The plaintiff, Mr Sleiman Khadarou (also known as Simon Khadarou), has applied for a family provision order under s 59 of the Succession Act 2006 (NSW) (the Succession Act) in respect of the estate of the late Argyrios Antarakis (also known as Eric Antarakis) (the Deceased). The Deceased died on 22 May 2019 leaving a will dated 26 June 1978 (the Will). By the Will, the Deceased appointed his brother, Michael Antarakis (the Executor), as executor of the Will. By the Will, the Deceased gave the whole of his estate to the Executor and their mother, Athina Antarakis, in equal shares. Athina Antarakis predeceased the Deceased and, accordingly, the Executor is entitled to the whole of the estate under the Will. Since the Executor was incapable of applying for probate, letters of administration with the Will annexed were granted to the Administratrix on 12 August 2019. The Executor had previously appointed his wife, the defendant, Mrs Rita Antarakis (the Administratrix), attorney under enduring power.
By summons filed on 21 May 2020, the plaintiff seeks a family provision order making provision for him from the estate of the Deceased together with an order that any property of the Deceased already distributed be designated as notional estate to the extent required to make such provision. The plaintiff claims that he and the Deceased were living in a close personal relationship at the time of the death of the Deceased and that, accordingly, he was an eligible person for the purposes of the Succession Act under s 57(1)(f).
Under s 59 of the Succession Act, the Court may, on application under Div 1 of Ch 3, make a family provision order in relation to the estate of a deceased person if the Court is satisfied, relevantly, that:
the person in whose favour the order is to be made is an eligible person,
having regard to all of the circumstances of the case, whether past or present, there are factors that warrant the making of the application, and
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.
The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. Section 60 specifies matters to which the Court may have regard for the purpose of determining whether:
the person in whose favour the order is sought to be made is an eligible person, and
whether to make a family provision order and the nature of any such order.
The first question raised by the proceedings is whether the plaintiff is an eligible person for the purposes of the Succession Act. The Administratrix denies that he is and also denies that there are factors that would warrant the making of the application by the plaintiff. The Administratrix also disputes that, even if the plaintiff were able to establish that he is an eligible person and that there are factors that warranted the making of his application, the evidence establishes that adequate provision for the proper maintenance, education or advancement in life of the plaintiff has not been made by the Will.
[2]
The Plaintiff and the Deceased
The plaintiff's evidence-in-chief was given principally by affidavit, an unsatisfactory way of adducing disputed evidence in a case such as this. Parts of the plaintiff's principal affidavit-in-chief were rejected but leave was given to supplement the affidavit with viva voce evidence.
The Deceased was born in Alexandria, Egypt, in March 1934 and, accordingly, was aged 85 years when he died in May 2019. He migrated to Australia in 1955. In the 1980s, the Deceased moved to a house in Silver Street, St Peters. He later moved to another house in Silver Street, St Peters and, at the date of his death, his principal asset was his house in Silver Street, St Peters, which had a value of $1,100,000. He also had a bank balance of $7,000. The Silver Street, St Peters property was sold for $1,350,000. I shall deal below with the partial disposition of the estate of the Deceased following his death.
There is no evidence as to the plaintiff's age. However, he is married and has five children, each of whom was between the age of 7 and 19 at the time of the death of the Deceased. The plaintiff lives with his wife and children in Housing Commission accommodation and is unemployed. He and his wife each receive welfare payments. That appears to be the plaintiff's principal source of income although there is some evidence that he has derived income from buying old motor vehicles, repairing them and reselling them.
The evidence as to the financial circumstances of the plaintiff and his wife is very deficient. The plaintiff was a panel beater before he ceased work. There was no evidence as to the reason for his ceasing work other than a bald statement in an affidavit that he suffers from stress and anxiety depression disorder. However, there was no evidence that that was the reason for his ceasing to work. He also asserted that he had a heart attack and had bypass surgery in about 2017 and takes medication for his heart condition.
The plaintiff's said in his affidavit evidence that he first met the Deceased when he saw him attempting to fix his "198 Ford van" outside his house in Silver Street, St Peters. The plaintiff stopped and asked whether the Deceased was an experienced panel beater to which he replied that he was trying to fix the van himself in order "to save money". The plaintiff's view of the Deceased's attempt to fix his van was that "the job didn't look good". He said that he therefore decided to assist the Deceased and teach him how to fix a rusted patch on the van. He said that he did that to show the Deceased "my work".
