GFR v SRP [2023] TASSC 15

Intestacy Act 2010 (Tas), s 6

Relationships Act 2003 (Tas), s 4

S v B [2004] QCA 449, 1 Qd R 357, Brownell v Robinson [2017] TASSC 5, Brownell v Robinson [2017] TASFC 11, Pollock v New South Wales Trustee and Guardian [2022] NSWSC 923 followed.

Judgment Number: [2023] TASSC 15

1. Where a person dies wholly intestate, upon application letters of administration (which may be limited in any way the Court thinks fit) are to be granted to one or more persons aged 18 years or over interested in the residuary estate. Administration and Probate Act 1935, ss13 and 13A. The order of priority of those entitled to apply for a grant in common form is set out in the Probate Rules 2017, r 19. The person having first priority is the spouse (within the meaning of the Intestacy Act 2010, s 6 which includes a person who "immediately before the intestate's death, was a party to a significant relationship within the meaning of the Relationships Act 2003"). The next in order of priority is a child. Where the child is a minor the grant in common form, unless otherwise ordered, is to be made for the use and benefit of the minor to a trust corporation or no fewer than two persons fitting the description guardian, guardian appointed by the Court or person considered suitable by the Court or Registrar. Probate Rules, r 58. Those interested in the residuary estate of an intestate are, firstly, solely the spouse if any issue are the issue of both the deceased and the spouse and, secondly, if there is no spouse, the children of the deceased. Intestacy Act, ss 13 and 28.
2. Here the deceased died survived by one child, born August 2019. The deceased had never been married but a question has arisen as to whether immediately before his death he was party to a significant relationship with the child's mother. Depending upon the answer to the question the grant will be made in terms that it is for the use and benefit of the child or it will be made absolutely to the mother.
3. A contentious probate action has been commenced by the paternal grandparent of the child with the child's mother named as defendant. He commenced the action after blocking the defendant's application for a grant in common form by reason of having lodged a caveat within six weeks of the death of his son. He claims a declaration that the child is entitled to the whole of the intestate estate and a grant of letters of administration to himself and his surviving son, being the brother of the deceased. The defendant counterclaims a declaration that she is entitled to the whole of the intestate estate and a grant of letters of administration to her.

1. The following uncontroversial facts pertained shortly before the death of the deceased. On the night of 29 August 2021 the defendant and the deceased had an argument during the course of which the deceased assaulted the defendant. The next morning the defendant left the spousal home with her son to stay at her parents home. She had packed some clothes and other items. On 4 September 2021 the deceased died by suicide whilst the defendant was still staying at her parents home.
2. There had been an earlier separation in March 2021 followed by a resumption of cohabitation in about May 2021.
3. For reasons which follow I have determined that the deceased died without leaving a will and that at least shortly prior to his death he had been in a significant relationship with the defendant. This leaves me with the dispositive question which can be framed in simple yes or no terms. Namely, was the significant relationship between the deceased and defendant still in existence immediately before the death of the deceased?
4. One of the competing positions must prevail. In arriving at a decision the Court must exercise a vigilance beyond that normally applicable in adversarial litigation. The person asserting the continuance of the relationship has the onus of proof. S v B [2004] QCA 449, 1 Qd R 357 at [50].
5. In a typical marriage consent is given to the relationship by mutual promises expressly given. In the case of an unregistered significant relationship the mutuality of the relationship is ascertained by taking into account all of the circumstances of the relationship including, where relevant, those specified in the Relationships Act 2003, s 4(3)(a) - (i). In the case of a marriage or a registered relationship the relationship continues regardless of the subsistence of a mutual commitment to a shared life by reason of operation of law until divorce or revocation of the deed of relationship. A unregistered significant relationship comes to an end when the parties cease to jointly wish to stay in it. Persistence of the indicia of the existence of the relationship is fundamental to its continuance. However, separation on its own does not necessarily manifest an intention to bring the relationship to an end. An intention to sever the relationship must have permanence and be acted upon. It is to be distinguished from a temporary suspension of the relationship. S v B (supra) at [33] and [48]. Brownell v Robinson [2017] TASSC 5 at [54], Brownell v Robinson [2017] TASFC 11 at [74] and Pollock v New South Wales Trustee and Guardian [2022] NSWSC 923 at [442].
6. Thus the dispositive question is answered by determining whether or not either or both of the deceased and the defendant had permanently ceased to wish to stay in the relationship and had acted on that intent by the time of the death of the deceased.

