Withers v Bray

[1999] NSWSC 1002

CITATION:	Withers & Anor v Bray & Ors [1999] NSWSC 1002
CURRENT JURISDICTION:	Equity Division Probate List
FILE NUMBER(S):	105304/1997
HEARING DATE(S):	30 and 31 August 1999 and 1 September 1999
JUDGMENT DATE:	1 October 1999
PARTIES :	Brian Joseph Withers & Anor (Plaintiffs/ Cross-defendants) William John Bray & Ors (Defendants) Olwyn Joy King (Cross-claimant) Estate of Agnes Irene Bray
JUDGMENT OF:	Bergin J

COUNSEL :	Mr M Young (Plaintiffs/ Cross-defendants) Mr C Hickey (Defendants/ Cross-claimant)
SOLICITORS:	Halliday & Stainlay (Murwillumbah) (Plaintiffs) Stewart Levitt & Co (Defendants)
CATCHWORDS:	Application for Letters of Administration in circumstances in which the existence of a de facto relationship is challenged on the basis of an absence of a sexual relationship - Indicia of a de facto relationship.
ACTS CITED:	Wills, Probate and Administration Act 1898 (NSW)
CASES CITED:	Roy v Sturgeon (1986) 11 NSWLR 454; Bar-Mordecai v Rotman & Anor (Einstein J, NSWSC, unreported, 16-18 June 1998); Evans v Marmont (1997) 42 NSWLR 70.
DECISION:	Letters of Administration granted to the plaintiffs.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

FRIDAY 1 OCTOBER 1999

105304/97 - BRIAN JOSEPH WITHERS & ANOR v WIILIAM JOHN BRAY & ORS
Estate of AGNES IRENE BRAY

JUDGMENT

1    This is an application by the plaintiffs Brian Joseph Withers and Patrick Bernard Withers for Letters of Administration of the estate of the late Agnes Irene Bray (the deceased) who died intestate on 6 April 1994.

2    The plaintiffs are the sons of the late William Charles Withers (Mr Withers) who died on 18 April 1995 and the defendants are the siblings of the deceased. There is a cross claim by one of the sisters of the deceased, Olwyn Joy King, for Letters of Administration to be granted to her.

3 The main issue to be determined in these proceedings is whether at the time of her death the deceased and Mr Withers were living in a de facto relationship within the meaning of s32G(1) of the Wills, Probate and Administration Act 1898 (NSW) (the Act).

4    There is no issue between the parties that if the existence of a de facto relationship is established the estate of Mr Withers becomes entitled absolutely to the entirety of the estate by virtue of s61B and s32G of the Act. In such circumstances it would be appropriate to grant Letters of Administration to the plaintiffs.

Indicia of a de facto relationship

5    The determination of the existence of a de facto relationship involves the Court making a value judgment having regard to a variety of factors relating to the relationship. Those factors include matters relating to property and finances; the duration, extent and nature of the relationship including whether a sexual relationship existed; children and their care and the reputation of the relationship ( Roy v Sturgeon (1986) 11 NSWLR 454 at 458-459).

6    Counsel for the defendants and cross claimant, Mr Hickey, relied upon Einstein J’s judgment in Bar-Mordecai v Rotman & Anor (unreported 16 - 18 June 1998) in support of the submission that if I was satisfied there was no sexual relationship between the deceased and Mr Withers I would not be satisfied that there was a de facto relationship. He relied in particular upon par 507 of that judgment in which His Honour said:

While the nature and extent of a sexual relationship is only one of the factors identified by Powell J in D v McA (unreported, Supreme Court of NSW, 27 June 1986) and Roy v Sturgeon (1986) 11 NSWLR 454 at 458 - 459, as indicative of a de facto relationship, it is, in my view, an important consideration in these proceedings. The sexual element of the relationship and the intimacy it entails is unique to marital or de facto relationships. It is a singular and easily identifiable distinguishing feature.”

7    All parties have adopted the approach that the sexual element of a relationship is an important factor in determining whether the deceased and Mr Withers were in a defacto relationship.

8    It has not been suggested by the plaintiffs that if I were to find that there was no sexual relationship I could still find the existence of a de facto relationship. The plaintiffs’ approach in this regard may well have been guided by what they believed was a strong case in favour of a finding of the existence of a sexual relationship.

