Supreme Court of WA|2006-02-03|Before: Mr J, Owen J, Jenkins J

Corich v The Public Trustee as Administrator of the Estate of Hugh Leslie Mcgregor (Dec) & Ors [2006] WASC 16 (3 February 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : CORICH -v- THE PUBLIC TRUSTEE as Administrator of the Estate of HUGH LESLIE MCGREGOR (DEC) & ORS [2006] WASC 16

Will and Estate of HUGH LESLIE MCGREGOR, late of 24 Whitfield Street, Lancelin in the State of Western Australia (Dec)

THE PUBLIC TRUSTEE as Administrator of the Estate of HUGH LESLIE MCGREGOR (DEC)

Family provision and maintenance - Jurisdiction to grant relief - Elements of a de facto marriage - Whether testator made sufficient provision for applicant - Principles upon which relief granted

Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA)

Plaintiff : Martin de Haas Commercial Lawyers Pty Ltd

Bondelmonte v Blanckensee [1989] WAR 305

Bosch v Perpetual Trustee Co [1938] AC 463

Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490

Ingamells v Western Australian Trustees Ltd & Anor, unreported; FCt SCt of WA; Library No 930117; 5 March 1993

AA Tegel Pty Ltd v Madden (1985) 2 NSWLR 591

Carmichael v Schram & Ors, unreported; SCt of WA (Owen J); Library No 950717; 21 December 1995

Forrester v Baxter & Ors [2003] WASC 32

McKenzie v Falconer-Brown (1990) 3 WAR 438

Pereira v Patrick & Ors [2001] WASC 342

1 JENKINS J: This is an application under the Inheritance (Family and Dependents Provision) Act 1972 (WA) ("the Act") in respect to the estate of Hugh Leslie McGregor who died on 13 July 2002 aged 64 years. Mr McGregor was survived by his two daughters, Mrs Nicole Christie and Mrs Leanne Baines, respectively the second and third defendants. Mrs Roberta Frances Corich, the plaintiff, brings this claim alleging that immediately before Mr McGregor's death she was his de facto wife. On this basis she seeks orders that adequate provision be made for her out of Mr McGregor's estate.

2 Mr McGregor made his last Will in 1975. He bequeathed his estate to his two daughters, Mrs Christie and Mrs Baines. He made no provision for the plaintiff, Mrs Corich.

3 The first defendant, the administrator of the estate, has filed an affidavit annexing schedules as to the assets and liabilities of the estate of Mr McGregor at his death and as at 15 December 2004. It otherwise abides the decision of the Court. The schedule relevant to the date of death is clear. It shows that Mr McGregor owned three commercial units in King Street, Lancelin to a value of $210,000. His other major asset was a retirement cheque account at Bendigo Bank in the sum of approximately $306,000. He also owned motor vehicles, a camper trailer and dinghy to the value of approximately $49,000. His estate in total, taking into account some minor liabilities, was valued at approximately $558,500. Unfortunately the schedule of assets and liabilities as at 13 December 2004 is not so clear. It omits one of the commercial units which, if I have interpreted the schedule correctly, had been sold. The schedule does not state the net sale proceeds and it is not clear to me who held such proceeds. However, it appears that the bulk of the estate remained intact and that its net value had increased by less than $5,000 since the date of Mr McGregor's death.

4 The parties agree that the applicable law is that which applied at the time of Mr McGregor's death. The Act, s 6(1), (3) and (4) then provided:

"6. Claims against estate of deceased person

(1) If any person (in this Act called 'the deceased') dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.

...

(3) The Court may attach such conditions to the order as it thinks fit, or may refuse to make an order in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order, or on any other ground which the Court thinks sufficient.

(4) In making any such order the Court may, if it thinks fit, order that the provision may consist of a lump sum or a periodical or other payment."

5 Mrs Corich alleges that she falls into the category of persons referred to in the then Act, s 7(1)(f) which stated:

"7(1) An application for provision out of the estate of any deceased person may be made under this Act by or on behalf of all or any of the following persons -

(f) a de facto widow of the deceased who at the time of the death of the deceased was being wholly or partly maintained by the deceased, who was ordinarily a member of the household of the deceased, and for whom the deceased, in the opinion of the court, had some special moral responsibility to make provision."

6 Substantial amendments were made to these provisions by the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA) which came into effect on 21 September 2002. However, by virtue of s 82 of that Act the applicable law is that which was in force at the date of Mr McGregor's death.

7 Pursuant to the Act, s 4(2) and (3) the obligation is on Mrs Corich to establish her claim to my "reasonable satisfaction".

8 The first issue to be determined is whether Mrs Corich is a claimant under the then s 7(1)(f)? If she is, the next issue is whether by his Will Mr McGregor made "adequate provision from his estate for the proper maintenance, support, education or advancement in life" of Mrs Corich? If he did not make adequate provision for Mrs Corich then in the exercise of my discretion I may order such provision as I think fit to be made out of Mr McGregor's estate for those purposes.

9 As to the first issue, in Ingamells v Western Australian Trustees Ltd & Anor, unreported; FCt SCt of WA; Library No 930117; 5 March 1993, the Full Court (Malcolm CJ, Rowland and Ipp JJ) stated the principles which I must apply to the facts of this case. At p 5 - 6 the Full Court said:

"... it is necessary to show that, at the time of death of the deceased, the two were living together as part of the same household as if they were married, but without the lawful celebration of a marriage and without necessarily having a mutual intent of a lifetime of cohabitation. We would not regard it as necessary to establish that the parties were thought by others to be man and wife. If that be the case, then no doubt it could be used as evidence to support the finding sought. It would not, however, be conclusive.

