Nelligan v Crouch [2007] NSWSC 840

New South Wales Supreme Court

CITATION : Nelligan v Crouch [2007] NSWSC 840

HEARING DATE(S) : 31 July 2007

JUDGMENT DATE : 31 July 2007

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE : 31 July 2007

DECISION : Paragraph 69

CATCHWORDS : Family Provision. Claim by same sex partner. De facto relationship had terminated by date of death but plaintiff entitled as she had been part of household and dependent upon the deceased. Legacy provided for plaintiff.

PARTIES : Marlene Francis Nelligan v Beryl Julie Crouch (Estate of late June Maud Ford)

FILE NUMBER(S) : SC 3143 of 2006

COUNSEL : Mr RD Wilson for plaintiff Mr GA Rich for defendant

SOLICITORS : Eddelbuttel Law for plaintiff Merrick Spicer & Associates for defendant

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

ASSOCIATE JUSTICE MACREADY

TUESDAY 31 JULY 2007

3143/06 - MARLENE FRANCIS NELLIGAN v ESTATE OF THE LATE JUNE MAUD FORD & ANOR

JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late June Maud Ford, who died on 15 October 2005 aged 73 years. The plaintiff claims to be a de-facto partner of the deceased at the date of her death. The will of the Deceased 2 The deceased made a will on 25 July 2002. The deceased appears to have used a home-drawn form and in that she appointed her sister, Beryl Judy Crouch, the defendant, as executrix. She gave a bequest to Beryl Judy Crouch of $7,500 and gave the residue of her estate to the Royal Flying Doctor Service of Australia. Unfortunately Beryl Crouch has witnessed the will and, accordingly, the gift to her would be void and the whole estate would pass to the Royal Flying Doctor Service. Assets in the Estate 3 At the date of death the deceased had her property on the North Coast. That has now been sold and the estate has been got in and reduced to cash. The amount of the estate is $232,422 26. Costs have been incurred in this matter and the defendant's costs to the end of the hearing are estimated at $24,000. Those of the plaintiff are estimated at $39,980 and there is GST on that amount of $3,998. Family History 4 The deceased was born on 24 July 1932 and the plaintiff was born on 3 November 1938. They first met in April 1975 when they were co-workers working for Telecom in Canberra. In 1975 they had a holiday together in Cairns and in 1978 they had a holiday together in Tasmania. In June of 1978 the plaintiff and the deceased commenced to live together in rented accommodation at 5 McHugh Street, Evatt, where they lived for some four years. In June 1982 the deceased was promoted and she moved to Roseville, the plaintiff still living in the Australian Capital Territory. The evidence shows that on her weekends the plaintiff would travel to visit the deceased in Sydney. 5 It was in 1983 that the deceased and the plaintiff bought land at Stewart's River for $6,000. They purchased it as tenants in common in equal shares. The evidence is that the plaintiff contributed $4,000 to the purchase and the deceased contributed $2,000. The property was known as "Gunnadoo". The following year a deposit was paid on a kit home and both the plaintiff and the deceased each borrowed $15,000 to build the kit home, which cost $34,000. 6 By mid-1984 the home was at lock-up stage and the deceased at that stage took up residence. The plaintiff at this stage was not living there and that occurred in 1985, when she ceased working for Telecom for a while and went back to "Gunnadoo". 7 In late 1985 the plaintiff actually resigned. In 1992 the plaintiff and the deceased took a two-week holiday to Victoria in their campervan and they went there together. By 1993 they had paid off the kit home loan that they had undertaken. 8 From about 1996 on the deceased's health declined with her having trouble with her lungs and she was from time to time in hospital with collapsed lungs. On 25 November 1997 "Gunnadoo" was sold for $174,897 and the deceased and the plaintiff each received a sum of $87,000 from the sale. Because the purchaser did not want to move in to the property straight away the deceased continued to live there for 12 months and at this time the plaintiff moved to Cowra to look after her mother, who was ill at that stage. 9 In late 1997 the deceased bought a property at 21 Main Street, Ross Glen (known as Kooringal) and rented it out for the first year and she used her part of the sale proceeds for that. For her part the plaintiff, on 9 January 1998, purchased a property at 22 Brisbane Ave Cowra for $69,000 which was close by her elderly, sick mother. In September and October 1999 the plaintiff and the deceased did a campervan trip together on the Great Ocean Road, South Australia. This was for a period of four weeks and on return the deceased had another attack and was in hospital in intensive care at Port Macquarie. The plaintiff stayed on to look after the deceased and the mother. She continued in a difficult condition into the next year. 10 As I have mentioned, the deceased made her last will on 25 July 2002. It appears that there were discussions between the deceased and the plaintiff over the period prior to the deceased's death. The plaintiff had come back to visit the deceased for some periods of five weeks in April and May of that year. It appears that there was a decision for the plaintiff to come back and live at Kooringal. There was correspondence between the parties in which it is plain, in October 2005, that the deceased was looking forward to the plaintiff returning to her house. 11 The deceased died on 15 October 2005. This was some five days before, according to the plaintiff in her evidence, she had planned to return to live with the deceased. 12 The summons was filed on 7 June 2006 within time and probate was granted on 21 August 2006 to the defendant. Eligibility 13 The plaintiff bases her claim on three separate bases. The first was that she claimed to be the de facto partner of the deceased at the date of death; alternatively, that she was in a close personal relationship with the deceased at the date of the deceased's death and, thirdly, that she was an eligible person under sub-para (b) as she was part of the deceased's household and, in part, dependent upon the deceased. 14 Under the amendments introduced by the Property (Relationships) Legislation Amendment Act, 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 domestic relationship in the Property (Relationships) Act 1984. That Act applies to domestic relationships which are defined in s 5 as follows: "5. Domestic relationships (1) For the purposes of this Act, a domestic relationship is: