Wiggins v Public Trustee
[2020] TASSC 3
•27 February 2020
[2020] TASSC 3
COURT: SUPREME COURT OF TASMANIA
CITATION: Wiggins v Public Trustee [2020] TASSC 3
PARTIES: WIGGINS, Julie Anne
v
PUBLIC TRUSTEE as Administrator of the Estate of the late ROGER WILLIAM TAPPING
PUBLIC TRUSTEE as representative of the next of kin of the late ROGER WILLIAM TAPPING
FILE NO: 352/2016
DELIVERED ON: 27 February 2020
DELIVERED AT: Hobart
HEARING DATE: 19 February 2020
JUDGMENT OF: Holt AsJ
CATCHWORDS:
Family Law and Child Welfare – De Facto Relationships – Relationship – Whether significant relationship under Relationships Act 2003 (Tas) – No pooling or sharing of property or resources and finances and no cohabitation – Declaration of existence of significant relationship refused.
Relationships Act 2003, (Tas), s 4.
Aust Dig Family Law and Child Welfare [493]
REPRESENTATION:
Counsel:
Applicant: B McTaggart SC
Respondents: S Taglieri SC and J Bloomfield
Solicitors:
Applicant: McGrath & Co Solicitors
Respondents: The Public Trustee
Judgment Number: [2020] TASSC 3
Number of paragraphs: 26
Serial No 3/2020
File No 352/2016
JULIE ANNE WIGGINS v PUBLIC TRUSTEE as Administrator of the Estate of the late ROGER WILLIAM TAPPING and PUBLIC TRUSTEE as representative of the next of kin of the late ROGER WILLIAM TAPPING
REASONS FOR JUDGMENT HOLT AsJ
27 February 2020
Introduction
Roger William Tapping, late of 245 William Street, Devonport in Tasmania, died intestate at his home in March 2015 aged 54 years. He had never been married and had no children. A grant of letters of administration of his estate issued to the Public Trustee in January 2016. According to the inventory provided at the time of the grant the estate had a value of about $530,000.
Julie Anne Wiggins claims that she was in a significant relationship within the meaning of the Relationships Act 2003 with Mr Tapping at the time of his death and that the relationship had been in existence for a continuous period of at least two years. The claimed relationship was not registered.
By the time of his death Mr Tapping's nearest relatives were cousins. A question has arisen as to whether the Public Trustee should distribute the estate to Mr Tapping's blood relatives or to Ms Wiggins. Ms Wiggins will take the whole of the estate if the relationship between her and Mr Tapping amounted to a significant relationship within the meaning of the Act.
The Intestacy Act 2010 relevantly includes, and included at the date of death, the following:
"6 Spouse
A spouse of an intestate is a person –
…
(c) who, immediately before the intestate's death, was a party to a significant relationship, within the meaning of the Relationships Act 2003, with the intestate that –
(i) had been in existence for a continuous period of at least 2 years; …
12 Spouse's entitlement where there are no issue
If an intestate leaves a spouse but no issue, the spouse is entitled to the whole of the intestate estate."
The Relationships Act 2003 includes, and included at the date of death, the following:
"4 Significant relationships
(1) For the purposes of this Act, a significant relationship is a relationship between two adult persons –
(a) who have a relationship as a couple; and
(b) who are not married to one another or related by family.
…
(3) If a significant relationship is not registered under Part 2, in determining whether two persons are in a significant 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.
(4) No finding in respect of any of the matters mentioned in subsection (3)(a) to (i), or in respect of any combination of them, is to be regarded as necessary for the existence of a significant 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."
The application
Ms Wiggins has applied for an order declaring that she was the spouse of Mr Tapping within the meaning of the Intestacy Act. Declaratory relief in respect of a claimed personal relationship, which includes a claimed significant relationship, is specifically provided for in the Relationships Act. Section 66 is relevantly as follows:
"66 Declaration of existence of personal relationship
(1) A person who alleges that a personal relationship exists or existed between the person and another person or between 2 persons may apply to the Supreme Court for a declaration as to the existence of a personal relationship between the persons.
(2) If it is proved to the satisfaction of the Supreme Court that a personal relationship exists or existed, the Supreme Court may make a declaration, that has effect as a judgment of the Court, that persons named in the declaration have or had a personal relationship, whether or not any of those persons are alive.
(3) If the Supreme Court makes a declaration, it is to state in its declaration either or both of the following:
(a) that the personal relationship existed as at a date specified in the declaration;
(b) that the personal relationship existed between the dates specified in the declaration.
