Plaintiff, since the Will was made shortly before the deceased’s death. The use of the word is not determinative of the nature of the relationship, although, of course, it tends to suggest that she did not regard him as her de facto partner when she made her Will. Taking into account the whole of the evidence, I am of the view that the word accurately describes the relationship that existed at the date of her death.

87 I have also considered the outward appearance of the relationship as disclosed by Mr Spence and by the Plaintiff’s sister. The relevance of outward appearances is what it may reveal about the relationship of the deceased and the Plaintiff with each other, but it must be recognised that outward appearances can be deceptive.

88 All of the cases in this area are fact dependent. As has been demonstrated from the facts in this case, the relationship between the Plaintiff and the deceased appears to have been an unusual one. If it was a de facto relationship as the Plaintiff asserts, then there is little of the intermingling of finances, pooling of income, joint attendance at family functions, and merging of lives that is often evident in such a relationship.

89 On the other hand, if there is no de facto relationship then the extended periods of cohabitation, albeit at different times, between the parties, the nature and extent of assistance each apparently gave to the other, and the existence of a sexual relationship between them, albeit, in the case of the deceased not an exclusive one, may be regarded also as unusual.

90 On balance, having seen and read the evidence of the Plaintiff and of the witnesses, I am of the view that the Plaintiff and the deceased were not living in a de facto relationship at the date of her death. I am satisfied that whilst they may have had such a relationship in the 1980’s, it had ended by 1992. This does not mean that they did not have a residual affection for one another or that they did not continue to have a sexual relationship.

91 In this regard, in addition to the matters set out above, I found the following aspects important in coming to this conclusion:

(b) The deceased’s brother’s evidence was that when the deceased was with him, she did not talk about the Plaintiff; this would be extremely surprising if they were in a de facto relationship and if the Plaintiff was doing all that he said he was for the deceased;

(c) There was no evidence that the deceased telephoned the Plaintiff, or otherwise communicated with him, at any time, during the period that she was in Queensland with her brother in 2006;

(d) The Plaintiff’s sworn evidence, which evidence was demonstrably wrong (see, Ex 4), that he and the deceased commenced living together in 1985 and that they lived together continuously and in the same residence until late 1997;

(e) No hospital, or other, records relating to the deceased were produced which identified him as the de facto spouse of the deceased; in fact, there are no contemporaneous documents of any kind, in which he is described as such; Ex 4 discloses that the Plaintiff, at different times, stated that he was single and not in any de facto relationship; if there was such a relationship, he would have told lies to Centrelink.

Close Personal Relationship

92 Section 5 of the Property (Relationships) Act provides:

5. Domestic relationships

(1) For the purposes of this Act, a domestic relationship is:

(a) a de facto relationship, or
(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:
(a) for fee or reward, or
(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).
…

(4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before, or after, the commencement of this subsection, was a party to such a relationship.

93 In Dridi v Fillmore [2001] NSWSC 319 at [102]–[104], Macready M (as his Honour then was) considered the elements that need to be present in order for two people to be considered to be in a close personal relationship:

I have earlier referred to aspects of what the Act describes as a “close personal relationship”. It has to be between two adult persons who are “living together”. Given that they may be members of the same family, such as a grandparent and grandchild and the different definition for a “de facto relationship” concepts relating to a “couple” are not relevant. Instead the definition calls for two different links. The first is that the parties are “living together”. The second is that “one or each of whom provides the other with domestic support and personal care.
So far as the first requirement is concerned we are not concerned with concepts applicable to couples; the requirement would be met if the parties shared accommodation together. For example, a border in an elderly widow’s home would qualify. It may not be necessary for there to be sharing of food or eating arrangements together. In the present case this is not important as it seems that the parties ate together when they were both at home.

The second requirement is cumulative. There must be both domestic support and personal care. In this case there is evidence of domestic support as the defendant provided for the plaintiff free accommodation and meals, which he cooked for the plaintiff when the plaintiff was at home. There are other matters, not present in this case, which could be domestic support, eg shopping for both parties, washing clothes etc.

