Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477 | Case summary

Judgment (7 paragraphs)

[1]

INTRODUCTION

Adrian Dennis Pamplin ("the deceased") died of natural causes, overnight on 23-24 August 2013, at Pitt Town in the state of New South Wales, leaving property in the state but (so far as can be found) no will.
Absent a will, the deceased must be taken to have died intestate: Succession Act 2006 NSW, section 102.
The "intestacy rules" governing beneficial entitlements to the estate of the deceased are found in Chapter 4 of the Succession Act 2006 (sections 101-140).
The deceased was born in March 1966. He was aged 47 years at the time of his death. He never married. Nor did he ever have children. He was predeceased by his father, but survived by his mother, Marie Pamplin; a brother, Lionel Joseph Pamplin (born in August 1967); and Ann Margaret Irwin (born December 1969), who claims to be the deceased's "surviving de facto spouse", which is to say, in essence, his "widow".
Before the Court are competing applications for a grant of administration of the deceased's intestate estate. By an order made on 23 September 2016, the two applications have been heard together.
In proceedings numbered 2014/00173587(commenced on 11 June 2014) Ann applies for a grant of administration on the basis that, as the deceased's surviving de facto spouse, she is entitled (under sections 104(b) , 105(a) and 111 of the Succession Act, read with section 21C of the Interpretation Act 1987 NSW) to the whole of his estate as defined by section 103 of the Succession Act (that is to say, so much of the estate of the deceased as remains after payment of all such funeral and administration expenses, debts and other liabilities as are properly payable out of the estate). For convenience, Ann is hereafter described as "the plaintiff".
In proceedings numbered 2014/00214419, commenced on 16 September 2014, Marie (for convenience hereafter described as "the defendant") denies the plaintiff's claimed status as the deceased's surviving de facto spouse. On that basis, and as mother of the deceased, she claims the whole of his estate under section 128 of the Succession Act.