1. In making a grant of probate or letters of administration in solemn form the Court is exercising a public duty and so must act on evidence regardless of the facts which the parties might have agreed by admissions contained in the pleadings. The admissions are relevant and attract weight but are not per se determinative, as they are in other forms of litigation. Sultan v Melick and ors [2023] TASSC 4 at [6]- [16]. I add that it necessarily follows that the public scope of the duty of the Court cannot be confined by concessions made in the submissions of counsel or by implication arising from a failure to make submissions on a particular matter.
2. Because the admissions of fact in the pleadings are relevant with due weight to be attached to them I set them out. There are only three admissions. They are that the deceased died on 4 September 2021, that the plaintiff is his father and that the deceased and the defendant are the natural parents of the one surviving child who is a minor.
3. The facts that the deceased died on 4 September 2021 never having been married, having had only one child and that the plaintiff is his father is verified by the contents of his death certificate. The fact that the child survived the deceased and is still living is included in both the evidence of the plaintiff and the defendant. The fact that the deceased is the father of the child and the defendant is the mother of the child is verified by the contents of the birth certificate for the child.
4. There being no reason to doubt the evidence I am satisfied that the admissions made in the pleadings as set out above accord with fact.

1. The plaintiff and the defendant have filed affidavits of testamentary scripts which I have read. In each it is said that they have no knowledge of a will but had not at the time had the opportunity of examining a suicide note and some other notes made by the deceased shortly prior to his death because those documents were then in the possession of the coroner. The documents were ultimately included in the evidence before me. I have read them carefully and I am satisfied that there is nothing in them which could possibly constitute a testamentary disposition.
2. I am satisfied that the deceased died without leaving a will.

1. The determination of whether two persons are in a significant relationship is governed by the Relationships Act 2003, s 4 which is as follows:

(1) For the purposes of this Act, a significant relationship is a relationship between two adult persons -

(b) who are not married to one another or related by family.

(2) If a significant relationship is registered under Part 2 , proof of registration is proof of the relationship.

(3) If a significant relationship is not registered under Part 2 , in determining whether two persons are in a significant relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;

(e) the ownership, use and acquisition of property;

(f) the degree of mutual commitment to a shared life;

(i) the reputation and public aspects of the relationship.

(4) No finding in respect of any of the matters mentioned in subsection (3)(a) to (i) , or in respect of any combination of them, is to be regarded as necessary for the existence of a significant relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case."

1. As specified in the provision "all the circumstances of the relationship are to be taken into account" and a relationship may exist despite the absence of any one or more of the matters listed in ss (3)(a)-(i).
2. The defendant's undisputed evidence which I have no reason to reject includes the following. In 2015 the couple moved in together in a shed on property owned by the deceased. The land was sold in 2016 and the couple moved into a downstairs flat at the home of the defendant's parents. Later that year the deceased purchased a property at ... with a view to the couple building their home there. A cabin was built which was occupied by the couple pending the construction of the home. House construction proceeded with the deceased, the defendant and the defendant's father all contributing to the labour. In January 2018 the couple became engaged with the deceased giving to the defendant an engagement ring. In ... the defendant became pregnant and the couple's child was born in .... In mid 2021 an occupancy permit issued for the house and the couple moved in with their young child.
3. There is no doubt that the couple had been parties to a significant relationship at least until 2021.

