Burnett v Public Trustee of New South Wales [2005] NSWSC 1293 | Case summary

8 The Plaintiff, who was born on 26 September 1925 and is presently aged 80, asserts that she is the former de facto partner of the Deceased, and that she is an eligible person in relation to the Deceased within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act. It is asserted on behalf of the Plaintiff that the de facto relationship between herself and the Deceased obtained from June 1960 until January 1961 and from July 1961 until February 1962, that is, for a total period of 14 months. 9 In 1945 the Plaintiff married in London one Derek Burnett. Of that marriage were born three children. The marriage lasted 14 years, and the Plaintiff and Mr Burnett were divorced on 14 November 1959. 10 In early 1960 the Plaintiff met the Deceased, who at that time was working as a regional adult education training officer with the North West Tasmanian Regional Adult Education Department. The Plaintiff was engaged by the Deceased as his personal assistant. She worked in that capacity from early 1960 until the end of January 1961. According to the Plaintiff, she and the Deceased entered into a de facto relationship in about June 1960. The Deceased moved into the Plaintiff's apartment, and resided with her and the Plaintiff's children until the end of January 1961. 11 At that time the Plaintiff was employed in a part-time, and not highly paid, position with the Adult Education Board of Tasmania. The Plaintiff's former husband had ceased paying child maintenance in respect of their children, and she did not receive from him any spouse maintenance. At that time the Plaintiff was receiving social security payments of £7 a week. 12 It was the Plaintiff's evidence that throughout the period whilst they were living together the Plaintiff was the principal homemaker, whilst the Deceased was the principal breadwinner. He provided the Plaintiff with money for groceries and other outgoings each week, and also contributed to the payment of rent, and paid for petrol, firewood and social outings. According to the Plaintiff, the Deceased assisted her with the care of the children, financially, physically and emotionally. She was dependent upon him for support and assistance in her role as mother and de facto spouse, and was financially and emotionally dependent upon him throughout the entire period of their cohabitation. 13 In the course of the Deceased's employment he was required to travel from Hobart to Launceston on business for several days at a time. The Plaintiff always accompanied him on those business journeys. While she was away the Plaintiff's children were cared for by her parents in Hobart. According to the Plaintiff the Deceased was very fond of her children, and they were very fond of him. 14 The Deceased, who according to the Plaintiff travelled constantly, was restless and did not remain in one place for any great length of time, departed for Africa at the end of January 1961. The Plaintiff said that the Deceased liked to travel, and that writing and teaching were his favourite activities. Before his departure the Deceased left his motor vehicle in the custody of the Plaintiff, and expressed a desire that at an appropriate time she should sell that vehicle and should join him in Africa. 15 Throughout the period whilst they were apart the Deceased was in the habit of communicating with the Plaintiff by letter, two or three times a week. Examples of such correspondence were placed in evidence by the Plaintiff. 16 During an earlier period in Africa the Deceased had contracted a marriage in 1959, but had in the same year returned to Australia without his wife. Apparently that marriage was very short lived. However, although the Plaintiff said that the Deceased's wife had promised to divorce him, she did not do so. The Plaintiff was apparently unaware of the Deceased's marriage at the time when she met him, or, indeed, at least until his departure for Africa in January 1961. According to the Plaintiff, the Deceased desired to marry her, but his own marital situation at the time made that impossible. In addition, she said that the Deceased was concerned that Africa at that time was no place to bring up children. 17 After the Deceased's departure for Africa he succeeded in obtaining (through, according to the Plaintiff, her assistance) a teaching position in Somalia, employed by UNESCO. 18 In July 1961 the Plaintiff sold the Deceased's motor vehicle and travelled by sea with her children to Africa. The ship called at Sydney, where the Plaintiff met the Deceased's parents, his brother, two sisters and their husbands. 19 The Plaintiff said that in Africa and Aden (where the Plaintiff first arrived) she was referred to and addressed as "Mrs Barry" by a number of persons. 