LIGHT v ANDERSON [1992] NSWCA 136

LIGHT v ANDERSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and HANDLEY JJA 11 October 1991 and 5 June 1992, 4 August 1992 [1992] NSWCA 136

TESTATORS FAMILY MAINTENANCE — Family Provision Act — claim by female housekeeper/companion — asserts relationship of man and wife with testator, including sexual relations — known by reputation to neighbours and shopkeepers as his wife — presented to children as housekeeper receiving wages — wages in fact terminated soon after engagement — companion returns after separation to nurse deceased during final illness — will provides for gifts to her as "companion" provided she is "employed" by testator at the date of death — claim for provision under Act rejected by Master Windeyer — appeal to Court of Appeal — held: (1) (per Handley JA; Kirby P and Priestley JA reserving their opinions): The evidence did not sustain eligibility of the companion upon the basis that she was living with testator as his wife on a bona fide domestic basis; (2) (by the Court): The evidence did establish that she was living in the testator's household and was dependent upon him; (3) Accordingly, the appellant was an "eligible person" under the Act; (4) A further provision of a legacy of $30,000 was required for her maintenance, and the Court should so order. Consideration by the Court of the applicability of Scottish authorities on marriages proved by cohabitation, habit and repute for claims of a de facto relationship under the Act. Cunninghams v Cunninghams (1814) 2 Dow 482; 3 ER 939; Campbell v Campbell (1867) LR 1, Sc and Div 182, 211 considered. Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 (SC) referred to — held — (per Handley JA; Kirby P dubitante): The authorities are applicable and provide guidance.

TESTATORS FAMILY MAINTENANCE — Family Provision Act claim — evidence on appeal — decline in value of deceased's estate deterioration in financial position of family members — held: (1) Evidence should be admitted and considered; (2) But where executors have distributed estate assets in the face of proceedings under the Act of which they have notice they cannot ordinarily rely on deterioration of their position to secure the exercise of a discretion in their favour.