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Wilson v Porada

Wilson v Porada

Case [2017] NSWSC 818 30 June 2017

Administration of Estates

Family Provision and Maintenance

De Facto Relationships

Eligibility for Claims

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe [2017] NSWSC 818
Hearing dates: 3, 4, 5, & 6 April 2017
Date of orders: 30 June 2017
Decision date: 30 June 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
De facto relationship not established. Administration of the deceased’s estate granted to the deceased’s brother. Plaintiff found to be an eligible person to make a claim for provision out of the deceased’s estate under Succession Act, s 57(b). Order for provision made in the sum of $75,000.

Catchwords:
SUCCESSION – administration of estates – deceased dies intestate leaving three siblings - no issue and no parents – deceased’s brother claims letters of administration of the deceased’s intestate estate - plaintiff claims to be in a de facto relationship with the deceased for at least two years prior to his death – whether the deceased was in a de facto relationship with the plaintiff at the time of his death and for two years before his death – whether letters of administration should be granted to the plaintiff or to the deceased’s brother.
SUCCESSION – family provision and maintenance – the plaintiff having failed to establish she was in a de facto relationship with the deceased receives nothing on intestacy as a result of the deceased’s death – whether the plaintiff is an eligible person under Succession Act, s 57(b), (e) or (f) to make a claim out of the deceased’s estate – whether if the plaintiff is an eligible person under Succession Act, s 57 (e) or (f) there are “factors warranting” the bringing of her application - if the plaintiff is an eligible person and there are factors warranting, whether she has been left without adequate provision for her proper maintenance, education and advancement in life.
Legislation Cited: Interpretation Act 1987
Property (Relationships) Act 1984
Succession Act 2006, ss 57, 129(1)
Cases Cited: Churton v Christian (1988) 13 NSWLR 241
Dridi v Fillmore [2001] NSWSC 319
Evans v Levy [2011] NSWCA 125
Luciano v Rosenblum (1985) 2 NSWLR 65
Re Fulop (deceased) (1987) 8 NSWLR 679
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Category: Principal judgment
Parties: Plaintiff: Tracey Lee Wilson
Defendant: Manfred Robert Porada
Representation:
Counsel:

Plaintiff: L. Clarke
Defendant: B. Oliak

Solicitor:

Plaintiff: Ines Chiumento, Eden Legal & Conveyancing
Defendant: Esther Colson, David Griffiths Lawyers
In the matter of: The Estate of the late Peter Wolfgang Porada, late of Pericoe

File Number(s): 2015/155275; 2015/242796; 1016/106321; 2016/124110
Publication restriction: No

Judgment

Peter Wolfgang Porada died suddenly on 4 April 2015 at the age of 55. For most of his life he had lived in a farm house of basic construction (“Pericoe Farm”) in a sparsely populated rural area outside the south-coast town of Eden. At the time he died Peter Porada was in regular employment as a diesel mechanic at the main woodchip mill in Eden.
The plaintiff in these proceedings, Tracey Lee Wilson, claims…

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 Wilson v Porada

Details

AGLC: Wilson v Porada [2017] NSWSC 818
Case: [2017] NSWSC 818
Decision Date: 30 June 2017

CaseChat Overview and Summary

In Wilson v Porada, the deceased, who died intestate, left behind three siblings, none of whom had any children or surviving parents. The deceased's brother sought letters of administration of the intestate estate, while the plaintiff, a woman, claimed to have been in a de facto relationship with the deceased for at least two years prior to his death. The central issue before the court was to determine whether the deceased had been in a de facto relationship with the plaintiff for the requisite period and, if so, whether the letters of administration should be granted to the plaintiff or the deceased's brother.

The court had to examine the nature and duration of the relationship between the deceased and the plaintiff, as well as the legal criteria for establishing a de facto relationship. It was necessary to determine if the plaintiff could be considered a spouse or a de facto partner under the relevant legislation. The court also needed to consider whether the plaintiff was an eligible person under sections 57(b), (e), or (f) of the Succession Act and whether there were factors warranting her application if she qualified. Finally, the court had to decide if the plaintiff had been left without adequate provision for her proper maintenance, education, and advancement in life.

The court found that the plaintiff had not demonstrated that she was in a de facto relationship with the deceased for the required period. Consequently, she was not entitled to receive any benefit from the deceased's estate on intestacy. The court concluded that the plaintiff did not qualify as an eligible person under the relevant sections of the Succession Act. As a result, the court denied the plaintiff's application for family provision and maintenance. The court granted letters of administration to the deceased's brother, as the plaintiff did not meet the criteria for administration or a family provision claim.

Orders