94 In Sharpless v McKibbin [2007] NSWSC 1498; (2008) DFC 95-414, Brereton J stated at [71]:

The inclusion within the Act of “close personal relationships” has the effect of extending the scope of the Act beyond marriage-like relationships. It does not follow that the approach applicable to a marriage-like relationship should also be applied in the context of a “close personal relationship” not amounting to a de facto relationship. “Close personal relationships” within the definition cover a wide range of relationships, and typically do not involve “a practical union of lives and property”. In the case of a close personal relationship from which features of a marriage, such as union of lives and property, are absent, the rationale for the approach authorised by Mallet is much weakened, if not entirely removed.

95 In Hayes v Marquis [2008] NSWCA 10, McColl JA noted:

75 Counsel did not identify any authorities in which detailed consideration had been given to the interpretation of a “close personal relationship” in s 5(1)(b). The immediate requirements of the relationship are that it is between two adults, whether or not they are related by family, who are “living together” and one or other of whom provides the other with “domestic support and personal care”. It cannot be a de facto relationship, or a marriage (s 5(1)(b)), nor one in which the domestic support and personal care is provided in the circumstances set out in s 5(2). Thus the concept of “living together” will always be something different from living together as a couple, one of the critical requirements for a de facto relationship.

76 The context in which s 5(1)(b) appears is also significant. A “close personal relationship” is one of two domestic relationships (the other being a de facto relationship) whose existence may be established to attract jurisdiction under the Act. The word “domestic” carries connotations of matters relating to a household. The definition contemplates, in my view, that the facts permit of the conclusion that the two adults are living as a household.

77 Finally, some guidance as to the purpose of s 5(1)(b) can be gleaned from the Second Reading Speech in which the Minister made it clear the amendments to the Act were to cover persons living in intimate relationships not hitherto covered.

78 Central to the primary judge’s characterisation of the pre-1999 relationship was the proposition that the concept of “living together” in s 5(1)(b) did not require the parties to live together fulltime. In my view his Honour was correct in approaching the case on that basis. The definition of “close personal relationship” does not require the two adults to live together fulltime. The language of s 5(1)(b) does not require such co-habitation. Further a s 5 “close personal relationship” may be contrasted with a s 4 de facto relationship. A de facto relationship is one which might ordinarily be expected to emphasise common residence. However, while the definition of a de facto relationship requires a relationship between two adult persons who live together as a couple, s 4(2) makes it plain that sharing a “common residence” full-time is not essential to a conclusion that a de facto relationship exists: see also PY v CY [2005] QCA 247 (at [7]) per De Jersey CJ. Rather the significance of a common residence, in determining whether a de facto relationship exists, turns on its nature and extent.

79 Similarly, in my view, the question whether a couple are “living together” for the purposes of s 5(1)(b) will turn on an evaluation of the nature and extent to which they share a household. Having regard to the fact, however, that they do not have to live together as a couple to satisfy s 5(1)(b), it might be thought the requirement of a common residence might be somewhat more attenuated than in s 4.

80 Further, the concept of “living together” is only one of the three indicia of the relationship in s 5(1)(b). The decision as to whether the statutory definition is satisfied will, like the decision about whether a de facto relationship exists, ultimately be a value judgment which has regard to the three indicia to determine whether there is a relationship which fulfils the definition as a whole.

81 Young J (as his Honour then was) so held in Weston v Public Trustee (1986) 4 NSWLR 407, a case which concerned the phrase “living … as his wife … on a bona fide domestic basis” in s 6 of the Family Provision Act 1982. The applicant had been in a relationship with the deceased for thirty years during which time he had stayed at her flat in Homebush several days every week but had kept a separate residence in Bondi. They had holidayed together, shared a car for which the applicant paid and garaged, but whose operating expenses were paid for by the deceased. She had done almost all his laundry.
82 Young J held (at 408–409), by analogy with cases which turned on whether people had lived separately and apart for the purposes of grounds for divorce under the former divorce legislation, that the court “was not looking to see whether the parties were physically cohabitating but whether there was a relationship between them which was one which showed that the marriage relationship was still alive”. The court was concerned to see whether the two parties had a bond akin to marriage. His Honour concluded that the word “living” in s 6 had the same connotation. Accordingly, it was not fatal to the applicant’s case that she and the deceased had not physically lived in the same place seven days a week, fifty-two weeks a year.