Regard must be had to the entire relationship. This is encompassed by the succinct remarks of Kirby P, in AA Tegel Pty Ltd v Madden (1985) 2 NSWLR 591 at 593, who described de facto relationships as:

'... the relationships between persons who, though not legally married live together sharing domestic circumstances and bound by affection and, usually, sexual relations.'

The need to examine all the circumstances of each individual relationship to determine whether a man and woman lived together as husband and wife, despite the absence of a formal marriage, was emphasised in Lynam v Director General of Social Security (1983) 52 ALR 128. In the latter case Fitzgerald J considered whether the relationship between a man and a woman was such that, although they were not legally married, they were nevertheless living together 'as husband and wife on a bona fide domestic basis.' At 131 his Honour, after pointing out that, in Lambe v Director General of Social Security [1981] FCA 171; (1981) 38 ALR 405, the Full Court of the Federal Court had stated that all facets of the interpersonal relationship need to be taken into account, said:

'Each element of a relationship draws its colour and significance from the other elements, some of which may point in sone direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meet the statutory test.'

See also Pavey v Pavey [1976] FLC 90-051 where the Full Court of the Family Court stated at 75,211 - 75,212 that:

'The constituent elements of a marital relationship would include dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships and the nurture and support of the children of the marriage.'

We would, with respect, add to those constituents the elements of mutual affection, caring and the sharing of material resources.

Finally, as was pointed out by the Full Court of the Family Court in L v L [1984] FLC 91-563 at 79,545 '... not all these [constituent] elements need be present before a consortium vitae can be recognised as such."

10 If Mrs Corich satisfies me that she is Mr McGregor's de facto widow as defined by the Act the second and third issues arise for determination. In Bondelmonte v Blanckensee [1989] WAR 305 at 307, Malcolm CJ summarised the applicable principles in the following way:

"On an application under this provision two issues arise. The first question is whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance, support, education or advancement in life of the claimant. This is in effect a jurisdictional question, which is to be determined at the date of death of the deceased: Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494. If that question be answered in the affirmative, the court in exercising its discretion to make such provision as it thinks fit, must take into account the relevant facts as they exist at the time of making the order: Coates v National Trustees Executors & Agency Co Ltd (supra); Dun v Dun [1957] HCA 91; (1957) 99 CLR 325 at 331; Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490."

11 In Goodman v Windeyer (supra) at 497 Gibbs J (Stephens and Mason JJ agreeing) after referring to the judgments in Bosch v Perpetual Trustee Co [1938] AC 463 said at 497 (references omitted):

"It is clear from their Lordships' reasons that the court, in considering what constitutes proper maintenance, both for the purpose of deciding whether the condition precedent to the exercise of the powers given by s. 3(1) has been fulfilled, and for the purpose of deciding what provision should be made by order for such maintenance, must consider not merely the need for maintenance, but all the circumstances of the case. Their Lordships cited with approval a passage from the judgment of Salmond J. in In re Allen, deceased; Allen v. Manchester which has since very frequently been repeated:

'The Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.'

One of the circumstances that must be considered in deciding upon the deserts of a claimant to a testator's estate, and in determining whether proper maintenance has been provided, is the manner in which that claimant has conducted himself or herself in relation to the testator. If the claimant has contributed to building up the testator's estate, or has helped him in other ways, that may give the claimant a special claim on the testator's bounty."

12 In exercising my discretion I "should keep interference to the will to the minimum required to discharge the jurisdiction conferred by the Act": White v Barron [1980] HCA 14; (1980) 144 CLR 431 at 458 per Wilson J. Also in White v Barron (supra) Mason J at 444 expressed the view that the provision of a large capital sum to a plaintiff who is not young may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would afford a safeguard to her without leaving her in a position to benefit her relatives from the proceeds of the legacy. I have applied this principle to the facts.

13 Before stating my findings of fact it is appropriate to make some comments on issues of credibility. Eighteen witnesses gave evidence at the hearing of this application. Mrs Corich gave evidence and called eight witnesses in support of her case. Additionally she tendered by consent the affidavit of Dr Sharnee Ellen Rutherford, the general medical practitioner for Mr McGregor and Mrs Corich. The second and third defendants gave evidence and called seven witnesses in support of their case.

14 The non-party witnesses were all apparently witnesses of truth and I have been able to make findings without having to resolve direct conflicts between their evidence on the basis of their credibility.

15 The parties also were apparently witnesses of truth. As their evidence is in conflict in some important respects it has been necessary for me to consider issues of credibility whilst bearing in mind that there is an onus of proof on the plaintiff to prove her case.

16 The problem for Mrs Corich is that for many years she claimed either a pension or unemployment benefits from the Australian Government as a single person whereas she gave sworn evidence before me that she was living in a de facto marriage with Mr McGregor for all of those years. She testified that she did so because Mr McGregor could not always afford to support her. Whether or not that is the truth there is no doubt that during the relevant period she received substantial financial benefits from Mr McGregor which it seems she failed to disclose in financial statements relating to her pension or benefits. Mrs Corich's evidence in this respect does not reflect well upon her credibility.

17 If, over a period of many years, a person has maintained a false or misleading picture about their personal and financial circumstances in order to benefit themselves I must examine their evidence with care before relying upon it, especially if, as in this case, their evidence, if accepted, may lead to further financial benefit. I have examined Mrs Corich's evidence with this care before relying upon it and I have not accepted it on important issues unless I have tested it against other evidence which I accept and have found to be credible.