(4) While a declaration remains in force, the persons named in the declaration are presumed conclusively for all purposes to have had a personal relationship as at the date, or between the dates, specified in the declaration.
…
(7) If any person whose interest, in the opinion of the Supreme Court, may be affected by a declaration under subsection (2) … is not present or represented and has not been given an opportunity to be present or represented at the hearing of the application, the Supreme Court may adjourn the hearing so that the person is given an opportunity to be present or represented."
The respondent to the application is the Public Trustee as Administrator of the estate. By order made on 27 November 2018 the Public Trustee was appointed to also represent those, who but for any entitlement which Ms Wiggins may have, would take as Mr Tapping's next of kin.
The approach to be taken in the assessment of the application
A number of matters of approach in the assessment of the question of whether a survivor was in a significant relationship with a deceased at the time of his or her death are contained in the judgment of Brett J in Brownell v Robinson [2017] TASSC 5. I list below the matters of approach which I should adopt in the circumstances of this case with reference to the paragraph numbers appearing in the judgment and noting that none of the matters which I list were the subject of adverse findings in the unsuccessful appeal against that decision. Brownell v Robinson [2017] TASFC 11.
·Absent marriage and the registration of a deed of relationship, it is only the actual existence of a significant relationship which will confer the status of spouse on the surviving party [14].
·The relationship must be as a couple [15].
·It would seem improbable that a significant relationship will exist simply because two people are in a romantic relationship. The relationship must be of importance or consequences. This is apparent from the fact that the existence of such a relationship comes with rights and obligations concerning matters including the ability to make a claim for a property adjustment upon separation and the ability to make a claim against the partner's estate upon his or her death [16].
·The legislation does not necessarily require an element of cohabitation or domestic partnership for a significant relationship to exist [23].
·The judgment must be made within the legislative framework, which is intended to be flexible enough to recognise the existence of the diversity of relationships within modern society. It is not necessary that the relationship be a marriage like relationship [31].
·Each matter of fact, if not common ground, to be included in the overall assessment must be positively established by the evidence [35].
·The mere fact that one or both parties for a period of time does not see or talk to the other does not necessarily manifest an intention to bring a relationship to an end so that continuity is broken [54] – [55].
The applicant's case
Counsel for Ms Wiggins did not invite consideration of any matters other than those specifically listed in the Relationships Act, s 4(3). I will set out the written submissions as to these indicia in full before going on to make my findings in relation to the facts asserted. The facts found will then be applied to the overall appraisal of the claim.
The submissions to which I refer are as follows:
"The indicia in this case
The relevant facts in the present case for determining whether a significant relationship existed are, as contained in the affidavit evidence, as follows:
The duration of the relationship
·The deceased and Ms Wiggins met in about 2004 via an online dating service. She was about 52 years old at the time, single, and living at 1/22 Berkley Court, Devonport, where she still lives. The deceased was about 10 years younger than her, single and lived at 245 William Street, Devonport. He had never been married, had no children and no siblings. Ms Wiggins was divorced. She had been married and divorced several times. Her last marriage ended in divorce in about 2000. She has one child, by her first marriage – Michelle, aged about 44. Her daughter is married, and she and her husband have two children (affidavit of Applicant 7 April 2016 at [1 – 2].
·They were going out, on and off, for about 12 months before they decided to get serious. Serious as far as Ms Wiggins was concerned was that the deceased was the love of her life, he was her only sexual partner and she would not be seeing anyone else. This was in about 2005 (at [3]).
·By about 2008, the deceased's drinking was a real problem. Plus, he had an affair with someone else when he went to Melbourne to buy stock. He admitted the affair to Ms Wiggins. She told him that they were finished (at [8]).
·The relationship resumed from about 2010 until the deceased's death in 2015. During the intervening years between 2008 and 2010 they stayed in touch and were still on reasonably friendly terms, but not as close as they had been and were again from about 2010 (at [17a]).
·Therefore, the duration of the relationship existed from about 2005 through until about the time of the deceased's death in 2015. There was a cooling off period between about 2008 and 2010.
The nature and extent of common residence
·They maintained separate residences throughout the relationship. However, between 2005 and 2008 the deceased's house was like a second home to Ms Wiggins. She was often around there. She helped him out with his business. They often ate there. She often slept over there. She kept clothes there (at [17b]).
