Jurd v Public Trustee [2001] NSWSC 632

New South Wales Supreme Court

CITATION : Jurd v Public Trustee [2001] NSWSC 632 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4423 of 1999 HEARING DATE(S) : 10th and 11th July 2001 JUDGMENT DATE : 11 July 2001

PARTIES : Robert John Jurd v Public Trustee JUDGMENT OF : Master Macready at 1

COUNSEL : M. Willmott for plaintiff L. Ellison for defendant SOLICITORS : Eric Butler for the plaintiff Harris Wheeler for the defendant CATCHWORDS : Family Provision. Application by a person who was living in a domestic relationship with the deceased. Discussion on the meaning of the expression "close personal relationship". - Held that the Family Provisions Act 1984, as amended by Property (Relationships) Amendment Act 1999, applies to estate of a testator dying before 28 June 1999 provided proceedings were commenced after that date. DECISION : Paragaph 54

- 1 - 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Clifton John Mills who died on 30 March 1999. The deceased died intestate and letters of administration were granted to the defendant on 17 June 1999. 2 The deceased had no close family such as children and the persons who may take on intestacy are two aunts. They are Gertrude Adeline Harriet Steel, a full blood sister of the deceased's mother, and Sarah Alma Hope Platts, who is a sister of the deceased's father. Mrs Steel has recently died and there is no information before the court as to who takes under her estate. There is a doubt as to whether Mrs Platts is an aunt of the full blood; she may only be an aunt of the half blood. There may be a need for there to be a next of kin inquiry to determine her status. Because of the size of the estate, these matters do not cause any difficulty in determining this application. 3 The estate consists of two properties, one at New Lambton and one at 18 Crowdace Street, Wallsend. The net value of the estate is in the order of $396,535. 4 The deceased, who had no children of his own, was in the habit of taking in various teenagers into his home and providing them with a roof over their head for a period of time. The plaintiff was one of such persons. He lived in the property from 1996 and is still living there. For the first eighteen months he lived in a caravan in the back yard which drew its power from the house. He used the facilities in the house such as showers and toilets. After eighteen months he moved into the house itself. 5 The plaintiff claims to be an eligible person on two bases: (a) Section 6(d) as a person who was partly dependent upon the deceased person and who was a member of the household of which the deceased person was a member; (b) Section 6(a)(ii) as a person with whom the deceased person was living in a domestic relationship at the time of the deceased's death. 6 The latter arises out of the amendments to the Act by the Property (Relationships) Legislation Amendment Act 1999. 7 There has been argument as to whether the amendments apply to an estate where the deceased died before the commencement of the amendments on 28 June 1999. Section 37 of the Act as amended deals with transitional provisions and provides for Schedule 1 to have effect. 8 Schedule 1 is in these terms: