Dunk v Public Trustee [2003] NSWSC 37

New South Wales Supreme Court

CITATION : Dunk v Public Trustee [2003] NSWSC 37 HEARING DATE(S) : 15, 16 May, 20 June, 23 July, 4 October 2002 JUDGMENT DATE : 11 February 2003 JURISDICTION: Equity JUDGMENT OF : Master McLaughlin DECISION : See paragraph 63.

CATCHWORDS : Succession - Family provision - Status of Plaintiff as an eligible person - Whether Plaintiff was de facto spouse of Deceased - Matters to be considered - Deceased spent several (but not all) nights each week at residence of Plaintiff - Financial and material circumstances of Plaintiff - Competing claim of beneficiary named in will. Family Provision Act 1982 LEGISLATION CITED : Property (Relationships) Act 1984 Property (Relationships) Legislation Amendment Act 1999 CASES CITED : Marshall v Carruthers [2002] NSWCA 47 Roy v Sturgeon (1986) 11 NSWLR 454 PARTIES : Mary Ellen Dunk (Plaintiff) Public Trustee (Defendant) FILE NUMBER(S) : SC 2195/01 COUNSEL : C.A. Vindin (Plaintiff) L.J. Ellison (Defendant) SOLICITORS : Muggletons Solicitors (Plaintiff) P J Whitehead, Solicitor (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 11 February 2003

2195/01 MARY ELLEN DUNK -v- PUBLIC TRUSTEE JUDGMENT 1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 12 April 2001 Mary Ellen Dunk claims an order for provision out of the estate of the late John Raymond Joseph Donnelly (to whom I shall refer as "the Deceased"). 3 The Deceased died on 1 December 1999, aged sixty-eight years (he having been born on 7 October 1931). He left a will dated 26 June 1984, probate whereof was on 9 February 2000 granted to the Public Trustee, the executor named in such will (who is the Defendant to the present proceedings). 4 By that will the Deceased left the entirety of his estate to his brother, Barry Patrick Donnelly. (The will contained the further provision, "BUT should be predecease me then for my friend MARY ELLEN DUNK absolutely".) 5 At the date of death of the Deceased his assets consisted of a house property situate at and known as 108 Roberts Road, Greenacre, to which an estimated value of $200,000 was ascribed, together with moneys in various bank accounts (totalling somewhat over $110,000). The inventory of property discloses a total value of the estate in an amount of almost $313,000. 6 After the death of the Deceased an amount of $83,160 was distributed to the sole beneficiary, Barry Patrick Donnelly. Subsequently all assets of the estate have been realised, and the balance of the estate held by the Defendant at the time of the commencement of the hearing was a little under $210,000. There are, however, outstanding liabilities of the estate (including certain outstanding administration costs and expenses, and a GST adjustment payable on final distribution), totalling about $500. 7 Further, it will be appreciated that in calculating the amount of the estate available for distribution, the costs of the present proceedings must be taken into consideration. The Defendant will, in any event, be entitled to his costs, which (including Counsel's fees) are estimated to total $26,000 up to and including the commencement of the hearing. In the event that the Plaintiff be successful in the present proceedings, she will also be entitled to an order that her costs be paid out of the estate. Those costs were estimated to total $32,363 up to and including the commencement of the hearing. For reasons which will emerge later in this judgment the hearing did not conclude within the period originally estimated by the legal representatives of the parties, and which, upon that basis, was allocated by the Court. In consequence, therefore, the costs of each party will be somewhat greater than the original estimations. It is probable that the totality of the costs of both parties will be in the vicinity of $70,000. Upon my estimation, therefore, the amount remaining in the estate available for distribution will be in the order of about $140,000. 8 The Plaintiff asserts that she was the de facto wife of the Deceased at the time of his death. That status is disputed by the Defendant. 9 It will be appreciated that unless the Plaintiff can establish that she is an eligible person within one or more of the categories of the definition of that phrase contained in section 6(1) of the Family Provision Act she does not have the standing to bring the present proceedings. 10 The Plaintiff was born in England on 10 February 1923 and is presently eighty years of age. She met the Deceased in 1963 in Marseilles in France, when they were each travelling. The Plaintiff and the Deceased spent several months thereafter in France, other European countries and North Africa. At the suggestion of the Deceased, the Plaintiff emigrated to Australia, arriving in 1965. However, the Deceased, who was a carpenter by occupation, continued upon a protracted working holiday both in Europe and in North America, and did not return to Australia until 1967. 