Man receives $85,000 after living with deceased in close relationship

Published 16 Aug 2016

A man has received $85,000.00 after being found to be living with the deceased in a close relationship.

The Plaintiff, being Mr McCarthy, is 50 years of age. He obtained an Associate Diploma of Civil Engineering from the University of South Australia. Prior to 2002 he worked as an engineer and surveyor. From 2002 the Plaintiff has been disabled. He suffers from Chronic Fatigue Syndrome. He has not been in paid employment since 2003.

The Estate of the Deceased has a value of $529,000.00 once all legal costs and tax liabilities are taken away from it.

Eligible Person

In order to pursue a claim for family provision, the Plaintiff must prove that they were an eligible person, as per Section 59(1) of the Succession Act 2006 (NSW).

The Plaintiff argued that he was an eligible person one of three grounds, as set out in the Act at Section 57(1):

  1. A person with whom the deceased was living in a de facto relationship at the time of the deceased person’s death;
  2. A person who was, at any particular time, wholly or partly dependent on the deceased person; and
  3. A person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

De Facto Relationship

The onus is on the Plaintiff to prove that there was a de facto relationship. Throughout the hearing before Judge Young, the following was noted:

  1. The were no Christmas cards of letters from the deceased put forward to the Plaintiff, or vice versa;
  2. The Plaintiff had not been involved in a sexual relationship with the deceased;
  3. The Plaintiff declared to Centrelink he was single;
  4. The Plaintiff’s medical records stated he was single;
  5. The parties clearly occupied separate bedrooms.

Considering these, His Honour noted that he had not satisfied the onus of proof and was not in a de facto relationship with the deceased.

Wholly or Partly Dependent

Dependence must be either financial or emotional. His Honour stated the following:

“There is no satisfactory evidence that the Plaintiff was financially dependent on the testatrix. He had his own room, he had his pension from Centrelink, indeed, he was paying rent to the testatrix…Furthermore, there is not enough evidence to establish that the Plaintiff was emotionally dependent on the deceased.”

Accordingly, His Honour found that the Plaintiff was not wholly or partly dependent on the deceased.

Close Personal Relationship

The Plaintiff needs to show more than just living with the Plaintiff. Whilst there was no documentary evidence to suggest a de facto relationship, there were photographs of them being together when visiting relatives. Further to this, wedding invitations and sympathy notes would often include both of them in the same way as other couples are acknowledged.

His Honour found, that based on this, the Plaintiff satisfied that he was in a close personal relationship with the deceased, and was therefore an eligible person.

Award

The Plaintiff maintains he is ill, unable to work and is handicapped. There was witness evidence that stated that Plaintiff’s care for the deceased was perfunctory, in that he did the best he could with his disabilities.

The Plaintiff was included in the Will to receive a benefit as joint owner of a houseboat, with the value of around $40,000.00. Accordingly, His Honour found the following:

“The Plaintiff has assets of about $187,212.00. He needs to keep some as a nest egg in case of health failure or the like. I consider that in the light of the estate…that the proper order is a legacy of between $50,000-$100,000.00. Accordingly, in my view, the proper order is that the Plaintiff receive a legacy of $85,000.00.”

Along with the above, an order was also made that the costs of the Plaintiff’s legal fees be paid out of the estate, ultimately making his award of $85,000.00 plus costs.

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