New South Wales Supreme Court CITATION : Barnes v De Jesus [2001] NSWSC 19 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 105826 of 1999 HEARING DATE(S) : 30 November 2000 and 1 December 2000 JUDGMENT DATE : 2 February 2001 PARTIES : Leila Alison Barnes (Plaintiff/Cross-Defendant) Antonio Manuel De Jesus (Defendant/Cross-Claimant) JUDGMENT OF : Windeyer J at 1 COUNSEL : Mr D W Elliott (Plaintiff/Cross-Defendant) Mr L Ellison (Defendant/Cross-Claimant) SOLICITORS : Ticli Blaxland (Plaintiff/Cross-Defendant) S J Nicolau & Co (Defendant)/Cross-Claimant) CATCHWORDS : SUCCESSION - letters of administration - competing applications for grant between daughter and alleged de facto husband - whether de facto relationship established - DE FACTO RELATIONSHIPS - whether established LEGISLATION CITED : Wills Probate and Administration Act 1898 ss61B(3B); 61B(13) CASES CITED : Roy v Sturgeon (1986) 11 NSWLR 454 Simonis v Perpetual Trustee Company Limited (1987) 21 NSWLR 677 DECISION : See paragraph 29 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST WINDEYER J FRIDAY 2 FEBRUARY 2001 105826/99 LEILA ALISON BARNES v ANTONIO MANUEL DE JESUS JUDGMENT Introduction 1 Doris Lillian Barnes died on 17 November 1996 a divorced intestate. She left two children, Leila Alison Barnes (the plaintiff) and Edward Jesse Barnes. The plaintiff seeks a grant of Letters of Administration of her mother's estate. Her brother has consented to such a grant. 2 Antonio Manuel De Jesus, the defendant, by cross-claim seeks a grant of administration on the grounds that he was the de facto husband of the deceased for a continuous period of not less that two years before her death. 3 The deceased's estate consisted of a house at 48 Holmsdale Street, Marrickville, with an estimated value of $180,000, a Nissan Wagon with an estimated value of $1,500 and a Savings Account with the St. George Bank of $1,137. The liabilities of the estate amount to around $2,000. 4 It is clear that if Mr De Jesus succeeds in establishing that he was in a de facto relationship with the deceased for the required period he will be entitled to the whole of the estate: ss61B(3B) and 61B(13) of the Wills Probate and Administration Act 1898. The Facts 5 Doris Lillian Barnes was born on 27 June 1937, and Antonio De Jesus was born on 25 October 1952. 6 The deceased married Edward Robert ("Ted") Barnes on 5 November 1955. They were divorced on 19 February 1991. There were two children from this relationship: the plaintiff born on 25 April 1964 and her brother born on 20 October 1955. 7 The deceased was also involved in a marriage of convenience on 23 February 1991 with Peter Aghimien, apparently to enable him to gain residence in Australia. This marriage was dissolved on 11 November 1994. This marriage is of no significance in this case. The parties to it never lived together. 8 Mr De Jesus met the deceased in late 1990. At that time he was married but separated from his wife. He started "seeing her" and commenced a sexual relationship soon afterwards. In 1991 he commenced work in Coffs Harbour. He visited the deceased or the deceased visited him frequently for weeks or weekends and they stayed in either the Marrickville residence or his unit in Coffs Harbour during these visits. Mr De Jesus moved most of his belongings into the Marrickville residence on 17 April 1991, while still working in Coffs Harbour. By the beginning of 1992 he had moved into the Marrickville residence. 9 From this time the house was, and remains, his only residence in Sydney and Mr De Jesus lived there whenever he was in Sydney. It was shown as his residence for tax purposes and on job applications. 10 Exhibit 2 tendered by the Defendant is a series of photographs of himself and the deceased posing in a manner consistent with the alleged relationship. Some of these photographs are dated and these dates extend from 26 October 1991 to 29 October 1994. The Defendant also tendered a number of bundles of cards both written by and addressed to the deceased and the Defendant as a couple. Some even name the dog as though he were a family pet. Other cards from the deceased and her family to "Tony" are in evidence. 11 During the years 1992 and 1993 the couple lived together, slept together, went out together and shared at least some expenses. They presented in public as a married couple might. Ms Tabram, a friend of the deceased called by the plaintiff, who was not sympathetic to the defendant's claim, seemed to accept that Ms Barnes and Mr De Jesus were in a de facto relationship stating that "I think it started out that way [as a de factor relationship]. Whether it carried on like that later on, I don't know." This evidence was, of course, given without knowledge of the requirements of the legal definition of a de facto relationship. 