…

85 While Ms Bridger conceded the respondent provided domestic support, she challenged the proposition that the evidence disclosed that either the appellant or the respondent provided the other with “personal care” within the meaning of s 5(1)(b). She drew attention to Dridi v Fillmore [2001] NSWSC 319 (at [105] – [106]) where Master Macready said that personal care connoted care taken with respect to such matters as pertained to, concerned or affected the individual person or self or pertained to one’s person, body or figure. She did not explain why the sort of care the respondent provided did not fall within that description.

86 Master Macready commented (at [108]) that he would not have thought that matters such as “emotional support” would “by themselves” fall within the expression “domestic support and personal care”. Clearly each case will turn on its own facts. The Second Reading Speech contemplated that personal care services may encompass ensuring the physical and emotional support of one or both parties for the other.
87 For my part I have difficulty with an argument that parties accepted to be in a loving sexual relationship, as the primary judge found here, are not providing each other with personal care. And there may be cases where emotional support of itself will suffice. Society recognises the importance emotional support can play in an individual’s well being. Psyche is just as much a personal attribute requiring sustenance as one’s physical self. The notion of “personal care” should not be confined to matters relating to physicality.

96 Einstein J disagreed with the view of McColl JA, commenting:

168 The other expression requiring the provision of "personal care" may well result in differences of opinion. The expression is not defined. The ordinary meaning to be attributed to this expression is simply the commonsense experience of one person caring in a personal way for the needs of another. In Dridi v Fillmore, Master [now Associate Justice] Macready expressed the view with which I agree, that the expression ‘personal care’ seemed to be directed at matters such as assistance with mobility, personal hygiene, physical comfort and emotional support. Nor would I regard this list as necessarily exhaustive. It is unnecessary to presently determine whether in the absence of the giving of assistance of the type outlined above, the giving of emotional support would qualify on its own as ‘personal care’, although this may well be the case.

97 Beazley JA, at [1] said that she "substantially agreed with the reasons of McColl JA".

98 The Plaintiff asserts that he was the “primary carer” of the deceased following her diagnosis with cancer. He says that he took her to chemotherapy, and to other medical appointments. He supervised her medication, including giving her injections. He massaged her legs. He says that in the last 6 months of her life, he would change her nightie, helped her into and out of bed and rolled her over to prevent bed sores. He says that he also did all of the cooking, shopping and housework.

99 Whilst I am satisfied that the Plaintiff did assist the deceased in the last months of her life, I do not think he did as much as he says that he did. In this regard, I note that in the period that she spent with her brother in 2006, there is no suggestion that she required any assistance.

100 However, I am satisfied that the Plaintiff enjoyed a close personal relationship at the date of her death and that he provided to her, in 2006, domestic support and personal care. There was also the necessary companionship living together and support necessary for a close personal relationship. The terms of the deceased’s Will are important.

Member of the Household and Partly Dependent

101 In case I am wrong about the Plaintiff’s eligibility under the definition of ‘eligible person’ set out in s 6(1)(a)(ii) of the Act, the next category of eligibility into which the Plaintiff is said to fall is under s 6(1)(d) of the Act, namely that he was a person:

(i) who was, at any particular time, wholly or partly dependent upon the deceased person; and

102 There is no dispute in this case that, at various times, the Plaintiff and the deceased were members of the same household. This was certainly so from February 2006 until the date of the deceased’s death. No doubt, there were other periods as well. The more difficult issue is whether he was ever wholly, or partly, dependent upon her.

103 In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under section 15B of the Civil Liability Act 2002):

Middleton v Kiama District Hospital

Hodges v Scotts’ Provision (Wholesale) Pty Ltd

104 In Skinner v Frappell [2008] NSWCA 296, it was said by Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal:

Petrohilos v Hunter

105 In Petrohilos v Hunter (1991) 25 NSWLR 343, at 346, it was said:

Ball v Newey

Re Fulop (dec’d)

Ball v Newey

Dunn v Public Trustee

106 In Williams v Legg (Court of Appeal, 16 March 1993, unreported), in a passage not set out in the report at 29 NSWLR 687, the Court of Appeal (Handley, Sheller and Cripps JJA) said:

Petrohilos v Hunter

107 Counsel for the Defendant submitted that the Plaintiff was not dependent upon the deceased in 2006 because in May 2006, he had received the legacy of $100,000 left to him by his own mother to which he had access.