The plaintiff said that, after completing the job, the Deceased admired his effort and asked if he could "fix this car for $100". The plaintiff replied that he would as he wanted to help the Deceased to save money. After he finished the job, the Deceased asked the plaintiff for his telephone number for future assistance to fix his van. The plaintiff gave the Deceased his telephone number. The precise date of the incident just described was not given by the plaintiff. It appears to have been in the early 2000s.
The plaintiff said that, about a year later, the Deceased called him and asked him if he could fix the van again because the rust had reappeared. The plaintiff said that he fixed the van but that, later, the van broke down. The plaintiff said that the Deceased then purchased a mid-1990s Jeep Cherokee which had an accident soon after he purchased it. He said that, as the motor vehicle was declared a write off, the Deceased asked him whether they could go to "the Auction" and purchase a damaged vehicle to use. The Deceased said that he wanted to save money by letting the plaintiff "fix it", apparently referring to the damaged Jeep Cherokee.
The plaintiff said that having purchased "the Hilux", without identifying the vehicle, which was parked in the Deceased's garage, he and the Deceased "gradually managed to fix the front end collision for the vehicle so he can register the car". It is not totally clear which car was being referred to or who the purchaser was. The plaintiff said that the RTA did not allow "the car" to be registered in New South Wales because it was declared a statutory write off "following the introduction of stricter laws to assessing damaged vehicles". The plaintiff said that they made enquiries as to how they could register "the car" in New South Wales and were advised that "specific paperwork for the car" was needed but they did not know "how to retrieve them". He said that "the car" was then left in the garage until mid-2018, when "we scrapped the car".
The plaintiff said that throughout his relationship with the Deceased, he assisted him every time he was looking for a motor vehicle to buy. He said that, after the Jeep Cherokee had been written off, he sold his late 1990s Toyota Corolla to the Deceased. He then listed "the subsequent cars" that the Deceased used as follows:
1996 Mazda 626 (previously the plaintiff's motor vehicle);
1989 Red Honda Concerto;
1992 Toyota Cressida; and
1996 Mercedes-Benz E230.
The Mercedes-Benz was insured on behalf of the plaintiff and the Deceased jointly. The plaintiff said that he took responsibility for the care of the motor vehicles such as by taking them for inspection when registration was due.
All of the evidence summarised above was given without objection and was not the subject of cross-examination. The timeframe is not stated and it is unclear who bore the costs of the vehicles, such as registration and insurance and who used them and for what purpose.
The plaintiff said that, from 2011 to 2013, his relationship with the Deceased changed as the Deceased had a girlfriend, whom the plaintiff met at the Deceased's house. He said that the girlfriend familiarised herself with the plaintiff's Lebanese background and began to mention popular foods that she admired from Lebanese culture. The plaintiff said that, after that, he occasionally brought such meals to the Deceased and his girlfriend. He said that the Deceased told him that he sold his other house in Silver Street, St Peters to her. The girlfriend died in a motor vehicle accident in October 2013.
The plaintiff said that, in the last five years of the life of the Deceased, almost every day he would take his children to school in the morning before going to see the Deceased and eat lunch with him. He said that he would stay with him until 6pm, when he would go home to pick up a batch of freshly cooked dinner from his wife and bring it back to the Deceased's house and eat dinner with him. The plaintiff said that, throughout his "friendship" with the Deceased, the Deceased enjoyed the frequent meals that he used to give him, which, the plaintiff said, were prepared by the plaintiff's wife.
The plaintiff said that he would stay with the Deceased on weekends and that often his children would come with him and play in the Deceased's backyard. He said that his children would sometimes call the Deceased "grandfather" and sometimes just "Eric".
The plaintiff's son, Mohamed Khadarou (Mohamed), gave evidence by affidavit. Mohamed said that he would spend time with the Deceased approximately one or two times a month, generally on weekends, when he went there with his father. He said that sometimes in his brother, Issa Khadarou (Issa), would come as well. Mohamed said that the Deceased would call his father "son" and that, when he and his brother were little, they called the Deceased "Jedo", which is an Arabic word similar to "grandfather". He said that, as they got older, he and his brother called the Deceased "Eric".