18 The second and third defendants' evidence does not suffer from this qualification. However, as the plaintiff submitted, much of their evidence was couched in terms of conclusions which are their opinions about various matters relating to their father. I have not put weight upon those conclusions unless there is evidence to support them.

19 I now turn to my findings of fact. Mr McGregor was born on 11 October 1937. He married Leah Anne Dyer ("Mrs McGregor") on 2 November 1963. There were two daughters born of the marriage. The elder, Mrs Baines, was born on 9 May 1964. The younger, Mrs Christie, was born on 21 January 1969. Mr and Mrs McGregor divorced in December 1974. Mrs McGregor gave evidence that Mr McGregor's abusive and angry behaviour caused by his excessive drinking was the cause of their divorce. Mr and Mrs McGregor remained friends up to the time of his death.

20 On 28 November 1975 Mr McGregor made his last Will leaving the whole of his estate in equal shares to Mrs Christie and Mrs Baines and then to their children if his daughters predeceased him.

21 In around 1987 Mr McGregor moved to Lancelin and lived in a house he owned at 14 Horton Way, Lancelin.

22 Mrs Corich was born on 12 June 1943. She first met Mr McGregor in about 1970. They must have lost contact because she says that they "renewed contact" in the early 1980s. Mr McGregor asked Mrs Corich and her then five year old son, Matthew, to live with him in Horton Way. She agreed to do so and together they lived in a de facto marriage for approximately three years from 1986 - 1989. For that period Mr McGregor financially supported Mrs Corich and they lived together as man and wife. Amongst their joint interests were cray fishing and holidays to Bali.

23 During this period the two planned to marry. Mr McGregor gave Mrs Corich an engagement ring. Prior to the planned wedding day Mr McGregor had what Mrs Corich described as one of his "turns". In other words he went on a drinking binge at the end of which he became "angry, aggressive and violent". Mrs Corich called off the wedding, left the Horton Way house and went to live in Mt Yokine, a suburb of Perth. This was in about October 1989.

24 Mrs Corich accepts that it was at this time she applied for and commenced receiving a single parent's pension. Mrs Corich claims that despite the split, their relationship continued as a de facto couple. I do not accept this.

25 It is not in dispute between the parties that Mrs Corich and Mr McGregor resumed cohabitation in Horton Way, Lancelin in March 1990. However, Mrs Corich said that Mr McGregor was then drinking a lot and their relationship was "on again, off again".

26 In about April - May 1991 Mr McGregor's drinking became so bad that Mrs Corich and her son moved out of the Horton Way property and rented a duplex in Walker Avenue, Lancelin. Mrs Corich was then on the single parent's pension. Mrs Corich gave evidence that she and Mr McGregor still visited one another. Despite this, in my opinion, the de facto marriage between Mrs Corich and Mr McGregor which had recommenced in March 1990 ceased again at that time.

27 Some time in mid-1991 Mr McGregor moved to Rockingham for a period of months. He may have temporarily returned to Lancelin but in October 1991, after leasing the property at Horton Way, Mr McGregor went to live by himself, in a home he purchased at 55A Harrison Street, Rockingham.

28 Mrs Corich remained living with her son in Lancelin. Mr McGregor and Mrs Corich probably continued to see one another but they were not living together in the one household as man and wife, and, in my opinion, were not then in a de facto marriage. In the winter of most years Mr McGregor would travel for a number of months alone to the warmer northern Australian areas. It is possible that he saw Mrs Corich in Lancelin when he was on his way to or from his holiday. The need to maintain the Horton Way property also gave him a reason to visit Lancelin.

29 In May 1992 Mrs Corich rented premises in Wedge Avenue, Lancelin. After a period the owner, a single man, returned to live there also. It is unnecessary for me to determine the nature of the relationship between Mrs Corich and the landlord as I am satisfied that no matter what it was, Mrs Corich and Mr McGregor were not living in a de facto marriage at this time.

30 In 1992 Mrs Corich and Mr McGregor attended the wedding of the daughter of Mrs Corich, Mrs Coralie Bikaun, in Kalgoorlie. They stayed together in Kalgoorlie for approximately one week. Mrs Bikaun was unaware that at that time Mr McGregor lived in Rockingham. She assumed, incorrectly, that he was living with her mother in Lancelin. Similarly, in 1993 Mr McGregor attended and paid for a large fiftieth birthday party for Mrs Corich in Lancelin. Mrs Bikaun again assumed that Mr McGregor was living with her mother in Lancelin at this time. Although he may well have been staying with her at the time, this was not his permanent residence.

31 In July 1993 Mr McGregor and Mrs Corich took a holiday together to Bali. Mr McGregor paid for this trip.

32 In January 1994 Mrs Corich moved to a rented house in Ayres Avenue, Lancelin. She has deposed that Mr McGregor paid the rent, bond and letting fee for the premises and that Mr McGregor stayed with her at the house when he visited Lancelin. She said they would live as a couple and had sexual intercourse. I accept this evidence but do not find that they were in a de facto marriage at this time. In my opinion Mr McGregor's residence in Rockingham was inconsistent with such a relationship.

33 In May 1994 Mrs Corich and Mr McGregor went to Bali for another holiday for about two weeks.

34 Mrs Corich has deposed that just before this trip Mr McGregor bought her another engagement ring which was a ruby and diamond ring. I sighted the ring during the course of evidence. I described it as a ring containing two red stones each in the shape of a leaf with a further spot where it appears that another stone in the same shape would be, but the stone is missing. It is in yellow metal and it has a cut in the back of the band. Mrs Corich gave evidence that it had to be cut off her finger at one point. It is not a traditional engagement ring. It is indistinguishable from a dress ring or a friendship ring.

