Cameron v Vial [2009] NSWSC 79

New South Wales Supreme Court

CITATION : Cameron v Vial [2009] NSWSC 79

HEARING DATE(S) : 23/02/09, 24/02/09

JUDGMENT DATE : 2 March 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 2 March 2009

DECISION : Paragraph 54

CATCHWORDS : Family Provision. Application under Family Provision Act by a de facto who had lived with deceased for 30 years. Consideration of appropriate provision. Bequest of house ordered in lieu of legacy of $10,000.

PARTIES : Gladys Cameron v Colin Vial (Estate of the late Raymond Reginald Vial)

FILE NUMBER(S) : SC 5016/2007

COUNSEL : Mr R Quickenden for plaintiff Miss P Gormley for defendant

SOLICITORS : Elliott Tuthill for plaintiff CBD Law for defendant

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

ASSOCIATE JUSTICE MACREADY

MONDAY 2 MARCH 2009

5016/07 - GLADYS JEAN CAMERON v COLIN JOHN VIAL

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Raymond Reginald Vial, who died on 18 June 2007 aged 77 years. The deceased was survived by the plaintiff who was living with the deceased as his de facto partner at the date of death. He was also survived by his four children who are aged between 44 and 56. Last will of the deceased 2 Under the deceased's will dated 1 June 2007 the plaintiff received a legacy of $10,000 and the deceased left the residue of his estate to his four children, one of whom he appointed executor.

Estate of the deceased 3 The deceased's estate now consists of the following:

House at Narrawallee $320,000.00 Interest in Queensland land $250.00 Shares $5,094.00 Cash in estate after administration costs $132,919.00 TOTAL $458,263.00 4 There are also costs which have been estimated as follows: Plaintiff $49,743.00 Unpaid defendant's costs $24,229.00 TOTAL $73,972.00 5 If an order were made for payment of these costs there will be the house and about $64,000 in cash and shares left in the estate. This is before payment of the plaintiff's legacy of $10,000. Family history 6 The deceased was born in 1930 and the plaintiff in November 1933. The deceased had four children, Colin Vial born January 1953, Justin Vial born April 1960, Kerry Standish born September 1962 and Diana Ralph born June 1964. The deceased and his first wife separated in 1970. Apparently this was the result of some drinking by the deceased. The deceased and his wife made an arrangement some time after this for the deceased's wife not to make a claim by way of property settlement upon the deceased promising that he would leave the land, which they both jointly owned at Narrawallee and which at that stage did not have a house on, to his children. 7 In 1975 the plaintiff and the deceased started their relationship. At that stage the plaintiff was about 42 years and the deceased 45 years. Between 1975 and 1978 there were trips down to the land at Narrawallee with the deceased, the plaintiff and her children. By 1978, according to the plaintiff, the deceased commenced residing with her on a full-time basis at her housing commission home. At that stage the deceased was working full time as a water meter reader for the water board and the plaintiff was a cleaner at a local hospital. 8 In 1980 the transfer from the deceased's wife to the deceased of the land at Narrawallee was registered and in 1982 the deceased built a kit home on the land. That was completed in a few years and in 1985 the deceased retired. He was aged 55 and the plaintiff was still working. He used his superannuation to pay out the mortgage which had been taken out to build a house on the Narrawallee land. He then moved down there to live and they would be together on the weekends. Frequently the deceased would come up and pick up the plaintiff and go down to Narrawallee for the weekend before returning her on the Monday for work. In 1987 or 1988 the plaintiff herself retired and she moved down to Narrawallee and they resided there as a couple from that time. Over the years up until 2007 they would often come up to see the deceased's mother at Camperdown. 9 In his will made on 17 December 1998 the deceased left all his estate to his children in contrast to the will to which I have earlier referred. 10 The deceased's mother died on 21 January 2007 and the deceased inherited a 1/5 share in her estate. Shortly afterwards his health started to deteriorate and he was looked after by the plaintiff. In May he came up to Royal Prince of hospital and stayed with his daughter Diana and they lived for a while at his mother's house while he went to hospital and had treatment. 11 The will to which I have referred was made on 1 June 2007 and the deceased died on 18 June 2007. Probate was granted and the application was made within time. Eligibility 12 It was conceded that the plaintiff was the de facto partner of the deceased at the date of death, therefore, she is an eligible person. One of the questions in the case is how long was there a de facto relationship. There seem to be three separate periods involved. The first was from 1978 to 1985 when, according to the plaintiff, they were living together at her housing commission flat at Camperdown. Then there was the period from 1985 to 1987 when the deceased was living at Narrawallee and the plaintiff still living and working in Sydney. Then the period from 1988 up to the date of death when they plainly lived together at Narrawallee. The only one that is in real dispute is in fact the first period. 13 The plaintiff claimed, as I have mentioned, that their romantic relationship commenced in 1975 and by 1978 the deceased was living in her home. What is to be noticed is after the relationship with his wife finished in 1970 the deceased went to live with his mother and his son, Colin, who lived with him there. The other children were living with their mother and saw their father on fortnightly access. 14 Colin married and left home in 1974. There was then no need for the deceased to stay with his mother to look after Colin. The other children were still quite young. I am satisfied on the evidence that the plaintiff and the deceased did live together at the plaintiff's house from 1978 and continued to live together except for the two years after the deceased retired in 1985. Even in those two years they still spent weekends together at Narrawallee. 15 The evidence is plain that even in the earlier period they shared a room and a bed and the evidence is that there was a sexual relationship. For all practical purposes it was in fact a relationship of about 29 years. 16 In applications under the Family Provision Act the High Court in Singer v Berghouse (1984) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:- "The first question is, was the provision (if any) made for the applicant inadequate for (his or her) proper maintenance, education and advancement in life? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.