THE LEGISLATIVE FOUNDATION OF THE PLAINTIFF'S CLAIM

The critical time focus of this contention arises from the legislative provisions on which the plaintiff relies to establish her entitlement to the deceased's intestate estate.
Section 111 of the Succession Act provides that, if an "intestate" (within the meaning of section 102 of the Act, the deceased) leaves a "spouse" but no issue, the spouse is entitled to the whole of the intestate estate.
Section 104(b) of the Succession Act defines a "spouse" of an intestate as a person who was "a party to a domestic partnership with the intestate immediately before the intestate's death".
Materially, section 105(a) of the Succession Act defines "a domestic relationship" as "a relationship between the intestate and another person that is… a de facto relationship that has been in existence for a continuous period of two years".
The term "de facto relationship" is defined in the Interpretation Act 1987, section 21C, as follows (with emphasis added) : "21C REFERENCES TO DE FACTO PARTNERS AND DE FACTO RELATIONSHIPS (1) Meaning of "de facto partner". For the purposes of any Act or instrument, a person is the "de facto partner" of another person (whether of the same sex or a different sex) if: (a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 , or (b) the person is in a de facto relationship with the other person. (2) Meaning of "de facto relationship". For the purposes of any Act or instrument, a person is in a "de facto relationship" with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else. (3) Determination of "relationship as a couple". In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple. (4) Meaning of "related by family". For the purposes of subsection (2), 2 persons are "related by family" if: (a) one is the child (including an adopted child) of the other, or (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent), or (c) they have a parent in common (including an adoptive parent of either or both of them). (5) Subsection (4) applies: (a) even if an adoption has been declared void or is of no effect, and (b) to adoptions under the law of any place (whether in or out of Australia) relating to the adoption of children. (6) Subsection (4) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child, even if the parentage order is discharged or otherwise ceases to have effect. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order."
Critically, the defendant disputes that the plaintiff and the deceased had, during the last two years of the deceased's life, "a relationship as a couple living together" within the meaning of section 21C(2) (a).
Leaving aside section 21C(3)(g), because of an absence of children, each of the factors identified in section 21C(3) as potentially relevant to a determination of whether the plaintiff and the defendant had a time-critical "relationship as a couple" can be engaged. A consideration of those factors does not relieve the Court of its obligation to consider "all the circumstances of the relationship", but they provide a convenient checklist against which to measure the facts of the case. Section 21C(3) serves, but does not rise above, section 21C(2); the meaning of the expression "de facto relationship" is found in section 21C(2): Piras v Egan [2008] NSWCA 59 at [146].
Care needs to be taken not to impose a gloss on the expression "a relationship as a couple living together" which is the object of the verb "have" in section 21C(2). It must serve a wide variety of social settings.
Section 21C(2)(a) must be read as a whole and in a context which includes its constituent parts (relationship/as a couple/living together); section 21C(2)(b); and each other sub-section of 21C; noting that, at its broadest, the subject matter of the section is "family".
The breadth of the range of factors listed in section 21C(3) as potentially relevant to a determination whether two persons have "a relationship as a couple" for the purposes of section 21C(2) demonstrates the need for flexibility in application of section 21C(2). The concept embodied in section 21C(2)(a) is not to be confined by absolute, a'priori reasoning about how family relationships function. That is confirmed by the concluding words of section 21C(3): No particular finding in relation to section 21C(3)(a)-(i) matters is necessary in determining whether two persons have a relationship as a couple.
Section 21C(3) does not, in terms, address the words "living together" found in section 21C(2); but section 21C(3)(b), if nothing else, demonstrates a close association between the concepts at play.
Ample authority demonstrates that, although the concept of "living together" may have locational and temporal dimensions, persons may be "de facto partners" without living only in a single residence and without spending all their time each in the company of the other: Vaughan v Hoskovich [2010] NSWSC 706 at [49]-[53], [56], [58] and [65]-[67]; Amprimo v Wynn [2015] NSWCA 286 at [77].
The expression "living together", no less than the rest of section 21C(2)(a), must be read in context. It suggests a degree of proximity or commitment, of one sort or another, which points towards the existence of "a relationship as a couple" in the nature of a marriage-like, family relationship: a "marriage" relationship, a union between two people involving a merger of lives, de facto not de jure.
Nothing in Chapter 4 of the Succession Act suggests otherwise. On the contrary, in these proceedings the definition of "de facto relationship" found in section 21C(2) of the Interpretation Act feeds, directly or indirectly, into each of sections 104(b), 105(a) and 111 of the Succession Act, which govern entitlements of an intestate's "spouse"; quintessentially, but not necessarily, a "husband" or "wife".
The statutory concept of "a de facto relationship" is not far removed from the common understanding of such a concept in Australian society. The expression "de facto relationship" evolved, in common parlance, as both a comparison, and a contrast, with the relationship of marriage. A "de facto relationship" was, in ordinary parlance, a relationship which exhibited the characteristics of mutual commitment familiar in a relationship of marriage, save for the solemnities involved in a formal exchange of wedding vows: Thompson v The Public Trustee of NSW [2010] NSWSC 1137 at [74]. Significantly, however, the current legislation does not, in terms, refer to parties "living together as husband and wife"; there is nothing that necessarily ties the concept of "a de facto relationship" to that of a formal marriage.
A determination about the existence, and subsistence, of a "de facto relationship" requires an empirical investigation of facts, not merely notice of a registered or certified event such as attends a formal marriage.
The observations of Hallen AsJ in Thompson [2010] NSWSC 1137 at [82] bear repetition in the context of the present proceedings: "[82] Whilst the concept of a de facto relationship is complex and diverse, such a relationship can, and should, be distinguished from the relationship of two people, who live apart, but who have a sexual relationship, and who sleep over at one another's house; and also from the relationship of two people, who share a house, but who do not have a romantic commitment to each other and who have other sexual partners. The fact that one provides the other, on occasions, with financial, or other, assistance, such as accommodation, to alleviate hardship does not mean that they are in a de facto relationship. In this way, a de facto relationship is different from friendship, or courtship, which has not matured into the commitment where there is a merging of lives so that there is a mutual commitment to a shared life. It is also different from simple companionship."
In paragraph [84] of the same judgment Justice Hallen also drew attention to the possibility that a relationship may be seen as having gone through different phases, noting that there is no presumption, or inference, of continuance of a de facto relationship.
Viewed from the perspective of the defendant in the present proceedings, the question for determination by the Court is whether the plaintiff has established that, throughout the two years preceding the death of the deceased, she was more than merely "a friend" and a "paid domestic servant": Did the plaintiff and the deceased have a timely, mutual commitment to a shared life, something more than simple companionship?
This type of question provides no substitute for the language of section 21C of the Interpretation Act, but it helps to crystallise the dispute between the parties.

