Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney

The Deceased's funeral

1. The Deceased died on 19 June 2017. Her funeral was held on 26 June 2017. Marco paid for the funeral and was assisted in its organisation by Mrs Scarf. The cost of the funeral was $10,329.08.
2. During the course of the hearing, portions of a video of the Deceased's funeral were played in court. What follows reflects my observations derived from the video.
3. Shortly after the service commenced, Marco, together with his son David from a marriage that had broken up prior to the entry into his relationship with Gaye-Marie, entered the chapel and was escorted down to the front row on the right hand side, immediately before the lectern. At that stage, Mr Leaney and a number of his relatives were at the lectern. The funeral service had only just commenced. The video records Mr Leaney saying "Oh Marco, thank God you're here. Here, come down. Sit right there mate."
4. Marco took his place in the front pew, with David sitting next to him. A number of people got up and approached him, presumably to pass on condolences or greetings. These included Mrs Scarf and a further lady who Marco identified in his evidence as one of the Deceased's relatives. She was subsequently identified as Ms Janice Mangleson, one of the Deceased's nieces, who kissed Marco on the cheek.
5. One of the eulogies was delivered by Mrs Scarf. A transcript of the eulogy, or the text from which she read, was in evidence. Relevantly, for present purposes, she said in her eulogy that: "Darling Gaye-Marie passed away 10 years ago in 2007. She was diagnosed with a brain tumour two and half years prior to her death. She was a special girl and she lived with her partner of 12 years, John Byron known to us all as Marco. Marco, Shirley and I spen[t] many hours at Royal North Shore Hospital in the two and a half years leading up to Gaye-Marie's death. Whenever I arrived at the hospital Marco would have his eyes closed holding Gaye-Marie's hand and deeply meditating. His compassion towards Gaye­-Marie placed him in very high regard for Shirley and me. He and Shirley would arrive at the hospital around 9am and leave at around 7pm every day for two and a half years. Gaye-Marie had a few short stints at coming home but in no time at all she was back in hospital. Shirley became very depressed and suffered tremendously after Gaye-Marie's death, she never got over it! There wasn't a day that went past without Shirley thinking of Gaye-Marie. The three of us would always remember Gaye-Marie's birthday, and the day of her death with tears and sad memories. Marco and Shirley stayed by each other's side while they both grieved the loss of Gaye-Marie, and over the years that followed, they became very close. Marco and Gaye-Marie were living in the flat at Shirley's house for about 12 years but after Gaye-Marie's death Shirley asked Marco to move upstairs into the main house at […] Churchill Crescent. For the last 10 years Marco has divided his residency between Churchill Crescent [the Cammeray Property] and Rylstone. If he was in Rylstone he and Shirley phoned each other every morning to make sure all was well! [A]nd he would jump into his car at the slightest hint that Shirley wanted him back in Sydney. The three of us would enjoy a meal every time Marco came down and our choice of restaurant was always [Xenos] at Crows Nest. Ordering flathead with chips and if you know Shirley those chips better be hot! We also polished off a bottle or 2 of Jan[s]z sparkling." (emphasis added).
6. Towards the end of her eulogy, Mrs Scarf said this: "On the long weekend just gone by, I popped in to see Shirley and Marco with some oysters for Sunday breakfast. Shirley said you can only stay till 11am as Marco and I are off to a big family doo at Sutherland with a cast of thousands."
7. In the course of her remarks to the people gathered at the funeral, Ms Iris Giurietto, a niece of the Deceased, said: "We are very grateful to Marco for all the assistance he has given to Shirley over the years, in Shirley's less young days. We wish to thank you Marco, for all the help you have given Shirley for many, many years. You've been there for her. We thank you."
8. During or towards the end of the second sentence extracted above, Mr Leaney's voice can be heard on the video, endorsing this acknowledgment of Marco.
9. A further extract of the funeral was then played to the Court which consisted of a photographic collage on a loop set to music evidently chosen by the Deceased. The photographs covered the Deceased's life but a good number of the photographs included Marco.
10. One of the photographs towards the end of the photographic collage was a photograph of the Deceased sitting in front of a cake and waving at the photographer. When this image came up on the screen in Court, I observed Marco, who was at that time in the witness box and following the photographic collage closely on the screen, to wave fondly at the image of the Deceased. This appeared to me to be entirely natural, unaffected and not contrived.
11. At the conclusion of the Lord's Prayer, the footage showed Marco having collapsed temporarily and the celebrant saying, "I'll just wait for Marco to feel better because it is important that he is part of this."
12. Following the Benediction, Marco was escorted to the casket by the celebrant, Mrs Scarf and his son David, and stood with the casket for between 20 and 30 seconds before returning to his seat. He was the only person in attendance to do this. The curtains in the funeral chapel then closed to conceal the casket. Marco was the first to leave the service, accompanied by Mr Leaney, with other members of the gathering waiting for him to leave first, assisted by Mr Leaney.
13. Counsel for Marco submitted, with some force in my opinion, that the only reason why Marco exhibited such grief during the funeral and why family members of the Deceased were comforting and in some respects deferring to him during the funeral was because there existed a loving relationship between him and the Deceased at the time of her death. That he paid for the funeral was also consistent with that submission.

Meeting at solicitor's office

1. Mr Beach Thomas (Mr Thomas) is a solicitor whom the Deceased had consulted in 2014 about drawing a will for her (a previous will having been revoked by her marriage to Mr Gardner). Mr Thomas made notes of the meeting, and I will refer to those more fully when I come to consider his affidavit evidence. The Deceased did not proceed, however, to give Mr Thomas any instructions to draw up a will after the 2014 consultation.
2. On the day following the Deceased's death, Mrs Scarf contacted Mr Thomas to enquire if he held a will for the Deceased. He told her that he did not. An appointment was made for Mrs Scarf and Marco to meet Mr Thomas on 29 June 2017 to discuss the estate and how to go forward. This was confirmed by an email of 20 June 2017.
3. Mrs Scarf acknowledged this email on 25 June 2017 writing: "John Byron [Marco] and I will be attending the meeting. I'm the youngest of two step daughters of the second marriage, and both my sister and I lived at the home with Shirley and Dad and Gaye at various times growing up. (Gaye was Shirley's daughter before she married Dad and who Dad adopted and she sadly passed away 10 years ago). John Byron was Gaye's partner for twelve years and since Gaye's death he has cared for Shirley and became a constant companion to Shirley." Mrs Scarf was cross-examined about the last sentence of this email and agreed that it accurately described her understanding of Marco's relationship with the Deceased.
4. The meeting referred to in the email went forward, as arranged, on 29 June 2017 and was also attended by Mr Leaney.
5. According to Mrs Scarf's account of the meeting, Mr Thomas explained that "[b]ecause Shirley has not left a valid Will, everything goes to her blood relatives". Mrs Scarf then asked "[w]here does that leave Marco?". Mr Thomas then said "[it] will be up to [Mr Leaney] to negotiate something with Marco".
6. Marco's account of this meeting included Mr Leaney saying words to him to the effect of "[d]on't worry Marco, we are going to consider you". Mr Leaney did not give any evidence in relation to this meeting but did not contradict in his affidavit evidence the accounts of either Mrs Scarf or Marco.
7. Not long after this meeting, Mr Thomas advised Mr Leaney to change the locks on the Cammeray Property, which he then did. This was apparently actuated by a concern that certain documents had been taken from the house. Mr Leaney was also under the apprehension (wrong as it transpired) that the Deceased's car had been taken. Text messages sent shortly after the locks had been changed disclosed that the car was parked up the street rather than in the garage.
8. The changing of the locks on the Cammeray Property undoubtedly introduced a sour note in relations between Marco and Mrs Scarf, on the one hand, and Mr Leaney and his siblings and cousins, on the other hand. This souring is reflected in certain text messages that were exchanged between Mrs Scarf and Mr Leaney. I set them out in this judgment because they do contain some statements which bear upon one of the principal questions in this matter. The first was sent from Mr Leaney to Mrs Scarf on 4 July 2017 at approximately 11.51am: "Hi Helene I am unwell with the flu and struggling at work I have acted strictly on Beach's instructions in regard to the locks. He was very insistent I am anxious to contact Marco to tell him what has happened to save him the an unnecessary trip from his home. Can you provide me with any contact details for him a land line no would be great. Beach also questioned me as to the where Shirley's car is and when you will send to him the briefcase of documents that you took from the house. I have not conducted a thorough search of the property but it would appear [that] Shirley's jewellery is missing. He was very unhappy that these things were removed from the house and I had to admit that I had no knowledge of any of [her] things except that you had the briefcase. Any information about these items would be gratefully received. I will call you later today when I get on top of things a little. Regards Ted" Mrs Scarf replied on 4 July 2017 at approximately 2.44pm: "Hi Ted, I'm sorry you locked Marco out of the house he has been living in for the past 22 years. Shirley[']s car is parked in the Street up the road from the house [and] the keys are in the laundry. The only jewellery I have of Shirleys is what she was wearing when she died that the hospital gave me when I went to identify the body half an hour after she died. As to the brief case in my possession, I borrowed it seeing that it was Clarence's trying to find anything that Elizabeth[,] Clarence's daughter had asked for. Mostly her father['s] medals and ashes. I can drop it off to Beach next week. Naturally, when White Lady pass on the Death Certificate and I collect the ashes I'll pass them on to Beach. Remember I loved Shirley too and had dinner with her and Marco every fortnight for the last twenty years. Regards [H]elene." (emphasis added).
9. The reference to "Clarence" was a reference to the Deceased's third husband, Mr Gardner.