·Between about 2010 and the date of the deceased's death, their relationship developed again to the point where her home was like a second home to the deceased. He got clean clothes and a meal there. He slept over reasonably often. In the last three years before his death he would come around to her place almost daily for a hot meal. He would bring his washing around for her to do. He would water and maintain her vegetable garden that he had built for her. He would assist her with household maintenance. He would stay over probably 2 - 3 nights a week. By this stage he was keeping clothes, shoes and bathroom toiletries at her place (at [17b]).
Whether or not a sexual relationship exists
·There was a sexual relationship between 2004/2005 and 2008. It resumed from the recommencement of their relationship in 2010 (at [17c]).
The degree of financial dependence or interdependence
·They always kept separate bank accounts although the deceased arranged a credit card for the applicant (Fiona Sullivan at [25(1)]). She organised and paid, with his money, most of the deceased's accounts for him via online banking for his business and privately. He bought or built various items to improve her home. On occasions she would loan him money which he paid back (at [17d]).
The ownership use and acquisition of property
·They never owned or leased any property together (at [17e]).
·He bought or built various items to improve her home (at [17d]).
·They share each other's homes as detailed above (at [17b]).
The degree of mutual commitment to a shared life
·Their lives became very much intertwined over the period of the relationship. Ms Wiggins became friendly with the deceased's mum, Doreen. The deceased became very friendly with Ms Wiggins' daughter and son-in-law and their children. They all socialised together. The deceased and Ms Wiggins had other friends with whom they socialised (at [17f]).
·The deceased had a key to Ms Wiggins' place (at [17f]). Ms Wiggin had keys to the deceased's dwellings, vehicle and home safe (at [21] also at [8] of the Applicant's affidavit of 9 October 2017).
·When she was sick or ill, the deceased would look after her. She would do the same for him (at [17h]).
·The deceased had told Ms Wiggins that he wanted to leave his estate to her, as well as set up a trust for her grandchildren, and make a donation to the Devonport Dogs Home. He said he would get around to making a will one day (at [23]).
·In the last 3 - 4 years before he died the deceased would visit Ms Wiggins almost every day. If they had nothing special planned, such as an outing, they would have lunch together, and morning and afternoon tea. He would stay over 2 nights a week. He sometimes stayed for longer – for example, when she was sick or when he was sick. She cooked for him. On the other days when he came around, they would spend the day together and he would go home, usually around 3pm (at [5] of the Applicant's affidavit of 9 October 2017). She would do his washing. Whenever he stayed over, they would share the same bed (at [6] of the Applicant's affidavit of 9 October 2017). He would also cook for her at her place (at [13] of the Applicant's affidavit of 9 October 2017).
·The deceased kept a number of personal items at Ms Wiggins' place, including clothes, shoes, toiletries, an electric shaver and his tablets (medications). There was space in her wardrobe, and space in her bathroom for his things (at [6] of the Applicant's affidavit of 9 October 2017).
·The understanding they had was that he was her only sexual partner and she would not be seeing anyone else. They could turn up at each other's place at any time (at [8] of the Applicant's affidavit of 9 October 2017).
·They had also travelled together (at [17 - 19] of the Applicant's affidavit of 9 October 2017).
·The deceased wanted to marry Ms Wiggins and live with her, but Ms Wiggins did not due to his drinking binges and so that they did not take each other for granted (at [37] of the Applicant's affidavit of 9 October 2017).
The care and support of children
·The deceased had no children of his own. They had no children together. The deceased assisted Ms Wiggins' daughter and her family (at [17g]).
The performance of household duties
·Between 2005 and 2008 Ms Wiggins would often cook and clean for the deceased at his place. From about 2010 to the date of his death, she would cook for him, do his washing and make sure he had a shower and kept himself clean and tidy whilst he was at her place. He would do her household maintenance (at [17h]).
·In the last 3 - 4 years before he died, the deceased was at Ms Wiggins' place almost every day. The deceased would shower and change his clothes most days at her place. She cooked for him most days when he was there (at [5] of the Applicant's affidavit of 9 October 2017).
The reputation and public aspects of the relationship
·Ms Wiggins named the deceased her next of kin when she went into hospital for surgery and on travel insurance documents. He did likewise (at [16 - 17] and [22] of the Applicant's affidavit of 9 October 2017) including on records relating to his firearms licence (Sullivan at [5]).
·Their family and friends considered them a couple. They attended social functions together (affidavits of Michelle Lee Shephard; Steven Allan Shepard; Suzanne Maree Gall; Susanne Marie Ward; Leanne Margaret Sefton).