20 The Plaintiff and her children resided with the Deceased as a family unit in Somalia, first, at Hargiesa for a short time, and then at Borama, where the Deceased was stationed. During that period, from July 1961 to February 1962, the Plaintiff and her children were totally supported by the Deceased. He paid for all outgoings, food, wages for servants, club fees and other social outgoings, as well as providing accommodation for them in a large furnished house (which apparently was provided for the Deceased as part of his remuneration package). The Deceased also purchased white goods, manchester and crockery for the house, and clothing for the Plaintiff's children. During a bout of malaria which he contracted in about October 1961, the Deceased in conversation with the Plaintiff referred to his will. On various occasions during the 1960s the Deceased said to the Plaintiff, "You have been provided for in my will". 21 Because of lack of education facilities for the Plaintiff's children and political unrest in Somalia, the Plaintiff and her children departed Africa in February 1962, returning to Australia. The Deceased paid for their fares and any necessities required on the trip. 22 After the Plaintiff's departure from Somalia the Deceased transferred to Mogadishu. He continued to write many letters to the Plaintiff, and from time to time sent money to her. The Plaintiff said that she loved the Deceased very much and said that she wanted to be with him. 23 Later in 1962 the Plaintiff and her younger son returned to Africa, and she obtained employment at the United States Consulate General in Nairobi in Kenya. The Plaintiff's elder son and her daughter were at school in Tasmania and were residing with the Plaintiff's parents during that period. According to the Plaintiff, her intention at that time was to settle in Africa and find accommodation, and then arrange for schooling for her elder son and her daughter. The Deceased discouraged the idea of the Plaintiff and her children joining him in Mogadishu, which was unsafe for children at that time. Nevertheless, the Plaintiff visited the Deceased in Mogadishu on three occasions (being accompanied by her son on one of those occasions). On each of those three occasions the Deceased and the Plaintiff resided in the same accommodation, and the Deceased paid all expenses for the Plaintiff. Similarly, when the Deceased came to Nairobi he resided with the Plaintiff. 24 In about August 1963 the Plaintiff met Charles William Axten, a widowed flight engineer. In consequence of an offer by Mr Axten that he would bring the Plaintiff's children from Australia to Africa at the expense of his employer, the Plaintiff entered into what she described as a marriage of convenience with him on 22 October 1963. The Plaintiff said that that marriage was never consummated, although she and her children resided with Mr Axten in his residence in Tanzania. They left Mr Axten in April 1964. There was no property settlement, and Mr Axten did not pay any spouse or child maintenance. The Plaintiff has not had any contact with him since April 1964. They ultimately divorced in London on 13 February 1977. 25 The Plaintiff said that although the Deceased knew about her marriage to Mr Axten, it made no difference to his relationship with her. She and the Deceased continued to correspond and to keep in touch. 26 The Plaintiff went to London in mid-1964 to pursue studies in aromatherapy, and was visited by the Deceased whilst she was in London. She later returned to Nairobi and commenced a teaching position. By 1967 the Plaintiff had relocated to Swaziland and was working in a government position, her three children all then being in boarding school. The Deceased by that time had been transferred by the United Nations to Elizabethville (subsequently known as Kinshasha) in the Congo. The Plaintiff joined him there for a period. 27 Throughout the 1970s and 1980s, the Plaintiff, based in Perth, travelled the world and spent time in a number of countries, often for extended periods. By the early 1980s the Deceased had retired from service with the United Nations and had returned to Australia, where he established his residence in Mosman. The Plaintiff and the Deceased maintained communication by correspondence and also by telephone. It was the evidence of the Plaintiff that, although she had retained much of the correspondence between herself and the Deceased, a considerable quantity of that correspondence had been lost or destroyed (including the loss of three tea chests which the Plaintiff had stored at TNZ Storage warehouse). 28 The Plaintiff also visited the Deceased on a number of occasions in the 1980s, the Deceased always paying her airfares and expenses and providing her with spending money on those occasions. The Deceased, who by that time was suffering considerable health problems, visited the Plaintiff in Perth in 1993, and later in that year the Plaintiff visited the Deceased in Mosman. 29 The Plaintiff gave evidence of various occasions when in the last ten years of his life the Deceased in conversation with her made reference to his will, and to the location of his will. According to the Plaintiff, the Deceased implied that she would be a beneficiary and he left her with an expectation to that effect. It was the Deceased, and not the Plaintiff, who raised the topic of his testamentary arrangements. 