9    Although opinions may differ on Einstein J’s view that the sexual element of a relationship and the consequential intimacy is “unique” to marriage or de facto relationships it is not a view which I must dissect in deciding this case. However a realistic approach has to be adopted to the assessment of this matter (Evans v Marmont (1997) 42 NSWLR 70 at 75G).

10    The parties in this case accept that there was a 40 year relationship between the deceased and Mr Withers and that such relationship endured until the death of the deceased. It is also accepted that the deceased and Mr Withers lived in the same house for the last 18 years of their relationship.

11    Although there were submissions made in relation to the alleged separateness of their finances the main focus of the proceedings was upon whether or not there was a sexual relationship. The defendants and in particular the cross claimant, Mrs King, contended that there was no sexual relationship between the deceased and Mr Withers and thus no de facto relationship.

Facts

12    The deceased was born on 8 April 1927 and was the second eldest of nine children. She grew up on the family farm at Tyalgum, in northern New South Wales, where she lived until 1951.

13    In approximately 1951 the deceased moved to Murwillumbah to live and worked at Woolworths to supplement her income as a dressmaker. It was whilst working at Woolworths in the early 1950s that the deceased, who was then about 24 years of age, met Mr Withers who was then aged about 42 years. Mr Withers was driving a taxi which operated from the taxi rank directly outside Woolworths. He had been married but was separated from his wife. He too was living in Murwillumbah.

14    The deceased was a keen gambler and liked to attend the races. When she needed transport to attend the races Mr Withers would drive her to and from the racetrack in his taxi.

15    During the 1960s the deceased and Mr Withers jointly purchased a hotel in Coraki known as the Middle Hotel. They each contributed to the purchase price and shared the responsibilities of operating the hotel with the deceased as the licensee.

16    The deceased and Mr Withers operated the hotel for about nine months and then sold it so that the deceased could return to Murwillumbah to care for her father who was very ill. After the sale they each deducted from the proceeds of sale what they had invested into the hotel and the balance was divided equally between them.

17    The deceased, whose mother had died in 1970, moved back into the family home at Tyalgum to care for her father. Her father’s illness led to his death in 1972. During the period that the deceased was looking after her father Mr Withers lived with his son Brian and daughter in law Margaret at their home not far from Murwillumbah.

18    After her father’s death the deceased and Mr Withers purchased another hotel, known as the Railway Hotel, in Queensland near Toowoomba. They contributed equally to the purchase of the hotel and once again operated it together with the deceased as licensee. Upon its sale the balance of the proceeds of sale after payment of any debts remained in a bank account in both the deceased’s and Mr Withers’ names.

19    In about 1975 Mr Withers was diagnosed with some form of cardiac problem and was apparently admitted to Tweed Heads Hospital for treatment of the problem although neither the detail of the problem nor the treatment are in evidence.

20    Also in about 1975 the deceased and Mr Withers decided to jointly purchase some land at Condong, near Murwillumbah. The money in the joint bank account was used to pay for the purchase of the land and the construction of a house on the land. It is apparent that there was enough money in the account to also purchase furniture and electrical items for the house.

21    The property at Condong was registered in the names of the deceased and Mr Withers as tenants in common. The house consisted of two bedrooms, a lounge room, dining room, kitchen, bathroom and what was described as “other normal facilities”. There was a “downstairs area which was used as a garage and workshop” and a very large yard area.

22    The deceased and Mr Withers lived in this house together from the time of its construction in 1976 until April 1994. In those 18 years it appears that they were only apart for a number of days in some of those years when the deceased travelled to Sydney to visit relatives.

23    Mr Withers swore a number of affidavits. In addition to the description given by Mr Withers of his intimate sexual relationship with the deceased, with which I shall deal later, he also described the way in which he and the deceased shared the household duties. That evidence was that the deceased did the cooking, washing, ironing and cleaning of the house and that Mr Withers would carry out the “chores normally carried out by the male of the house”. Those chores included caring for the lawns and gardens including a vegetable patch and general maintenance including painting of the house.