Inspection of the Cammeray Property

1. Because of the lockout to which I have referred, Marco did not have access to the Cammeray Property from a time shortly after the funeral until just before the trial when an inspection of the property was made in the presence of the interim administrator (Ms Kennedy), legal representatives for both parties and Marco and Mrs Scarf. Evidence of that inspection was given both by Marco and a solicitor from the firm representing him in these proceedings. Those accounts were not relevantly challenged.
2. Marco said that, on this inspection, he saw multiple possessions of his in the garage, as he had left them when he was last in the Cammeray Property. These included two of his jackets hanging in the garage including the suit he wore to the Deceased's funeral and wake, together with a blue mariner's jacket, a backpack of his containing one of his towels that he used when he went to the sauna and various tools and hardware that he and the Deceased had accumulated together for work on the Cammeray Property, including tools that he had brought from the Rylstone Property.
3. He gave evidence that, on entering the house, he observed dust and cobwebs and, in entering the Deceased's room, found it "difficult to be in Shirley's bedroom again". He then referred to his bedroom which adjoined the Deceased's bedroom and observed that it was in the state that he had last left it (over two years before) with the sheet pulled back and two of his pullovers on the bed. He observed a number of possessions on the desk and in the drawers including a clock radio, headphones, a collection of his books, his deodorant and perfume, a note to himself reminding him to pay his Telstra bill and approximately $130 in cash next to the handwritten note which he proposed to use to pay that bill at the post office in June 2017. In the wardrobe, which he said appeared to have been untouched, he said he observed his shirts and three of his jackets, his shoes, underwear, singlets and T-shirts in a drawer, expired medicine for his heart, prostate, piles, and blood pressure, and a collection of five to ten envelopes or letters.
4. In other parts of the house, and in particular the lounge room, he said he observed cobwebs and dust and said that it looked to him as though termites had been at the house. He said that, "it was Shirley's and my practice to organise fumigation for the Cammeray house approximately once a year." He also explained that going through the house was emotionally difficult for him.
5. This account was confirmed by Ms Andrews, the solicitor who attended the inspection. She described the wardrobe in Marco's bedroom as "full of men's clothing, including shirts, pants and jackets" and said that there was "not much space, if any, between the clothes and the wardrobe."

Evidence going to how Marco divided his time between the Cammeray Property and the Rylstone Property

1. In his affidavit evidence, Marco estimated that he divided his time between the Cammeray Property and the Rylstone Property in the period between Gaye­-Marie's death and the completion of the Rylstone Property in approximately 2010.
2. Another witness, Mrs Beverley Taylor (Mrs Taylor), a neighbour of the Deceased's, gave evidence that Marco was at the Cammeray Property between 70 and 75% of the time. In her eulogy, Mrs Scarf referred to him as "dividing" his time between the Rylstone Property and the Cammeray Property.
3. Fortunately, documentary evidence in the case allowed a more objective and accurate analysis to be made in relation to the question of Marco's physical whereabouts as between the Cammeray Property and the Rylstone Property than mere estimation. This documentary evidence comprised various credit card and other financial statements which recorded where transactions such as cash withdrawals or supermarket purchases were undertaken. These documentary records were supplemented by telephone records which recorded telephone calls made from Cammeray to Rylstone and Rylstone to Cammeray.
4. The combination of these two sets of business records allowed an accurate if not absolutely precise analysis to be done as to the relevant proportions of time Marco spent with the Deceased at the Cammeray Property.
5. The parties' analysis of these records revealed that for the two year period preceding the Deceased's death, for the days for which there was data, 302 days were spent in Rylstone and 241 days in Sydney with about 20 days showing activity in both. This left unaccounted approximately 160 days. The unaccounted days in most cases fell between days when Marco was in Sydney and, in my assessment, were likely to have been days spent in Sydney. This is for two reasons. First, most of Marco's visits to Rylstone were for more than two days' duration. Many of the "unaccounted" days were single days between other days where the evidence shows that Marco was in Sydney. Secondly, "unaccounted" days were days for which there was no record of telephone communication. Given that the telephone records show that Marco and the Deceased were regularly in telephone contact when they were apart, I feel comfortable in inferring that, on days when there was no telephone communication, they were most likely together. As the Deceased only went to Rylstone on a couple of occasions, this places the two together, either in Cammeray or on holiday.
6. Taking these matters into account, and noting that it is not possible to be absolutely precise, my assessment is that Marco spent approximately 55% of his time with the Deceased in the last two years of her life. Although the same degree of analysis was not undertaken from the years prior to that, Exhibit P8, which was a summary based on credit card records, showed a broadly similar division of time and location in the period after Marco moved upstairs to live with the Deceased.

Telephone records

1. I have already referred to the forensic use made of telephone records to identify where Marco was at particular times and, in particular, whether or not he was at Cammeray or Rylstone.
2. The telephone records had a further significance, however, as they disclosed the fact that, consistently with Marco's affidavit evidence and that of Mrs Scarf, when he (Marco) was apart from the Deceased, namely at Rylstone, he would ring the Deceased (or she would ring him), often several times a day for extended periods of time. For example, in a 7 day period between 7 and 14 September 2015, the telephone records reveal that Marco rang the Deceased 11 times and she rang him 15 times.
3. In this context, according to submissions filed on Marco's behalf and not put in issue, Marco rang the Deceased at Cammeray from Rylstone some 1,970 times between 30 January 2011 and 14 June 2017 and the Deceased rang him some 1,413 times from Cammeray to Rylstone in the period between 5 September 2011 and 17 June 2017. Given that these were typically calls when Marco was at Rylstone, these numbers confirm the evidence given by Marco referred to above. It is significant evidence in that it gives some insight into the closeness of the relationship between Marco and the Deceased even when there was physical separation.

Marco's bank and superannuation records

1. The evidence established that once the Rylstone Property had been completed in or about 2010, Marco changed a number of his bank and superannuation accounts so that statements and correspondence were addressed to the Rylstone Property. Counsel for Mr Leaney placed particular emphasis on this.
2. It should be noted, however, that this was not a uniform practice on Marco's part, as Roads and Maritime Services (RMS) E-Toll statements for both his car and the Deceased's car were addressed to him at the Cammeray Property right up until, and indeed after, the death of the Deceased. In other words, there was no uniformity of practice and the evidence was somewhat equivocal, especially when it is appreciated that the change of address for financial records occurred in or about 2010 and does not, in and of itself, say all that much about the nature of the relationship in the two years immediately before the Deceased's death, which is the critical period for consideration in these proceedings.

Other miscellaneous documents of Marco

1. Exhibit P5 was a folder of documents tendered on behalf of Marco which evidenced various receipts, invoices and correspondence addressed to him at the address of the Cammeray Property.
2. Whilst many of these records were for a period prior to his completion of building the house at Rylstone, these records included the RMS E-Toll statements to which I have already referred at [98]. These disclosed that, at least for those statements, and also in the case of an Ambulance Electronic Medical Record from July 2013 and correspondence from National Hearing Care in June 2017, Marco continued to use the Cammeray Property as the address for the receipt of this correspondence.
3. Again, the practice could not be said to have been uniform.
4. One document that is significant is the will Marco executed on 2 May 2017. This significance lies not so much in the fact that Marco did not leave anything to the Deceased (she was by then 87 and he gave evidence that he had discussed his testamentary intentions with her) but that he referred to her in it as his "mother-in-law". On the other hand, he appointed the Deceased as his executor. In his affidavit evidence, Marco said that he thought it "most appropriate" to refer to the Deceased in his will as his mother-in-law. He did not explain why, but by the same token, was not cross-examined on this aspect of his evidence.

The Deceased's medical records

1. Exhibit P7 was a collection of medical records of the Deceased over the 10 year period prior to her death. These records were significant because in a large number of them, Marco was described as the Deceased's son-in-law, as opposed to her partner. There were also references in the Deceased's medical records to her "living alone".
2. Mr Leaney placed emphasis on four examples of this from medical records relating to the Deceased in 2016 and 2017. One of these recorded as follows: "She lives alone in Cammeray in a house and is independent in most of her activities of daily living, except for cleaning when she gets someone in for one hour per week." (emphasis added).
3. Another record, apparently from May 2017, not long before the Deceased died records: "Patient lives alone in a 3 storey house with 13 +13 x steps between entry and bottom level where patient spends most of her time. Patient was previously independent with all PADLs, however, reported to OT that she would become anxious re showering while being alone at home. Patient informed she was afraid of falling in the shower with nobody else at home. Patient reported she [r]eceived assistance [with] cleaning and lawn mowing however, cared for all other DADLs independently." (emphasis added).
4. Another record, being correspondence from the Haematology Registrar following a consultation on 7 September 2016, relevantly records as follows: "Thank you for referring Mrs Shirley Gardner to the Haematology Outpatients' Clinic regarding her left parotid mass. I saw her with Dr William Stevenson on 7 September 2016. As you know Mrs Gardner is a lovely 87-year-old retired lady living in Cammeray .... Socially, she lives alone and is independent with all activities of daily living. She is still driving .... " (emphasis added).
5. A further record, also apparently from 2016 or 2017, headed progress notes, and prepared by Ms Elissa Wong, a physiotherapist, recorded the following: "Lives alone in double storey home x 13 steps with rail internally, Nil steps FA Baseline mobility independent mobility with SPS lndependent ADL and PADL; cleaning service once weekly Only family member available: son in law who visits and stays once every 2-3 weeks Deceased daughter and husband".
6. A further undated progress note records relevantly as follows under the heading "Home Environment": "Lives: alone, son-in-law lives near Mudgee, visits and stays over every two-three weeks. Patient also reports that son-in-law will assist with transport to medical appointments that are further away from home." (emphasis added).
7. Counsel for Mr Leaney submitted, not unreasonably, that it was to be inferred that the Deceased was the source of both the description of Marco as her son-in-law and her status as "living alone". Prima facie, both of these matters pointed strongly against Marco's case.
8. Marco gave evidence, both in his affidavits and also when under cross-examination, that he and the Deceased did not publicly refer to each other as partners or as being in a relationship because, he said, the Deceased did not want her family, which was apparently a strong Catholic family, to find out about the relationship, particularly given its origins (following the death of the Deceased's daughter and Marco's then partner) and the ages of the Deceased and Marco.
9. In para 106 of his principal affidavit, Marco said that the Deceased had said to him that "if there was a suspicion that we are together, my family will banish me." I will consider this explanation and refer to further evidence more fully later in these reasons, but it is significant to note that, notwithstanding that there are a significant number of references to Marco being the Deceased's "son-in-law" in the Deceased's medical records, there is one medical record from May 2013 in which he is described as her husband ("[Patient] to be discharged to home with husband" [Tab 64 of Exhibit P7]). Unlike the descriptions of Marco as the Deceased's son-in-law, unless this was a mistake, there appears to me to be no explanation for his being described as the Deceased's husband other than the fact that the pair were indeed in a relationship as a couple. Even if this was a mistake, this entry would, on that hypothesis, appear to reflect how the pair presented.
10. As to a number of statements in the Deceased's medical records that she was "living alone", those statements are not really accurate in light of the objective evidence that, for approximately half of the time, the Deceased was living with Marco, at least in the sense of sharing a house with him (see [88]−[93] above).
11. Marco's evidence in relation to statements in the medical records that the Deceased was "living alone", was that, to his knowledge, the Deceased said this to nurses and physiotherapists because it was more likely to secure for her more support than if the hospital and hospital staff thought that she was living in the company of another person (which, of course, she was for a significant amount of the time). Thus Marco gave evidence, in para 132 of his principal affidavit, that: "On more than one occasion Shirley and I had a conversation with words to the effect of: Shirley: 'I have told the hospital I live alone. If I say that someone is with me, a nurse will not visit my home to check up on me, and if I need help while you are in Rylstone I want to make sure that someone is dropping by.' Me: 'OK'." Marco was not challenged on this evidence.