·The deceased advised Faith Tampion that the applicant was his 'lady friend' and had been for some time and that her daughter and son-in-law and their children were his family and that they were very good to him (Tampion [9 and 13]). He advised Pamela Planner that they had a sexual relationship (Planner [4]).
The evidence in support of the applicant's case
The trial of the proceeding was by affidavit. The only deponent who was cross-examined was Ms Wiggins. In her submissions at the conclusion of the evidence counsel for the respondents expressly informed me that she made no assertion that Ms Wiggins was untruthful. Counsel, however, did say that careful scrutiny of the evidence revealed some exaggeration in the account of the relationship. She gave four examples.
The first example was Ms Wiggins' evidence that Mr Tapping was not close to his mother. A careful review of Ms Wiggins' evidence reveals that between 2005 and 2008 Ms Wiggins and Mr Tapping would take Mr Tapping's mother grocery shopping every fortnight followed by lunch. Mr Tapping nursed his mother towards the end of her life in 2010 when she was bedridden. Mr Tapping was very upset when his mother died. Having regard to the whole of Ms Wiggins' evidence I do not regard her as having exaggerated so as to be misleading in connection with Mr Tapping's relationship with his mother.
The second example given was Ms Wiggins' evidence that she paid bills for Mr Tapping. When viewed as a whole, however, Ms Wiggins' evidence makes it clear that she was not asserting that she was paying Mr Tapping's bills out of her own funds. Occasionally she would lend him money but that is all. Ms Wiggins would use her laptop and printer to process Mr Tapping's payments and create hard copy records for him. I find no tendency to exaggeration or misleading element in this evidence.
The third example was Ms Wiggins' evidence that she and Mr Tapping ceased sexual relations between 2008 and 2010. In cross-examination she said that on an overseas trip with Mr Tapping during this period the couple had shared a bed and had sexual relations. Ms Wiggins' case does not include a claim that a significant relationship was in existence between 2008 and 2010 and so this admission provides no adequate basis for a conclusion that her evidence was misleading.
The fourth example given was Ms Wiggins' evidence that Mr Tapping had said to her on several occasions that he wished "to leave his estate to me, as well as set up a trust for my grandchildren, and make a donation to the Devonport Dogs' Home". Against this, there is evidence in an affidavit filed on behalf of Ms Wiggins and sworn by a longstanding friend of Mr Tapping saying that Mr Tapping said to her that he intended to leave his estate to Ms Wiggins' daughter, the daughter's husband and children. Ms Wiggins would only know what was said to her and I find nothing in this aspect of the evidence to justify a conclusion that her assertion concerning Mr Tapping's statement was exaggerated, selective or misleading.
This being the only challenge to the evidence presented on behalf of Ms Wiggins and having read her affidavits and seen and heard Ms Wiggins I have no reason to doubt the veracity of her evidence and I accept it all.
I find that the facts set out in the submission of counsel, reproduced earlier in these reasons, are all made out.
In order to add context to the indicia referred to in the submissions of counsel for Ms Wiggins, I set out some extracts from her affidavit evidence. The first extract appears at par 17 of the first affidavit. The second, which relates to the resumption to the relationship in 2010, appears at par 13 of the first affidavit. The third appears at par 15 of the first affidavit. The fourth appears at par 37 of Ms Wiggins' second affidavit.
