Marsh-Johnson v Hillcoat [2008] NSWSC 1337

New South Wales Supreme Court

CITATION : Marsh-Johnson v Hillcoat [2008] NSWSC 1337

HEARING DATE(S) : 11/12/08

JUDGMENT DATE : 16 December 2008

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 16 December 2008

DECISION : Paragraphs 72 and 74

CATCHWORDS : Family Provision. Application by fiancee of the deceased. Held no de facto or close personal relationship with deceased. Held part of household and partly dependant. Small estate. Legacy aof $50,000 granted. Plaintiff's costs fixed at $35,000.

PARTIES : Maryann Marsh-Johnson v Kylie Hillcoat (Estate of the late Douglas Kirkpatrick)

FILE NUMBER(S) : SC 4399/2007

COUNSEL : Mr RD Wilson for plaintiff Mr PR Glissan for defendant

SOLICITORS : Williamson Isabella for plaintiff Access Business Lawyers for defendant

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

ASSOCIATE JUSTICE MACREADY

TUESDAY 16 DECEMBER 2008

4399/07 - MARYANN MARSH-JOHNSON v KYLIE HILLCOAT

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Douglas Kirkpatrick who died on 30 August 2006 aged 57 years. He was survived by the plaintiff with whom he had a relationship for the previous 11 years, his three stepchildren and his former wife. LAST WILL OF THE DECEASED 2 The deceased made his last will on 18 March 1988 before he had met the plaintiff. He appointed the defendant, his stepdaughter as the executor. By his will, the deceased gave the whole of his estate to his three step-children, Mark Forsyth aged 39 years, Glenn Forsyth aged 38 years, and the defendant aged 35 years in equal shares. THE ESTATE OF THE DECEASED 3 The deceased's main asset was a unit at Ball Place, Albion Park which has now been sold. After payment of debts, there is cash in the estate of $229,744 which will accrue interest at $3,398 on 4 February. This sum of $233,142 is after paying the defendant's legal costs of $38,000. The remaining defendant's costs will be about $11,000 and the plaintiff's costs are estimated to be in the order of $50,000. FAMILY HISTORY 4 The deceased was born in February 1949 and the plaintiff in December 1960. The stepchildren who were children of Christine Beddall, who became the deceased's second wife, were Mark, Glenn and Kylie. Mark was born in August 1969, Glenn in November 1970, and Kylie in August 1973. The deceased's first marriage was to Jennifer Waugh in 1974 and he divorced her in 1980. There were no children of the marriage. He married Christine Beddall in November 1981. 5 The deceased made his last will on 18 March 1988, as I have already mentioned. He was divorced from Christine in January 1995, and in September, the plaintiff and the deceased commenced their relationship. The plaintiff at that stage had two children, Nicholas who was born in December 1986 and Mitchell born in February 1988. The plaintiff divorced from her husband in April 1996. 6 In July 1996, the deceased commenced to live with the plaintiff at her home at Melinda Grove, Lake Heights near Wollongong. The reason for him doing this was because he could not meet the obligations on his mortgage and he could not recover his unit until about November 1996, when he did so with the help of his sisters. He then moved back to that unit. 7 In 1997, the deceased commenced work with Boral Transport and in 1999 he changed work with a company called Load Haul. 8 On 10 June 2000, the plaintiff and the deceased announced their engagement to be married. 9 By February 2003, the plaintiff's youngest son, Mitchell had turned 14. At this time, the plaintiff started to spend two nights a week at the deceased's home, leaving her children alone in her house. They continued to spend weekends together. 10 The deceased died on 30 August 2006. He died suddenly and unexpectedly from an aneurysm. He was in good health until then. 11 Letters of administration with will annexed were granted to the defendant on 15 November 2006. 12 The deceased and the plaintiff had set a date for their wedding, 30 December 2006, and it did not come to pass because of the deceased's death. 13 The proceedings were commenced within time on 5 September 2007. ELIGIBILITY 14 The plaintiff says she is an eligible person on three bases. First, she says she and the deceased were living together in a de facto relationship although not married. Second, she says that she and the deceased enjoyed a "close and personal relationship" as defined in section 5(1)(b) of the Property (Relationships) Act 1984 from June 1995 up until the deceased's death. Third, and in the alternative, the plaintiff says she was a member of the household of which the deceased was a member and was partially dependent on the deceased during the course of their relationship, particularly for the accommodation during the time she stayed at the deceased's house at Albion Park Rail and also during a period of unemployment.