Marco's medical records

1. Exhibit P3 contained a number of medical records relating to consultations and some hospital admissions which Marco had had in the 10 year period leading up to the death of the Deceased. As with the Deceased's medical records, a number of Marco's medical records prima facie undermined his case insofar as they described the Deceased as his "mother-in-law".
2. Mr Leaney relied on entries in a number of medical records in support of his contention that Marco was not the spouse of the Deceased. One of these comprised handwritten notes relating to the hospital admission of Marco on 10 March 2017 in which the person who has prepared the note has recorded, presumably on instructions from Marco, that he "lives alone in a farm 3 hours away from Sydney, regularly visits mother-in-law (lives in Camry), wife deceased."
3. As with the Deceased's medical records referred to at [111], however, two of Marco's medical records in fact refer to the Deceased as his wife (see Tabs 5 and 6 of Exhibit P3), being admission and discharge notes from an admission to Royal North Shore Hospital in May 2016 which recorded, inter alia, that "[he] lives with his wife". On the other hand, one of these records gave the Rylstone address.
4. These entries, by which I include the entries in Marco's medical records and those of the Deceased referred to at [111], where they are respectively referred to as "husband" and "wife", are particularly significant, in my opinion. They are either mistakes or disclose the true nature of the relationship.
5. If they are not mistakes, they tend to confirm that other statements made to medical authorities as to the status or nature of the relationship between Marco and the Deceased were part of a conscious pattern of concealing to the outside world the true nature of the relationship between Marco and the Deceased.
6. In this context, one of the Royal North Shore Hospital records (Tab 2 of Exhibit P3) recorded that Marco was a rural patient who lived "alone on [a] farm in [W]estern NSW" and was "[c]urrently staying wit[h] mother-in-law in Sydney". Another record (Tab 4 of Exhibit P3) recorded that he "[l]ives alone on a 1 acre property near Mudgee."
7. Those descriptions do not, in my opinion, reflect the reality of the living arrangements of the Deceased and Marco as they are disclosed by both the objective evidence and that of Mrs Scarf and Mrs Taylor as referred to more fully below. On the other hand, they need to be carefully considered as part of the overall assessment of the relationship.

Photographic evidence

1. A significant number of photographs were in evidence showing Marco and the Deceased in various social settings. These included large group photographs with members of the Deceased's extended family who were represented by Mr Leaney in these proceedings. Significantly, Marco was included in these family gatherings (despite him not being a blood relative of any of the Deceased, Mr Leaney, his siblings or cousins).
2. That Marco was regularly included in family gatherings and celebrations involving the Deceased and her extended family was confirmed by any number of affidavits filed on behalf of Mr Leaney.
3. Other photographs show the Deceased and Marco together in various social settings including at the beach, at various shows or performances and in the Cammeray Property.

Affidavit evidence led on behalf of Marco

1. Marco swore numerous affidavits in these proceedings. His evidence was supported by two substantive affidavits, namely those of Mrs Scarf and Mrs Taylor, a neighbour and good friend of the Deceased who lived two doors up from the Cammeray Property.
2. I will endeavour to summarise key aspects of this evidence, noting that, although Mrs Scarf and Mrs Taylor were cross-examined, no attack was made on their credit and, insofar as their cross-examination allowed me to form an assessment of the value and reliability of their detailed written affidavit evidence, I was left with the impression that Mrs Scarf and Mrs Taylor had regular contact with, and a regular opportunity to observe, the Deceased and Marco and their interactions with each other. I accept their evidence and its value for the purposes of my task was enhanced by the regularity of their contact with Marco and the Deceased.
3. I also accept Marco's evidence which was not, in my opinion, undermined in cross-examination. To the extent there was an attack on his credit, it was confined to the fact that he had denied the existence of any sexual relationship with the Deceased to a number of the Deceased's friends and it was submitted that this showed that he was prepared to lie. This was evidence which he volunteered in his affidavit, saying that the Deceased had asked him to do this. I do not consider that this affects his credibility in any material way, especially in circumstances where he volunteered the evidence. Marco was also candid about claiming a pension as a single man. He had volunteered that he never declared his relationship with the Deceased to the Government, and that it did not cross his mind to do so.

Marco's evidence

1. I have already referred to some of Marco's evidence both in relation to the "Background" and also in the context of discussing various relevant considerations. I now turn to it in a little more detail.
2. Marco gave detailed evidence of his day-to-day life with the Deceased including their routines, their division of tasks in the household (she did most of the cooking and he was responsible for maintenance around the house and most of the gardening) and their social life together. He detailed their shopping habits, estimating that he contributed about 30% to the purchase of groceries in the household. He explained that he never paid any rent at the Cammeray Property and that the Deceased never suggested it.
3. There was also evidence as to regular visits to movies and restaurants, to the beach, to their respective television watching habits, to preferences in wine and to a number of holidays together to destinations such as Magnetic Island, the Gold Coast, the Blue Mountains, the Central Coast and the South Coast. He also regularly accompanied her to family occasions and celebrations.
4. Much of the evidence given by Marco had a level of detail which gave it considerable verisimilitude which was only, in my assessment, reinforced in cross-examination.
5. In paras 70−73 of his affidavit, Marco gave evidence as to physical aspects of his relationship with the Deceased. That evidence was as follows: "Shirley also loved musicals, and there was often a show that she would want to see. We would go to see shows in the city at the Star Casino, the State Theatre, and the Capitol Theatre. I would normally buy the programme which Shirley would keep as a memento. I expect that these programs would probably still be in the House at the Cammeray [P]roperty, to which I no longer have access. At page 167 of Exhibit JJB-1 are photographs of myself, Shirley, and Helene attending the musical Matilda on 26 December 2015 at the Star Casino Sydney, and the Fiddler on the Roof on 7 May 2016 at Capitol Theatre. After approximately six months of living in the second bedroom in the House, being in or around April 2008, Shirley and I began a sexual relationship. I would have been approximately 68 at the time, and Shirley was approximately 78. I think it was a natural occurrence of the circumstances. The two of us were both lonely and lived in close proximity to each other. Shirley was only ten years older than I, and we had many things in common. I felt that I could share things with Shirley that I could not share with a younger woman. All of these things added to the spice and intimacy of our relationship. Shirley was always very veracious, outgoing, and had a thirst for life. She enjoyed eating exciting food, drinking alcohol, dancing, and sex, which she described to me as being 'the other complement of life'. I would describe Shirley as a woman with no limits, particularly for food and wine. Shirley was a lot of fun to live with. She was also a great conversationalist. Shirley loved to talk and I loved to listen to her. At the start of our relationship there were often long stretches of time where we would share a bed. However, Shirley could be a loud snorer and also like to have the radio on while she slept, so as the relationship went on I would sleep in my own bed more often. Whilst we maintained two separate bedrooms, we would have moments of intimacy before retiring to our separate bedrooms to sleep."
6. At para 97 of his affidavit, Marco said: "As I grew older I started to suffer from prostatic hyperplasia, which is a growth in my prostate. This, combined with my age, meant that Shirley and my sexual activity became less frequent. However, we remained intimate in other ways, such as spooning in bed and cuddling, until Shirley's death."
7. Marco was cross-examined about this aspect of his evidence and gave the following evidence: "Q. We understand your evidence. Your relationship, your sexual relationship with her diminished over time, is that your evidence? A. Yes. Sexual as in - how can I put it in this so that all those people − Q. Let me ask you this question? A. Yes. His Honour: Sorry, do you want to - have you finished your answer? A. I mean, at the start of our relationship, sexual relationship, yes I was able to perform my masculinity and have a relationship. That over the past years, maybe ten years, was diminish, but I think many old couple are - what is sexual intercourse diminish over the year and finally cease, but the tenderness, the sharing things that you be together, the cuddling, the spooning, they all those things that go with it, which is - there is a hell of a lot of sexual gratification in that. Yes, we keep on - that what that exist and did exist in my relationship with Shirley. Sexual intercourse, sexual parts connecting intimately, well that, that goes with the years. But the other thing, the other thing that stay there, and probably they are meant, they become bigger, more important to show, to demonstrate and to be shown that you are love[d], that somebody cared for you. That's all."
8. Marco gave evidence as to conversations with the Deceased as to what they each wanted to happen when they died. He said in para 130 of his principal affidavit that: "We were [each] other's partner and companion, and we both considered this an important conversation to have. We exchanged words to the effect of: Me: 'When I die, I want to be cremated'. Shirley: 'I also want to be cremated. I want my ashes to be scattered off Balmoral Beach."'
9. Marco gave evidence that, as the Deceased got older, she would need to attend doctors and visit hospitals on an increasingly frequent basis and he would drive her every week to the GP in Neutral Bay.
10. He said that the Deceased would attend specialists on an increasingly frequent basis, which meant that he would spend less time at the Rylstone Property so he could be there to support her. He said that he would still go up to Rylstone Property once every week or two to deal with the neglect of the house and garden and the trees, but would not go to the Rylstone Property if the Deceased was unwell at the time.
11. He said that in the last few years of the Deceased's life, she would attend Royal North Shore Hospital for extended periods of time and that he would walk up to visit her and bring her fresh clothes each day.
12. Consistently with this, Marco gave evidence that he and the Deceased supported each other during various periods of hospitalisation and illness. Thus, at paras 122−124 of his principal affidavit, he said: "In or around March 2017 I had a heart attack. Shirley and I were at home at the Cammeray [P]roperty, when I started to feel severe pain on my left arm, my heart started racing, and I started sweating profusely. I was in bed at the time. When I tried to get up I collapsed on to the floor. I cried out for help and Shirley came in from the next room and called an ambulance. I was taken to Royal North Shore Hospital where I stayed for three days, and received stem surgery on my heart. Shirley visited me twice a day for three days I was in hospital. After my stay at Royal North Shore Hospital I had two weeks of rehabilitation at the Castlereagh Hospital. Shirley would visit me daily. During her visits, she would take my dirty laundry and provide me with clean clothes. She would also bring me home cooked food, as well as food from the delicatessen, fresh fruit, and fruit salad she had made at home. A photograph of Shirley visiting me at hospital is at page 168 of Exhibit JJB-1. After l was discharged from the Castlereagh Hospital, Shirley insisted that I spend a further three weeks straight with her at the Cammeray [P]roperty for convalescence. The Rylstone [P]roperty went untended during this time. Over these three weeks Shirley would also drive me to Royal North Shore Hospital for the purposes of observations, and to Chatswood to see my cardiologist, Dr Kozar, for check-ups. It was more than a month before I was well enough to drive to Rylstone to check on the property. At all times when I was unwell Shirley would give me her full attention and love."
13. An important aspect of Marco's evidence related to the issue of how their relationship presented in public. Thus, at paras 109-112 of his principal affidavit, he said: "… approximately three or four years into a relationship, Shirley told me that when she and her friends spent time together they would say things that insinuated that there was something going on between the two of us. Shirley raised this with me on a number of occasions and was increasingly concerned that people would find out about the true nature of our relationship. At one point, I cannot recall exactly when but it would have been three or four years into our relationship, Shirley and I had a conversation with words to the effect of: Shirley: 'Can you please approach each of my friends and deny that we are having sex, and say that nothing is happening between us.' Me: 'I do not want to do this.' Shirley: 'Please do it as my friends are insinuating things when we get together and I want to nip it in the bud.' Me: 'OK'. I reluctantly agreed to do this … I prioritised Shirley's feelings over my own. The conversations with Shirley's friends were awkward."
14. He gave similar evidence in relation to how the Deceased wished him to present to her family. I have already referred to some of the evidence in an earlier part of these reasons. He said that the Deceased was terrified about her friends and family discovering the nature of their relationship. He gave evidence that her family was very conservative and strict Catholics, and gave evidence of the Deceased's concern that they would react badly if they found out that she was together with her former son-in-law. He said that: "[o]n more than one occasion, Shirley said to me words to the effect of: 'My family must not know about us and our relationship, they will kill me spiritually and socially, I'd be ostracised and shut out of my family'."
15. He said that because of the Deceased's fear of being ostracised, they had to maintain a fiction to her family and friends that they were not in a relationship. This evidence assumed importance in the case and will be considered in further detail later in these reasons.