FACTUAL CONTEXT

Before the deceased's death, the defendant and Lionel were content (up to and including, at least, the financial year ended 30 June 2012) to treat the plaintiff as his "spouse" for the purpose of routine distributions of income being made by a discretionary trust (established by deed dated 24 May 2002) known as the "Dennis G Pamplin Family Trust" (rationalised by the defendant as nothing more than a tax minimisation device); but, in 2013, Lionel resisted steps taken, or proposed to be taken, by the deceased to formalise the plaintiff's status as his heir.
In about April 2013 the deceased had his solicitor, Mr Ron Winter (the solicitor for the defendant in the current proceedings) prepare a will in which the deceased nominated the plaintiff as his sole beneficiary. That, and related business, led to a confrontation between the deceased and Lionel, a consequence of which was that the deceased told Mr Winter that he had decided not to execute the will.
Related business that occupied the mind of the deceased at about the same time (in mid 2013) was a proposal that the deceased take out a life insurance policy for $5 million, half of the proceeds of which would go to the family's business structure and the other half to the plaintiff. That proposal is said, on the defendant's side of the record, not to have gone ahead because of concerns of the insurer about the deceased's health. However, the deceased's succession planning at that time did contemplate that the plaintiff would, upon his death, stand in his shoes in the Pamplin family business.
The plaintiff says, and I accept, that for no less than about a decade before the death of the deceased she was wholly dependent upon him, and that their relationship was close, loving and intimate throughout that time. In effect, she says, and I accept, she pursued the life of a housewife, the domestic partner of the deceased.
This finding is, in my assessment, appropriately made on the whole of the evidence before the Court, notwithstanding that: 1. despite her denials of misconduct, records produced by Centrelink are capable of supporting a finding that the plaintiff was, at least at some stage, untruthful in describing her marital status when applying for social security benefits; 2. the living arrangements of the plaintiff and the deceased, spread beyond a single residence, might be thought by some to be unorthodox; 3. those living arrangements allowed the plaintiff and the deceased to pursue their separate interests (respectively horses and motor bikes) as they jointly saw fit; 4. as the years progressed, and the deceased became increasingly reclusive, he and the plaintiff rarely stepped out as a couple in social engagements; 5. there is evidence that, in the months preceding his death, the deceased made comments to a bikie friend (not the plaintiff herself) which, in isolation, suggested he was looking to live separately from her in a residence then being renovated; and 6. there is also evidence which suggests that, from time to time, the strong personalities of the plaintiff and the deceased clashed.
In my assessment, the defendant's attack on the credit of the plaintiff by reference to documents produced by Centrelink falls short of requiring her evidence as to the nature of her relationship with the deceased (and, more importantly, the facts underlying any characterisation of that relationship) to be rejected. She says that the Centrelink records produced to the Court do not fully reflect her communications with Centrelink. It is not necessary to run that argument to ground. There is, in any event, sufficient evidence not dependent upon her credit worthiness to ground a finding that she and the deceased were living in a de facto relationship at the time of his death and over the preceding two years, the period critical to the operation of Chapter 4 of the Succession Act.
Even if the living arrangements of the plaintiff and the deceased were unorthodox, because they spread themselves over more than a single residence and they did not spend all their time together, they can reasonably be understood as falling within the concept of "a couple living together". The two houses in which they principally lived were on a single property. That was a property in which they each had a material interest; with the benefit of funding providing by the deceased, the plaintiff progressed from being registered proprietor of a one-third interest (together with her father and her brother) to being the registered proprietor alone. They lived in close proximity, with a mutual commitment to a shared life.
Living in two houses allowed them to accommodate a lifestyle which required the plaintiff to assist her elderly mother (who came to occupy the larger house) and to allow the deceased space to be on his own as and when required. It also allowed each of the parties to the relationship to pursue their own personal, passionate hobbies: the plaintiff was at all material times passionate about horses, just as the deceased was at all material times passionate about motor bikes. Even if, as the defendant contends, they spent substantial times apart, they remained parties to an ongoing, joint family enterprise. Their close proximity, even when sleeping in different buildings, was reflective of a close personal relationship in which each person was able to call on the other as and when needed. The plaintiff says, and I accept, that she and the deceased had a close and loving relationship over a continuous period occupying significantly more than a decade preceding his death. Their relationship was, throughout that time, both intimate and monogamous.
The fact that the deceased became increasingly reclusive as he aged is consistent with his ill health, his fundamental desire for privacy, his passionate preoccupation with motor bikes and, it seems, a fear that he might be subjected to violence consequential upon engagement with rough sections of Australian society. In 2011 he spoke to the plaintiff about a fear of violence emanating from "a bikie war".
