Wiggins v Public Trustee - [2020] TASSC 3

[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…

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 Wiggins v Public Trustee

Details

AGLC: Wiggins v Public Trustee [2020] TASSC 3
Case: [2020] TASSC 3
Decision Date: 27 February 2020

CaseChat Overview and Summary

The applicant, Ms Wiggins, sought a declaration that she had been in a significant relationship with Mr Tapping, who had died intestate, within the meaning of the Relationships Act 2003 (Tas). The Public Trustee, as Administrator of the estate, opposed the application. The Supreme Court of Tasmania was required to determine whether a significant relationship existed between Ms Wiggins and Mr Tapping, such that Ms Wiggins would be entitled to a distribution of Mr Tapping's estate under the Intestacy Act.

The Court considered the criteria for determining whether a significant relationship existed. It was not necessary for the parties to have shared property or resources, or to have been cohabiting. However, the relationship must have been as a couple and of importance or consequence. The Court found that Ms Wiggins had failed to prove the existence of a significant relationship with Mr Tapping. The evidence did not establish the required importance or consequence of the relationship, nor did it show that the relationship was as a couple.

The Court noted that while the relationship between Ms Wiggins and Mr Tapping had some romantic elements, it lacked the necessary depth and commitment to be considered a significant relationship. The Court also considered that the absence of cohabitation or shared resources did not necessarily preclude the existence of a significant relationship, but in this case, these factors, along with others, supported the conclusion that no significant relationship existed.

The Court refused the application for a declaration of a significant relationship. As a result, Ms Wiggins is not entitled to any distribution of Mr Tapping's estate under the Intestacy Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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].