The Estate of Janet Beris Jackwitz [2018] NSWSC 515

Supreme Court New South Wales

Medium Neutral Citation: The Estate of Janet Beris Jackwitz [2018] NSWSC 515 Hearing dates: 23 April 2018 Date of orders: 23 April 2018 Decision date: 23 April 2018 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Registrar's decision set aside; letters of administration granted to applicant Catchwords: SUCCESSION – wills, probate and administration – probate and letters of administration – whether applicant for letters of administration was in a "domestic partnership" with the deceased when they maintained separate homes – Succession Act 2006 (NSW) ss 104(b), 105(a) and 111 – Interpretation Act 1987 (NSW) s 21C Legislation Cited: Interpretation Act 1987 (NSW) Succession Act 2006 (NSW) Cases Cited: Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477 Category: Principal judgment Parties: Donald McKinnon (Applicant)) Representation: Counsel: G.A. Rich (Applicant)

Solicitors: Gwynne Thompson (Applicant) File Number(s): 2017/243094 Publication restriction: None

EX TEMPORE Judgment 1. These proceedings concern the estate of the late Janet Beris Jackwitz. I shall refer to her and the applicant, Donald McKinnon, without disrespect, by their given names. Janet died intestate. 2. In form, the matter which has been referred to me by the Probate Registrar is Donald's motion for a review of a decision of the Registrar made on 15 March 2018. However, in substance, this is an application for declarations and consequential orders (including a grant of letters of administration) to the effect that Donald was, at the date of Janet's death, the spouse of Janet for the purposes of Ch 4 of the Succession Act 2006 (the "Act") and, in particular, s 111 of the Act, which provides that "If an intestate leaves a spouse but no issue, the spouse is entitled to the whole of the intestate estate". 3. The decision of the Registrar which is the subject of review is contained in the second sentence of a requisition dated 15 March 2018: "1. The requisitions dated 9/10/2017 stand. The affidavit of the applicant does not go far enough to establish the existence of a de facto relationship. In any event the names of persons entitled, but for the existence of a de facto, must be stated together with the facts establishing their entitlement and certificate evidence. For this reason it is suggested that the matter be referred to the NSW Trustee and Guardian." 1. "Spouse" is defined in s 104 of the Act: "104 Spouse A spouse of an intestate is a person: (a) who was married to the intestate immediately before the intestate's death, or (b) who was a party to a domestic partnership with the intestate immediately before the intestate's death." 1. It will be apparent from s 104(b) that the question for the Court is whether or not Donald "was a party to a domestic partnership with [Janet] immediately before (Janet's] death". 2. Section 105 of the Act defines "domestic partnership": "105 Domestic partnership A domestic partnership is a relationship between the intestate and another person that is a registered relationship, or interstate registered relationship, within the meaning of the Relationships Register Act 2010, or a de facto relationship that: (a) has been in existence for a continuous period of 2 years, or (b) has resulted in the birth of a child." 1. It follows that s 105, in the circumstances of this case, requires attention to the question of whether Donald and Janet were in a de facto relationship that had been in existence for a continuous period of two years (there being no registered relationship). 2. "De facto relationship" is not defined in the Act. It is necessary to have regard to s 21C of the Interpretation Act 1987 (NSW) (the "IA") which includes: "21C References to de facto partners and de facto relationships … (2) Meaning of "de facto relationship" For the purposes of any Act or instrument, a person is in a de facto relationship with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else. (3) Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple. …" 1. In my respectful opinion, and contrary to the view expressed by the learned Registrar, I am satisfied that Donald's evidence supports the finding, and the Court finds, that he and Janet had "a relationship as a couple living together" for the purposes of the definition of "de facto relationship" under s 21C(2) of the IA. It is convenient to address why that is so by reference to the non-exclusive list of matters to be taken into account set out in s 21C(3) of the IA. 2. The duration of the relationship 3. Donald's evidence makes clear that they were in a continuous relationship from in or about 1996 up to and until Janet's death on 28 March 2017. They met at the Caulfield Cup Day races held at Randwick Racecourse in October 1996 and began a relationship from about that time. They shared a common love, amongst other things, for horse racing. 4. The nature and extent of their common residence 5. It may be that this area of Donald's evidence was the source of the concerns expressed by the learned Registrar. This is a case where the parties to the relationship did not share a single residence. However, the fact that they did not do so does not prevent a finding that they were a couple "living together" for the purposes of s 21C(2) of the IA. I respectfully adopt what was said on this topic by Lindsay J in Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477: "32. Ample authority demonstrates that, although the concept of "living together" may have locational and temporal dimensions, persons may be "de facto partners" without living only in a single residence and without spending all their time each in the company of the other: Vaughan v Hoskovich [2010] NSWSC 706 at [49]- [53], [56], [58] and [65]-[67]; Amprimo v Wynn [2015] NSWCA 286 at [77]. 33. The expression "living together", no less than the rest of section 21C(2)(a), must be read in context. It suggests a degree of proximity or commitment, of one sort or another, which points towards the existence of "a relationship as a couple" in the nature of a marriage-like, family relationship: a "marriage" relationship, a union between two people involving a merger of lives, de facto not de jure." 1. In this case, Janet (as a result of both her employment as a school teacher and life-long association with the area) had a close attachment to the Paddington area. That is where she preferred to maintain her residence, a rented studio apartment. On the other hand, Donald lived at an apartment in Gladesville, near to which he also moored what appears, from the evidence, to be a substantial, antique motor boat. Donald and Janet divided their time between Donald's Gladesville unit, Janet's Paddington unit and the motor boat, which Donald would moor at scenic spots around the harbour. I am satisfied on the evidence that they kept a common residence, but that the actual physical location of that common residence varied as was convenient to them between those three locations. 