1. The defendant commenced an affair in March 2021, which on her evidence ceased in about May 2021. The deceased did not initially know of this. The defendant's evidence was that at the time she was concerned about the drinking habits of the deceased. She wanted the emotional support of the person with whom she was conducting the affair. She moved back into her parents home in late March 2021 after saying to the deceased that she was done with him. The defendant's evidence is that the affair ceased after she obtained some relationship counselling from a psychologist. Upon the end of the affair she resumed cohabitation with the deceased. The defendant goes on to recite in her evidence how there was friction between her and the deceased as the deceased was not convinced by the defendant's denials that a sexual relationship had existed.
2. Under cross-examination the defendant was challenged about the duration of the affair but remained unshaken in the assertion that it ended by about May 2021. The person with whom the affair had been conducted appeared as a witness under subpoena from the plaintiff and his evidence corroborated that of the defendant, namely that the affair had ended by about May 2021. The person with whom the defendant had been conducting the affair separated from his wife in mid 2021. The defendant's evidence is that she had no plans to renew the relationship with the person with whom she had had the affair. This is corroborated by uncontested evidence that she remained living with the deceased until 29 August 2021.
3. The defendant, for the first time, admitted the affair to the deceased on 29 August 2021. The following day she left the spousal home with the child to stay with her parents. I will deal with the period between 29 August 2021 and the date of death being 4 September 2021 in more detail during the course of providing these reasons.

Had the deceased ended the relationship by the time of his death?

1. Within the week before his death the deceased left on his laptop documents which included the following extracts:

"[SRP and X] Relationship. Started January 2015, Ended 29 August 2021

"about 8 weeks ago she bought me a new watch to thank me for how committed I was at getting her into the house. This confirmed to me that she was doing well and committed.

1. These extracts show that the deceased did not regard the relationship as having ended earlier than 29 August 2021.
2. The documents are fairly lengthy and are substantially free of spelling mistakes and grammatical errors. They set out a chronology in specific terms and provide detail as to the building cost of the home and the amount of the mortgage. There is nothing in them to indicate that they were written whilst the deceased was intoxicated or that at the time the deceased's mind was clouded by emotion.
3. The deceased acted on his expressed view that the relationship had ended on 29 August in the ways set out in the defendant's affidavit.
4. Firstly, on 29 August, immediately following the defendant admitting her past affair the deceased interrogated her about details and then anally raped her causing her to bleed whilst she screamed and cried. The couple then had a discussion about an amicable separation on the basis that the relationship was over. The discussion included talk of finances and the deceased said "...if I leave everything to you, would you stay here?" The defendant thought that the deceased had suicide in contemplation. The next morning the deceased had left the home early and the defendant packed her bags and moved back to her parents house with the couple's child. She returned to the spousal home later that day so that the deceased could see the child. The keys for the gun safe were out on the kitchen bench. The defendant left her engagement ring on the bathroom bench. Later that day when the defendant returned to collect the child the deceased asked the defendant whether she would return to live with him. She did not commit and the engagement ring was left where the defendant had placed it.
5. Secondly, the suicidal ideation which commenced immediately following the breakup was acted upon with the deceased killing himself on 4 September.
6. I have no doubt that at the time of his death the deceased believed that the relationship was over. This, however, is not the same as him having ceased to wish to stay in the relationship. His suicide note is set out in full below. It addresses his thoughts about the defendant saying:

"... I'll love you forever and always no matter what."

[X's] life isn't as perfect as he thinks...... (March 21)

[SRP], you were my rock, the one I was proud of to call you mine.

Please know I'll love you forever and always no matter what. You were an amazing partner, fiancé, and mother.

This life was for us. Our future was supposed to start now.

Im forever sorry for any hurt I've caused you. You really do deserve better.

..., my main man, your the best thing that 's ever happened to me. I'm sorry I didn't spend enough time with you in these 2 busy years . You are the brightest, cheekiest, cutest boy I've ever seen.

Family and friends, you've all been amazing, I've really felt your love and support.

Im sorry I have to do this, but the pain is just too much to bare.

1. I address the indicia of the existence of a relationship. The couple had cohabitated in a sexual relationship for six or seven years. They had built their home together. They had the joint care of their child. Much had been invested in their relationship. The permanent withdrawal from the relationship would accordingly be a matter of considerable gravity. The things said and done in the heat of the moment, without an opportunity having passed for calm and reflective consideration are not enough, in my opinion, to wipe away the indicia of the existence of the relationship.
2. I conclude that the deceased at the time of his death had not decided to permanently withdraw from the relationship. I conclude that his actions on 29 August and his suicide on 4 September were consistent with a belief that the defendant had ended the relationship or was about to end it. The suicide note, on its face written after 29 August, expresses love for the defendant "forever no matter what". I am persuaded by this evidence that the deceased had not permanently decided that he should end the relationship.