30 The Plaintiff has now retired from employment. Her income consists of a Department of Social Security aged pension of $482.70 a fortnight (which includes a pharmacy allowance of $5.00) and she receives quarterly a telephone allowance of $19.20. The Plaintiff has no superannuation entitlement, and has no savings. 31 The Plaintiff owns her residence at 4 Kensington Court, Cooloongup in Western Australia. That property has an estimated value of about $190,000. It is subject to a mortgage, upon which an amount of almost $117,000 is owing. The Plaintiff meets mortgage payments of $181 a week. She said that she finds this liability difficult to service. 32 The Plaintiff's residence was originally purchased by her conjointly with her daughter, Philippa. About two and a half years ago Philippa was declared bankrupt, and the Plaintiff purchased her share of the property. The Plaintiff said that she is regarded as a creditor of Philippa by the Bankruptcy Commission of New South Wales in the sum of $21,000. However, the Plaintiff has been advised by the Bankruptcy Commission that it is unlikely that she will ever receive that amount. 33 In addition to her residence the Plaintiff owns furniture and contents therein. She also owns a 1996 model Mazda motor car, to which she ascribes a value of about $6,000. Apart from the mortgage owing on the house property the Plaintiff has other liabilities totalling $32,515, the most significant of which are as follows: Westpac classic plus account $1,700 Westpac Bankcard $4,700 Bank West Mastercard $1,500 AMEX credit card $3,400 Citibank Visa account $2,700 Commonwealth Visa account $5,600 GE finance $4,650 Private personal loans owing to friends $3,000 Overdraft at University Credit Union $1,000

36 The Plaintiff said that she required new spectacles, which would cost about $550. Further, she has been advised by her dentist that she needs major restorative work on her teeth, at a cost of about $28,000. She is unable to afford to pay for that work. However, she is on the waiting list of the government oral health agency. 37 The Plaintiff has experienced serious health problems. For some time she suffered from undiagnosed bilateral renal carcinomas. In November 2003 she underwent surgery for a right nephrectomy. Three months later, in February 2004, she had further surgery, for a partial left nephrectomy. However, the prognosis is good, according to the Plaintiff. Convalescing from her surgery the Plaintiff has not been able to attend to housework, and requires assistance, which she obtains through Silver Chain community assistance (for which she pays $20 for one hour and a half). The Plaintiff also pays Mercy Care $10 a fortnight for mowing of her lawn and garden help, those being activities which she is no longer able personally to perform. 38 As a result of a fall in 1961, exacerbated by a car accident in 1970, the Plaintiff has suffered damage to the sacral and cervical areas of her spine, which she said had led to the dental problems which she currently experiences. 39 Evidence was placed before the Court regarding the nine persons who each receive a piece of real property under the will of the Deceased. Those persons were the sister of the Deceased, Jill Noeleen Dawson (who was the instituted executor named in the will, but who renounced probate); two nephews; four nieces; a friend, Leone Sperling (who had been in a close relationship, albeit not a de facto relationship, with the Deceased throughout the last 18 years of his life); and Hae-in Chang, who was described in the administrator's affidavit as a protégé of the Deceased. Six of those nine persons provided affidavits on behalf of the Defendant. Each of those affidavits gave information concerning the financial and material circumstances of the deponent (and, in the cases of Miss Dawson and Mrs Sperling, additional information concerning the Deceased, his relationship with those deponents, and their observations regarding the relationship of the Deceased with the Plaintiff, and the Plaintiff's assertions in regard to that relationship). It is not necessary for me to set forth all the details of the financial and material circumstances of those six beneficiaries. Suffice it to say that, whilst none of those beneficiaries is destitute, none is particularly affluent. Some are in better circumstances than others. No information concerning their circumstances was provided in respect to three of the beneficiaries, being two nieces and a nephew of the Deceased. An affidavit was also provided by Lorna Elizabeth Barry, a sister-in-law of the Deceased, who is one of the two residuary beneficiaries. The other residuary beneficiary, James Patrick Gibson, a brother-in-law of the Deceased, died on 25 January 1998, before the Deceased. Under clause 4 of the will his interest passes to his children. 