Kidd v Richardson; Estate of Eric Alfred Dudeney [2001] NSWSC 367

New South Wales Supreme Court

CITATION : Kidd v Richardson; Estate of Eric Alfred Dudeney [2001] NSWSC 367 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 119007/00 HEARING DATE(S) : 24/04/01 JUDGMENT DATE : 24 April 2001

PARTIES : Frances Joy Kidd (P) Wendy Richardson (D) JUDGMENT OF : Young CJ in Eq

COUNSEL : J R Wilson (P) J Pentelow (D) SOLICITORS : Maclarens (P) Marsdens (D) CATCHWORDS : FAMILY LAW [105]- De facto relationship- Parties co-habiting at weekends- No sharing of expenses- Woman prepares meals and does washing- Relationship not established. SUCCESSION [335]- Procedure- It is appropriate to decide summarily whether there is a sufficient prima facie case as to whether deceased was in a de facto relationship to warrant case going to trial. LEGISLATION CITED : Wills Probate & Administration Act 1898, s 32G Green v Green (1989) 17 NSWLR 343 CASES CITED : Re Fagan [1980] FLC 90-821 Roy v Sturgeon (1986) 11 Fam LR 271 Weston v Public Trustee [1986] DFC 95-032 DECISION : See paras 15-17

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

YOUNG CJ in Eq

TUESDAY 24 APRIL 2001

119007/2000 - KIDD v RICHARDSON; ESTATE OF ERIC ALFRED DUDENEY

JUDGMENT 1 HIS HONOUR: Eric Alfred Dudeney died on 28 August 2000, aged 46. The deceased's sister, the present plaintiff, has asked for administration of his estate. 2 The defendant, Wendy Richardson alleges that she was the de facto wife of the deceased and has a prior right to administration. She filed a caveat on 20 October 2000 to protect her position. On 27 February 2001 the plaintiff moved that that caveat cease to be in force. The caveat has now expired, but before it did I isolated the issue as to whether, on a prima facie level, there was sufficient evidence of a de facto relationship for the matter to be considered further. I directed that all further affidavits on behalf of the defendant be filed and served not later than 10 April. They were a day or so late, but they have been read without objection, so that the evidence which the defendant wishes to be considered on the issue has been read without objection. 3 The defendant's primary affidavit was sworn on 30 March 2001, in which the defendant said that she is 46; she has had six children, the eldest of whom is thirty. She first met the deceased in June 1995, when he was working for Telstra and she spoke to him on the phone to have the date for payment of her phone bill extended. She met him two weeks later, calling for dinner at his unit after he had telephoned her and requested a date. They kissed and fondled and slept in the same bed, but there was no sex. 4 The deceased called on her the following Friday night and they went back to his unit on the Saturday and made love for the first time. Over the course of the following two years the defendant would meet with the deceased every second or third weekend and stay overnight and they had sex on most occasions. 5 From May 1997 the defendant says she would stay most weekends with the deceased at his unit; she would stay with him when he was sick and he would occasionally stay at her house on the weekend or when he was on holidays. 6 In approximately April 1998 the defendant moved in with the deceased for four months. However, she moved back into her house at Minto in August 1998. She says that the reason for this was that her daughter's friend, Tracey, had a boyfriend who would come around and damage the house and would also sell her belongings. This caused the course of the relationship to go back to weekends, or when the deceased was in hospital. She says that during Christmas 1999 the deceased and she became engaged, but she was still formally married, though she had been separated for twelve years. She says that on weekends the deceased would give her money to help her out financially, and would also occasionally give her money to pay her bills. 7 The defendant says that the deceased bought a TV and a stereo for them both to use at his unit because "that is where we spent the majority of our time". The deceased also contributed money towards a refrigerator because she was cooking all his meals on the weekend, putting them in the freezer and he would eat them throughout the course of the week. They would also buy clothes and other gifts although the deceased bought more gifts for her than she did for him because of her financial circumstances. She would vacuum, dust and clean the bathroom and bedroom, wash the dishes, do the laundry, washing and ironing and look after the deceased when he was sick. They would attend functions together. 8 Under s 32G of the Wills Probate and Administration Act 1898, a de facto spouse is defined as being the sole partner in a de facto relationship with the deceased. The term "de facto relationship" has the same meaning as in the Property (Relationships) Act 1984. The Property (Relationships) Act defines "de facto relationship" in s 4 as being a relationship between two adult persons who are not married to each other, or related, but who live together as a couple. Subsection 2 then says that all the circumstances of the relationship are to be taken into account, including its duration, the nature and extent of common residence, sexual relationship, the degree of financial dependence or interdependence, the performance of household duties, the reputation and public aspect of the relationship. 9 A major factor in considering whether there is a de facto relationship is how continuous it is, both as to the length of association, and also as to whether the association is for an unbroken period. Ms Pentelow, for the defendant, properly put that the mere fact that the relationship is not continuous is not necessarily destructive of a finding of fact that there is such a de facto relationship. Certainly there are cases, such as Green v Green (1989) 17 NSWLR 343 (a wholly exceptional case) and Weston v Public Trustee [1986] DFC 95-032, where relationships that have not continued throughout the whole week have been upheld. However, in the seminal case of Roy v Sturgeon (1986) 11 Fam LR 271; [1986] DFC 95-031, the difficulties involved in a court making such a finding are clearly set out. 10 It must always be remembered that a de facto relationship means a relationship which exists in fact. It may be the case with married people that the relationship continues as a matter of law, even though they live apart, but it is much more difficult to say that that is the case where the parties are not married because it is the fact of what they are doing, rather than the overriding legal relationship, which is important. Thus the authorities referred to in Re Fagan [1980] FLC 90-821, which were considered by Powell J in Roy v Sturgeon at DFC p 75,364, do not really take the matter very far in the de facto relationship situation. 11 One must look at all the factors, but the factors which the defendant puts forward in the instant case are relatively weak. She has her own house; she is already married; she has six children; she did not live with the deceased continuously, she was with him at weekends; she has a child with attention deficit disorder, who requires attention and this is one reason why she did not spend as much time with the deceased as she said she otherwise would have done. There was no sharing of expenses. The money that the deceased gave the defendant was mainly for her own bills, rather than for joint bills. On the other hand, she did housework without remuneration, and she prepared meals, but it does not seem to me that in all the other counterbalancing circumstances this was sufficient. 12 In these probate cases one has to be very careful to see that relatively small estates are not eaten away with costs of a full trial in situations where there is relatively slender evidence. It is certainly not in the public interest that people's money should end up in the lawyers' pockets, when they have very little and have intended to provide for their nearest and dearest. This factor is present here even though in the instant case there would appear to be an intestacy. 13 Accordingly, the court needs to be a little bit more bold than it would in the case of striking out a common law defence under the General Steel principles. 14 The present estate is said to have a net value of $253,598 so whilst it is not a very small estate it is not a very rich estate either. 15 I do not consider that there is sufficient material here to let the case go further for trial and so I decide that there is not, on a prima facie level, sufficient evidence of a de facto relationship to allow the matter to proceed further. That is the question that I was asked to decide, and I decide the same by order under Pt 31 of the Supreme Court Rules 1970. 16 The effect will be that no further caveats should be lodged to protect the defendant's interest and that unless the Registrar considers that there is some other course that should be taken, administration can be granted in due course. 17 The defendant should pay the costs of the proceedings to date. ***************