"17 I have been referred to the criteria in section 4(3) of the Relationships Act 2003, and say as follows:
(a) The duration of the relationship: our relationship subsisted from 2005 right through until the time of Roger's death on or about 24 March 2015. There was a 'cooling off' between about 2008 and early 2010. Even during this time, we still kept in touch, but not as often. Roger stayed in touch with my daughter Michelle and her family. I remained on friendly terms with Roger's mother, Doreen. Our relationship gradually picked up again from early 2010 onwards. By the time of Doreen's death (26 November 2010) we were again very close;
(b) The nature and extent of common residence: Roger and I maintained separate residences throughout our relationship, although we spent a lot of time at each other's places. Between 2005 and 2008, Roger's house at 245 William Street, Devonport was like a 'second home' to me. I was around there often, I helped him with the 'Spunky Stuff' business, we often ate there, I often slept over there, I kept some clothes there. Between about 2010 and the date of Roger's death, our relationship developed again to the point where my home was like a 'second home' to Roger. He always knew he could get clean clothes and a meal at my place, and he slept over reasonably often, although the common bonds between us (by this stage) were our friendship and companionship, rather than sex. For at least the last 3 years before Roger's death he would come round to my place almost daily for a hot meal, he would bring his washing round for me to do, he would water and maintain the vegetable garden he built for me, he would assist with household maintenance and he would stay over probably 2 to 3 nights a week. By this stage he was keeping clothes, shoes and bathroom toiletries at my place;
(c) Whether or not a sexual relationship exists: Roger and I maintained a sexual relationship throughout the whole of our relationship, except between the period from about 2008 to early 2010;
(d) The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties: Roger and I always kept separate bank accounts. I organised and paid most of Roger's accounts for him via online banking. I had a card tied to the "Spunky Stuff" bank account and that allowed me to do the banking and pay bills on behalf of "Spunky Stuff". However, this was always Roger's business. I was the volunteer helper. Roger would let his personal bills and other correspondence build up, then bring them to me to sort out. Roger was at no point financially supporting me although he took me on buying trips for the Spunky Stuff business. In later years he either bought or built various items to improve my home – for example, he built me some raised garden beds, he built a drinks bar in my garage, he bought me a spa bath. In the 2 or 3 years before Roger's death, it was sometimes the case that I would have to lend him money, and although I was not really in a financial position to do so, I did this because of our friendship. Roger always paid me back eventually;
(e) The ownership, use and acquisition of property: Roger and I never owned or leased any property together;
(f) The degree of mutual commitment to a shared life: I would say that our lives became very much intertwined over the period of our relationship. As previously stated, I became very friendly with Roger's Mum, Doreen. Roger became very friendly with my daughter and son-in-law, Michelle and Steven Shephard and their children. We all socialised together. Roger and I had other friends, such as Suzanne and Stanley Gall, with whom we socialised. Between about 2010 and the date of Roger's death, Roger knew he was welcome at my place any time. He had his own key, and he was often there. We continued to socialise with friends and family. I visited Roger's mother, Doreen, frequently in the months leading up to her death and helped and comforted her as best I could. There was a part of Roger's life that I knew about but did not get involved with, except to help look after him, this being his drinking. Approximately 6 weeks before Roger's death, he stayed at my place for a period of 3 weeks to dry out, which he did, but he started drinking again once he went back to his place. There was also a part of Roger's life that he kept to himself, this being the 'bondage';
(g) The care and support of children: Roger had no children of his own. We had no children together. Roger assisted in various ways my daughter Michelle and her family, as a family friend, but this was a mutual thing – for example, Michelle's husband Steven assisting with the renovation to Roger's Ashburner Street property. Roger was always welcome at their place;
(h) The performance of household duties: Between 2005 and 2008 I would often cook and clean for Roger at his place. Between about 2010 and the date of Roger's death, my home became like a haven for him. He was often there. I would cook for him, and do his washing and make sure he had a shower and kept himself clean and tidy while he was there. He would do household maintenance jobs at my place. Despite maintaining separate residences, we were a couple and looked after each other. When I was sick or ill, Roger would look after me, just as I would do for him;
(i) The reputation and public aspects of the relationship: I refer to the matters previously deposed to in this my affidavit. Also, there are others such as my daughter Michelle and my friend Suzanne Gall, who can speak to this.
13 Gradually, Roger started coming around to my place, at 1/22 Berkeley Court, again. This would have been, I think, in early 2010. It was some months before Roger's mother Doreen died, which was 26 November 2010. I had a strict rule that he could not drink at my place. Also, he would never drink when we went out together. Roger then started spending nights at my place, and our time together just increased. Sex was not that important anymore. We were more like 'family'.
15 … We were soul mates.
37 From the beginning, I told Roger that I would never marry again. The subject of marriage did come up from time to time, but I told Roger I was not going down that road again. Basically, it was Roger's drinking that was the problem. I had previously been married to an alcoholic for 15 years and had no wish to repeat the experience. Roger wanted me to, at least, move in with him. He brought this up on a number of occasions. However, I always refused. This was mainly because of his drinking and the way he lived. I felt that, by having separate residences, I could turn a blind eye to Roger's drinking binges. Also, I felt that by not living together, we did not take each other for granted."
Assessment
There are a number of factors of varying weight to be considered in assessing Ms Wiggins' claim to a declaration that she, immediately before Mr Tapping's death, was in a significant relationship with Mr Tapping which had been in existence for a continuous period of not less than two years.