11 The Deceased, both before and after his overseas travels, was residing with his mother in the house property at 110 Roberts Road, Greenacre (to which I shall refer as "the Greenacre property"). The Plaintiff, who had commenced employment shortly after her arrival in Australia, purchased in 1972 a house property at 56 Mona Street, Auburn (to which I shall refer as "the Auburn property"). That purchase was funded from the Plaintiff's savings and a housing loan, secured by mortgage. The Plaintiff in 1973 suffered a knee injury in the course of her employment. In consequence, she ceased work, and subsequently received compensation for that injury. With her compensation moneys the Plaintiff in April 1976 discharged the mortgage on the Auburn property, and since that time has owned that property unencumbered. 12 The Deceased's mother died on 30 July 1982. The Deceased appears to have thereupon become the sole owner of the Greenacre property. The evidence does not disclose whether he had held an interest in that property before the death of his mother. However, after his mother's death, the Deceased was the only person who lived in the principal residence upon the Greenacre property. 13 It was the evidence of the Plaintiff that from the time of her acquisition of the Auburn property it was the practice of the Deceased to spend nights there with her. Further, that from the time of the death of the Deceased's mother, the Deceased frequently spent nights with the Plaintiff at the Auburn property. It was not the practice of the Plaintiff to spend nights at the Greenacre property of the Deceased. According to the Plaintiff there was a continuing sexual relationship between herself and the Deceased. From the Deceased's return to Australia in 1967 neither of them had any other sexual partners. According to the Plaintiff the Deceased about four years before his death purchased an engagement ring for her, but she subsequently lost it. He also purchased a watch for her. 14 According to the Plaintiff, the Deceased, who was a carpenter by occupation, attended to any work which she desired to be performed on the Auburn residence. She said that the Deceased carried out extensive renovations and repairs, such as adding a bathroom, constructing a new kitchen, knocking down a chimney, and installing French doors and cupboards, and constructing a roofed patio. He also installed a burglar alarm. The Plaintiff said that it was the intention of herself and the Deceased to divide the Auburn property into two flats, for the purpose of them residing in one such flat and renting out the other. 15 There was located at the Greenacre property a self-contained residential apartment (which I gather to be of the kind known as a "granny flat"). It was the practice of the Deceased to rent out that granny flat. Evidence was given by a tenant of that granny flat, Ivars Brugzulis, who had resided in the granny flat for a period of about two years, from late 1998 until December 2000. During that period Mr Brugzulis rarely saw the Deceased, who, he said, came to the premises every few days to collect the mail. Mr Brugzulis said that the Deceased told him, "I have a girlfriend named Mary Dunk. When I am not here [at the Greenacre house] I am staying at her place". Mr Brugzulis did not, however, meet the Plaintiff until he visited the Deceased in Concord Hospital shortly before his death. The Plaintiff was present at the hospital on that occasion. So far as Mr Brugzulis was aware, the Deceased had no other female friends apart from the Plaintiff. 16 Evidence was, however, given by various neighbours who had lived in Roberts Road, Greenacre. Mrs Thelma Mitchell resided at 110 Roberts Road, next door to the Deceased's premises. According to Mrs Mitchell, who observed the Deceased during the forty years whilst they were next door neighbours, his absences from the house were only for one or two days at a time. The Deceased did not tell Mrs Mitchell that he resided anywhere other than at the Greenacre property. 17 It should, however, here be recorded that the relationship between Mrs Mitchell and the Deceased was far from harmonious. She caused him to be charged with assaulting her, for which offence the Deceased was placed on a bond for eighteen months. It would appear that Mrs Mitchell had also caused the Plaintiff to be charged with offences on two previous occasions, and had summoned the police to the Deceased's premises on many occasions. 18 Similarly, evidence was given by Mrs Rosemary Helga Bednorz, who resided at 106 Roberts Road, Greenacre, and was the next door neighbour of the Deceased on the other side from Mrs Mitchell. Mrs Bednorz said that during the forty years that she was next door neighbour to the Deceased she often talked with him when she saw him at his property, she saw him tending the garden and she saw house lights go on at night. Similarly, she was aware that if the Deceased was away from the property it was only for a day or two at a time. Mrs Bednorz said that she knew that the Deceased had a friend called Mary, because on three or four occasions he had said to Mrs Bednorz, "If you wonder where I am, I am over at Mary's doing some repairs". The only occasion when Mrs Bednorz saw a lady identified as Mary at the Greenacre property was after the Deceased was discharged from the hospital in October 1999, and a visitor thus identified brought food to the Greenacre property on one occasion. 