Mrs Scarf's evidence

1. I have already referred in passing to Mrs Scarf, being the child of the Deceased's second husband, Mr Bowles. It will be recalled that Mrs Scarf delivered one of the eulogies at the funeral and I have set out extracts of that eulogy in [65]−[66] above.
2. When Mrs Scarf's father died in 1984, there was a legal dispute as to his estate between the Deceased and Mrs Scarf, in which the Deceased was successful and there was an alteration to the distribution of Mr Bowles' estate. That dispute, perhaps not surprisingly, led to a hiatus in the relationship between the Deceased and Mrs Scarf, but the relationship was rekindled in or about 1998, not long after the death of the Deceased's third husband, Mr Gardner. It appears that the Deceased had seen Mrs Scarf, who breeds horses in the Kangaroo Valley, on a television program and that prompted her to get in touch and reconnect. Thereafter, the evidence is, and I accept, that the Deceased and Mrs Scarf maintained a close relationship. Mrs Scarf's evidence was that she would see the Deceased on a regular basis, no less than once a fortnight, ordinarily on a Thursday when they would have dinner together. She would also drop in from time to time to visit the Deceased at Cammeray and arrange tickets to musicals, outings and family luncheons.
3. Mrs Scarf had grown up with Gaye-Marie who was her step-sister and about 10 years younger in age. It appears that they were close and that, following Mrs Scarf's renewed relationship with the Deceased, Mrs Scarf would see Gaye-Marie and Marco who were living in a flat underneath the Deceased's house which I have referred to as the Cammeray Property. The closeness of Mrs Scarf to Gaye-Marie and also to the Deceased was reinforced in the two-and-a half years in which Gaye-Marie's health deteriorated on account of the brain tumour. Mrs Scarf would visit Gaye-Marie in hospital approximately three times a week and according to her evidence, every time she visited she would see Marco and the Deceased at Gaye-Marie's bedside. It was through these visits that Mrs Scarf got to know Marco very well and observed Marco and the Deceased becoming close through their mutual love, support and concern for Gaye-Marie.
4. Mrs Scarf deposed to the conversation she had with the Deceased after Gaye-Marie's death in which Mrs Scarf had asked the Deceased whether Marco should move out of the flat so that she could rent it out. The Deceased said "[no]" and that she "like[d] and need[ed] his company." Mrs Scarf deposed to the fact that, in late 2007, Marco moved upstairs into the Deceased's residence at her invitation, moving his personal belongings into the bedroom next to the Deceased. Mrs Scarf deposed to a conversation with the Deceased in early 2008 in which she enquired as to whether Marco was going to continue living with the Deceased in the house. The Deceased said, "[y]es, I want, and need, his company."
5. Mrs Scarf also deposed to the fact that, over time, she observed the Deceased and Marco were becoming closer; she also received accounts of their growing relationship through the Deceased. Incidents of that growing relationship included trips to the beach, weekly trips to movies, going out to restaurants and the like. Mrs Scarf observed, during her regular visits to the Cammeray Property, the Deceased and Marco sharing in cooking, washing up and other domestic duties. She also recounted that the Deceased and Marco went on several holidays and trips together, including trips to visit a close friend of the Deceased, Mrs Kath Moore, in Queensland, on multiple occasions.
6. As to their interaction with each other, Mrs Scarf deposed to the fact that, over time, the Deceased and Marco would be physically more affectionate with each other in her presence, including Marco giving the Deceased foot rubs and shoulder massages at home. She adhered to this evidence under cross-examination. She said that when she visited Marco and the Deceased in the morning or in the evenings, it was not unusual to see them in their pyjamas together. She then gave evidence that one evening, in or around 2012, she arrived at the Cammeray Property to visit the Deceased early in the evening. Her evidence continued at para 42 of her affidavit as follows: "When I arrived, Shirley was dressed in a sarong, which was her favourite mode of dress. Shirley and I were downstairs preparing food in the kitchen when she sat down at the dining room table, and the sarong opened up to reveal that she was wearing nothing underneath. We had an exchange with words to the effect of: Me: 'Do you think you should cover up? Marco could be down at any time.' Shirley: 'Darl, he's seen it all.' I understood this to mean that Shirley and Marco had an intimate relationship."
7. Some of Mrs Scarf's evidence as to her observations of the Deceased and Marco together was borne out by the photographic evidence which I have referred to in [121]−[123] above. Mrs Scarf said that, whilst the Deceased and Marco did not often engage in public displays of affection, she often saw Marco kiss the Deceased's hands and they would walk arm in arm to the car after their fortnightly dinners with Mrs Scarf. Under cross-examination, she referred to their linking arms to walk to a restaurant, or to him kissing her on the hand. She referred to observing them in private, "[l]aughing, joking, sitting around the table with their jammies on, a foot massage, you know, just stuff like that."
8. In para 50 of her affidavit, Mrs Scarf said: "I got the impression from Shirley that her age difference with Marco did not bother her. She would often say to me words to the effect of: 'Marco is really good company. You know darl, he's nearer to my age tha[n] he was to Gaye­-Marie's.' Shirley would also often say to me 'when we go out everyone thinks Marco is my husband'."
9. Mrs Scarf also gave evidence of the Deceased and Marco comforting each other attentively and with tenderness in 2016 and 2017 when each was, for a time, hospitalised or suffering from some medical problem.

Mrs Taylor's evidence

1. As I have mentioned, Mrs Taylor was the Deceased's neighbour, living three doors down from the Cammeray Property from 1995. Mrs Taylor described the Deceased as one of her closest friends. They would see each other regularly and, in Mrs Taylor's estimation, most days of the week. This included seeing each other whilst walking in the neighbourhood and regularly dropping into each other's houses.
2. In paras 9−11 of her affidavit, Mrs Taylor said: "After Gaye-Marie's death, I continued to regularly see Shirley. On the occasions I attended at her home I would observe that Marco would also be there on an increasingly frequent basis. It would not be unusual for both Shirley and Marco to be sitting on the lounge in their pyjamas when I came over in the morning or in the evening. Sometimes when I arrived in the morning Shirley would say to me 'Marco will be down later from the bedroom, he is just having a sleep in'. From these interactions it became clear to me that Marco was living in the bedroom area of the house, and he had moved from the flat underneath Shirley's house. When I visited Shirley, I would often observe Marco cooking for Shirley, in the kitchen with an apron on, or helping her with the washing up, or doing the gardening. It would not be unusual for me to see Marco out tending to the garden with secateurs when I walked by to visit. On some occasions when I visited Shirley Marco would cook for the both of us. Marco is a good cook. Marco would prepare a paella on some occasions which Shirley and I enjoyed".
3. Mrs Taylor knew that Marco owned a property at Rylstone which he would visit from time to time. In her oral evidence, Mrs Taylor estimated that he was at Cammeray 70 to 75% of the time. In relation to his visits to Rylstone, Mrs Taylor's evidence in paras 13-17 of her affidavit was that: "When I would drop in to see Shirley, I would sometimes see her in the kitchen preparing a little basket of food, usually with cheese, red wine, and banana bread. Shirley would say to me words to the effect of: Shirley: 'I am just preparing some food for Marco to take up to Rylstone with him'. When Marco was in Rylstone I would observe that Shirley was not as happy as she usually was. She would seem less enthusiastic and would appear flat and the sparkle would go out of her. When I would drop in to visit Shirley in the morning I would sometimes encounter her on the phone. She would say to me words to the effect of: Shirley: 'I am just on the phone with Marco, I'll be with you in a moment.' On some occasions when I visited the phone would ring and Shirley would answer it and have a conversation. She would say to me words to the effect of: Shirley: 'That was Marco, he has arrived safe in Rylstone.' I noticed that when Marco was in Rylstone that Shirley would call me more often. Whenever I noticed Marco's car parked outside Shirley's home, I would think to myself: 'Shirley will be happy' or 'she won't need us as much as Marco is there'. It would not be unusual for Shirley to call me as soon as Marco would leave. I got the impression that Shirley was emotionally dependent on Marco, and that she would need to spend more time with her friends when Marco was in Rylstone. Shirley would often describe Marco to me in words to the effect of 'Marco is very smart'. When Shirley and I were discussing various things, she would often quote Marco's opinion on the matter. I recall a number of occasions when I visited Shirley, and she would be downstairs in the kitchen. I would go down to the kitchen and she would be cooking. I recall [an] occasion when she was cooking spaghetti and meatballs, and another when she was preparing soup. There would ordinarily be a bottle of red wine on the table. Shirley would say to me words to the effect of: Shirley: 'Marco is coming down today. I am just cooking some dinner for the two of us'."
4. Mrs Taylor also gave evidence at para 18 of her affidavit as to the occasion in 2016 when Marco was hospitalised with heart problems. She recalled that the Deceased would drive to visit him every day, even though it was particularly hot weather in which she said the Deceased did not like to drive.