35 Mrs Corich said that at the airport prior to their departure for Bali in May 1994 they had an informal engagement party. She said that both Mrs Baines and Mrs Christie were present as was Mrs Bikaun. However, neither Mrs Bikaun nor Mrs Christie gave evidence about such a party. Mrs Baines acknowledged that she and Mrs Christie went to the airport on that occasion. It was not put to her that an informal engagement party took place.

36 I am not prepared to find, on the basis of the uncorroborated evidence of Mrs Corich, that an informal engagement party took place at the airport or that Mrs Corich and Mr McGregor became engaged at this time.

37 Mr McGregor sold the Horton Way property in March 1994.

38 On 28 June 1994 Mr McGregor sold his house in Rockingham and moved back to Lancelin. He remained resident in Lancelin until he moved to Perth late in his life for medical treatment. Mr McGregor owned a caravan and he took this with him to Lancelin. He also owned a property at 17 King Street, Lancelin. He developed factory units on the King Street property. In 1994 he put the caravan in one of these factory units. The unit had its own kitchen and bathroom, washing machine and dryer. Mr McGregor also set up a lounge area in the unit with carpet, a couch, TV and fridge. For the remainder of his life Mr McGregor used either this unit or his post office box as his address for all official purposes, such as his motor vehicle registration, driver's licence, tax returns and banking. Mrs Corich never lived with him at this address. However, she visited him there regularly during the day.

39 Between 1994 and 2001 Mrs Corich lived at either the Ayres Avenue property or other rented premises in Ellis Avenue, Lancelin. It is unclear exactly when she moved from Ellis Avenue but she moved into another rented property in Whitfield Street, Lancelin late in 2001. She gave evidence that she and Mr McGregor lived together in these homes as husband and wife, had sexual relations, slept in the same bed, shopped together, she cooked for him, he supported her financially and they holidayed in Bali and elsewhere together.

40 Mrs Corich acknowledges that Mr McGregor sometimes stayed at the factory unit and this would be for "one or two days a month, maybe sometimes a week, a month". However, she said that sometimes he would go for weeks without staying there.

41 Between 1994 and 2001 Mrs Baines, Mrs Christie, their families, Ms Gloria Halasz, (Mr McGregor's sister) and several of Mr McGregor's friends visited Mr McGregor on collectively a large number of occasions. On the overwhelming number of these visits Mr McGregor met and entertained his relatives and friends at his factory without Mrs Corich. Even when his relatives and friends stayed overnight they did so primarily at the factory unit where Mr McGregor also stayed. Mr McGregor told them that that was where he lived and he told a number of his friends and relatives that the local Shire had told him that he should not be living in the unit. He said that he had told the Shire that he was caretaking at the units.

42 Mr McGregor's relatives and old friends also gave evidence that when Mr McGregor visited their homes in Perth he would primarily visit alone. Mrs Baines said that he would often look after her children during school holidays and on these occasions he stayed with her without Mrs Corich.

43 The evidence of the defendant's witnesses is to be contrasted to that of witnesses called by the plaintiff. Mrs Bikaun gave evidence that she visited her mother on numerous occasions over these years and that she stayed for three to four nights at a time with her mother and Mr McGregor in her mother's rented premises. She said that Mr McGregor and her mother slept together in the same room and Mr McGregor behaved as if the house was his home and Mrs Corich was his wife. This evidence was supported by the evidence of two of Mr McGregor's and Mrs Corich's friends, Ms Sonette Todorovic and Mr Dudley Pustkuchen. They gave evidence that over the lengthy time they knew Mr McGregor and Mrs Corich they lived together in Mrs Corich's various rented premises as husband and wife even though they had periods of separation. They said that they often visited these homes and saw Mr McGregor and Mrs Corich interacting on a day-to-day basis in respect to their domestic business. Ms Todorovic says that a few months before Mr McGregor died she saw him with a Will form. He told her that he was making a new Will because he was very concerned for Mrs Corich's welfare. However, he did not make a new Will.

44 I have no reason to doubt the truth of the evidence of either the plaintiff's or the defendants' witnesses in these regards. I conclude that between 1994 and 2001, Mr McGregor and Mrs Corich had a close but sometimes volatile relationship. Mr McGregor maintained separate premises at the factory unit which he would stay at regularly during periods of separation from Mrs Corich, for the purpose of looking after the premises, staying with his family and friends when they visited him and just so that he could have some time to himself. On the other hand, he regularly also lived with Mrs Corich and maintained a domestic relationship with her which included sexual relations.

45 Two other matters impacted on the time that they spent together. The first was Mr McGregor's regular trips to warmer climes over winter and his regular visits to his daughters, particularly Mrs Baines, to see them and to look after Mrs Baines' children. In respect to the trips during winter I note Mr McGregor's visa card statement which is in evidence for the latter part of 2001. It shows that during that year Mr McGregor was absent from Lancelin from approximately mid-July through to the end of the first week in November. Thus for approximately four months of that year Mr McGregor was absent from Lancelin and from Mrs Corich. Further I accept Mrs Baines' evidence that her father would regularly stay with her over school holidays to look after her children, without Mrs Corich.

46 The evidence does not allow me to make a particular finding as to how many days a week Mr McGregor would stay with Mrs Corich. In my opinion, based on the evidence, this would very much depend on whether they were arguing with each other, the time of year and whether Mr McGregor's family were visiting. However, I am satisfied that Mr McGregor maintained a home with Mrs Corich and lived at that home for over half of his time.