Lest such fears be considered fanciful, notice should be taken of his brother Lionel's reluctance to publicise his residential address for fear it might empower enemies to harm him and his family: Transcript pages 317-318 (and pages 291 and 296-297). Because of the lifestyle they had, the Pamplin brothers were reluctant to allow "people" to find out "where they lay their heads". Exposure to a prospect of imminent violence was a factor in attempts to conceal their respective places of residence.
The fact that, as they aged, the plaintiff and the deceased rarely stepped out as a couple in social engagements, and the fact that the plaintiff did not consistently attend Pamplin family functions, are not destructive of a finding that they lived together as a couple. The plaintiff adored the deceased but was apprehensive about his family and his bikie friends.
The Pamplin family's recognition of the plaintiff and the deceased as a couple extended to deployment of the plaintiff as the deceased's "spouse" for the purpose of making discretionary distributions of income. It does not lie in the mouth of the defendant, who participated in decision making of the family Trust, to deny the status of a "spouse" to the plaintiff.
The plaintiff says, and I accept, that she was involved with the deceased in making decisions about renovation of the residence to which the defendant contends the deceased was planning to live separately. Her evidence, which I accept, is that she and the deceased jointly contemplated that they might live there together. I do not discount (but I attribute little weight to) the possibility that the deceased suggested otherwise to a bikie friend, in a display of masculine bravado or, perhaps, in response to a perceived need on his part to manage his brother's resistance to succession plans involving conferral of substantial benefits on the plaintiff after his death.
On the whole of the evidence, I do not accept that, at the time of his death or at any other material time, the deceased contemplated separation from the plaintiff. They had a stable, de facto relationship not dependent upon fulfilment of earlier plans of formal marriage.
By an email dated 16 May 2013, the deceased endeavoured to explain to the plaintiff the economic effect of the life assurance policy he was then endeavouring to take out. The email was in the following terms: "Baby just so you have it on record. If or when I die you'll get $2,000,000 and the company will get … $2,500,000. Try and understand the graph [set out in an email from a financial adviser] that shows what I just said. I've filled out 99% of the forms for the policy that you'll "own". Now that is how they are referred to [;] the beneficiary is the actual policy holder which is you although the company [a Pamplin family company] will pay the premiums. So once I am dead, you enjoy and use the money to get over my death ASAP. I'm not frightened 1 little bit about dieing, I'm looking forward to the peaceful departure. So don't freak out, I'm not going anywhere soon, but you'll be very wealthy when I die and you deserve every bit of it. I love you little one! XXX"
This is not, as the defendant characterises the relationship between the plaintiff and the deceased, the language of mere friendship accompanied by an agreement for the provision of paid domestic services. The email was a private communication, not intended for public consumption. It was contemporaneous with the critical period for determining whether or not there was a de facto relationship between the plaintiff and the deceased.
For her part, the plaintiff made, and thereafter maintained, a will dated 21 November 2003 (expressed to have been "made in contemplation of marriage" to the deceased but "not conditional on the marriage taking place") in favour of the plaintiff. It provided for the plaintiff's mother to be given the plaintiff's engagement ring, and for the deceased to be given the rest and residue of the plaintiff's estate.
For the last 20 or so years of his life, the deceased suffered from debilitating headaches during the pendency of which he sought refuge in isolation. During at least the last half or so of that period, he and the plaintiff lived together in the smaller of two houses on a single property in Pitt Town; the plaintiff divided her time between that house and the larger house on the property, ultimately occupied by her mother; when the deceased felt a need for personal space, the plaintiff slept in the larger house, allowing the deceased to recuperate as best he could. These arrangements may have been unconventional but they are neither beyond common experience nor beyond a rational understanding.
The deceased suffered a bout of headaches on 23 August 2013 which was accompanied by an agreement between him and the plaintiff that she sleep in the larger house that night. She attended to his domestic needs that evening (as she often did), and she retired to the larger house until the next morning. It was then that she discovered him dead, in their bed, in the smaller house. She was the last person to see him alive, the first person to find him dead.
At the time of his death, family photos of significance to the plaintiff were located by the bed in which he died. There is no realistic possibility that they were planted there by the plaintiff after his death. The house in which the deceased died (the smaller of the two houses on the parties' Pitt Town property) was quickly the subject of a police investigation preliminary to a coronial inquiry.
The mundane fact that the plaintiff's photographs were kept by the bed counter balances suggestions that there was a paucity of female toiletries and the like - indicia of a female touch - found in the house following the deceased's death. The comparative absence of female toiletries in the small house, when the larger house was close at hand, is not a strong reed on which to hang a finding of no de facto relationship.