Mohamed said that, during 2017 and 2018 and for the first few months of 2019, the plaintiff would drop him and his siblings off at school every school day and would then pick them up from school and take them home. Mohamed said that, as soon as they were home their father would go again and would return between 7pm and 9pm. Mohamed said that his father would not always eat when he got home "from those long days". He also said that there was a period in around 2014 when the plaintiff would only come home in the late evenings to sleep and would then leave again in the morning, to take his children to school.
The plaintiff's other son, Issa, also gave evidence by affidavit. Issa said that he would spend time with the Deceased maybe once every two months, generally on weekends, when he went there with his father. He said that sometimes his brother, Mohamed, would go with him. He said that he never stayed too long as he could not stand the smell of the Deceased's house, as the Deceased was a hoarder and the house "smelled disgusting".
[3]
Eligible Person
The plaintiff must establish that he is a person with whom the Deceased was living in a close personal relationship at the time of the death of the Deceased. For the purposes of the Succession Act, a close personal relationship is 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. [1] Thus, the plaintiff must demonstrate that, at the time of the death of the Deceased:
the Deceased and the plaintiff were in a close personal relationship;
the Deceased and the plaintiff were living together; and
the plaintiff was providing the Deceased with domestic support and personal care.
It is clear that, by the time of the death of the Deceased, the plaintiff and the Deceased had established what might be characterised as a close friendship and the plaintiff was fairly regularly providing the Deceased with domestic support and personal care. However, even if their friendship can fairly be characterised as a close personal relationship, the critical question is whether the plaintiff and the Deceased were living together at the time of the death of the Deceased.
The concept of "living together", in the context of the Succession Act, entails the sharing of a home, such that it can be said that the plaintiff and the Deceased were cohabiting together. The test for determining that question is an objective one and requires an assessment of the nature and extent of the living together. Two adult persons will not be regarded as living together unless there is a place or there are places in which both of them live as a home. It is not necessary for each of them to spend the whole of their respective times in that place or those places. Nevertheless, it is necessary to establish that each of the persons can be seen to regard the place or places in question as his or her home and to be doing so on a rational basis. [2]
That will involve a consideration of such matters as:
whether the plaintiff and the Deceased had a common residential address;
whether and how often the plaintiff and the Deceased slept in the same premises;
whether the plaintiff and the Deceased kept clothing, domestic and personal effects at the same premises;
whether the plaintiff and the Deceased were simultaneously present in the same residence;
whether the plaintiff and the Deceased shared the facilities of day-to-day living on a regular and recurrent basis such that it can be said that they shared a household;
whether the plaintiff and the Deceased decided household questions together and shared the burden of maintaining a household; and
whether there was a place that each of the plaintiff and the Deceased regarded as "home".
It will be necessary to consider whether arrangements such as those outlined above had a degree of continuity and appeared to be for an undetermined period. [3] Further, the idiosyncrasies of a particular case may make some acts of care more or less important than others. [4]
The plaintiff accepts that he did not ever sleep at the Deceased's home and that, even when he stayed at the Deceased's residence until late at night, he returned to the house where his wife and children resided. That is to say, the plaintiff and the Deceased never slept under the same roof and resided separately in different houses. Nevertheless, the plaintiff contended that he and the Deceased were living together for the purposes of the Succession Act. He contends that he and the Deceased engaged in multiple activities in which persons occupying the same residence would normally engage, as follows:
Carrying out maintenance on the Deceased's house;
removing waste that accumulated in the Deceased's house due to his hoarding;
driving the Deceased to the supermarket so that he could shop for food;
checking on the Deceased when he was distressed at night and comforting him by bringing a blanket and turning on his heater; and
mending and modifying the Deceased's furniture to suit his mobility issues.
It may be that it is not necessary for a person to demonstrate that he or she reside in the same residence in order to be living together. That is to say, there may be a place where neither of them resides but where they regularly cohabit. However, living together requires some sleeping under the same roof, albeit not continually. The activities relied upon by the plaintiff, as described above, may be indicative of a close friendship, but no more. Even though the plaintiff and the Deceased may have often spent time together in close proximity at the Deceased's house, that, again, is more indicative of a close friendship rather than living together.