Affidavit evidence led on behalf of Mr Leaney

1. Mr Leaney swore two affidavits in support of his case and also filed a number of other affidavits from various relations of the Deceased as well as from the daughter of a friend of the Deceased, a tenant who occupied the downstairs flat at the Cammeray Property in the period after Marco had moved upstairs, and the wife of the late son of the Deceased's third husband, Mr Gardner. The Defendant also led evidence from Mr Thomas as to the consultation he had with the Deceased in 2014 about a possible will. That is the evidence I have already referred to at [74] above.
2. All of the affidavit evidence filed on behalf of the Defendant was brief and, with the exception of the evidence of the solicitor, Mr Thomas, none of the deponents of the affidavits filed on behalf of Mr Leaney was the subject of any cross-examination (although a number of objections which had been made on behalf of Marco were upheld).
3. I will endeavour to identify the key portions of these affidavits and note certain submissions that were made with regard to some of these affidavits by counsel for Marco.

Suzanne Sticka

1. Ms Suzanne Sticka (Ms Sticka) was a niece of the Deceased.
2. In her affidavit, Ms Sticka claimed to have been at the Deceased's funeral although it did not seem to be in issue at the trial that that statement was not correct because, in the course of his address at the funeral which was captured on video, her brother, Mr Leaney, said that she was in America at the time. This raises a large question as to the reliability and value of her evidence generally.
3. Ms Sticka deposed to never seeing Marco paying for any of his outings with the Deceased and that she never saw any outward affection between them.
4. Ms Sticka lives in Terranora which is a town in northern NSW. She did not depose to how frequently she saw the Deceased and Marco together or as to when she saw them together. Her evidence was, in this regard, highly generalised and of little probative force.
5. To the extent that she asserted in her affidavit that the Deceased was not close to Mrs Scarf, I do not accept that evidence in light of the detailed evidence of Mrs Scarf, the fact that Mrs Scarf delivered a heartfelt eulogy at the Deceased's funeral and hosted the wake at her home. This causes me to place even less weight on the evidence of Ms Sticka.

David Payne

1. Mr David Payne (Mr Payne) was one of the Deceased's nephews. He described himself as a small business owner, giving an address in Wagga Wagga. Mr Payne gave evidence of a visit by the Deceased and Marco to Wagga Wagga in April 2014 noting that they travelled to and from Sydney by train and stayed at a caravan park in a two-bedroom cabin that he had booked for them.
2. Mr Payne gave some observations at para 8 of his affidavit to the effect that at a party at his house during the visit, Marco seemed to be "melancholy, and definitely a loner". He said, "[t]here was nothing about their visit that made me think that their relationship was anything more than a friendship." Again, this evidence is of little weight. It appears to be based on a recollection of a single visit in April 2014 and is expressed at a very high level of impression.
3. Mr Payne also gave evidence of a visit of his to Sydney in November 2016 when he had lunch with the Deceased. At para 5 of his affidavit, he deposed to a conversation with the Deceased in which he attributed to her the following statements: "I'm very annoyed with people who assume that Ma[r]co and I are a couple when we go out together. We are just friends. Our friendship grew out of our time dealing with Gaye's illness and death, and we can share memories of Gaye and give each other support. He lives in Rylstone, but he visits me for a few consecutive days each month, usually when I have to go to an event at night so he can drive me. I'm ok around here during the day for shopping and things like medical appointments, but I can't drive at night. I think he is lonely living at Rylstone, and I like to make him feel useful." (emphasis added).
4. There are two observations to be made about the statement attributed to the Deceased. First, as counsel for Marco submitted, if the Deceased did say that people assumed she and Marco were a couple when they went out together, that statement alone carried with it a suggestion that that was how they presented to the public.
5. The second observation is that the statement attributed to the Deceased, namely that Marco visited her "for a few consecutive days each month" does not accord with the objective evidence in the case as I have found it as to the frequency of Marco's presence at the Cammeray Property. Either Mr Payne was mistaken in his recollection of what the Deceased said or, if not mistaken, the statement is consistent with the evidence given by Marco that the Deceased did not want her family to think that they were in a relationship and sought to put them off the scent in this respect.
6. There is one further matter of some possibly slight significance that emerges from Mr Payne's affidavit and that is his description of the Deceased as a "liberal thinker". She was also described in Mrs Scarf's eulogy as "very broad minded". Counsel for Marco submitted that this characteristic was consistent with the Deceased choosing to enter into a relationship with Marco late in life, and notwithstanding the fact of his earlier relationship with Gaye-Marie.

Robyn Marshall

1. Ms Robyn Marshall was a niece of the Deceased. She lives in Queensland. She deposed to never seeing Marco or the Deceased display affection for one another when they were together but does not, as with the evidence of Ms Sticka, say how frequently she saw them and in what time period. This renders her evidence as being of very little weight.
2. To the extent that she deposed that, Marco would not interact with the family on the unspecified occasions that she observed him, this does not, in my opinion, bear heavily upon the question for determination in the present case. One does not need to be gregarious to be in a relationship of the kind under consideration. Moreover, as Marco's counsel pointed out, interactions with families-in-law are not universally undertaken with enthusiasm.

Tracy Roger Giurietto

1. Mr Tracy Roger Giurietto (Mr Giurietto) is the husband of one of the Deceased's nieces. The value of his evidence is limited by the fact, that, as he volunteered in his affidavit, he had almost no contact with the Deceased or Marco on a day-to-day basis.
2. At para 4 of his affidavit, he deposed to a discussion with the Deceased on 11 June 2017, shortly prior to her death, in which he says that the Deceased said to him: "Ma[r]co still visits me when he's not at his country property. He helps me attend appointments and comes with me on social occasions. I know it seems a bit naughty, but I let Ma[r]co stay in the spare room at home rather than in the flat he shared with Gaye before she died. It gives me a sense of security to have someone else staying with me and allows me to rent the flat out. I don't care what people think. Nothing's happening. People can think what they like. Ma[r]co has his own room. I bought him a car to thank him for the attention he gave Gaye over the years and for helping me when he's in Sydney. That's all he's getting".
3. This evidence attracts similar observations to those I have made in relation to the evidence of Mr Payne considered at [166]−[167] above.

Ted Leaney

1. Mr Leaney also gave evidence in which he said, inter alia, that he visited the Deceased at her home at Cammeray from time to time "but not often". He said that he knew that Marco "lived part of the time at Shirley's home in Cammeray."
2. He gave similar evidence to a number of the other witnesses called in his case, namely that, at family functions, he saw that Marco typically sat by himself, and had minimal contact with the Deceased or members of the family and that he did not ever see any display of affection between Marco and the Deceased. Again, this evidence was expressed at a very high degree of generality and also sits a little uncomfortably with Mr Leaney's statement, "[O]h Marco, thank God you are here" during the course of the Deceased's funeral, and Mr Leaney deferring in many respects to Marco in that context. Mr Leaney's statement on that occasion evidences some recognition of how close Marco was to the Deceased.
3. Mr Leaney also deposed at para 13 of his affidavit to a conversation with the Deceased in an unspecified year at a Christmas party in which he says that the Deceased said to him: "Look, I tolerate Ma[r]co coming in and out of my life because he has a link to Gaye and although it can't bring Gaye back, I like the thread to her being there." (emphasis added).
4. As with the statements attributed to the Deceased by Mr Giurietto and Mr Payne, this statement is double edged. If the Deceased said it, what is connoted by the word "tolerate" is wholly inconsistent with the evidence of Mrs Scarf, Mrs Taylor and Marco himself as to the nature of the relationship between Marco and the Deceased.
5. So also, the connotation of "coming in and out of my life" is inconsistent with the fact that, even though he did spend regular periods at Rylstone, when he was away from Cammeray, the telephone records indicate regular daily and often twice daily contact between Marco and the Deceased. The relationship did not, in my opinion, have the sporadic quality conveyed by the expression "coming in and out of my life" nor was it one of "toleration".
6. One view of the statement attributed to the Deceased by Mr Leaney is that it was made to deflect attention from the true nature of the relationship, consistent with Marco's evidence of the Deceased's fear of being ostracised by her family.