2. Whether a sexual relationship exists 3. Donald's evidence is that such a relationship did exist consistently throughout the time that he and Janet were together. 4. The degree of financial dependence or inter-dependence and any arrangements for financial support between them 5. Donald frankly concedes that he and Janet were financially independent. They maintained separate accounts for general day to day expenses, however would pay for each other when together on outings or on holidays. However, he also deposes that they would jointly go shopping for household items, including such things as beds, kitchen appliances and mobile phones. I do not think that the fact that Donald and Janet maintained basic financial independence is, in and of itself, sufficient to negative the effect of the totality of the evidence that they were in a relationship as a couple. 6. The ownership, use and acquisition of property 7. As I have said, they each maintained their own residences. However, they clearly "used" those residences (for the purposes of s 21C(3)(e)) as a couple, living in each of those residences together as it was convenient for them to do so. 8. The degree of mutual commitment to a shared life 9. The evidence makes it clear that from about the time of the commencement of their relationship in 1996 they were mutually committed to a shared life. Quite apart from living together in any of the three locations to which I have referred and enjoying a sexual relationship, the tenor of Donald's evidence is that they were in an exclusive relationship. A particularly important factor, to my mind, is that during times of respective serious illness, one of them cared for the other as was required. For example, Donald suffered a serious stroke which left him in hospital for a considerable period of time. Janet did not drive. For the entire period of Donald's hospitalisation Janet would make a daily trip on public transport to visit Donald. 10. The care and support of children 11. While their relationship did not produce any children, it appears that each of them played something of what might be referred to as a grandparental role in relation to Donald's grandchildren. For example, this would involve babysitting the small children of Donald's two children by a previous relationship and being involved in significant family occasions of Donald's children and grandchildren. 12. Performance of household duties 13. It is clear from the evidence that they would shop together, spend time with each other at the respective residences to which I have referred, engage in tidying up, making beds, cleaning kitchens and lounge rooms and preparing for guests who would visit. I have no doubt that they shared household duties. 14. The reputation and public aspects of the relationship 15. Donald's evidence includes statutory declarations from family members and others who had known Donald and Janet over a long period of time. All of that evidence points to one conclusion, namely that in so far as their circle of friends and social and professional connections were concerned, they were regarded as a couple. 16. I note that subsection 21C(3) concludes that "no particular finding in relation to any of those matters is necessary in determining whether two persons have a relationship as a couple". Nevertheless, the list in subsection 21C(3), by reference to which I have considered the evidence, remains a useful guide for the purposes of undertaking the analytical task. However, it is appropriate that I record, quite apart from those specific categories, that having read all of the material presented on the application, the Court is well satisfied, and finds, that as at the date of Janet's death, Janet and Donald had been in a de facto relationship for a continuous period of well in excess of two years for the purposes of s 105 of the Act, and that the relationship existed immediately before Janet's death, so that pursuant to s 104 of the Act Donald was Janet's spouse for the purposes of s 111 of the Act. 17. The only remaining question is proof of the extent to which anyone else would be entitled to Janet's estate in the absence of the relationship which she enjoyed with Donald. Janet never married and had no children. She was an only child. Her parents and grandparents are all deceased. The evidence discloses that Janet has no living close relatives, but may have distant cousins in Queensland. Searches and other inquiries have been made in relation to the possibility of such cousins. It would be fair to summarise the evidence on that point as being that all inquiries have led to nought. 18. While it would be theoretically possible for further inquiries to be made, I accept the submission of Mr Rich of Counsel, who appeared for Donald, that given the small size of the estate (valued at approximately $117,000) it would be an unreasonable impost on the estate to require further inquiries to be made against the possibility of finding very distant relatives. I especially note, in this regard, that there has been newspaper advertising in Queensland searching for relatives or other claimants in relation to Janet's estate which has brought no response. 19. The orders of the Court are: 1. Set aside the decision of the Registrar of 15 March 2018 to the effect that the affidavit of the applicant, Donald McKinnon, does not establish the existence of a de facto relationship between the applicant and the late Janet Beris Jackwitz. 2. Declare that the applicant, Donald McKinnon, as the surviving de facto spouse of the late Janet Beris Jackwitz, is entitled to the whole of her intestate estate. 3. Order that Letters of Administration of the estate be granted to the said Donald McKinnon. 4. Dispense with the requirement for an administration bond. 5. Dispense with further compliance with the rules. 6. Refer the application to the Registrar for the completion of the grant.