Rowe v Van Bergen [2002] NSWSC 717

New South Wales Supreme Court

CITATION : Rowe v Van Bergen [2002] NSWSC 717 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2275/01 HEARING DATE(S) : 22/05/02 and 23/05/02 JUDGMENT DATE : 15 August 2002

PARTIES : Jeanette Rose Rowe v Rosemary Van Bergen JUDGMENT OF : Acting Justice Macready at 1

COUNSEL : Ms C. Morris for plaintiff Mr R.B. Wilson for defendant SOLICITORS : Bowring Macaulay & Barrett for plaintiff Michael Slattery for defendant CATCHWORDS : Family Provision. Application under Family Provision Act by a de facto partner. Effect on s 9 considerations of an agreement not to make a claim. Claim to designate property as notional estate. Effect of an early compromise of the proceedings. DECISION : Paragraph 79

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Acting Justice Macready

Thursday 15 August 2002

2275/01 Jeanette Rose Rowe v Rosemary Van Bergen JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late James Ernest Charlesworth who died on 25 October 1999 aged 71 years. The deceased was survived by the plaintiff who alleges that at the date of death of the deceased she was living with him as his de facto partner. The deceased was also survived by seven of his children. One of those children died after the date of death of the deceased. The last will of the deceased 2 The deceased made his will on 16 November 1992. He appointed his daughter, the defendant in these proceedings, as executor. He gave the whole of his estate to his children in equal shares as tenants in common. The estate of the deceased 3 The deceased owned a property at 35 Ashwood Road, Wilton which was valued at the date of death at $450,000 and a motor car worth $30,000. The balance of his estate consisted of certain insurance policies and funds on deposit which amounted to $511,713. In due course the real estate was sold for $465,000 dollars and the funeral expenses have been paid. The estate has now been distributed apart from a sum of $53,863.51. The Subaru car was retained by the executor until October 2001 when it was sold for $28,000. She holds that sum in a separate account in trust for the estate. Both parties have incurred costs in this matter. The defendant's costs are estimated at $43,000 dollars and those of the plaintiff at $55,117. A short history of the family 4 The deceased's wife died on 30 September 1992 and it was on 16 November 1992 that the deceased made his will in respect of which probate has been granted to the defendant. The testator and the plaintiff first met in January 1993. The deceased and the plaintiff apparently commenced to see each other in July 1993 and at that time the plaintiff met the deceased's brother. According to the plaintiff it was in October 1993 that the plaintiff and the deceased commenced a sexual relationship. According to the plaintiff it was in November 1993 that she started staying with the deceased on one or two nights a week. 5 The plaintiff in her evidence suggested that in 1995 she started to live with the deceased for about five nights a week and at that time she transferred her employment to Braeside to be closer to the deceased's home. In October 1995 the deceased and the plaintiff took a holiday in New Zealand when they visited the plaintiff's daughter and her family. In 1996 the plaintiff and the deceased had holidays in Victoria and Jervis Bay. In March 1997 the plaintiff and the deceased spent a holiday in Tasmania and, according to the plaintiff, thereafter they commenced living together on a full-time basis. In 1998 they had further holidays together in Jindabyne and Fraser Island. 6 In August 1999 the plaintiff and the deceased travelled to Mount Isa and visited friends. At about this time the deceased gave the plaintiff, according to her evidence, an engagement ring and they announced their engagement. On 25 October 1999 the deceased died. The plaintiff moved out of the home in November of that year and a Grant of Probate was made on 15 December 1999. 7 On 16 March 2000 there was a partial distribution of the estate totalling $217,068. On 17 April 2000 there was a further distribution totalling $140,000. A further distribution occurred on 26 April 2000 totalling $38,300. A notice of intention to distribute the assets of the estate was published on 5 July 2000. On 14 November 2000 a final distribution of $450,563 was made. 8 The summons commencing the proceedings was filed on 23 April 2001 which was almost the last day for making the application. On that day there was delivered to the plaintiff an offer to put into effect a settlement of the plaintiff's claim which is said to have arisen as a result of some discussions between the plaintiff and the defendant after the death of the deceased. Eligibility of the plaintiff 9 The plaintiff alleges that she is an eligible person as she was living with the deceased in a de facto relationship at the date of death. In the alternative she says that she is an eligible person under section 6 (1)(d)(ii) in that she was part of the household of the deceased and partly dependent upon the deceased. I will first deal with whether she was the de facto partner of the deceased at the date of death. 10 The Family Provision Act picks up the definition of a de facto relationship which appears in the Property Relationships Act 1984. The definition in that Act is as follows: -- "4. De facto relationships