47 As to their financial arrangements, Mr McGregor kept his money separate from that of Mrs Corich. They kept separate accounts at Lancelin Ice and the Lancelin General Store. However, on occasions they would pay each others accounts, in particular Mr McGregor would pay Mrs Corich's accounts. It seems they also shopped for grocery items together in Perth and their shopping was purchased as one lot. The exact financial arrangements with respect to these shopping trips is not clear. The second and third defendants produced a docket to indicate that there had been a subsequent division of the cost of the shopping on that one occasion. Mrs Corich said that this was in respect to items purchased for her son and that it did not happen with respect to items purchased for her and Mr McGregor. On the basis of this one docket, I am not prepared to find that Mr McGregor did not pay for the groceries in general. There is ample creditable evidence that they shopped together and that Mr McGregor provided substantial financial support to Mrs Corich on a day-to-day basis.

48 When Matthew turned 16, Mrs Corich ceased receiving the single parent's pension and commenced receiving an unemployment benefit.

49 When Mr McGregor was away over winter Mrs Corich collected the rent for the factory units for him. The defendants produced a carbon copy of an account said to be between Mrs Corich and Mr McGregor. It appears to be written by Mr McGregor and purports to record 10 per cent commission owing on rents collected. Mrs Corich denied having seen the account before and having received any income as commission for rent collected. I am not prepared to find on the basis of this one copy document that Mrs Corich was paid for collecting rent. The account may have been created by Mr McGregor as a tax deduction. I simply do not know.

50 Mr McGregor did not declare Mrs Corich as his spouse on his 1999, 2000 or 2001 tax returns.

51 As to public acknowledgement of their relationship a number of witnesses said that in Lancelin they were regarded as a couple. However, Mr McGregor did not reveal to his family and some of his long standing friends the extent to which he had day-to-day contact with Mrs Corich and financially assisted her. Apart from him arranging to meet them at his factory unit, not including Mrs Corich substantially in these visits and not taking Mrs Corich to stay with his daughters, there is the evidence regarding telephone conversations with Mr McGregor. The second and third defendants gave evidence that they would regularly telephone their father and that on the basis of what he told them they believed, and I accept genuinely so, that he was on these occasions at his factory unit. Mrs Corich gave evidence that on occasions Mr McGregor would be at her home when he received calls on his mobile phone from his family and he would go outside to speak to them. Mrs Bikaun gave evidence that she regularly telephoned her mother at her home and would speak to Mr McGregor at the same time. I accept that there were some occasions where the second and third defendants telephoned Mr McGregor and he led them to believe that he was at the factory unit, when he was actually at Mrs Corich's home. The defendants gave evidence that they knew of no reason why their father would mislead them in this respect. I do not believe that it is necessary for me to speculate as to why he would do so. The fact is that based on all the evidence I accept that he did.

52 Mrs Corich has deposed that during the 1990s Mr McGregor often asked her to marry him however she declined because of the reasons why their first wedding was cancelled. She said that in 1997 Mr McGregor reduced his drinking and his behaviour improved. She deposed that in July 1998 Mr McGregor took her to a jewellery shop in Rockingham and bought her a wedding ring. She said that she still wished to avoid a formal wedding but she was happy to treat the ring as signifying their marriage. I sighted the ring which was in yellow metal with white stones in a swirl type pattern. It is not a traditional wedding band and, again, is indistinguishable from a dress or friendship ring. On the basis of Mrs Corich's uncorroborated evidence I am not prepared to accept that Mr McGregor did ask her to marry him on numerous occasions or that this was a ring signifying their marriage.

53 In around late 1998 Mr McGregor was diagnosed with a form of lymphoma. He had surgery. Mrs Corich assisted him by driving him to and from Perth for radiotherapy and by dressing his wounds.

54 In around 1999 after Mrs Corich turned 55, she ceased receiving the unemployment benefit and commenced receiving a widow's pension. This is despite the fact that she says that she was in a de facto marriage with Mr McGregor at this time.

55 On Mrs Corich's fifty-sixth birthday Mr McGregor gave her a birthday card in which he expressed his love for her.

56 In 1999 Mrs Corich and Mr McGregor took another trip together to Bali. In October of that year they attended Mrs Christie's wedding together. After that Mr McGregor had again to attend Perth for radiation therapy. Mrs Corich accompanied him when he did so. In 2000 and 2001 Mr McGregor and Mrs Corich made further trips to Bali for holidays together. Mr McGregor paid for these trips. Their 2001 itinerary evidences that they requested a double room.

57 Mrs Corich has deposed that Mr McGregor still persisted in wanting to marry her and as they were both fond of Bali she agreed to marry him in Bali in 2001. She said that when they arrived in Bali they were told that to go through a marriage ceremony recognised in Australia they would have had to have made prior arrangements in Australia consequently they made arrangements to go through a "betrothal ceremony" at a temple in Madui. At the hearing of this application Mrs Corich produced a photograph which she said was taken during the ceremony wearing traditional ceremonial sarongs and belts supplied by the temple. The photograph does not persuade me that Mr McGregor and Mrs Corich went through a betrothal ceremony whilst they were in Bali. I am not prepared to find, on the basis of the evidence, that they did undertake such a ceremony.

58 Whilst Mr McGregor was away in 2001 it was arranged that Mrs Corich would fly to Cairns to attend his niece's wedding. His Visa account for this time indicates that he paid Ansett $965.58. This is the same amount that Mrs Corich was quoted for her airfare. However, she did not eventually fly to Cairns because of the collapse of Ansett.

59 Whilst Mr McGregor was away Mrs Corich was told that she had to vacate the Ellis Court house. She made arrangements to lease a house in Whitfield Street, Lancelin. She said that only she signed the lease because Mr McGregor was away.

60 Whilst Mr McGregor was away, between August and September 2001 he deposited at least $4,000 into Mrs Corich's bank account. Mrs Corich says that this money was for her expenses. I accept this as there is no evidence to the contrary.

61 Shortly after Mr McGregor's return from his trip in November 2001 he was diagnosed with cancer. At that time Mrs Corich was living in the rented house at 24 Whitfield Street, Lancelin which she had moved into in or around October 2001.

62 Mr McGregor had chemotherapy in December 2001 which continued into 2002. At this time he lived continuously with Mrs Corich at the Whitfield Street residence. Mrs Christie and Mrs Baines visited Mr McGregor there. Mrs Christie on one occasion and Mrs Baines on three occasions. They gave evidence that Mr McGregor showed them his room and from their observation it was a separate bedroom to that of Mrs Corich. Mrs Corich on the other hand, says that when he lived with her at Whitfield Street they shared the same bed. Mrs Corich has deposed that on occasions, especially during the day and whilst he was undergoing chemotherapy, Mr McGregor used a spare bedroom in the Whitfield Street house. I accept Mrs Corich's evidence in this respect.

63 In January 2002 Mr McGregor transferred approximately $300,000 into a retirement account with the Bendigo Bank. For this purpose he saw Mr Colin Roche, a Bendigo Bank manager, on a number of occasions, sometimes by himself and sometimes with Mrs Corich. Mr McGregor told Mr Roche that he wanted Mrs Corich to have full access to the account. She was made a joint signatory on the account and only she or Mr McGregor was required to sign to authorise withdrawals from the account. Mrs Corich was provided with a debit card on the account. Mr Roche deposed that Mr McGregor told him that he and Mrs Corich had been living together for a long time and that he had been providing for her. On the other hand Mr McGregor completed an application form for this account. He stated that his marital status was "divorced". He stated that his address was 17 King Street, Lancelin.

64 After a number of months of chemotherapy Mr McGregor's specialist decided that he required more intensive chemotherapy treatment. This commenced at Royal Perth Hospital in late April 2002. He returned to Lancelin for a week in late May 2002.

65 On this return to Lancelin, Mr McGregor stayed with Mrs Corich and went to a meeting at the Lancelin Industrial Centre. There he spoke to a Mr John Kupiec. Mr Kupiec spoke to him about his illness and asked if he had looked after Mrs Corich. He said that Mr McGregor told him "she doesn't have to worry about anything - she will be well looked after" or something very like that.

66 Mr McGregor then returned to Perth for chemotherapy and stayed at the unit of his sister, Elaine. She was not living there at this time. Mrs Corich did not go and stay with Mr McGregor but she did visit on occasions. She owned a number of dogs and wished to stay in Lancelin to look after them. Mr McGregor was primarily looked after by the defendants and another family member. This was in April 2002. Prior to this period in Perth Mr McGregor had sold most of the factory units. A flyer for an auction to be held in respect to units 8, 9 and 10 states that the auction was to take place on 30 March 2002. It states that the "owner is relocating". The second and third defendants say that their father told them that he was leaving Lancelin permanently. Around this time Mr McGregor made an offer to purchase a house in Safety Bay. He told the second and third defendants that he intended to live there and that Mrs Corich was not moving with him. The sale did not settle as Mr McGregor died.

67 Mrs Corich deposed that she and Mr McGregor had been looking at properties in Two Rocks. She said that she was unaware that Mr McGregor had put in the offer on the house in Safety Bay. She said that when she found out she told him off for putting the offer in and told him that he should have waited until he was well and she had a chance to look at the property. She said that Mr McGregor told her that it was an offer too good to refuse and that he knew that she would like it once she saw it. She has deposed that if Mr McGregor told others that she would not be living with him then that was in her view Mr McGregor keeping secrets from them.

68 On 1 July 2002 Mr McGregor moved to Crawford House which is a residential facility close to the hospital where he was receiving his treatment. Dr Rutherford deposed that she referred Mrs Corich to Crawford Lodge for Mr McGregor while he was undergoing chemotherapy in Perth. There is a dispute between the plaintiff, the second and third defendants and Mrs Halasz about the amount of time that Mrs Corich spent with Mr McGregor and her reasons for not spending more time with him between 1 and 13 July the date of Mr McGregor's death. Mrs Corich has deposed that three or four days after Mr McGregor was admitted to Crawford Lodge she was told that he could not stay there without full time assistance. She made enquiries as to whether he could return to Lancelin and was advised against doing that. She also deposed that she had difficulties coming to Perth because she had fallen off a stool and broken her cheekbone and this was affecting her eyesight. Further she had to have surgery the following Monday afternoon at Joondalup Hospital. Nevertheless she drove to Perth on the morning of Saturday 6 July and her daughter drove her to Crawford Lodge. She stayed the night there and Mrs Christie then picked her and Mr McGregor up the following day and took them to her place. Mrs Corich deposed that she then arranged for Mrs Bikaun to pick her up to return to Lancelin as she had to get ready to go to hospital for her own operation. Mrs Corich's evidence of her reasons for not being able to spend more time with Mr McGregor was not disputed. I am not prepared to find that her failure to spend more time with Mr McGregor in the last weeks of his life reflected any deterioration in their relationship. This is particularly as nobody expected Mr McGregor to die at this time. Also, given that the second and third defendants did not accept that Mrs Corich was their father's de facto partner, it would have been difficult for her to assume that role and its responsibilities in their presence. I acknowledge that Mr McGregor's daughters and sister played a large and important part in the care of their father during these final weeks.

