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Man executes will in favour of relatives and former spouse
On 8 August 2000, a man executed a will naming his younger
brother as his executor. The will left certain items of personal
property to his two brothers, his nephews and his niece.
He left the rest of his estate to a woman identified in the will
as his spouse. Though they had never married, they had lived in a
de facto relationship since 1993 and continued to do so until
2007.
In July 2007, the man met another woman, the plaintiff, when she
applied to volunteer at the youth centre where he worked. At the
time he was 61 years old and she was 32. In about 2008, they
embarked on a romantic relationship.
No provision made for plaintiff in man's will
On 13 December 2015 the man died.
The brother who was the executor was granted probate,
authorising him to manage the man's estate in accordance with
the provisions of the will that he had executed in 2000.
The value of the estate available for distribution under the
will was about $582,573.
The will made no provision for the plaintiff.
Plaintiff seeks family provision order in relation to man's
estate
The plaintiff filed a summons in the Supreme Court of NSW,
seeking a family provision order, arguing that she was eligible as
either the deceased's de facto partner at the time of his
death, or as a member of his household and dependent on him.
The deceased's brother, as the executor of the
deceased's estate, was the defendant in these proceedings.
Although it was not in dispute that there had been a
relationship between the plaintiff and the deceased, the precise
nature, extent, and duration of that relationship was a hotly
contested issue in the court proceedings.
case a - The case for the plaintiff
case b - The case for the brother
It's clear from my previous driver licence that the
deceased and I lived together. The address on my driver licence is
the same as the address of the deceased's property.
We also lived part of the week at a property that I owned. As
my colleague told the court, the deceased would often answer the
phone when she rang me there. When I was travelling, she would also
contact him for updates if she couldn't reach me.
The deceased and I regularly did the types of things that close
couples do, including travelling together, receiving wedding
invitations addressed to us jointly, going out to dinner together,
attending concerts, and family and social gatherings.
The deceased showed his love for me by sending me flowers and
messages. After one special trip to Bali he emailed me that it was
"special to be with you in Bali too – we probably learnt
more about each other in Bali – I love you more than
ever...".
I cared for the deceased's welfare. I would pick up his
medication at the chemist and I took him to doctor appointments and
for his colonoscopy. I also took the deceased to the hospital a
week before he died.
The deceased helped my mother with appointments with her
solicitor and he also helped me financially, giving me $28,000 for
the deposit to settle the purchase of an investment property.
The deceased and I talked about getting married. Although we
didn't have children, I fell pregnant by the deceased
twice.
When the deceased died, I gave the eulogy at his memorial
service. After his death, I received flowers and condolences from
his relatives and many lovely messages, including one in which a
friend said: "I know that you were very important to each
other – having spoken to him more than once, my feeling is he
loved and admired you very much."
My brother, the deceased, never told me that he and the
plaintiff were living together or that they were committed to
supporting each other.
The plaintiff's current driver licence shows a different
address from my brother's property.
My brother and the plaintiff did not have any joint bank
accounts, joint credit cards, joint investments or joint health
insurance.
In 2010, my brother told a close friend that the plaintiff
"can't accept that we aren't in a relationship... she
just won't let it go. I'm sorry that she was hoping for
something more, I think she's worried she might never meet
someone in time to have children... but she just refuses to see
that this isn't going to be with me."
My brother also told that friend regarding the plaintiff:
"I had to call the police. She is out of her mind. She drove
all the way out to my place and scaled the locked gate. I'd
only put a lock on the gate because of her."
My brother and his neighbour were close friends who shared
confidences about the challenges they were both having dating much
younger women. The deceased told him: "the married family-man
life has never been for me" and eventually that "the
thing he had with [the plaintiff] is most definitely
over".
My brother told me in around 2012 that he had changed his land
line telephone to a silent number and had resorted to padlocking
the gate to his property in order to prevent the plaintiff from
getting in.
When I went to my brother's property five days after his
death, his clothes, toiletries, and personal possessions were all
around. There was nothing to suggest that anyone lived there but
him. There were no photos of him and the plaintiff, and there were
certainly no female effects.
So, which case won?
Cast your judgment below to find
out
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