19 Evidence was also given by Dr Vilmos Rudolph, who was the Deceased's treating doctor from 1996 until the Deceased went into hospital in October 1999. Dr Rudolph made house calls to the Deceased at the Greenacre property on four occasions in September and October 1999. On none of those occasions did Dr Rudolph see any other persons at the house. Neither did the Deceased mention to him the existence of a partner or a spouse. According to Dr Rudolph the Deceased received assistance twice a week from Bankstown Home Nursing Service. (The Plaintiff said that that assistance was given at the Auburn property.) Dr Rudolph was, however, concerned because, as he understood it, the Deceased lived alone, and at that time was very ill. On 11 October 1999 the Deceased was admitted to hospital, where he remained until his death on 1 December 1999. Although in hospital documents relating to various admissions of the Deceased the Plaintiff is disclosed as the person to be notified, she is described therein as a "friend" or "friend/neighbour" or "other", but not as the Deceased's de facto partner. 20 Evidence was given by Mr Barry Donnelly, brother of the Deceased, and the sole beneficiary entitled under the terms of the will of the Deceased. His evidence was essentially of a negative nature. Mr Barry Donnelly was unaware of the Plaintiff. The Deceased did not mention to his brother her existence, or the fact that the Deceased spent any time at the Plaintiff's residence at Auburn. Mr Barry Donnelly said that when he telephoned the Deceased at the Greenacre property it was the Deceased who answered the telephone. 21 None of the evidence given by the various neighbours, the doctor or Mr Barry Donnelly, is in fact inconsistent with the assertion of the Plaintiff that it was the practice of the Deceased to spend several nights a week at her residence in Auburn. Indeed, the evidence of Mr Brugzulis supports those assertions of the Plaintiff, at least for the period of two years from late 1998 until December 2000 whilst Mr Brugzulis was occupying the granny flat. The failure of the Plaintiff to inform various persons (including neighbours, his doctor, his pharmacist and his own brother) of the existence of the Plaintiff or of the fact that he was spending most nights at her residence may have been due to the character of the Deceased, who appears to have been of a reclusive nature. 22 Although relevant to the question of whether or not the Plaintiff was the de facto spouse of the Deceased at the time of his death, the fact (which I accept) that the Deceased was in the habit of spending several nights each week at the residence of the Plaintiff is not of itself conclusive of whether or not such a de facto relationship existed between the Plaintiff and the Deceased. As will later appear, the nature and extent of common residence of the Plaintiff and the Deceased is only one of a number of matters which may be relevant in determining whether a de facto relationship existed between them. 23 It is also here relevant that during his final period in hospital the Deceased was on 21 October 1999 visited by Mr Leo Bernard Muggleton, solicitor. That visit was apparently arranged by the social work department of the Royal Prince Alfred Hospital, at the request of the Plaintiff. On the occasion of that visit the Deceased gave to Mr Muggleton instructions for the preparation of a fresh will, by which he desired to leave the entirety of his estate to the Plaintiff. (It will be recalled that she was the substitutionary beneficiary named in his then existing, and final, will.) At the end of the visit it was left that the Deceased would contact Mr Muggleton when he was discharged from hospital, with a view to the Deceased and the Plaintiff coming to Mr Muggleton's office, for the purpose of such a will being executed by the Deceased, and, apparently, for the preparation of a will for the Plaintiff. Those plans were overtaken by events. The Deceased after that visit from Mr Muggleton remained in hospital until his death on 1 December 1999. Mr Muggleton, not hearing further from the Deceased, wrote to him, that letter ultimately being received by the Plaintiff on 2 December 1999, the day after the Deceased had died. 24 I have had the benefit of receiving from Counsel for the respective parties written outlines of their submissions. Those written outlines will be retained in the Court file. 25 By paragraph (a) of the definition of eligible person in section 6(1) of the Family Provision Act that phrase means, relevantly, A person: