Gollege v Donnachie [2005] NSWSC 16

New South Wales Supreme Court

CITATION : Gollege v Donnachie [2005] NSWSC 16

HEARING DATE(S) : 16, 17 November 2004

JUDGMENT DATE : 8 February 2005

JURISDICTION : Equity Division

JUDGMENT OF : Master Macready at 1

DECISION : Paragraph 72

CATCHWORDS : Family provision and maintenance - claim by a de facto partner - dispute as to whether plaintiff was a de facto partner - appropriate provision was a life interest with particular attributes to prevent dissipation.

William Gordon Gollege v Patricia Donnachie & Anor (Estate of Mary Anne Bell) PARTIES :

FILE NUMBER(S) : SC 4867 of 2002

Mr M. Gorrick for plaintiff COUNSEL : Mr J.S. Drummond for defendants

The Legal Aid Commission of NSW for plaintiff SOLICITORS : Beazley Singleton for defendants

LOWER COURT JURISDICTION :

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

Master Macready

Tuesday 8 February 2005

4867/02 William Gordon Golledge v Patricia Donnachie and Elizabeth Borg JUDGMENT 1 Master : This is the hearing of an application under the Family Provision Act 1982 in respect of the estate of the late Mary Ann Bell who died on 2 April 2001. The plaintiff was at one stage the de facto partner of the deceased. The defendants are two of the children of the deceased by her marriage. Last will of the deceased 2 On 19 April 1984 the deceased made her last will and testament. In that will clause 2 was as follows: "I give my house No. 48 Macauley Street Leichhardt and the furniture and furnishings therein unto my trustees upon trust to permit my friend WILLIAM GORDON GOLLEDGE (provided he shall be living with me as at the date of my death upon a bona fide domestic basis ) and my son David Anthony Bell (hereinafter called the permitted occupants) and no other person to enjoy the personal use and occupation of the said house furniture and furnishings during their respective lives while they shall respectively remain unmarried and so long as they respectively shall not enter into any de facto relationship in either of which events he or they shall forthwith vacate the house and I DIRECT my trustees to take any necessary steps to ensure that they do so." 3 Thereafter the will provided in clause 4 for the home to be sold and to be divided equally between the four children of the deceased. 4 On 30 January 1996 the deceased executed a codicil amending clause 2 by deleting the reference to 48 Macauley Street, Leichhardt and inserting the premises known as 14 Warman Street, Pendle Hill. Apart from this amendment there were no other changes to the will. The assets in the estate 5 The deceased owned the property at 14 Pendle Hill that has a present value of $417,000 and she had cash of about $5,756. The cash has been used to pay some of the administration expenses of $20,801 with the executors paying the balance. They still hold the house which is occupied by the defendant and the executors have met all the rates and taxes on the house since the date of death. 6 The plaintiff's costs up to and including the hearing amount to $26,370 and the defendants' amount to $26,259.50. Family history 7 The plaintiff was born on 7 January 1937 and the deceased was born on 14 January 1928. He first met the deceased in 1964 when she was married to her husband Sidney Bell. There were four children of that marriage. They were the first defendant born in 1945, the second defendant born in 1952, Frederick born in 1955 and David born in 1966. 8 In January 1977 Sydney Bell died and shortly thereafter (according to the plaintiff) he moved in to live with the deceased. The defendants suggest that he moved in about 18 months after Mr Bell's death. The plaintiff sold his home at Leichhardt in 1979 and after paying off the mortgage he received the sum of $20,000. 9 The plaintiff's son moved into the house in 1978 and remained there until 1981 when he moved out. He was then aged 17 and he kept in touch with the plaintiff thereafter. 10 The deceased made her will as I have recounted on 19 April 1984. At that stage David was still at home and he moved out in 1988. 11 In 1988 the plaintiff's father moved into the home where the deceased cared for him. He remained there for two years until he had to move to a nursing home. He died in 1990. 12 In October 1990 after the sale of his father's home the plaintiff received $7,261 and $70,000 by way of distribution from the estate. The plaintiff says that he gave sums of $25,000 and $7,000 to the deceased but that is disputed. 13 The plaintiff had been a clerk in the Department of Public Works and he retired in July 1992. He received redundancy and long service sums of $10,861 and $6,385. He also received a payout of his superannuation in an amount of $119,983. 14 There are allegations that the plaintiff drank very heavily after his retirement and it appears that he received a disability pension in 1993. 15 On 30 January 1996 the deceased made the codicil to her will. In 1997 the plaintiff suffered a turn at home and was taken to hospital. After that occasion the plaintiff says that his drinking habits changed and he ceased drinking a bottle of scotch a day and drank beer instead. The evidence suggests that it might have been two bottles a day rather than one bottle. 16 The deceased died on 2 April 2001 and probate was granted on 27 June 2001. The proceedings were commenced on 30 September 2002 within the time limited under the Act. Eligibility of the plaintiff 17 The plaintiff claims to have been living with the deceased as her de facto partner at the date of death or, alternatively, that he was at some time a member of the household of which the deceased was a member and at some time partly dependant upon the deceased. 18 Under the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999 which took effect on 28 June 1999 there was an extension of the Act which applied to proceedings that commenced after that date. The amended Family Provision Act incorporates the definition of a domestic relationship in the Property (Relationships) Act 1984.