1. Within hours of leaving the house on the morning of 30 August the defendant sent a text message to a friend of hers and the deceased. The message said:

"Just to let you guys know [X] and I are over. I have moved out."

Despite the actions of the deceased on 29 August she was concerned about his wellbeing and in particular the possibility he might commit suicide. The deceased asked the defendant whether she would move back in "so we could be family again". She did not commit and said words to the effect that the couple could work towards that but first the deceased needed to get help and to enter into rehabilitation. I consider this evidence by the defendant to demonstrate a desire by the defendant to alleviate the risk of the deceased committing suicide rather than indicating that at the time she did not regard the separation as necessarily permanent. This is because the following day being 1 September she spoke in person with the friend to whom she had sent the text message saying that the separation was "very definite, very permanent".

1. The defendant, despite what she had said to her friend did not act consistently with a wish to permanently withdraw from the relationship. Despite the sexual assault she did not report the matter to the police or commence proceedings to obtain a Family Violence Order even though a solicitor acquaintance had informed her after dinner time on 1 September about the availability of such orders. The solicitor explained about property adjustments and custody and access orders in relation to the child but no instructions to institute proceedings or even open a file were issued. This evidence came from the solicitor and I have no reason to doubt it. There was no suggestion that the solicitor gave the name, or was asked to give the name, of a family law solicitor practising in the region where the defendant lived.
2. There is evidence from the defendant which I accept. Namely that there were discussions between the defendant and the deceased in the few days leading up to the suicide about finances but the couple decided to do nothing about such matters in the immediate future.
3. The continuance of the relationship after 29 August 2021 was on an extremely fragile footing. Fragility, however, is not the test. Speculation about the ultimate outcome when the parties are seriously considering a permanent end to the relationship is not part of the role of witnesses or the Court. Things said or done in the heat of the moment without due time for clear thinking and reflection and a separation of only a few days is not enough to indicate that a permanent decision to withdraw from the relationship.
4. I find on the basis of the defendant taking no action after speaking to a solicitor on the night of 1 September that she had not yet permanently decided to cease to stay in the relationship even though she had packed her things, returned to her parents house, returned her engagement ring and told a friend that the relationship was over. The defendant could have asked the solicitor to open a file without the knowledge of the deceased so as not to exacerbate the risk of suicide. There is no evidence which might show that the defendant came to a final decision to end the relationship sometime after speaking to the solicitor and before the death of the deceased. I find that the lack of a permanent decision to withdraw from the relationship still pertained at the time of death.

1. I have found that neither the deceased nor the defendant had reached a point where either had permanently decided not to remain in the relationship. The indicia which marked the existence of the relationship had not by the time of the death of the deceased been wiped away by things said and done in heat of the moment without an opportunity for reflection. The result is that I am positively persuaded that the significant relationship between the deceased and the defendant was still in existence immediately before the death of the deceased. This being so it leaves only the defendant as a person interested in the estate and as such she is entitled to a grant of letters of administration in solemn form.
2. The circumstances of the case are such that it was appropriate for the plaintiff to put the defendant to proof and, in my view, even if the plaintiff had not lodged the caveat it would have been appropriate for the defendant, rather than applying for a grant in common form, to have applied for a grant in solemn form. If the defendant had instituted the proceedings she would have named as defendant an informed, suitable and willing person appointed by the Court as representative of the child so that there could be an appropriate contradictor. Accordingly, subject to contrary submissions from counsel or agreement, my tentative view is that the costs of both parties should be taxed on a solicitor and client basis and paid from the estate.

1. I make the following orders:
   1. Letters of administration of the estate of ... late of ... in Tasmania who died on 4 September 2021 are granted to [SRP] of ... in Tasmania who is entitled to the whole of the estate by reason of intestacy.
   2. Unless within 14 days either party advises the Court that they wish to be heard on the question of costs and unless otherwise agreed the costs of the action of both the plaintiff and the defendant are to be taxed on a solicitor and client basis and paid out of the estate.