With the acquiescence of the defendant and Lionel, the plaintiff delivered an emotional eulogy at the deceased's funeral. The text of what she said is in evidence. She addressed the deceased as "my beautiful Boyo". It was everything one might expect of a distraught wife. It concluded with the following passage: "… You are the only love I have ever known. We have spent the last 27 years of our lives together No matter how many tears I cry or how much time goes by, my heart will never let you go. Adrian… why did you leave me here alone?"
The deceased did not generally refer to the plaintiff as his "wife" or even as his "partner". In a variety of hospital and business records he appears to have referred to her thus, or to have acquiesced in or signed documents in which she was so described, but he also appears sometimes simply to have described her as his "girlfriend" or as a "friend". He often referred to her as "my girl".
The deceased did not always record his and the plaintiff's addresses as one and the same when filling out hospital or business documentation. However, when he was hospitalised from time to time, he routinely said that he did not live alone, and he routinely named the plaintiff as his "contact person", and as the person who would take him home.
A brief outline of the course of events leading to the plaintiff's registration as proprietor of the property at Pitt Town (with its two houses), where she and the deceased lived, is instructive because it provides distinctive evidence of the character of their relationship.
The property was purchased by the plaintiff, her father and her brother (as tenants in common in equal shares) in 1991; they became registered proprietors of the property on 26 August 1991.
In 1996 the plaintiff's brother transferred his interest in the property to the plaintiff and her father; the memorandum of transfer was dated 23 May 1996. The deceased funded the purchase transaction associated with the transfer.
In 2009 the plaintiff's father transferred his interest in the property to the plaintiff; the memorandum of transfer was dated 9 April 2009. The deceased funded that purchase.
These transactions did not proceed without difficulty. They were attended by litigation, two sets of proceedings in this court. In the first set of proceedings (instituted in 1997) the deceased's swore an affidavit (on 10 November 1997) in which he described the plaintiff (as she is in the current proceedings) as "my fiancé". In the second set of proceedings (instituted in 2008) he swore an affidavit (on 31 January 2008) in which he described her as "my de facto wife". The solicitor who acted for the deceased in each set of proceedings is on the record in the current proceedings as the solicitor for the defendant.
The deceased's description of the plaintiff as his "de facto wife" is consistent with his nomination of the plaintiff as his "de facto" in an insurer's offer to the deceased (dated 22 August 2013) of life insurance cover.
It is not necessary, in these proceedings, to decide precisely what happened to the deceased's insurance arrangements and, accordingly, I deliberately refrain from doing so. I do not exclude the possibility that there might be future litigation about it.
For present purposes, it is sufficient to infer, as I do, that the deceased held out to the insurer that his nominated beneficiary of his proposed insurance cover was the plaintiff as his "de facto".
He may simply have described the plaintiff as "my girl"; but, whatever his exact language, he was taken to have identified her as his "de facto partner"; and, by his signature, he twice acknowledged that label as appropriate when engaged in financial planning discussions (including discussions about insurance) shortly before his death. On each of 21 June 2013 and 26 July 2013 or thereabouts the deceased and his brother both signed a document in which the deceased's marital status was described as "de facto" and reference was made to a desire to render their mother and their "respective partners" financially secure: Exhibits A19 and A21. The plaintiff was plainly in contemplation as the deceased's de facto wife.
All this occurred during the time critical period for an assessment of the character of the relationship between the plaintiff and the deceased.
There is no reasonable basis for concluding that the deceased's sworn characterisation of the plaintiff as his "de facto wife" in 2009 ceased to be an accurate reflection of the facts in after years.
To say this is not to embrace anything like a "presumption of continuance" of a particular type of relationship, but to draw attention to facts (located in the period of two years preceding the deceased's death) which point to a continuation, until the death of the deceased, of the parties' mutual commitment to a shared life. They were family, not merely friends. Their relationship was close and personal, never reduced to that of a quasi-commercial agreement for the provision of domestic services. Objectively, the plaintiff remained the "de facto wife" of the deceased.
Consistent with such a characterisation, it should be noted that in 1996 the deceased made arrangements for disposal, in due course, of his mortal remains and those of the plaintiff. He arranged for his ashes and those of the plaintiff to be placed in a "Pamplin Family Memorial" at the Northern Suburbs Memorial Gardens and Crematorium. In due course, following his cremation, that is where his ashes found a home. Throughout his life he maintained the plaintiff's reserved place in the Pamplin Family Memorial, a fact to which the plaintiff has attributed substantial emotional significance.

Estate Pamplin; Irwin v Pamplin

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Judgment (7 paragraphs)

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