24    Mr Withers had a special garden in which he grew flowers to sell on Mother’s Day. The deceased helped Mr Withers tend that garden and assisted him in the sale of the flowers on Mother’s Day.

25    The deceased operated her dress making business from home. It appears that it was a good business and kept the deceased quite busy. Although there was no telephone connected to the home the next door neighbour, Mrs Julie Annette Dawson, was willing to allow her telephone number to be given to the deceased’s clients to leave messages for the deceased. The messages were then passed on to the deceased by Mrs Dawson.

26    The deceased’s interest in gambling endured during her years at the Condong property and she would attend the local races from time to time. Mr Withers informed his son, Brian, that he and the deceased were in a syndicate that owned a racehorse and on occasions the deceased would inform Brian Withers that “our horse is running today”. It is clear that the deceased enjoyed betting on the races and she also regularly attended the raffle at the local Bowling club.

27    The deceased and Mr Withers were keen bowlers. They bowled together in mixed pairs against the deceased’s sister, the cross claimant Mrs King, and her husband at the Gold Coast, Condong and Murwillumbah. They also played bowls in non-mixed competitions.

28    The deceased was diagnosed with carcinoma in 1987 and after some initial treatment went into remission until late 1993 when the disease took hold again. The deceased underwent chemotherapy treatment but by late March 1994 was so ill that she was admitted to Murwillumbah Hospital and demised on 6 April 1994.

29    Quite a deal of evidence has been given by the defendants in respect of the deceased’s last months of life the purpose of which was to prove that Mr Withers had contributed less than the defendants to the deceased’s care during this period. There is no doubt that both Mr Withers and those defendants who gave evidence contributed each in their own caring way to the comfort of the deceased as her health declined.

30    Each looked to the deceased with love and respect. It is apparent from the evidence that the deceased had adopted somewhat of a parental role after the death of her parents and that from time to time her siblings looked to her for strength. In some instances they were also financially assisted by her. Mrs King regarded her as her best friend and “mother”.

31    Some of the defendants’ evidence was tendered to suggest that Mr Withers was not concerned by the death of the deceased. The evidence relied upon in this regard was that the deceased did not want to arrange the funeral and a suggestion that he did not know when the funeral was to occur.

32    However I am satisfied that Mr Withers was indeed distressed by the death of the woman with whom he had shared a relationship for at least 40 years and lived with for 18 years. The evidence relied upon by the defendants themselves suggests just that.

33    Mrs Mavis King, another sister of the deceased, gave evidence that on the day of her sister’s death Mr Withers said “What’s going to happen to me? What am I going to do now?”. In my view such a statement by Mr Withers indicates the deep loss he was feeling and perhaps an attempt to communicate that he did not know how he was going to cope without the deceased. My view in this regard is supported by the evidence of Mr Withers’ son, Brian, that his father said “I have lost her” and the observations made by Mrs Dawson of Mr Withers’ obvious and deep distress at the time.

34    After the deceased’s funeral there was a “wake” at the Murwillumbah Bowling Club. Mr Withers’ daughter in law, Margaret Withers, gave evidence that she had a conversation with the deceased’s niece Mary Anne McAndrew. Mrs Withers said that Mrs McAndrew said to her “I’m warning you there is going to be trouble. They are going to say that there is no de facto relationship and we all know there was.” This conversation has some significance in relation to the issue that I have to decide in this case and I will return to it in due course.

35    Mr Withers health declined after the death of the deceased. His medical practitioner Dr John Lipscom gave evidence by way of affidavit that from June 1990 until 10 August 1993 when Mr Withers had a mild cardiovascular accident (stroke) his mind was “exceptionally sharp”. After the minor stroke Mr Withers suffered some “minor short-term memory problems”.

36    On 12 August 1994 Mr Withers suffered a stroke extension which further effected his short-term memory and caused “a little confusion”. Dr Lipscom said that Mr Withers suffered from a moderate vascular dementia in the very late stage of his life but did not experience any serious dementia. He died on 18 April 1995.

Mr Withers’ Affidavits

37    Mr Withers swore affidavits on 2 August 1994, 25 August 1994 and 28 March 1995. The first affidavit was sworn prior to the stroke extension suffered on 12 August 1994 and the latter two were sworn after such incident and the last affidavit was sworn during a period which may have involved what Dr Lipscom referred to as a period of moderate vascular dementia.