40 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff. 41 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file. 42 The Plaintiff asserts that she is an eligible person in relation to the Deceased in that, for periods totalling about 14 months she was a member of the same household of the Deceased, and that throughout those periods she was at least partly dependent upon the Deceased. The Defendant acknowledges that the Plaintiff is an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such she has the standing to bring the present proceedings. 43 Since the Plaintiff is an eligible person only within paragraph (d) of the foregoing definition, the provisions of section 9(1) of the Act are brought into operation. The Plaintiff must establish, pursuant to the requirements of that section, that there are factors which warrant the making of the present application. As McLelland J (as he then was) said in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 [T]he "factors" referred to in the subsection are factors which when added to facts which render the applicant an "eligible person" give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. 44 It was submitted on behalf of the Plaintiff that those factors included, first, the fact that she had been the de facto spouse of the Deceased (a status which was conceded by the Defendant); that, throughout the period of that relationship the Plaintiff had been both financially and emotionally dependent upon the Deceased; that in the ensuing forty-odd years the Plaintiff and the Deceased, although no longer de facto spouses, had maintained a close and affectionate relationship, keeping in communication, even when they were residing in different countries or in different states of Australia; and that the Deceased had given the Plaintiff some financial assistance down the years. There was no suggestion that the Plaintiff had made any contribution to the acquisition, conservation or improvement of property of the Deceased. 45 During the period since the de facto relationship between the Plaintiff and the Deceased came to an end, each of those parties had led separate lives. The Plaintiff had married during that period, although she stated that that marriage had been purely a marriage of convenience; whilst the Deceased had been in a longstanding relationship with Mrs Sperling for the last 18 years of his life. 46 Any financial benefits which the Deceased may have provided to the Plaintiff, during that period after their de facto relationship had come to an end or any benefits by way of provision of accommodation when the Plaintiff stayed with the Deceased were, in the submission of the Defendant, no more than the extending of the hand of generosity, which the Deceased also extended to others, including Mrs Sperling's son, Evan Shapiro, and Mr Chang. 47 In considering whether there are factors warranting the making of the application, it seems to me to be relevant that the de facto relationship between the Plaintiff and the Deceased obtained for an extremely short duration, only 14 months, and that that relationship came to an end when the Plaintiff and her children departed Africa in February 1962, more than 42 years before the death of the Deceased. Throughout that period of 42 years the Plaintiff and the Deceased did not ever constitute a family unit. The Plaintiff contracted a marriage (albeit an asserted marriage of convenience) and the Deceased maintained a long-term relationship with Mrs Sperling. The relationship of the Plaintiff and the Deceased throughout that period appears to have been one of friendship. But for many years their respective careers resulted in each being away from Australia for protracted periods. After his retirement the Deceased lived in Mosman, a suburb of Sydney, whilst the Plaintiff was residing in Western Australia. 48 I am not satisfied that the Plaintiff has established that there are any factors that warrant the making of the present application. That being so, the Court, as required by section 9(1) of the Act, must "refuse to proceed with the determination of the application". It follows, therefore, that the claim of the Plaintiff must be dismissed. 49 If I be wrong, however, in the conclusion which I have just expressed, and if, contrary to that conclusion, there are factors which warrant the making of the application, it is appropriate that I should express my views concerning what provision (if any) ought to be made in favour of the Plaintiff. 50 It is quite apparent that the Plaintiff is in poor (indeed, difficult) financial circumstances. She requires a capital sum sufficient to enable her to pay off her debts, totalling $32,515. If the mortgage debt of $117,000 outstanding on her residence were to be paid out, she would have available an additional $181 a week, which would go some way to improving her very modest lifestyle. 