Rada Leaney

1. Mrs Rada Leaney is the wife of Mr Leaney. She deposed to a number of exchanges with the Deceased in June 2017 at paras 3-6 of her affidavit, as follows: "During the evening, Shirley spoke to me about her early childhood, her husbands and the devastation she felt following the loss of her daughter, Gaye. She also spoke to me about Helene Scarfe. Shirley spoke to me about how upset she had been over a court case with Helene and she said to me: Shirley: 'I can forgive but I will never forget. She will get nothing when I go.' Shirley then went on to say to me: Shirley: 'It's funny. Helene is hanging around like a bad smell at the moment. She comes and makes tea, pops in for a drink. She took me to court over her father's inheritance and now she's coming around again. Maybe she knows something that I don't.' I said: 'Why would you say that?' Shirley: 'Maybe she thinks I am going to die or something.' Marco was sitting by himself out of earshot in a corner of the room. Shirley looked over to him and said: Shirley: 'Hasn't Helene been coming around a lot lately?' Marco: 'I don't know. I don't live there.' Shirley: 'Sorry. I thought I told you.' Following her exchange with Marco, Shirley then said to me: Shirley: 'Helene will get nothing. Marco's already had enough out of Rylstone'."
2. In relation to para 5 of this affidavit, as I pointed out in the course of final address, this is an extremely odd exchange. Marco, in a reply affidavit of 21 August 2018, said he did not remember this exchange and would never have used the words attributed to him. Implicit in the Deceased's statement addressed to Marco "[h]asn't Helene [Mrs Scarf] been coming around a lot lately?" is the Deceased's view that Marco would be able to comment on that proposition from personal knowledge ie. his presence at the Cammeray Property. The response attributed to him is also at odds with the physical evidence of a cupboard full of Marco's clothes at the Cammeray Property, objective records of his presence in Cammeray, together with his own evidence.

Christina Palmer

1. Ms Christina Palmer is the grandniece of the Deceased.
2. In para 6 of her affidavit, she referred to a conversation she says she overheard between a relative of hers and the Deceased, as follows: "I was seated on a couch about 4 metres away from Pat and Shirley, who were standing in the kitchen, when I overheard Shirley and Pat have a conversation to the following effect: Pat: 'Nice boy you have there.' Shirley responded in a sharp, short tone: 'That's not a very nice thing to say. Marco is my son in law and there's certainly nothing going on here. My daughter Gaye passed away from a brain tumour many years ago. Marco and I are friends'."
3. Again, very little context is given for this conversation but it is consistent with the Deceased and Marco giving the outward impression of being a couple. Otherwise, it may be asked, what would have prompted the comment "Nice boy you have there"? The response attributed to the Deceased that "there's certainly nothing going on here" would also appear to be very defensive and is consistent with the Deceased being at pains to deflect any suggestion of a relationship with Marco in front of her family.

Leslye Ann Petrovic

1. Ms Leslye Ann Petrovic (Ms Petrovic) was another niece of the Deceased. She included Marco, together with the Deceased, in a birthday celebration at the Kirribilli Hotel on 16 April 2017. She also saw them together shortly before the Deceased's death on 19 June 2017. She also gave evidence of attending concerts at the Orpheum Theatre in Cremorne with the Deceased and Marco.
2. Ms Petrovic deposed to a conversation at para 12 of her affidavit with the Deceased towards the end of 2015. The account of that conversation included the Deceased saying to Ms Petrovic: "I am keeping in touch with Ma[r]co for company and also for my safety. While I am alive, I will pay for anything he needs, but when I die he can whistle. He will get nothing." (emphasis added).
3. As with the evidence of Mr Leaney, Mr Giurietto and Mr Payne, this statement is double edged. If the Deceased had described her relationship with Marco as one of "keeping in touch" with him, it is simply belied by the objective evidence taken in conjunction with the evidence of Mrs Scarf, Mrs Taylor and Marco, together with a number of powerful objective factors such as the fact, unchallenged, that Marco paid for the Deceased's funeral. This was not the action of somebody with whom she simply kept in touch.
4. If the account is to be accepted, I regard it as evidence of the Deceased's deflecting attention from the true nature of her relationship with Marco. There are entirely understandable human reasons why she may have sought to do so. I do not accept it as evidence of the true nature of the relationship, however, as on the objective material before me, the relationship was far more than what is implied by the expression "keeping in touch".

Katherine Baggen

1. Mr Leaney also relied upon a short affidavit of Ms Katherine Bronte De Vere Baggen (Ms Baggen) who lived in the flat underneath the Cammeray Property between about 2010 and 2015 after Marco had moved upstairs. Ms Baggen deposed to spending at least two hours per week with the Deceased and, in that context, she said that she came into contact with Marco regularly, saying he came and went on a regular basis and he did so "as he chose".
2. At para 5 of her affidavit, Ms Baggen said that "[g]enerally Ma[r]co stayed at the Cammeray [P]roperty for a few days at a time, however, on occasion he would stay for up to a month." Insofar as this evidence suggested or was intended to suggest that Marco's presence at the Cammeray Property was relatively infrequent, I do not accept it and rely on the objective evidence supported by the financial and telephone records.
3. Ms Baggen said at para 7 of her affidavit that the Deceased "did not ever say anything to me to suggest that she and Ma[r]co had an intimate relationship or were de facto partners". But what Ms Baggen understood was entailed in a de facto partnership was not disclosed in her affidavit. It does not surprise me that a woman such as the Deceased, in her 80s would not share with an 18-23 year old (the age as Ms Baggen was when she lived in the flat) details of any physical relationship she had with Marco.

Lesley Ann Moore

1. Ms Lesley Ann Moore (Ms Moore) was the daughter of the Deceased's late close friend, Kath Moore. She referred to the fact that the last time she saw the Deceased was in about July 2015 when she and Marco visited her in Queensland. She said that they occupied separate rooms. She deposed to having been told by the Deceased that Marco was "living in the house".
2. Ms Moore deposed that the Deceased never said anything to her to suggest that she and Marco were anything other than companions. At this level of generality, little weight can, in my opinion, be given to this evidence. To the extent that Ms Moore's evidence suggested that her discussions with the Deceased conveyed that the Deceased and Marco were companions, her evidence did not disclose the nature, extent or degree of that companionship which are all relevant considerations in making an overall assessment of the matter.

Toni Gardner

1. Mrs Toni Gardner was the wife of the Deceased's third husband's son, John. She deposed to a conversation with the Deceased in mid 2017, at para 4 of her affidavit, in which she says that the Deceased said to her: "Marco was engaged to Gaye and he's become my friend. He hasn't got two bob to bless himself with so I help him out for Gaye. He comes and stays now and then but we have separate rooms." (emphasis added).
2. No context is given for this statement. To the extent that this is attributed to the Deceased, the statement "[h]e comes and stays now and then", the statement is not accurate. It is consistent with the Deceased wishing to present a different public image to the reality. It was defensive and deflective. Marco lived with the Deceased for the best part of 10 years and for over half of the time in the last two years of the Deceased's life. When they were apart, they were in regular telephone contact.

Beach Thomas

1. As already noted, Mr Thomas gave evidence of a meeting with the Deceased in mid-2014 to discuss a potential will. Mr Thomas made contemporaneous notes in relation to that meeting. Relevantly for present purposes, those notes included the following: "Gaye's husband, John Byron known as 'Mako' (born in Argentina) in Australia 40+ years, married before, with one son David. Prior wife Eva from Argentina & lives in Australia in a unit in Centennial Pk. He & Gaye would have married & most suited together but Gaye died. Shirley & John B are very close. … He lives in his home in Rylestone. … Shirley would like to give something to Marko, but not to go to son. He inherited Gaye's car & some of her super."
2. Obviously, reliance is placed by Mr Leaney upon the statement "he lives in his home in Rylestone." That will fall to be, and needs to be assessed in light of the case law to which I have referred at [20]−[40] above, objective evidence as to Marco's movements, as well as the fact that the key period for assessing the nature of the relationship is the two years immediately preceding the death of the Deceased although, of course, the period prior to this was also relevant.

Parties' submissions

1. The principal issue in this case is whether or not the relationship that undoubtedly developed between the Deceased and Marco after the death of Gaye-Marie in 2007 in fact developed to such an extent that it had become, by no later than 19 June 2015 (two years prior to the Deceased's death) a relationship meeting the description of a domestic partnership for the purposes of the Succession Act, and that that continued in existence until immediately before the death of the Deceased.
2. Marco's submission, of course, is that the relationship did have that character or status and had had it for the requisite minimum period. Marco places principal reliance on his own account of the relationship which is supported by the evidence of Mrs Scarf and Mrs Taylor to which I have referred in paras [142]−[150] and [151]−[154] respectively, together with financial records which indicate his physical location over the years, telephone records, photographs and the like.
3. Mr Leaney, on the other hand, maintains that the existence of a relationship of the requisite kind was implausible, particularly given the prior relationship between Marco and the Deceased's daughter, Gaye-Marie, as well as the respective ages of the Deceased and Marco at the time when the relationship is alleged to have started, namely approximately 77 years and 68 years.
4. Reliance is in particular placed by Mr Leaney on Marco's separate residence at Rylstone, the large number of references particularly but not only in medical records to the Deceased and Marco as being in a relationship of mother-in-law and son-in-law or to each of them as "living alone", and the non-manifestation of their relationship in public.