108 I do not accept this submission, firstly, because it does not deal with the period between February and May 2006, when he had not received his inheritance, and when he was living in the Marrickville property without paying rent to the deceased.

109 More importantly, the Defendant’s submission is inconsistent with what was said by Samuels JA in Ball v Newey (1988) 13 NSWLR 489, at 492 (referred to in Alexander v Jansson [2010] NSWCA 176 at [14]):

Liquor Act

Toohey v Taylor

Aafjes v Kearney

Kauri Timber Co (Tas) Pty Ltd v Reeman

110 I am satisfied in this case that the Plaintiff was, at least partly dependent upon the deceased, at different times until the date of her death. She provided him with accommodation for the period from mid-February 2006 until her death, and did not require him to pay her any money by way of rent or board.

111 In the circumstances, I am satisfied that the Plaintiff is an eligible person.

Factors Warranting the Making of the Application

112 Because I have found the Plaintiff to be an eligible person within s 6(1)(d) of the definition of eligible person in the Act, I should deal with s 9 (1) of the Act, which requires him to establish that there are factors which warrant the making of the application.

113 Factors warranting the making of the application were described by McLelland J (as his Honour then was) in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 as being:

factors which when added to facts which render the applicant an “eligible person” give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased.

114 In Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:

To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition.

115 These principles have been applied, at first instance, for many years. However, in Brown v Faggoter, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA (13 November 1998, unreported), in which Fitzgerald AJA, delivered the principal judgment, there seems to be the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian.

116 In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686:

In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors (“there are factors”) is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination.

117 More recently, in Diver v Neal [2009] NSWCA 54, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1):

Churton v Christian

Churton

Re Fulop Deceased

118 Even though, respectfully, I consider that the views expressed in the authorities referred to by Windeyer J, Bryson J and Basten JA, are correct, I am satisfied, whichever test is applied, that the Plaintiff has established factors warranting the making of the application. That the deceased regarded the Plaintiff as an object of testamentary bounty is self evident from the terms of the deceased’s Will. For reasons to which I shall come, I am also satisfied that the Plaintiff had reasonable prospects of success in making his claim.

Extension of Time for the Making of the Application

119 Sub-section (3) of s 16 of the Act provides that the Court shall not make an order under sub-section (2), allowing an application in relation to a deceased person to be made after the expiration of the prescribed period unless:

(b) “sufficient cause” is shown for the application not having been made within that period.

120 The Defendant does not consent to the extension of time for the making of the Plaintiff’s application. It is necessary for me to consider whether there is sufficient cause for the application not having been made within the prescribed period. If there is, the court has a discretion to grant an extension “having regard to all the circumstances”: s 16(2).

121 Hodgson J (as his Honour then was) in Lewis v Lewis [2001] NSWSC 321 at [82] said:

In general terms, it seems clear that matters relevant to the exercise of discretion to extend time under s 16 include the existence and strength of a case for relief under the Act, the explanation given for failure to commence proceedings in time, any prejudice caused by the late commencement of proceedings, and any unconscionable conduct by either side. The second factor, the explanation, is specifically dealt with in s 16 of the Act which, in the absence of consent, precludes an extension being granted unless “sufficient cause is shown for the application not having been made within” the prescribed period.

122 His Honour noted that “sufficient” must mean something like “sufficient in all the circumstances to justify the granting of the extension of time”.

123 The Plaintiff asserts that following the death of the deceased, he received some notice that the deceased’s daughter had made a claim in the deceased’s estate. He says that he did not receive any legal representation or advice until May 2009. He also says that at the time he received the Notice he was not thinking clearly, was not functioning very well, and was drinking heavily. He says that he did not know what the Notice meant.

124 It is clear that, in some respects, the evidence of the Plaintiff on this aspect is also wrong. He received the prescribed Notice, in respect of the claim by the deceased’s daughter on, or about, 31 July 2009. The copy of the Notice annexed to his affidavit is dated 21 July 2009. By that date, the Plaintiff had already commenced these proceedings.