In making the assessment, as I have said, I accept the whole of the evidence presented on behalf of Ms Wiggins and my factual findings are the result of that evidence.
Ms Wiggins and Mr Tapping were in a relationship which was enduring, caring and, subject to one event in 2008, involved exclusivity in sexual relations, at least so far as Ms Wiggins knew. She said in her oral evidence that she assumed that any bondage activity engaged in by Mr Tapping, referred to in par 17(f) of her affidavit reproduced earlier in these reasons, did not involve sexual intimacy. There was a mutual commitment to companionship, family and support of a non-financial nature. The relationship existed for about ten years between 2005 and 2015, subject to a cooling off and substantial cessation of sexual intimacy between 2008 and 2010. Mr Tapping treated, and was treated by Ms Wiggins' daughter and her family, as part of the family. Ms Wiggins treated Mr Tapping's nearest relative, being his mother, as part of her family, accompanying her and Mr Tapping on fortnightly grocery shopping trips followed by lunch up until 2010 when Mr Tapping's mother's health and then her death intervened. Mr Tapping and Ms Wiggins were exclusively accompanied by each other at events involving partners. Mr Tapping performed handyman tasks for Ms Wiggins and the family of her daughter. Ms Wiggins provided domestic assistance to Mr Tapping. Ms Wiggins and Mr Tapping assisted each other in times of ill health. Mr Tapping would nominate Ms Wiggins as his next of kin in documents requiring such nomination such as hospital admission documents and travel insurance documents. Ms Wiggins nominated Mr Tapping as her next of kin, along with her daughter, in such documents. The fact that the couple never had or contemplated having children is of no significance as Ms Wiggins was aged in her fifties at the time of the commencement of the relationship. The fact that there was no cohabitation is accounted for by Mr Tapping being an alcoholic, a hoarder and leaving his house dirty and in a mess involving washing up being left on benches for lengthy periods of time and clothes left on the floor. Ms Wiggins kept a clean and tidy house and would not live in the type of environment which Mr Tapping was content with. The fact that Ms Wiggins would never have married Mr Tapping is explained by her having been a party to four failed marriages in the past, the last to an alcoholic, and her desire not to commit to a fifth.
The ultimate question for me is whether I am persuaded that the relationship was a significant relationship within the meaning of the Relationships Act 2003. Although the absence of any single feature or combination of features specified in the Relationships Act, s 4(3) is not necessarily determinative against a finding that a significant relationship existed, there is a powerful feature standing in the way of the declaration sought in the circumstances of the present case. Although neither partner was wealthy, property and financial resources were never shared or mixed. Ms Wiggins wanted to keep her property and finances totally within her own control. She made only a small non-financial provision for Mr Tapping in her will. Mr Tapping, although having expressed orally a desire to make provision for Ms Wiggins or her family in his will and having no close relative to receive his bounty, did not leave a will. Mr Tapping suffered from diabetes and did not modify his eating habits or lifestyle to accommodate the condition. He must have known that premature death was a possibility. Despite this there is no evidence of any attempt by him to put his testamentary wishes into writing. Ms Wiggins and Mr Tapping did not accept for themselves the financial aspects which, in the ordinary course of a shared life and by virtue of statute, go with the existence of a significant relationship. Another feature, which counts against the making of the declaration sought by Ms Wiggins, but to a lesser extent, is that, although explained, there was not cohabitation and there was never any mutual intention of cohabitation occurring sometime in the future.
Every case will turn on its own particular facts and there will always be points of factual distinction between cases. For example in Brownell v Robinson [2017] TASSC 5, the relationship included a six year attempt by the couple to have a child through an IVF program. Although the attempt was unsuccessful, the fact that it was made demonstrated a mutual commitment to jointly taking on the long term responsibility for a child, including the financial responsibility.
Having regard to the lack of commitment by Ms Wiggins and Mr Tapping to take on any financial responsibility for each other in life or in death when neither was independently wealthy and having regard to the fact that there was no cohabitation, I am unpersuaded that the relationship amounted to a significant relationship within the meaning of the legislation.
The declaration sought will not be made.
Orders
The originating application includes an application for "Such further or other orders as the Court considers appropriate". Subject to argument, there may be scope on this application, for an order giving the Public Trustee certainty as to the distribution of Mr Tapping's estate to his next of kin. I will hear counsel as to whether any such order is available and appropriate. Any questions as to costs may also need to be resolved. I will, accordingly, defer making final orders disposing of the application until I have heard further from counsel.
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