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Varnel v Heyes

Varnel v Heyes

Case [2008] NSWSC 978 21 November 2008

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CITATION: Varnel v Heyes [2008] NSWSC 978

HEARING DATE(S): 14/08/08, 13/11/08

JUDGMENT DATE :
21 November 2008

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

CATCHWORDS: Family Provision. Application by defacto partner of deceased. Partners for 8-1/2 years. No contribution to estate. Whether appropriate to allow provision of funds for a house. Held in circumstances not appropriate. Plaintiff with large Centrelink debt. Whether provision would still be for her benefit or contrary to public policy. Orders made for trust for plaintiff.

PARTIES: Gillian Varnel v Mark David Hayes (Estate of the late Ernest Joseph Heyes)

FILE NUMBER(S): SC 5467/2007

COUNSEL: M Meek for plaintiff
J Clifton for defendant

SOLICITORS: John Hall Lawyers Pty Ltd for plaintiff
JP Lawyers for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

FRIDAY 21 NOVEMBER 2008

5467/07 GILLIAN VARNEL v MARK DAVID HEYES (ESTATE OF ERNEST JOSEPH HEYES)

JUDGMENT

1 His Honour: This is an application under the Family Provision Act 1982 in respect of the late Ernest Joseph Heyes who died on 29 December 2006 aged 67. The deceased was survived by the plaintiff who was his de facto partner at the date of death. The deceased was also survived by his son, the defendant and his wife, Anne Orr Heyes, from whom he had been separated. She has been give notice and makes no claim.

The last will of the deceased

2 The deceased’s last will was dated 23 December 2002 probate of which was granted to the defendant on 1 May 2007. Under that that will he gave the plaintiff a legacy of $50,000. The residue of his estate was left to the defendant, his son, who he appointed executor.

3 After payment of the plaintiff’s legacy of $50,000 the estate was comprised of the following assets:

4 $1,000 of the cash was distributed to the plaintiff and the balance used to pay the deceased’s funeral expenses.

5 The deceased owned the property at 4 Primrose Place Windsor as joint tenant with the defendant. On the death of the deceased his half share was worth $225,000 and the half share of the mortgage on the property was $172,612.55.

6 The parties have incurred costs in this matter. The plaintiff’s costs are $58,088.96 and the defendant’s costs $54,197.77 which total of $112,286.73.

Family history

7 The deceased was born in March 1939. The plaintiff was born in October 1939.

8 The deceased married Anne Heyes in 1968 and their son, Mark Heyes, was born in December 1974. Anne Heyes had two children by a previous marriage one of whom, Craig, died in 1985. In that year the deceased and a friend, Chris Quigley, started up a business, HQ Sheetmetal.

9 In 1989 HQ Sheetmetal moved to premises at North Mulgrave. The same year the deceased and his wife Anne separated. Apparently Ann received…

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 Varnel v Heyes

Details

AGLC: Varnel v Heyes [2008] NSWSC 978
Case: [2008] NSWSC 978
Decision Date: 21 November 2008

CaseChat Overview and Summary

Varnel v Heyes involved a dispute regarding the distribution of the estate of a deceased individual. The applicant, Varnel, sought provision from the estate of the deceased, her defacto partner of 8.5 years, Heyes. Varnel did not contribute to the deceased's estate during their relationship. The court had to determine whether it was appropriate to provide funds for Varnel to purchase a house and whether such provision would be for her benefit or contrary to public policy, given that she had a significant debt with Centrelink.

The legal issues before the court were whether Varnel's relationship with the deceased qualified her for a family provision order and whether the provision of funds would be contrary to public policy. The court considered the duration of the relationship, the contributions made by Varnel to the deceased's estate, and the financial circumstances of Varnel. The court also evaluated whether the provision of funds would be for Varnel's benefit or if it would be inappropriate given her financial situation.

The court concluded that while Varnel's relationship with the deceased was of significant duration, her lack of contribution to the estate was a critical factor. The court found that the provision of funds for a house would not be appropriate in these circumstances. However, it was also determined that providing funds to Varnel would not be contrary to public policy, given her need and the deceased's wishes. Therefore, the court ordered that a trust be established for Varnel's benefit, providing her with the necessary financial support.

Orders