Petersen v Gregory; Estate Glen Alfred Petersen [2007] NSWSC 8

Reported Decision : (2008) NSW Conv R 56-207 (2008) ANZ Conv R 8-07

New South Wales Supreme Court

CITATION : Petersen v Gregory; Estate Glen Alfred Petersen [2007] NSWSC 8

HEARING DATE(S) : 13/12/06, 14/12/06

JUDGMENT DATE : 29 January 2007

JURISDICTION : Equity Division Probate List

JUDGMENT OF : Barrett J

DECISION : Letters of administration to be granted to deceased's father

CATCHWORDS : SUCCESSION - intestate estate - competing claims for letters of administration - deceased unmarried and without issue - claim by father - claim by alleged de facto wife - whether claim to have been de facto wife established - WORDS AND PHRASES - "live together as a couple"

LEGISLATION CITED : Property (Relationships) Act 1984, s.4 Wills, Probate and Administration Act 1898, ss.32G, 61B

Delany v Burgess [2006] NSWSC 1420 CASES CITED : Hooper v Winten [2002] NSWSC 1071 Ye v Fung [2006] NSWSC 243

June Dolores Petersen - First Plaintiff PARTIES : George Petersen - Second Plaintiff Leanne Catherine Gregory - Defendant

FILE NUMBER(S) : SC 114065/05

COUNSEL : Mr M.R. Lawson - Plaintiffs Mr P.R. Stockley - Defendant

SOLICITORS : Atkinson Vinden Heazlewoods - Plaintiffs Thomson Bentley & Partners - Defendant

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

BARRETT J

MONDAY, 29 JANUARY 2007

114065/05 JUNE DOLORES PETERSEN AND ANOR v LEANNE CATHERINE GREGORY - THE ESTATE OF GLEN ALFRED PETERSEN JUDGMENT 1 Glen Alfred Petersen died intestate on 22 February 2005 at the age of 49 years. He never married and had no children. There are competing claims in these proceedings for a grant of letters of administration of his intestate estate. 2 By statement of claim filed on 6 September 2005, the deceased's father and mother claimed an order granting them letters of administration. The mother later died and that claim is continued by the deceased's father (whom I shall call "Mr Petersen"). By statement of cross-claim filed on 16 November 2005, a corresponding claim is made by Leanne Catherine Gregory ("Ms Gregory"). She claims to have been the deceased's de facto spouse at the time of his death. 3 While the respective claims are, in form, claims to administer the estate, the circumstances are such that each is, in substance, a claim to be recognised as entitled to the whole estate. Each claim is advanced on the basis that "the grant ought to follow the interest". The interest upon which Mr Petersen relies is that of the two surviving parents under s.61B(5)(a) of the Wills, Probate and Administration Act 1898. The parents take only if the intestate leaves no spouse and no issue. The interest asserted by Ms Gregory is the surviving spouse's right to the whole estate under s.61B(2) in a case where the deceased leaves a spouse but no issue. 4 Because it is accepted that Mr Petersen is the surviving parent, the only question the proceedings raise is whether Ms Gregory is to be regarded as the "spouse" of the deceased for the purposes of the rules as to intestate succession in s.61B. That section appears in Part 2 of the Act. The question as to "spouse" status accordingly falls to be determined by reference to s.32G of the Act: "32G Interpretation