38    Mr Hickey submitted that the weight to be given to the evidence in these affidavits is lessened by reason of the fact that it was not able to be the subject of cross examination. Additionally it was submitted I should assess the evidence on the basis that Mr Withers’ memory may well have been adversely affected by his failing health.

39    In the affidavit sworn on 28 March 1995 Mr Withers described the bedrooms in the Condong property. He said that one of the bedrooms had a double bed in it and the other bedroom had two single beds. He said that he and the deceased shared the other bedroom with the two single beds in it. Mr Withers said that the deceased moved into the room with the double bed shortly before her death for her comfort.

40    Mr Withers made the following statements in his affidavit relevant to the nature of his relationship with the deceased:

“I commenced having a relationship with her at around that time (the 1950s) and I commenced going out socially with her from that date on.
(Par 3; 28.3.95)


While we were living in the hotel at Coraki, we each had our own room but had a sexual relationship at that time.
(Par 4; 28.3.95)
(At Condong) We both shared the other bedroom with the two (2) single beds in it. We chose to sleep in the single beds because of the heat and because of my medical condition, so that we could both get a good night’s sleep.


(Par 8; 28.3.95)


Over that period (from 1975 onwards) and prior to our moving into the Condong premises, the deceased and I had a normal sexual relationship and would have sexual intercourse on a regular basis.
(Par 9; 28.3.95)

41    In describing the financial arrangements Mr Withers stated that after the joint bank account funds were exhausted he and the deceased conducted separate bank accounts and maintained separate investments. Mr Withers cited the need to cater for his children and grandchildren as a reason for these separate arrangements.

42    He also referred to the fact that he and the deceased were receiving the pension. His evidence in this regard was :

“To enable this to occur we were both required to have separate bank accounts and our Pension cheques were paid directly into that account”

43    On the last day of the hearing and after the evidence had been completed an application was made by the defendants/cross claimant for an adjournment to pursue enquires with the Department of Social Security as to whether in claiming an entitlement to the pension the deceased and/or Mr Withers had stated they were not in a de facto relationship. I refused the adjournment which is the subject of a separate judgment.

44    Mr Withers also deposed to the fact that from time to time he and the deceased did various jobs. He said that the income that the deceased received from her dressmaking business went into her account so that it would not affect his pension.

Cross Claim

45    Mrs King swore two affidavits one on 4 January 1999 and one on 12 January 1999. Her sisters Mrs Mavis King and Mrs Eva Cook swore affidavits on 4 January 1999 and 12 January 1999 respectively. Mrs King’s brother Mr William Bray swore an affidavit on 4 January 1999 and the deceased’s niece Mrs Mary McAndrew swore her affidavit on 24 December 1998.

46    There was no doubt that at the time that these affidavits were sworn each of the deponents was aware that the plaintiffs were claiming that the deceased and Mr Withers had been in a de facto relationship. Each of the affidavits deals with observations made of the deceased and Mr Withers in support of a contention that there was no such relationship.

William John Bray

47    Mr Bray is the elder brother of the deceased and visited her regularly. He said he never discussed the deceased’s personal life and did not know whether the deceased and Mr Withers ever slept in the same room.

48    Mr Bray told me that his sister, the deceased, was a “very private person” and never talked about any sexual matters. His observations of his deceased sister sleeping in a separate room from Mr Withers was when they visited the farm at Tyalgum prior to 1970.

Mavis Jean King

49    Mrs Mavis King is another sister of the deceased and claimed that she lived with the deceased from November 1993 until her death on 6 April 1994. This statement in her affidavit seems to be erroneous because on Mrs King’s oral evidence she did not suggest that she was living with the deceased for more than about three weeks prior to her death. Indeed all the evidence points to the conclusion that Mrs King was only there for a couple of weeks prior to the deceased’s death.

50    Mrs King said that the deceased was reserved, well-organised and not talkative about her affairs.

51    She made observations of the deceased and Mr Withers when she worked in the Coraki Hotel as the housemaid. That was a period of approximately 21 months during the 1960’s. She observed that the deceased and Mr Withers kept separate bedrooms. Mrs King observed Mr Withers caring for the deceased prior to her death and it is obvious from those observations that Mr Withers and the deceased were very close. She accepted that the decline in her sister’s health was a very “big strain” on Mr Withers.

52    Mrs King confirmed in her oral evidence that, the deceased was a “very, very private person” and liked to keep things to herself about her private life. In cross examination Mrs King agreed with Mr Young that the deceased would not talk about sexual matters because she was not the sort of person to talk about such matters.

53    In cross examination Mrs King accepted that the deceased and Mr Withers slept in the same room at Condong; that they divided up the housework; that Mr Withers would sometimes hang out all the washing; that they each did some cooking and that Mr Withers always did the lawns. She agreed with Mr Young that the way the deceased and Mr Withers lived was “pretty similar to the way that a lot of married couples live”.

Olwyn Joy King

54    Mrs King was twelve years younger than the deceased and regarded her as her best friend. She lived with the deceased for two years prior to getting married and when Mrs King was living in Tenterfield with her husband and children the deceased would telephone her every Saturday at 6 pm.

55    In the affidavits that Mrs King swore she set out her observations in support of the contention that there was no sexual relationship between the deceased and Mr Withers. Her detailed observations included the fact that the deceased and Mr Withers had separate bedrooms at the Coraki Hotel and at the Railway Hotel.

56    Mrs King went into particular detail in relation to the Condong property. She said that the deceased had a “separate bedroom” and further that her room “had a beautiful bed cover, a double bed and a lovely dressing table set with crystal”. In contrast Mrs King observed that Mr Withers’ “separate room” was “sparsely furnished and very masculine”. She said it contained “two single beds, a little narrow wardrobe and a chest of drawers”.

57    Additional to these observations Mrs King deposed to the fact that when she visited her sister at the Condong property Mr Withers would sleep on the couch. She also claimed that she never saw her sister show “real affection” towards Mr Withers and never saw them kissing. However she did say that her sister was “shy of affection”.

58    Somewhat inconsistently with the contents of her affidavit, Mrs King admitted in oral evidence that she was aware that the deceased and Mr Withers had slept in the same room but in single beds. The timing of Mrs King’s evidence was the subject of cross examination because it occurred after her sister Mrs Mavis King had given evidence that the deceased and Mr Withers slept in the same room.

59    When Mr Young asked Mrs King why it was that she had not included such an observation in her affidavit she said that it was after Mr Withers had his mild stroke that the deceased had decided for Mr Withers “safety” and she would move into that bedroom because “if he took a turn in the night” she would hear him. She resisted any suggestion that the deceased and Mr Withers slept in the same room for a period longer than three or four years.

60    When Mr Young asked Mrs King about her observations of the deceased and Mr Withers and whether they appeared to be fond of one another Mrs King resisted describing the relationship as one of fondness. She described it as one in which her sister and Mr Withers respected one another and that they were “good friends”. She said she couldn’t assess how fond they were of each other.

61    Mr Young with some persistence pressed Mrs King for an explanation as to why it was that no mention had been made of the deceased and Mr Withers sleeping in the same room in her affidavit. Mrs King said: “ I admit that I should have put this in that from illness they slept in the one room, but I didn’t”. She was then asked whether she could explain why she didn’t put that material in her affidavit and she said she could not explain it. She was then asked:

Q. I suggest to you that you didn’t want anyone to know that she slept in the same bedroom.
A. It was none of my business.

62    Inconsistently with this answer Mrs King had gone into quite a deal of detail to describe in her affidavits and in her oral evidence the sleeping arrangements of the deceased and Mr Withers that she had observed over thirty years.

63    During Mrs King’s re-examination Mr Hickey asked for and was granted leave to call some further evidence in chief. During that evidence Mrs King informed me that she knew that her deceased sister had not had a sexual relationship with Mr Withers because her sister had told her when they were discussing pap smears that “as I have not had sexual relations with him in my life, I hate the thought of pap smears”. Mrs King said that this conversation took place after the deceased had been diagnosed with cancer.

64    Mrs King said that it was the only conversation about the sexual relationship that she had with the deceased. The Court then adjourned for the evening and on the following morning Mrs King was further cross examined.