Analysis

1. Reaching a concluded view as to whether or not Marco and the Deceased had a "relationship as a couple living together" has not been straightforward, as there are a number of at least superficially strong indicators pointing against such a conclusion. Some of these have been touched upon in my review of the evidence and I will consider them more fully below. This is, as with the two decisions of Young J in Weston and McGrath referred to at [21]− [26] above, a "borderline" case. There is, however, much evidence strongly supportive of a relationship between Marco and the Deceased of the requisite character.
2. In my opinion, there was such a relationship. In reaching this conclusion, I have been conscious that Marco is necessarily a self-interested witness, although that description could also be applied to many of the witnesses who gave evidence on behalf of Mr Leaney, standing to benefit as they would from success in the case although obviously not to the same degree as Marco. My comfortable degree of satisfaction has not involved application of Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw), as urged upon me by counsel for Mr Leaney who contended that the unusual nature of the alleged relationship called for the application of Briginshaw. This was not, however, a case involving fraud or dishonesty in relation to which Briginshaw is usually invoked. Rather, I have been conscious of and have had regard to, the matters referred to in s 140(2) of the Evidence Act 1995 (NSW) in assessing the evidence.
3. Working through the nine matters set out in s 21C(3) of the Interpretation Act (see [16] above) and noting that no particular finding is necessary in determining whether two persons have a relationship "as a couple", on Marco's account, which I accept, the relationship was one which lasted for almost nine years, commencing in approximately late 2008, about six months after Marco moved upstairs in the Cammeray Property, an act which, on the evidence, was at the Deceased's invitation.
4. As to the nature and extent of their common residence, when Marco was in Sydney he lived in the Cammeray Property. He did not reside anywhere else in Sydney. He did not pay rent and was not expected to. He contributed to the maintenance of the property and of its garden, without payment or expectation thereof. There was no doubt that he "lived" at the Cammeray Property when he was in Sydney. His wardrobe at the time of the Deceased's death which was subsequently inspected shortly prior to the hearing, was full of his clothes and the garage contained his gardening tools and equipment: see [83]−[87] above.
5. The "nature" of the common residence of the Deceased and Marco, included them, for a time, sharing a common bedroom with this arrangement only ceasing for the reasons set forth in Marco's affidavit which I have extracted at [131] above. I do not consider the fact that Marco and the Deceased maintained separate bedrooms to be unremarkable in the circumstances explained in Marco's affidavit and given their respective ages.
6. Plainly enough, the analysis in the present case in respect of common residence is complicated by Marco's ownership of the Rylstone Property which the Deceased only visited on a couple of occasions. Given its connections with Gaye-Marie, it is not, to my mind, surprising that he built a house on that land and spent time alone there.
7. The evidence is that, over the years, Marco spent approximately half his time at Rylstone and half his time at Cammeray. In the final two years of her life, I have found that Marco and the Deceased spent approximately 55% of their time living together in Cammeray: see [93] above. There was no suggestion that Marco was with anyone else at Rylstone when he was there and the evidence was that he was in regular communication with the Deceased by telephone whilst he was there, and vice versa. As the case law I have considered earlier in this judgment illustrates, people can live together as a couple in a relationship, even when from time to time they are physically apart. I do not consider the Rylstone "factor" destructive of Marco's claim.
8. I find that a sexual relationship did exist between Marco and the Deceased although, with their respective advances in age, the nature and intensity of this sexual relationship diminished. As Marco explained under cross-examination, however, that did not mean that the level or degree of intimacy diminished: see [133] above.
9. It is, of course, very difficult to be absolutely certain as to the existence of a sexual relationship in circumstances where the existence of it turns upon the testimony of a single witness who has an obvious interest in the outcome of the case. Notwithstanding this, as I have noted earlier in this judgment, I accepted Marco as a genuine and sincere witness. I do not think that he was fabricating when he gave evidence, under cross-examination in open court, as to the nature and extent of his sexual relationship with the Deceased. He did so in a dignified and convincing way. My conclusion in relation to the existence of a sexual relationship is provided with some corroboration by the evidence given by Mrs Scarf which I have set out at [147] above.
10. Notwithstanding their respective ages at the time that the sexual relationship was said to have commenced, I do not consider its inception to be implausible. Marco and the Deceased had obviously been thrown together in circumstances where they became, through their mutual grief for Gaye-Marie, strongly bound emotionally and dependent upon each other. Such a relationship can develop into one of mutual fondness and more.
11. Moreover, my impression from the evidence of most of the witnesses was that the Deceased was a gregarious woman who loved companionship. She had almost always had a partner and appeared to prefer being in a relationship than to be living alone as a widow.
12. Continuing to work through the various matters listed in s 21C(3) of the Interpretation Act, on the question of the degree of financial dependence or interdependence, there is no doubt that the Deceased and Marco maintained separate bank accounts and that the Deceased paid for most of the household expenses. She also purchased various white goods for Marco's house at Rylstone and, also purchased him a new car. On the other hand, Marco contributed to the household expenses of the Cammeray Property, although not on a 50:50 basis and contributed to the maintenance of the Cammeray Property and garden in a non-financial way. There was no suggestion of any joint running account as to finances or expectation on either part of a financial reckoning up.
13. I do not consider that, in the peculiar facts of this case, the maintenance of separate bank accounts points against a conclusion that the Deceased and Marco had a relationship as a couple living together. Given their respective ages and stages at the time their relationship commenced, it is not surprising that they continued to maintain separate financial arrangements. Many couples, moreover, maintain separate bank accounts. Insofar as Marco's bank accounts bore the address of the Rylstone Property, the giving of this address was something that occurred in or about 2010 soon after the building of the home on the Rylstone Property was completed. It has not been necessary to determine what the legal status of his relationship was with the Deceased at that point in time although I have found that an intimate relationship had by then commenced. It was not explored in cross-examination what his expectation of the relationship was in 2010. The critical time period for present purposes is the final two years of the Deceased's life.
14. As to "ownership, use and acquisition of property", I regard as significant the fact that the Deceased in effect afforded unlimited use of the Cammeray Property to Marco to be consistent with the existence of a relationship of the requisite kind. As I have already noted, she did not look to him to pay rent for his occupation of the property. She permitted him to treat it as his home from which, in the words of Ms Baggen (see [189] above), he was free to come and go "as he chose". The Deceased's gift to Marco of a new car in 2015 was also significant.
15. I consider that there was a very high degree of mutual commitment to a shared life between the Deceased and Marco. This manifested itself in various ways including in day to day activities, care and solicitude for each other (including but by no means limited to those circumstances where either was hospitalised), regular restaurant and theatre outings together, holidays together, and quotidian interactions around the house of an entirely mundane kind. These included and extended to the performance of household duties. I have not overlooked in this regard that the Deceased was the beneficiary of some support from BaptistCare, but this was only for about one hour a week.
16. The degree of mutual commitment is also indicated by the telephone records, showing that, even when physically apart, Marco and the Deceased were very much a part of each other's lives (see, in this respect, [95] above).
17. Very significant, to my mind, is the fact that Marco paid for the Deceased's funeral, and was evidently permitted to do so by all of her "blood" relatives. This would be an entirely natural thing for someone who was a life partner, in the requisite sense, to do. He was also, as I have observed, accorded respect and sympathy at the funeral commensurate with the status vis-a-vis the Deceased that he claims in these proceedings.
18. As to "reputation and public aspects of the relationship", this is a factor which, at least superficially, points away from a conclusion of a relationship of the requisite kind. This is the matter which, in my deliberations, has given me the most "cause for pause". In the context of public aspects of the relationship, I include the references in various (mostly medical) records which referred to the Deceased and Marco having the relationship of "mother-in-law" and "son-in-law" and as "living alone". But those matters need to be considered in light of the evidence that the Deceased did not want the relationship to be publicly known, including and perhaps especially amongst her family. The unusual nature of the relationship, and the possibility that it could have prompted highly judgmental reactions, lends some support to this evidence. Context can explain coyness: see Bar-Mordecai at [118].
19. Whilst it is correct that evidence as to the Deceased's coyness emanated from Marco, and I must exercise caution in that regard, it is not without significance that his evidence was volunteered in chief and was not reactive or responsive to evidence led on behalf of Mr Leaney. Indeed, perhaps paradoxically, much of the evidence led on Mr Leaney's behalf tended to confirm Marco's evidence, insofar as a number of the affidavits attributed to the Deceased statements about her relationship with Marco that simply did not accord with the objective facts as I have found them to be, in turn supporting an inference that the Deceased was consciously trying to deflect suggestions of a relationship. I refer in this regard to what I have said in [166]−[167], [173], [177] and [187] above. Given that one would not normally expect a son-in-law and mother-in-law to form a relationship as a couple, the statements attributed to the Deceased in various affidavits filed on behalf of Mr Leaney are all the more conspicuous.
20. As to the various descriptions of Marco and the Deceased as son-in-law and mother-in-law respectively, these do point against Marco's claim as to the true nature of the relationship but they are capable of being explained as part of the consistent and deliberate concealment of the true nature of the relationship to the outer world. This is reinforced by the fact that many of the same records state that Marco or the Deceased "lived alone" when this was demonstrably not the case. It is also necessary to bear in mind that the evidence must be assessed as a whole.
21. In my opinion, taking all the matters I have referred to above into account, and having assessed the evidence presented by both sides, I conclude that Marco was the "spouse" of the Deceased in the requisite statutory sense in the two years prior to her death. Accordingly, in light of the fact that she died intestate, he is entitled to the entirety of her Estate, no other claims for provision having been made upon it. I would also grant him letters of administration in respect of the Deceased's Estate.

Alternate claim

1. As noted earlier in these reasons, in the alternative to a declaration that he is the surviving spouse of the Deceased and a concomitant grant of letters of administration, Marco seeks an order for provision to be made out of the Deceased's Estate for his maintenance, education and advancement in life, pursuant to s 59 of the Succession Act.
2. In light of my finding that Marco was the spouse of the Deceased, it is strictly not necessary to deal with this aspect of the claim but I do so against the contingency that my conclusions on the principal issue are challenged.

Statutory regime

1. Section 59 of the Succession Act provides that the court may, on an appropriate application, make a family provision order in relation to the estate of a deceased person in favour of certain "eligible persons" who have not been afforded adequate provision for the proper maintenance, education or advancement of life by the will of the deceased person or by the operation of intestacy rules in relation to the estate of a deceased person.
2. "Eligible persons" is defined in s 57 of the Succession Act relevantly to include "a person who was, at any time, a member of the household of which the deceased person was a member and was, at any particular time, wholly or partly dependent on the deceased person" (s 57(1)(e)) and "a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death" (s 57(1)(f)).
3. In relation to "eligible persons" falling into either of these two categories, s 59(1)(b) of the Succession Act provides that the court may only make a family provision order where, having regard to all the circumstances of the case, "there are factors which warrant the making of the application". The factors which warrant the making of an application are those that would render the applicant a natural object of testamentary recognition by the Deceased: Re Fulop Deceased (1987) 8 NSWLR 679. In the present case, by written submissions of 5 September 2019, counsel for Mr Leaney has accepted that, if Marco is found to be an eligible person, there are factors warranting the making of an order.
4. Section 59(1)(c) of the Succession Act provides that, for a family provision order to be made, the court must be satisfied that: "at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both." As is obvious, on the hypothesis upon which the alternate claim is made, no provision will have been made for Marco by the operation of the intestacy orders.
5. Section 60 of the Succession Act sets out matters that may be considered by the court in determining whether a person is an eligible person, whether to make a family provision order and the nature of any such order. The following constitute matters that the court may relevantly consider: "(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, … (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
6. There are therefore two key matters to consider in the present case: 1. firstly, whether Marco is an eligible person; and 2. secondly, whether the Court thinks an order for provision out of the Deceased's Estate ought to be made for the maintenance, education or advancement in life of Marco having regard to the facts known to the Court at the time the order is made.

