McGuire bht McGuire v New South Wales Trustee and Guardian

McGuire bht McGuire v New South Wales Trustee and Guardian [2023] NSWSC 1013
Supreme Court of New South Wales
Nixon J
Family provision – the deceased died aged 77 years – the plaintiff brought an application for family provision under s59 of the Succession Act 2006 (NSW) – the plaintiff claimed to be an eligible applicant on the basis she was a person with whom the deceased person was living in a de facto relationship at the time of his death – the deceased left a will appointing the Public Trustee of New South Wales as his executor, which was now taken to be the NSW Trustee and Guardian pursuant to cl3(1)(d) of Schedule 1 to the NSW Trustee and Guardian Act 2009 (NSW) – the will left the whole of the deceased’s estate to his daughter and son – the amount available for distribution of the estate was estimated to be about $787,000, and the costs of the current proceedings were estimated to be about $100,000 – held: it is necessary, in order for a family provision order to be made, for the Court to be satisfied that the person in whose favour the order is to be made is an “eligible person” – s57(1) provides an exhaustive list of the “eligible persons” – the term “de facto relationship” is not defined in the Act, but is defined in s21C(2) of the Interpretation Act 1987 (NSW) for the purposes of any Act, namely that 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 – the dispute here was whether the plaintiff and the deceased had had a relationship as a couple living together – s21C(3) provides that the following matters can be taken into account: (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether a sexual relationship existed; (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; and (i) the reputation and public aspects of the relationship – on the evidence, the deceased was for many years, and remained at the time of his death, the “loved partner” of the plaintiff – taking into account all of the circumstances of the relationship, the plaintiff and the deceased had had a relationship as a couple living together as at the time of the deceased’s death, and therefore were in a de facto relationship for the purposes of s57(1)(b) of the Act – after taking account of the matters identified in s60(2) of the Act and the evidence, a family provision order should be made in favour of the plaintiff – given the size of the estate, the order should take into account not only her financial resources and needs (including a fund for contingencies), but also those of the deceased daughter and son – the appropriate amount was $220,000 – as the plaintiff was a person under a legal incapacity, s77(2) of the Civil Procedure Act 2005 (NSW) applied to require this money to be paid into Court – plaintiff’s costs to be paid on the ordinary basis from the estate – defendant’s costs to be paid on the indemnity basis from the estate.
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