65    It is apparent from that cross examination that after court Mrs King had a conversation with Mrs Cook, another sister awaiting to give evidence, about the evidence that she had just given in respect of the conversation which became known as the “pap smear conversation”. Mrs King admitted that she had been told by her barrister not to speak to other witnesses whilst she was in cross examination and she apologised for the error. She could not explain why she did it but believed she did it on the spur of the moment.

66    She rejected the suggestion made by Mr Young that it was to alert her sister, Mrs Cook, to the evidence that she had just given.

67    Mrs King was then cross examined about her failure to include any suggestion whatsoever about the pap smear conversation in either of her affidavits or in her evidence prior to the time that Mr Hickey asked her when leave was granted to call some further evidence. She rejected the suggestion that it was a desperate attempt to prop up a case that she observed was becoming very weak.

68    Mrs King was asked for an explanation as to how this conversation was not included in her affidavit. Mrs King’s explanation was that it was “an oversight”.

69    It is odd that such an oversight could have occurred particularly having regard to the fact that this important conversation had occurred more recently than the conversations to which Mrs King deposed in her affidavits which are more peripheral to this issue.

70    There was a suggestion in her cross examination that this was a very private matter but Mrs King did not suggest that this was the reason she did not include it in her affidavits or earlier evidence. She was firm that it was an “oversight”.

Eva Joan Cook

71    Mrs Cook gave evidence after Mrs King and told Mr Young in cross examination that she did not remember Mrs King talking to her outside the courtroom. Mrs Cook in her cross examination admitted that the deceased was a very private person. The following evidence is relevant:

Q She was not the sort of person who would talk to other people about whether or not she was having sex with any particular person?
A My sister would not say that.
Q Or discuss pap smears with members of the family?
A No.

Mary McAndrew

72    In her affidavit Mrs McAndrew gave evidence that she observed Mr Withers handing money to the deceased at which time he said “Here’s my board”. It was this aspect of her affidavit upon which Mr Young focused in some of his cross examination. That evidence warrants extracting in this judgment:

Q I suggest to you that the impression that you were trying to create with par 3 of that affidavit referring to board was that Bill Withers was no more than a boarder at the house, is that an accurate assessment of the impression you are trying to create?
A Yes.
Q Would you say now that is an accurate impression of the relationship between Bill Withers and your aunt Agnes as best you know that relationship?
A My aunt had a complex relationship with Mr Withers.
Q We might go back to that matter shortly but would you or would you not agree that the impression that Bill Withers was no more than a boarder at the Condong property is consistent with your knowledge of the actual relationship between Bill Withers and Agnes Bray?
A Yes.
Q You say that is perfectly consistent do you?
A Yes.

73    After further cross examination during which Mr Young probed the detail of Mrs McAndrew’s observations of the deceased and Mr Withers’ relationship including the fact that they slept in the same bedroom the following evidence was then given:

Q That’s not the sort of thing that a landlady would do to a mere boarder is it, sleep in the same bedroom as him?
A No that’s correct but once again their relationship was very complex and I am not privy to all that went on.
Q Far more complex than a boarder, landlady relationship?
A Yes I would have to agree yes.
Q But whatever money was given and whatever word was attached to it, that didn’t in your mind suggest to you that he was only a boarder did it?
A No.

74    Mrs McAndrew also gave evidence that the deceased was very private and very independent. She said that she did not regard her deceased aunt as a very forthcoming or affectionate person. She claimed that she was unsure of what sort of relationship that the deceased and Mr Withers had but was of the view that they were fond of one another. When asked whether she was of the view that they were “close” she said that it all depended upon the definition of close. When asked about the conversation at the wake she said that she didn’t remember saying that at all and she didn’t think she would have because of the fact that she was unsure of the nature of the relationship between the deceased and Mr Withers.

75    The cross claimant, Mrs King, asks the Court to conclude that there was no sexual relationship between the deceased and Mr Withers. It is submitted that such conclusion can be safely drawn from:
· the fact that the deceased and Mr Withers slept in separate rooms and only later slept in the same room for health reasons;

· the pap smear conversation Mrs King claimed she had with the deceased;

· the separate bank accounts; and

· the fact that it was one of her siblings rather than Mr Withers who was named as next of kin at the hospital.