12 In January 1993 Mrs Barnes was diagnosed with cancer and reduced her employment commitments. She ceased work altogether in late 1993. From her diagnosis until her death the deceased underwent chemotherapy and stayed for periods in both hospices and hospitals. 13 In early 1994 Mr De Jesus commenced a period of employment for Transfield Constructions Pty Ltd ("Transfield") in Malaysia. It was initially intended that this period be only for four months, however bad weather increased it to seven from January to August 1994. There is differing evidence about the amount of contact between the defendant and the deceased in this period. The defendant accepts that he did not write much, as his written English is poor, but claims to have telephoned regularly. Ms Tabram claims that the deceased was not pleased with the defendant because he called only rarely. I find the defendant did call the deceased more than the once or twice Ms Tabram claims but not as regularly as he asserts. 14 When the defendant returned from Malaysia he was welcomed back into the Marrickville home. Within weeks of his returning, the deceased and the defendant embarked on a holiday in Europe together, leaving Sydney on 16 August 1994. They spent four weeks in Portugal with his family. Mr De Jesus said he wanted the deceased to meet his family and introduced her to them as his wife. After that Mrs Barnes travelled to England to meet her son. She told him that Mr De Jesus was her boyfriend and that he was away a lot. Following that the defendant and the deceased met in Paris and travelled home together, arriving in Sydney on 21 October 1994. 15 In November 1994 Mr De Jesus commenced another period of employment with Transfield, this time in Port Kembla. It was the company's practice to terminate employees and have them reapply for each new construction job. Mr De Jesus lived in Port Kembla from November 1994 to December 1995. During this time he frequently travelled to Sydney and stayed with the deceased in the Marrickville residence. 16 In January 1996 Mr De Jesus began work for Transfield in Singleton. Again he visited the deceased regularly. He finished work in April 1996 and returned to Sydney. 17 During all three periods of employment he provided some money to the deceased. Whenever he was in Sydney he lived with the deceased at the Marrickville residence. He said he paid half the living expenses while living in Sydney and the deceased insisted on this. At a dinner party with friends he asked the deceased for her money to pay her share of the bill. He said that in the end he paid for both which he may well have done but I do not accept his explanation of the reason for his earlier request. 18 On 19 July 1996 the defendant travelled to Portugal to visit his father who was suffering from a serious heart illness. He returned on 21 September 1996. 19 Between 20 and 26 August 1996 the deceased was in Royal Prince Alfred Hospital. She was there again from 8 to 31 October 1996. On 3 November 1996 Mrs Barnes was admitted to Eversleigh Hospital. She died on 17 November 1996. She was taken to this hospital, which operated a hospice, by Ms Tabram and Mr De Jesus. The nurse completing the admission papers asked her who was her next of kin. She said "My daughter but she doesn't live down here in Sydney". The defendant said "You can put me down I'm here at home." The nursing sister asked his relationship and he said to the deceased "Am I classed as your de facto?" to which the deceased replied "De facto, friend, whatever." The admission form was completed in that way. 20 Prior to her death, Mrs Barnes had given instructions to a Mr Muggleton, solicitor for a will. It is not clear when this occurred, although she had given instructions for a prior will in September 1995. This appointed the defendant executor and gave jewellery to her daughter, the home to her children equally and the residue of the estate for payment of her debts, funeral and testamentary expenses and thereafter to Mr De Jesus absolutely. Her instructions for a new will were given some time in 1996 and this was prepared by Mr Muggleton. The deceased had this will at home and on the day she died, a Sunday, she asked Ms Tabram to collect it and to take it to her at the Eversleigh Hospital. Ms Tabram said she read it and that it provided for the whole of the estate to go to the two children in equal shares. The deceased asked Ms Tabram to get Mr Muggleton to see her next day but it is of course not certain she intended to sign the will as prepared. 