125 Despite the error in the Plaintiff’s evidence, and even though he was likely to have received a similar Notice when his brothers commenced their proceedings in relation to his own mother’s estate, I am satisfied that the Plaintiff did not know of his rights to make a claim until May 2009. An extension of time has been granted where the applicant was unaware of the right to apply: Coates v National Trustees Executors and Agency Co Ltd & Anor (1956) 95 CLR 494 at 505.

126 I am of the view that a sufficient explanation has been given for the lateness of the application.

127 Turning then to the principles governing the exercise of discretion on applications to extend time under the Act, apart from the reason for the lateness of the claim, the factors to which one must look include whether beneficiaries under the will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John [2010] NSWSC 937 at [37]-[51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]-[47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to.

128 In the present case, I am satisfied that the deceased’s daughter and the remainder beneficiaries would not be unacceptably prejudiced if time were to be extended. There is no claim by the Plaintiff in respect of moneys distributed to the deceased’s daughter. The Marrickville property has been retained for 4 years, and she is, and has been, living in it during that period.

129 I do not find any unconscionable conduct on the part of the Plaintiff or the Defendant, and none was suggested.

130 I turn now to the strength of the Plaintiff’s claim. This has relevance to the exercise of the Court’s discretion, as it is obviously futile to let a claim proceed which is flawed or hopeless. As will become clear, I am of the view that the Plaintiff’s claim should succeed. In those circumstances, it would be odd if, absent any prejudice to the estate, I am bound to refuse to entertain the application because it was out of time.

131 I am satisfied that leave should be granted, pursuant to s 16(3) of the Act, to the Plaintiff to institute the proceedings after the expiry of the prescribed period of eighteen months from the death of the deceased. I propose therefore to grant such leave.

Provision Made – Whether Inadequate

132 The question for determination is whether the provision (if any) made in the Plaintiff’s favour by the deceased, either during her lifetime, or out of her estate, is, at the time the court is determining whether or not to make an order, inadequate for the proper maintenance, education and advancement in life of that Plaintiff. The power of the Court to make an order under the Act is enlivened by the formation of an opinion that the disposition of the deceased's estate effected by her Will is not such as to make adequate provision from her estate for the proper maintenance, education or advancement in life of the Plaintiff.

133 No criteria are prescribed in the statute as to the circumstances that do, or do not, constitute “inadequate provision for the proper maintenance, education and advancement in life”.

134 The question is answered by an evaluation that necessarily takes the court to the provision actually made in the deceased’s Will on the one hand, and to the needs for maintenance and advancement in life of the eligible person on the other. It has conventionally been said that this involves a consideration of the relationship between the deceased, the eligible person and other relevant persons having similar claims for adequate provision to be made for them: see Goodman v Windeyer (1980) 144 CLR 490 at 496.

135 “Provision” is not defined by the Act, but it was noted in Diver v Neal, that the term “covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person’s lifetime”.

136 Recently, it has also been noted that “’proper maintenance’ is not limited to the bare sustenance of a claimant (cf Gorton v Parks (1989) 17 NSWLR 1), but requires consideration of the totality of the claimant’s position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility”: Alexander v Jansson at [18].

137 An order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum or “in any other manner which the Court thinks fit”: s 11 of the Act. The court, if it makes an order for provision, “may specify the beneficial entitlements in [the] estate which shall bear the burden of the provision and, in relation to each entitlement, the part of the burden it is to bear”: s 13 of the Act. The court is empowered, at its discretion, to order that such provision as the court thinks fit is made out of the estate of the deceased for that purpose. An order takes effect as a codicil to the Will s 14 of the Act.

138 As Bryson J noted in Gorton v Parks at 6, it is not appropriate to endeavour to achieve a "fair" disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance etc of an eligible applicant.

139 In applications under the Act, the High Court in Singer v Berghouse, has set out the two-stage approach that a court should take. At 209, it was said:

The first question is, was the provision (if any) made for the applicant ‘inadequate for (his or her) proper maintenance, education and advancement in life’? The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ etc were explained in Bosch v Perpetual Trustee Co Ltd . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

Ellis v Leeder

140 In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 (“Vigolo”), Gleeson CJ and Gummow and Hayne JJ at [37], [74] and [82]–[83] approved the two-stage test set out in Singer v Berghouse.