76    The plaintiffs and Mr Withers’ daughter-in-law gave evidence of their observations of the deceased and Mr Withers. Their evidence went to the details of the living arrangements and facts from which I could draw the conclusion that the deceased and Mr Withers appeared for many years to be in a close and emotionally supportive relationship.

77    One witness whose evidence I found helpful in determining this issue was Mrs Julie Annette Dawson who lived next door to the deceased and Mr Withers at Condong. Mrs Dawson regarded herself as a “good friend” of the deceased. She told me that she would be in the deceased’s house nearly every day and I conclude that she had ample opportunity to observe the interaction between the deceased and Mr Withers.

78    Mrs Dawson observed that the deceased and Mr Withers were sleeping in the same room in the single beds for many years well before Mr Withers suffered his stroke. I am satisfied that this was the sleeping arrangement for many years. Although Mrs King may have understood that it was later in time and that the deceased shared her room with Mr Withers for “safety” reasons, I am of the view that it was an arrangement consistent with the obvious love they had for each other and the desire to be that close.

Conclusion

79    Each of the deceased’s siblings obviously loved their sister. It is however the case that each of them recognised that she kept her private life very private.

80    It seems that the deceased may have felt it was appropriate to inform Mrs King that there was a reason for her to sleep in the same room as Mr Withers. The age difference between Mrs King and the deceased and the fact that Mrs King had what appears to have been a child/parent relationship with the deceased supports the inference that the deceased may well have kept to herself the full reasons why she was sleeping in the same room as Mr Withers. Other factors which lead to such an inference include the independent and private personality of the deceased.

81    Mrs King rejected the suggestion made to her in cross examination that she had made the pap smear conversation up to prop up her claim. The curious circumstances surrounding the giving of this evidence and the fact that it had not been mentioned in any affidavits, considered with the whole of Mrs King’s evidence, leads me to the conclusion that I could not be satisfied that Mrs King accurately recalled the terms of the conversation.

82    On Mrs King’s evidence the deceased apparently informed her that she had only recently moved into the same room as Mr Withers and for health reasons. I have found that this was not the case. This seems to have been a method utilised by the deceased to guard her privacy. Even to accept the accuracy of the pap smear conversation for the purpose of this analysis I am of the view that just as Mrs McAndrew described the relationship as “complex”, there may have been complex reasons for the occurrence of the pap smear conversation.

83    The history of the previous method of guarding her privacy leads me to the conclusion that even on the basis of an acceptance of the accuracy of the conversation, I could not rely on it to make a finding that there was no sexual relationship between the deceased and Mr Withers.

84    The overwhelming evidence that the deceased was an extremely private and not very demonstrative woman suggests to me that if, as I have found she did, the deceased slept in the same room as Mr Withers she would have to have been extremely emotionally close to him to do so. The fact that she referred to him as “love” and he referred to her as Bid, short for Biddy; the fact that he showed off her dress making with obvious pride; the shared household and shared interests; notwithstanding the separate bank accounts, the intermingling of their finances to purchase the land and house and to run the house; the sharing of the motor vehicle; the trips away together visiting their friends and relatives; the environment in which they entertained the members of their respective families; the fact that in the last eighteen years of their lives they were only apart for a number of days; and that during those years they shared a close and, what is more, an obviously interesting, happy and loving life together satisfies me that more probably than not the deceased and Mr Withers had a sexual relationship.

85    I am so satisfied without taking into account the contents of Mr Withers’ affidavits. Of course when one has regard to the affidavits the conclusion becomes even more irresistible.

86    I am satisfied that the deceased and Mr Withers were in a de facto relationship for at least the period 1976 to 6 April 1994 and in those circumstances the estate of Mr Withers becomes entitled to the entirety of the deceased’s estate.

Order

87    Letters of Administration of the estate of the late Agnes Irene Bray are granted to Brian Joseph Withers and Patrick Bernard Withers. The cross claim is dismissed. I will hear any application in relation to costs should the parties not be able to agree on an appropriate order.

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Last Modified: 12/24/2001