21 At the funeral the priest read out some passages written or suggested by various members of the family and friends. Ms Tabram wrote, "The last five and a half years of her life she found happiness with Tony". Others probably contributed to those words being written. In a conversation after the funeral Ms Tabram suggested that the unsigned will could be signed and that someone had told her that this could be done. While this was an extraordinary and improper suggestion, little really turns on it. On the same day, there was a conversation where, according to the plaintiff, Mr De Jesus said that he wished to be paid for his work on the house and that she and her brother should talk to his solicitor. Mr De Jesus denies the conversation in those terms. He said that what was discussed was a discussion that he had with the deceased prior to his last visit to Portugal when she had said to her daughter that she had left the house in Tony's name for sale to pay the debts and distribute the balance between Tony and her son and daughter. I accept that there was some conversation about a will, but there could have been a claim for recompense as well. 22 There are some other matters relevant to the issues. Mr De Jesus was shown on many of the Royal Prince Alfred Hospital admission sheets for the deceased for on going treatment for cancer as her de facto partner. There are, however, many other hospital records which are not nearly so conclusive which have other people shown as the contact point or next of kin and where the deceased, is described as "single" and a pensioner in the notes from the social workers. The deceased and Mr De Jesus never had any joint bank accounts or any joint financial arrangements; they did not describe themselves as being de facto partners on various forms on leaving and entering Australia when there was an appropriate box where they could do so. When she retired the deceased obtained and remained on a single pension. It seems clear that there were no claims made by Mr De Jesus in his tax for her as a dependent spouse; there was no organised arrangement for sharing expenses and the deceased was concerned about lack of funds when she retired due to her ill health. While Mr De Jesus said that he made appropriate contributions for household expenses at the times he was living with the deceased and made other contributions when she asked him to do so, I find that these latter payments were quite small. The only ones which could be established with documentary support amounted to something just over $2,000. That does not, however, show that other payments in cash were not made and I accept that they were, at least when he was present in the house. His evidence about equal sharing of expenses, and the deceased requiring that, even if true, is not an ordinary experience in marriages. Mrs Barnes spoke of selling the house so that she could be closer to her friends, particular Christine Tabram and she always spoke of her house as "my house" or "my home". She complained of Tony being away most of time. She was concerned about expenses while he was away. A garage was rented, apparently by the deceased and in her name and her car was garaged there. Some time before August 1995 Mr De Jesus arranged to have the lease transferred to his name. He said that this was because he was paying the rent for the garage and stored a few things there, even. An application for employment with Transfield signed, it seems, in 1995 gave the deceased as the contact in case of emergency and against the heading "relationship" was inserted the word "friend". 23 Little of what I have set out in the previous paragraph would go towards establishing a de facto relationship. Most of the facts set out are against such a relationship. Nevertheless there are many matters the other way. There is the wording on some of the cards, obviously given by the deceased to Mr De Jesus at Christmas or perhaps on his birthdays, in terms of endearment and looking forward to the future together and the fact the two were obviously happy when together. 24 The relationship appears to have been at its closest in the years 1992 and 1993 and early 1994. Although there was some shifting away after that, it is important to remember that not all marriages or de facto relationships are perfect all the time Nonetheless, attention must be given to the two years prior to the deceased's death and a de facto relationship must be established at that time. 25 Apart from the matters which I have set out, which in many ways go against showing the form of commitment to each other which is generally expected for a relationship of husband and wife, although not married, the most telling point I think is the fact that the parties were only together for a period of about five months during the final two years. During at lot of that time the deceased was seriously ill with cancer, undergoing much treatment and admissions to hospital. Mr De Jesus said that his absences were agreed to by her because she said that they needed the money. He said that there was difficulty in obtaining work in Sydney, and that was why he continued to work with Transfield, but I do not accept that in the absence of some proper evidence of attempt to find other jobs. No doubt the employment with Transfield was satisfactory in that it apparently was well paid but nevertheless