141 In Vigolo, at [114], Callinan and Heydon JJ said:

[T]he use of the word “proper”… implies something beyond mere dollars and cents. It’s use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a Court to have regard to a promise of a kind which was made here …The use of the word “proper” means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the “station in life” of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.

142 And at [122] their Honours added:

… Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however, will never be conclusive. The age, capacities, means, and competing claims of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.

143 Reference must also be made to Collins v McGain & Anor [2003] NSWCA 190, in which Tobias JA, with whom Hodgson and Beazley JJA agreed, said:

42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.

…

144 In addition to the above principles, s 9(3) of the Act should not be forgotten because the matters referred to therein are relevant not only in determining whether an order ought to be made, but also in determining the nature of the order which should be made. Section 9(3) provides:

(a) Any contribution made by the eligible person whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:

(ii) the welfare of the deceased person, including a contribution as a homemaker;

(c) Circumstances existing before and after the death of the deceased person; and

Any other matter which it considers necessary in the circumstances.

145 Counsel for the Defendant reminded me that it has been said many times that the Court should be careful not to interfere with freedom of testation except in circumstances where the legislation requires this to be done: see, for example, Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 per Dixon CJ at 19.

146 I was also reminded that the important consideration is whether, in all the circumstances, the community expectation of the deceased would be for greater benefaction to have been made for the proper or adequate provision for the person seeking provision. Gleeson CJ observed in Vigolo, at [11] that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons.

Conclusion

147 I am satisfied, in the circumstances of this case that the Plaintiff, having received a lump sum of $5,000 in the Will, out of the deceased’s estate, has been left with inadequate provision for his proper maintenance and advancement in life.

148 Having found, as a matter of fact, that there was inadequate provision for the Plaintiff under the deceased’s Will, the second stage of the test in Singer v Berghouse requires the making of a holistic, and multi-faceted, judgment evaluating the proper provision that ought to be made for him Kalmar v Kalmar [2006] NSWSC 437 at [67] per White J; Foley v Ellis at [3] per Basten JA. I turn now to the nature of that provision.

149 I do not consider that the Plaintiff should receive as much as has been submitted by his counsel he should receive. I am of the view that a lump sum, which equates to 7% of the net residue, in addition to the provision made for him in the Will of the deceased, would be adequate, and proper, in all the circumstances. This would leave the deceased’s daughter with 93% of the net residue held on trust for her in accordance with the terms of the deceased’s Will.

150 I accept the submission that the lump sum should not be paid to the Plaintiff in full. There should be paid, on his behalf, an amount that equates to no more than 1% of the net residue to enable him to purchase clothing and furniture. His debts should be paid also. If he requires an additional amount from the balance of the provision made for him, that will be in the discretion of the trustee, who should hold that balance on similar terms as the trust for the deceased’s daughter.

151 As requested by counsel for the parties during final submissions, I shall not make any orders today, but shall allow the parties to have an opportunity to come to a precise arrangement as to what orders are to be made in accordance with these reasons. In particular, I will hear submissions on the question whether it is necessary, formally, to appoint a different trustee to administer the trust in favour of the Plaintiff, or whether this can be done by the Defendant, as part of the administration of the deceased’s estate.

152 I shall stand the matter over for two weeks for the making of the orders that the parties ask me to make.

153 If the parties cannot reach agreement on the appropriate orders, or the order for costs, I shall hear competing submissions on the adjourned date.