69 On 10 July Mr McGregor was admitted to hospital. It seems that Mrs Corich did travel to Perth and saw him for a short period on at least 13 July 2002. She was telephoned later by Mrs Baines to say that the doctors did not expect Mr McGregor to last through the night. Mrs Corich said that she was unable to attend the hospital because she was babysitting her grandson and she could not get hold of her daughter. Mr McGregor died later that evening.

70 For some weeks prior to Mr McGregor's death it was not possible for him to live with Mrs Corich because of his illness. This short period of separation does not affect the answer to the question as to whether Mrs Corich was his de facto widow at the time of his death. I am satisfied that Mr McGregor and Mrs Corich were living together as part of the same household as if they were married, but without the lawful celebration of a marriage. In coming to this view I have looked at all the relevant circumstances as I am obliged to do. In particular I have considered the following matters:

1. Duration of the relationship - Whilst the parties were not at all times living together as husband and wife they had had a close relationship for well over 10 years. In Mr McGregor's latter years that relationship seemed to have cemented itself.

2. Common residence - I am satisfied that for over 50 per cent of the time that Mr McGregor was in Lancelin he resided in the same home as Mrs Corich and that they shared that home as husband and wife would.

3. Sexual relationship - Their relationship was a sexual one and I accept that other than when Mr McGregor was away from the home or when he was ill that he and Mrs Corich shared the same bed.

4. Financial arrangements - It could not be said that their financial arrangements mirrored those of the average husband and wife. However, there is clear evidence that Mr McGregor supported Mrs Corich financially and from January 2002 he shared a bank account containing a substantial amount of money with her. This is inconsistent with her being just a good friend or girlfriend. Against this there is the evidence that Mr McGregor acquired real estate property in his name alone and even when he purchased a car which he gave to Mrs Corich to use it was acquired in his name. However, these arrangements must be seen in light of the plaintiff's receipt of a single person's benefit from the Government. There is no doubt in my view that Mr McGregor was aware of this arrangement and the financial arrangements entered into by him in respect to Mrs Corich were no doubt in part designed to maintain the appearance for the purposes of the Australian Government that she was a single person without financial support from a partner.

5. Children - The fact that Mrs Corich and Mr McGregor did not have children is irrelevant given their ages.

Matthew Corich, the plaintiff's son did not give evidence. I am therefore unable to comment in any significant way on the nature of his relationship with Mrs Corich. Mrs Corich deposed that Mr McGregor treated Matthew as his son. Not having seen or heard Matthew's evidence I am not prepared to come to any finding on this issue.

6. Domestic arrangements - I accept that Mrs Corich performed most of the domestic duties, such as cooking and cleaning. Mrs Corich deposed that she cooked for Mr McGregor when they were at home together. I have no reason to doubt this. She also said that she washed for him and other witnesses confirmed seeing their combined washing on the line.

7. Public nature of relationship - The acknowledgement in public of a person's relationship with another is an important part of a relationship. There is a large amount of evidence confirming that Mr McGregor and Mrs Corich had a significant degree of mutual commitment and gave mutual support to their relationship over many years in a public way. As against this there is the evidence from the second and third defendants and some of their witnesses, which I do not doubt, that Mr McGregor did not indicate to them that he felt that he was de facto married to or living in a de facto relationship with Mrs Corich. Despite their evidence I have found to the contrary. As I have said earlier it is not clear why Mr McGregor misled them in this respect. I could, but will not, speculate about the nature of the relationships between Mr McGregor, his daughters and some of his friends. The simple fact is that despite whatever Mr McGregor led them to believe I am reasonably satisfied by other evidence that Mrs Corich was Mr McGregor's de facto widow. It is not as if the defendants and other members of Mr McGregor's family were unaware of his relationship with Mrs Corich or of its nature. There is no disputing the evidence of various witnesses who resided in Lancelin to the effect that they regarded Mr McGregor and Mrs Corich as husband and wife despite their ups and downs.

71 In addition the Act requires me to be satisfied that at the time of Mr McGregor's death he was wholly or partly maintaining Mrs Corich. From my findings of fact, there is no doubt that this was the case.

72 I am also required to find that Mrs Corich and the deceased were ordinarily members of the same household. There is evidence both for and against such a finding. On the one hand Mr McGregor maintained a separate residence of sorts at the factory units, Mrs Corich acknowledges that he used to stay there on occasions, he spent a few months of most years away from Lancelin without Mrs Corich and he spent various periods of time in Perth with his family without Mrs Corich. On the other hand he supported Mrs Corich in the payment of rent and other outgoings for her rental properties, he spent most of his time when he was in Lancelin staying at those premises with Mrs Corich in the same bedroom and sharing domestic obligations as if they were man and wife. After considering all the evidence I am reasonably satisfied that Mr McGregor and Mrs Corich were ordinarily members of the one household.

73 Finally, I must be satisfied that in my opinion Mr McGregor has some special moral responsibility to make provision for Mrs Corich. In my opinion he did so. This is consistent with my finding that they lived as husband and wife for a number of years, together with Mr McGregor's significant financial support of Mrs Corich's lifestyle for those years.

Did Mr McGregor Make Adequate Provision for Mrs Corich?

74 There is no doubt that Mr McGregor failed to make adequate provision for Mrs Corich. His last Will did not make any provision for her. This is not surprising as it was made prior to any significant relationship with her. Mrs Corich has no significant assets of her own and without the support of Mr McGregor or provision from his estate she was, as at the date of his death, required to support herself with government assistance.