the price of that employment was keeping the parties apart, although I accept that there were regular visits and certainly contact during the time of the employment at Port Kembla and Singleton. There is also to be considered the period between 19 July 1996 and 21 September 1996 when Mr De Jesus travelled to Portugal to visit his seriously ill father. Once again I accept his evidence that Mrs Barnes accepted that it was proper for him to go, but considering the obvious ill-health of the person he claims was his de facto, it was a long period of absence at a time when she was close to death. Mutual support between persons living as husband and wife is not indicated by absence from each other at critical times. Generally speaking the one in good health would wish to stay and the one in ill health would wish the other to stay for comfort and companionship. Facts and law 26 For Mr De Jesus to succeed he is required under the legislation in operation at the relevant date, namely the date of death, to show that he was the de facto husband of the deceased, namely that he was living with her as her sole partner in the two years up to her death in a relationship of a man and woman living together as husband and wife on a bona fide domestic basis, although not married to each other. The well known matters to be considered in determining the relevant question are set out in Simonis v Perpetual Trustee Company Limited (1987) 21 NSWLR 677 and Roy v Sturgeon (1986) 11 NSWLR 454, but it is important to consider the evidence as a whole not under isolated headings. As to those matters the relationship existed for about five years; whenever Mr De Jesus was in Sydney the parties lived in the same house and shared a sexual relationship. Apart from a few minor items they acquired no property together and in fact seemed determined to keep their property separate. So far as household duties are concerned, the only evidence is that Mr De Jesus did some repair work to the house. There is nothing to suggest any ordinary sharing of such duties. Neither is there anything to show any degree of commitment to a life together, apart from some of the statements in the cards. There is, however, evidence that at least a number of their friends considered that they were far more than friends and perhaps considered them in the modern word as "partners". To that extent their public reputation might go to indicate the necessary relationship, even though the deceased seems to have been at pains to tell her son that there was not much in the relationship. That, however, is not entirely unusual in matters such as this. The evidence about the will for which the deceased had apparently given instructions is, I think, some evidence against the existence of a de facto relationship. Conclusion 27 This is a difficult case. It is, however, for the person setting up the relationship to establish it. There is no doubt that there was a close affectionate relationship and as I have said, it is important to bear in mind that, just as all marriages are not perfect, all de facto relationships are not necessarily perfect. Nevertheless, I have come to the conclusion after careful consideration of the matters set out in this judgment that the relationship is not made out as I consider a balancing of the facts in support of the claim is outweighed by the facts indicating the absence of the relationship. The apparent lack of commitment, the periods of separation, the insistence on separate property and the instructions for the will are important in my decision. What orders should be made 28 It follows as a result of this decision that the cross claim should be dismissed. In these circumstances the plaintiff would be entitled to a grant of letters of administration if the deceased died intestate. The extraordinary fact is that no evidence has been led or, as far as I can establish, filed by the plaintiff to establish intestacy. Evidence of the statements of the deceased to her son and Mr De Jesus and the plaintiff may indicate a will had been made. This is a matter normally determined by the Registrar. It is sufficient for me to dismiss the cross-claim and declare that if the deceased died intestate the plaintiff is entitled to a grant of letters of administration of her estate and to refer the matter back to the Registrar for completion. 29 Orders 1. Declare that if the deceased, Doris Lillian Barnes, died intestate, the plaintiff is entitled to a grant of Letters of Administration of her estate. 2. Refer the application back to the Registrar for determination in accordance with the said declaration. 3. The cross-claim be dismissed. 4. The defendant/cross-claimant pay the plaintiff/cross-defendant's costs of the contested proceedings. 5. The exhibits may be returned after 28 days unless there is an appeal. ********** Last Modified: 02/07/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.