51 As I have already observed, however, the de facto relationship which gives to the Plaintiff the status of an eligible person was one of extremely short duration, which came to an end more than 40 years ago. 52 Although the Court might sympathise with the financial and material circumstances in which the Plaintiff finds herself, which apparently have been largely as a result of her daughter's bankruptcy, nevertheless I am in agreement with the submission on behalf of the Defendant that, even if the Plaintiff had established factors warranting the making of the present application, nevertheless the discretion of the Court would properly be exercised by dismissing a claim based upon a relationship of such short duration and of such considerable antiquity as that which obtained between the Plaintiff and the Deceased more than 40 years before his death. Thus, quite apart from the absence of factors warranting the making of the application, I would not, in the exercise of the Court's discretion be disposed to make an order for provision in favour of the Plaintiff. 53 But even if (contrary to the conclusions which I have just expressed) I were satisfied that the Plaintiff had established an entitlement to an order for provision, I consider, for the reasons which I shall now express, any such provision could only take the form of a legacy in a relatively modest amount which could be met out of the residue of the estate (such residue being about $140,000). 54 Any such entitlement of the Plaintiff to an order for provision must be approached in the light of the competing claims of the other beneficiaries, who are the chosen objects of the testamentary beneficence of the Deceased. With the exception of Mr Chang (who was described as the protégé of the Deceased), each of the named beneficiaries was related by either blood or marriage to the Deceased. I have already referred to the fact that, whilst none of those persons is destitute, none is in affluent circumstances, although some are in a more comfortable situation than others. The competing claims of those beneficiaries may have the effect of reducing, or even extinguishing, an order for provision an entitlement to which the Plaintiff may otherwise have established. 55 I would not be disposed to make an order which would require the sale of any of the pieces of real property. As I have already recorded, one of the two residuary beneficiaries, James Patrick Gibson, predeceased the Deceased, and in consequence his one half share of residue passes to his children. No information has been placed before the Court concerning the financial and material circumstances of the persons who will ultimately receive that share of residue. 56 The other one half share of residue passes to Lorna Elizabeth Barry, sister-in-law of the Deceased. Mrs Barry is a war widow, aged 87. She owns her own residence and has a small amount of savings in a bank account. Her sole income is a war widow's pension of about $320 a week. Her outgoings appear to total in excess of $400 a week (although I query the accuracy of strata levies in an amount of $1,500 a month which are disclosed in Mrs Barry's affidavit of 4 July 2005). Mrs Barry intends to use any money which she might receive from the estate of the Deceased to renovate her home unit, which she has occupied since 1989. I would not be disposed, in any event, to make an order in favour of the Plaintiff which would have the effect of reducing in any way the benefit of Mrs Barry under the will. 57 Thus, even if (contrary to the conclusions which I have already expressed) the Plaintiff were to have established an entitlement to an order for provision, that entitlement would be no greater than a legacy in an amount which could be paid out of the one half share of residue which passes to the children of the deceased residuary beneficiary, James Patrick Gibson. That is, any benefit to the Plaintiff would not exceed the amount of $70,000, that being the value of Mr Gibson's one half share of residue. However, for the reasons which I have already expressed, I am not satisfied that the Plaintiff has established an entitlement to an order for provision, and even if, contrary to that conclusion, I were so satisfied, nevertheless, I am not satisfied that there are factors which warrant the making of the present application. 58 It follows, therefore, that the proceedings must be dismissed. 59 I have not heard any submissions concerning costs. The Defendant is entitled to receive his costs. The only question is whether an order should be made that the Plaintiff pay the Defendant's costs, or whether the Defendant should look only to the estate for the payment of those costs. The financial and material circumstances of the Plaintiff are such that it is most unlikely that any order for costs made against her could ever be enforced by the Defendant. It would be a matter for agreement between the Defendant and the residuary beneficiaries if the Defendant desired to look only to the estate for the payment of his costs (since those costs would, in the first instance, be payable out of residue). Of course, if the residuary beneficiaries so required, then the Defendant would be justified in seeking a costs order against the Plaintiff. 60 I shall, therefore, at this stage make only the following orders:

Burnett v Public Trustee of New South Wales

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Judgment (17 paragraphs)

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