75 Mrs Corich deposed as at 29 April 2004 that she was currently unemployed and her fortnightly pension of $462 was her sole means of income. Apparently her son was residing with her and contributing $100 a week in board. She was single and renting a home in Lancelin for $260 per fortnight having been evicted from the Whitfield Street home because she was unable to pay the rent following his death. She deposed that her other fortnightly expenses included $180 for food, utilities and other household expenses. She deposed that she was suffering from skin cancer and was incurring medical costs for treatment. It is not clear to me why these would not be covered by Medicare. In respect to assets she deposed that she had clothing and home contents to a value of $4,000 - $5,000 and the 1993 Falcon Station Wagon that Mr McGregor had given her about two years before he died. Other than a debt to her solicitors, presumably in respect to this application, she had no other debts.

76 Mrs Christie has deposed that as at 16 September 2004 she and her husband had a net worth of approximately $240,000 all of which was comprised of equity in their mortgaged home. Their fortnightly income exceeded their expenses by approximately $500. They have a child born in 2004. Both she and her husband were employed in the workforce.

77 Mrs Baines deposed that as of 14 September 2004 she and her husband had a net worth of approximately $165,000, comprised of equity in their mortgaged home and motor vehicles. Their fortnightly income exceeded their expenses by approximately $416. They have two children born in 1988 and 1991, respectively. Both she and her husband were employed in the workforce.

78 Thus, whilst Mrs Christie and Mrs Baines are in better financial positions than Mrs Corich they have financial and personal burdens that would be greatly alleviated by an inheritance. As the natural daughters of Mr McGregor and the beneficiaries under his Will they have legitimate claims to his estate.

79 The plaintiff called little evidence as to what would be an appropriate allowance to her in the exercise of my discretion. Ms Lynette McSherry a real estate agent from Lancelin was called to give evidence about her observations of the relationship between Mr McGregor and Mrs Corich. Additionally she deposed that she had been selling and marketing properties in Lancelin for 15 years and that she was aware of the current general level of prices being asked and achieved for the sale of residential properties in Lancelin. She said that from her knowledge and experience of the property market in Lancelin, an average Lancelin three bedroom residence with one or two bathrooms would sell for $300,000 - $350,000 on current market prices as of 18 October 2005. She said that she appraised a duplex next door to the Ellis Court duplex, presumably the duplex that Mrs Corich and Mr McGregor had lived in, earlier in July 2005 for $275,000 and the house that Mr McGregor and Mrs Corich were living in, in Whitfield Street would sell for $340,000 - $370,000. As at the date she gave evidence, being 14 December 2005, Ms McSherry said that a two bedroom residence with one bathroom being either a free standing home, villa or duplex would be in the range of $270,000 - $280,000.

80 The defendants objected to me relying upon Ms McSherry's evidence as she did not produce the primary evidence upon which her expert's opinion was based. In any event, in my view it is not appropriate for the estate to provide Mrs Corich with sufficient capital from which she could purchase her own home. In all the years Mr McGregor lived with her she either lived in his home or rented premises. There is no evidence before me that this situation was likely to change. Further, if I did provide such capital together with the necessary funds to maintain it, there would be virtually nothing left in the estate. In my view, this would be an unwarranted interference in the Will.

81 This is not a case where Mrs Corich was denied the public acknowledgement of a wedding by Mr McGregor. Even on her evidence it was she who repeatedly declined to marry him. Neither is it a case where she made any obvious and significant sacrifices either for him personally or to build up his wealth. I acknowledge that she made some sacrifices but she was well compensated by the financial support he provided her during his life time.

82 Mrs Corich's needs are modest. The evidence discloses that she has lived a modest life always in rented accommodation. Her biggest luxury has been her holidays in Bali with Mr McGregor. It is doubtful that she would wish to continue these without him.

83 There is no evidence before me that Mrs Corich's lifestyle, other than her holidays and accommodation, has been significantly adversely affected by the death of Mr McGregor.

84 The financial support provided by Mr McGregor, together with her pension, enabled her to live in more expensive premises but it is not clear to me that it is appropriate for the estate of Mr McGregor to provide for these in the future as Mrs Corich no longer needs to provide accommodation for Mr McGregor. There is also no evidence before me as to why Mrs Corich or Mr McGregor's estate, should subsidise accommodation for Matthew, who is now an adult.

85 There is no evidence before me as to the amount of money required to enable Mrs Corich to live at her current standard of living for her expected life time. I must simply do the best I can with the evidence before me. I am not prepared to provide Mrs Corich with a large capital sum that may benefit her son upon her early death.

86 It seems that most of Mrs Corich's needs would be met by an income that was roughly equivalent to that of her pension. Mrs Corich has deposed that she currently lives on her pension of $462 per fortnight or $12,000 per year. In the exercise of my discretion I am not to assume any continuing right to the pension.

87 In my view it is appropriate for the first defendant to hold $180,000 of the estate in trust for payment out to Mrs Corich of an annuity of $16,000 adjusted each year according to the Consumer Price Index. Any residual capital or interest as at the date of Mrs Corich's death is to be paid to Mrs Christie and Mrs Baines. The balance of the estate is to be distributed in accordance with Mr McGregor's Will.

88 In my view she should retain the motor vehicle that Mr McGregor gave her.

(Family and Dependants Provision) Act 1972

Amendment (Lesbian and Gay Law Reform) Act 2002

(Family and Dependents Provision) Act 1972

Corich v The Public Trustee as Administrator of the Estate of Hugh Leslie Mcgregor

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (132 paragraphs)

Corich v The Public Trustee as Administrator of the Estate of Hugh Leslie Mcgregor (Dec) & Ors [2006] WASC 16 (3 February 2006)

Parties

Legislation Cited (3)

Cases Cited (8)