Withers & Anor v Bray & Ors [1999] NSWSC 1002

New South Wales Supreme Court 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

Brian Joseph Withers & Anor (Plaintiffs/ Cross-defendants) PARTIES : 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) Roy v Sturgeon (1986) 11 NSWLR 454; CASES CITED : 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.