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Citations

Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137

Most Recent Citation

H v P [2011] WASCA 78

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Cases Cited

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Statutory Material Cited

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Bar-Mordecai v Hillston [2004] NSWCA 65

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CITATION:	Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137
HEARING DATE(S):	30 September 2010 1 October 2010 5 October 2010
JUDGMENT DATE :	14 October 2010
JUDGMENT OF:	Hallen AsJ
DECISION:	1. The Plaintiff is an eligible person and there are factors warranting the making of his application. 2. In the circumstances of this case the Plaintiff, having received a lump sum of $5,000 in the Will, out of the deceased’s estate, has been left with inadequate provision for his proper maintenance and advancement in life. 3. The time for the making of the Plaintiff's application should be extended to the date of the filing of the summons. 4. A lump sum, which equates to 7% of the net residue of the Estate, in addition to the provision made for him in the Will of the deceased, would be adequate, and proper, in all the circumstances. 5. The lump sum should not be paid to the Plaintiff in full. There should be paid, on his behalf, an amount that equates to no more than 1% of the net residue to enable him to purchase clothing and furniture. His debts should be paid also. If he requires an additional amount, that will be in the discretion of the trustee who should hold that balance on similar terms to the trust for the deceased's daughter. 6. As requested by counsel during final submissions, I shall not make any orders today, but shall allow the parties to have an opportunity to come to a precise arrangement as to what orders are to be made in accordance with these reasons. 7. Stand the matter over for two weeks for making the orders that the parties are able to agree upon. 8. If the parties cannot reach agreement on the appropriate orders, or the order for costs, I shall hear competing submissions on the adjourned date.
CATCHWORDS:	SUCCESSION - family provision - claim by asserted de facto partner of deceased - status of Plaintiff as de facto partner is disputed by Defendant - whether Plaintiff otherwise an eligible person - whether factors warranting the making of the application - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance and advancement - application not made within prescribed period - whether sufficient cause shown for application not having been made within prescribed period - competing claim of beneficiary - nature of provision to be made for Plaintiff
LEGISLATION CITED:	Family Provision Act 1982 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Property (Relationships) Act, 1984 Civil Liability Act 2002
CATEGORY:	Principal judgment
CASES CITED:	Alexander v Jansson [2010] NSWCA 176 Amaca Pty Ltd v Novek [2009] NSWCA 50 Ball v Newey (1988) 13 NSWLR 489 Bar-Mordecai v Hillston [2004] NSWCA 65 Brown v Faggoter (Court of Appeal, 13 November 1998, unreported) Burton v Moss [2010] NSWSC 163 Campbell v Chabert-McKay [2010] NSWSC 859 Churton v Christian [1988] NSWCA 23 Coates v National Trustees Executors and Agency Co Ltd & Anor (1956) 95 CLR 494 Collins v McGain [2003] NSWCA 190 Dion v Rieser [2010] NSWSC 50 Diver v Neal [2009] NSWCA 54 Dridi v Fillmore [2001] NSWSC 319 Durham v Durham [2010] NSWSC 389 Foley v Ellis [2008] NSWCA 288 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Green v Green (1989) 17 NSWLR 343 Hayes v Marquis [2008] NSWCA 10 John v John [2010] NSWSC 937 Kalmar v Kalmar [2006] NSWSC 437 KQ v HAE [2007] 2 Qd R 32 Lewis v Lewis [2001] NSWSC 321 Light v Anderson (1992) DFC 95-120 Penfold v Perpetual Trustee Co Ltd [2002] NSWSC 648 Petrohilos v Hunter (1991) 25 NSWLR 343 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 Re Estate of Sigg (dec'd) [2009] VSC 47 Re Fulop Deceased (1987) 8 NSWLR 679 S v B (No 2) [2004] QCA 449 Scragg v Scott [2006] NZFLR 1076 Sharpless v McKibbin [2007] NSWSC 1498 Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 Singer v Berghouse (No2) [1994] HCA 40 Skinner v Frappell [2008] NSWCA 296 Sullman v Sullman [2002] NSWSC 169 Taylor v Farrugia [2009] NSWSC 801 Thompson v Mulligan [2009] NSWSC 399 Vigolo v Bostin [2005] HCA 11 Williams v Legg (Court of Appeal, 16 March 1993, unreported) Ye v Fung [2006] NSWSC 243
TEXTS CITED:	Government Gazette No. 38 of 20 February 2009
PARTIES:	Desmond John Thompson The Public Trustee of New South Wales
FILE NUMBER(S):	SC 2009/289020
COUNSEL:	R Wilson (Plaintiff) A Hill and M Pringle (Defendant)
SOLICITORS:	Lees & Givney (Plaintiff) NSW Trustee & Guardian (Defendant)