Dakin v Floyd [2019] NSWSC 1220

Supreme Court New South Wales

Medium Neutral Citation: Dakin v Floyd [2019] NSWSC 1220 Hearing dates: 19 & 20 August 2019 Date of orders: 18 October 2019 Decision date: 18 October 2019 Jurisdiction: Equity Before: Slattery J Decision: Plaintiff was not a de facto wife of the deceased, and not living in a close personal relationship with the deceased, at the time of his death. Plaintiff dependent on the deceased and living in the same household as him and had been his de facto spouse. Plaintiff is an eligible person under Succession Act, s 57(e). Factors warranting the plaintiff's application are found. An order for provision is made for the plaintiff's proper maintenance, education and advancement in life, giving her 55% of the deceased's estate. Catchwords: SUCCESSION – claim for family provision – reliance on different categories of eligibility – upon his death in 2017, the deceased appoints the defendant, his wife, the executrix under his will and gives her the whole of his estate – the deceased and the defendant separated in 2010 – the deceased forms a personal relationship with the plaintiff in 2013 – whether the plaintiff was the de facto wife of the deceased at the time of his death – whether a de facto relationship between the deceased and the plaintiff had ceased shortly before the deceased's death – whether the plaintiff is an "eligible person" under Succession Act, s 57(b) – whether the plaintiff is an eligible person under Succession Act, s 57(e) as someone dependent on the deceased and living in the deceased's household – whether the plaintiff is an eligible person under Succession Act, 57(f), as a person with whom the deceased was living in a close personal relationship at the time of the deceased person's death – in the event that the plaintiff is found to be an eligible person under s 57(e) or (f), whether there are "factors warranting" the making of the plaintiff's application – whether the plaintiff has been left without adequate provision for her proper maintenance, education and advancement in life - whether an order for provision should be made for the plaintiff's proper maintenance, education and advancement in life, and if so in what amount and in what form – should a costs-inclusive order be made. Legislation Cited: Civil Procedure Act 2005 Family Law Act 1975 (Cth), s 79 Succession Act 2006, ss 58, 59, 99(1) Uniform Civil Procedure Rules 2005 Cases Cited: Churton v Christian (1988) 13 NSWLR 241 Dridi v Fillmore [2001] NSWSC 319 Evans v Levy [2011] NSWCA 125 Peipi v Peipi as Administrator of the Estate of the late Ashoor Hilaney [2013] NSWSC 1520 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Taylor v Farrugia [2009] NSWSC 801 Category: Principal judgment Parties: Plaintiff: Mansueta Dakin Defendant: Sally Floyd Estate of the late Leslie Allen Floyd Representation: Counsel: Plaintiff: R. DeMeyrick Defendant: J. Van Aalst