Eligible Person

1. The first relevant category of eligible person to be considered is whether Marco was a member of the same household as the Deceased and was partly dependent upon the Deceased.
2. The meaning of "household" for the purposes of this category of eligible person was considered in Miller v Ryan; Payne v Ryan [2015] NSWSC 1713. Young AJA in that case noted that "[a]mong other things, living in the same household connotes some element of frequency of contact, some element of mutual support and some element of community of resources": at [26]. For the reasons I have given in relation to the principal issue, Marco can in my view comfortably and properly be described as having been a member of the household of which the Deceased was a member.
3. Dependency is a question of fact and is not to be given any restrictive meaning: Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [70]-[84] (Spata) and Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [180]. The standard of support is set by the parties and the fact that one party need not have depended on the other in the sense of strict necessity is not to the point: Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 190; [1973] HCA 8; Spata at [81]; Ball v Newey (1988) 13 NSWLR 489 at 492.
4. Marco submitted that he satisfied the second element of the eligible person test in s 57(1)(e) of the Succession Act, in that he was partly dependent on the Deceased for accommodation from about 1992 (when he started living in the flat downstairs at Cammeray with Gaye-Marie rent free) until the date of the Deceased's death in June 2017, being a period of 25 years. Marco submitted that he was partly dependent on the Deceased by her paying all of the outgoings at the Cammeray Property, the majority of his household expenses, providing to Marco emotional support and sharing in the household chores with Marco. Marco cited Drury v Smith [2012] NSWSC 1067 at [118] for the proposition that dependency includes the receipt of financial and/or emotional support.
5. Mr Leaney submitted that Marco was, by his own evidence, never financially dependent on the Deceased. He drew attention to the fact that Marco and the Deceased maintained separate bank accounts and paid outgoings on their respective properties. The Deceased also emphasised Marco's two pensions and inheritance from Gaye-Marie's Estate and submitted that Marco had sufficient income to support himself and his son.
6. I am satisfied that Marco was partly dependent on the Deceased for the reasons submitted on this behalf and set out in [234] above.
7. I now turn to the second (and alternate) basis for Marco's claim to be an "eligible person", viz as a person living in a close personal relationship with the Deceased at the time of the Deceased's death.
8. "Close personal relationship" is defined in s 57 of the Succession Act as a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care not for a fee or reward or on behalf of another person or organisation. Unlike the definition of de facto relationship, the "living" component in this context does not require the Deceased and the person claiming eligibility to have been living together "as a couple".
9. For the reasons set out above at [202]−[222], Marco also satisfied this definition.
10. Mr Leaney emphasised the domestic and personal assistance the Deceased received from BaptistCare and argued that BaptistCare, and not Marco, provided the Deceased with "personal care" in the form of mobility and personal hygiene assistance. That may have been partly so but was only for a limited period each week and does not negative the provision of care and domestic support that I have found Marco provided to the Deceased.
11. Contrary to Mr Leaney's contentions, I do consider that Marco, if he were not in a de facto relationship with the Deceased, was living in a close personal relationship with her at the time of her death. The limited provision of personal care by an external service provider does not change the position.
12. In relation to the factors set out in s 60(2) of the Succession Act, Marco submitted the following: 1. That, on the hypothesis that he was not in a de facto relationship with the Deceased, he was regarded as her son-in law; 2. The Deceased's undertakings, on Marco's evidence, to mention Marco in her will and not "neglect" him. (This is a reference to Marco's attribution to the Deceased of a statement to him that she would remember him in her will); 3. The absence of legal or moral obligations owing by the Deceased to her nieces, nephews or great nieces and nephews; 4. Marco's non-financial contributions to the conservation and improvement of the Deceased's Estate by way of gardening, maintaining the house and flat at Cammeray, contribution of his views on the Enmore property (a separate property owned by the Deceased) and providing extensive physical, emotional, logistical and household support to the Deceased; 5. The frequent telephone contact between him and the Deceased when he was not with the Deceased at the Cammeray Property; 6. The provision to Marco by the Deceased of rent-free accommodation; 7. The absence of any person or entity (other than the Commonwealth) liable to support Marco; 8. The absence of any conduct or character on the part of Marco that would or should disentitle him from an order for provision; 9. Marco's need for provision out of the Deceased's Estate by reason of: 1. His various medical conditions requiring regular visits to specialists and his taking of a range of medications; 2. the constant upkeep required in relation to the Rylstone Property; 3. his need to relocate to Sydney to be closer to his medical practitioners (by which he hopes to return to the Cammeray Property in which he lived for 20 years, is very familiar with and of which he holds fond memories); 4. the possibility that he will need to move into a nursing home (and have the funds to afford such care) if his health were to deteriorate; and 5. the fact that he provides some financial assistance to his son who is on a disability pension.
13. The matters referred to in the last subparagraph above were the subject of Marco's evidence in an affidavit sworn on 4 April 2018 and were not relevantly in issue. In that affidavit he also stated that his payment of the Deceased's funeral expenses in excess of $10,000 had left him without a fund available for contingencies.
14. Marco also submitted that Mr Leaney did not adduce evidence from the possible next of kin on intestacy in relation to their financial circumstances, meaning that there were no competing claims on the Deceased's Estate, and that the Court was therefore entitled to infer that the other prospective competing claimants have adequate resources upon which to live and that they do not wish to advance a competing claim on the Deceased's bounty: citing Sammut v Kleemann [2012] NSWSC 1030 at [137].
15. In his affidavit of 22 August 2019, Marco updated his "needs" evidence and said at [16]−[20] as follows: "It remains my intention that I will relocate to Sydney when my medical needs require that I am closer to my doctors and specialists who are located in the Sydney area. The drive between Sydney and Rylstone takes approximately six hours with rest breaks. In or around October 2018, my driver licence was not renewed due to medical reasons. My driver licence was subsequently renewed in or around November 2018. During this period of approximately 1 month, I was unable to drive to Sydney. Without being able to drive, it was necessary to catch a bus from Rylstone to Lithgow, then a train from Lithgow to Sydney. This trip is difficult on my health, and there is only one outgoing bus and one incoming bus per day between Rylstone and Lithgow. In the event that my licence is not renewed again in the future, I fear that it will be difficult for me to travel between Sydney and Rylstone. I want to return to live in the home at Cammeray as I have a personal connection to the house having lived there for approximately 20 years and I am familiar with the area. I refer to paragraphs 144 to 147 of my affidavit dated 2 February 2018. I believe that my belongings are still at the Cammeray [P]roperty. It would also mean that I would be closer to my doctors who are located in Sydney. I have also made enquiries online and some of the properties in Chatswood, Cammeray, Neutral Bay and North Sydney that look suitable for my needs (being one-bedroom apartments) that are currently for sale appear to be in between $650,000 and $1,000,000 in value. The reason I have been looking at properties in these suburbs is because they are in vicinity of the Royal North Shore Hospital and my specialists are located in the area. The suburbs are also close to Cammeray and the areas with which I am familiar. Due to my medical conditions, I may also require care in a nursing home. I am informed by my solicitors, and I believe it to be true, that they have made enquiries on my behalf with various nursing homes to ascertain the estimated costs that I will incur in the event that I need to move into a nursing home in the near future. I am informed by my solicitors, and I believe it to be true, that there are four components of the costs of moving to a nursing home, being the following: (a) A basic daily fee, set by the government and reviewed every 6 months, which is as at the time of deposing this affidavit $51.21, which equates to $18,691.65 per annum; (b) A means tested daily care fee, the calculation for which is set by the government. A fee estimator for the means tested care fee is available on the 'My Aged Care' government website. When my current financial information is input into the fee estimator it calculates the means tested daily care fee applicable to me to be $11.59, which equates to $4,230.35 per annum; (c) Accommodation costs (being the costs of the room itself), the average of which based on the providers my solicitors contacted in Sydney is approximately $600,000.00; and (d) Additional services fees, which are approximately $60.00 per day, which equates to $21,900 per annum. Accordingly, I estimate the total costs of moving into a nursing home to be $600,000 for the accommodation and $44,822.00 per annum in fees."
16. Against these considerations, Mr Leaney submitted that: 1. Marco's desire to return to the Cammeray Property for sentimental reasons was not a 'financial' need within the meaning of s 60(2) of the Succession Act; 2. Marco has an established home at Rylstone and had not adduced medical or financial evidence to show that he needed to come back to Sydney and had not shown that there were insufficient aged care facilities where he now lives; 3. although the persons whom Mr Leaney represented had filed no evidence as to their particular needs, they are nevertheless persons with a legitimate claim on the bounty of the deceased pursuant to s 129 of the Succession Act and their interests would be affected by the imposition of an order in favour of Marco; 4. Marco made minimal contribution to the value of the Deceased's Estate which was completely established after the death of Mr Gardner and there was no evidence that her Estate would have been worth less at the date of her death but for contributions by Marco; 5. the Deceased's indication to Mr Thomas that, although she would like to give something to Marco, she did not want it to go to his son David after his death.
17. It follows from the foregoing discussion that, had I not reached my conclusion in relation to Marco's status as the Deceased's spouse, I would have found him to be an "eligible person" within the meaning of the Succession Act.
18. I would also have made provision in his favour from the Deceased's Estate.
19. Bearing in mind his advanced age, his principal asset in the form of the Rylstone Property in addition to an interest worth approximately USD50,000 in an apartment in Argentina, the income he receives in terms of superannuation and pension and taking into account that, insofar as he has spent well over 20 years at the Cammeray Property, initially in the flat with Gaye-Marie and, over the 10 years prior to the Deceased's death, upstairs at the Cammeray Property approximately 50% of the time, I would have awarded Marco a life estate in the Cammeray Property together with a lump sum of $400,000. This, together with his other assets, could be deployed by him in aid either of additional assistance in his later years and/or a move from the Cammeray Property into a nursing home.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 October 2019