The plaintiff relies on the fact that the Deceased became familiar with the plaintiff's children who, at least when younger, used a term of endearment suggesting that the Deceased was a family member. However, it is clear that the involvement of the plaintiff's children with the Deceased was sporadic and did not involve a close relationship. The plaintiff also relies on the fact that he took upon himself the burden of informing the Deceased's neighbours of his death and assisted the Deceased while in hospital, adopting the position of next of kin. While that may be indicative of a close personal connection between the Deceased and the plaintiff, it is hardly sufficient to constitute living together.
The plaintiff asserts that he shared the facilities of day-to-day living with the Deceased on a regular and recurrent basis and that that constituted sharing a household. However, helping the Deceased with personal hygiene and cleaning his house and home on the occasions when the plaintiff visited the Deceased and shared meals with him falls short of evidence of sharing the facilities of day-to-day living, such that it can be said that they were sharing a household. It is quite clear that the house where the Deceased lived was the Deceased's home and, while the plaintiff may have spent considerable time visiting the Deceased, the plaintiff had his own home, where his wife and children resided.
The plaintiff contends that, by performing maintenance and cleaning activities around the Deceased's house at his request, he and the Deceased decided household questions together and shared the burden of maintaining the household where the Deceased resided. Once again, the giving assistance by the plaintiff to the Deceased, albeit to an extensive degree if the plaintiff is to be believed, that is not sharing the burden of maintaining a household. The plaintiff's evidence was that he took the Deceased to do his shopping. The evidence falls far short of the plaintiff and the Deceased maintaining a household together.
There is no direct evidence to support a conclusion that the plaintiff and the Deceased regarded the Deceased's house as "their home". However, the plaintiff relies upon his assertion that he engaged in lengthy renovation work on the Deceased's house for no fee or reward and that that indicated a shared understanding that the Deceased's house was "their home". The plaintiff also points to the extended period during which the plaintiff spent time in the front room of the Deceased's house while he was engaged in an argument with his wife. However, even then, the plaintiff did not sleep in the Deceased's house. Further, the extent to which he used other rooms in the Deceased's house is unclear.
[4]
Endnotes
Section 3(3).
See Hayes v Marquis [2008] NSWCA 10 at [166].
See Harkness v Harkness [2011] NSWSC 1421 at [42].
See Hughes v Charlton [2008] NSWSC 467 at [20].
See Evans v Levy [2011] NSWCA 125 at [62]-[64].
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Decision last updated: 29 June 2021
The plaintiff said that he often visited hospital when overcome by frequent panic attacks and that the Deceased would call him and would visit him in the hospital. He said that the Deceased understood that he had no one who could be around him at such times because of his wife's inability to drive and his only brother in Australia not wanting to talk to him. No more specific evidence was given as to the panic attacks or when they occurred.
In his affidavit, the plaintiff said that, in 2017, the Deceased said to him:
"I plan to sell my house and purchase a farm for you and your family. I will buy a caravan and live on the farm, and we can escape the doctors."
The context of that statement was not explained and the evidence is curious. The plaintiff was a panel beater and it is quite unclear what the Deceased might have thought the plaintiff would do on a farm. However, the matter was not pursued in oral evidence.
The plaintiff said in his affidavit that the Deceased was a hoarder and that his backyard, home and garage contained useless items comprising heavily corroded tools, large containers and plastic jars consisting of expired food and that mould and rubbish and essentially anything that he saw outside his house would be collected by the Deceased and placed in his house. The plaintiff said that he stressed to the Deceased many times that he should stop bringing useless rubbish into his house as it was introducing an "unhygienic and unpleasant smell" in the house and that the plaintiff could not be there when the house "smells this bad". The plaintiff said that the Deceased stored food in large containers, most of which were expired canned products.
The plaintiff said that, in early 2017, the Deceased agreed to allow him to clean his garage before slowly cleaning the rest of the yard and one of the rooms in the Deceased's house. The plaintiff said that "whilst under the burden of his mental disorder" he managed "to communicate and help [the Deceased] through at a gradual pace". It is not clear what the plaintiff meant by that evidence in his affidavit, which was read without objection and were not the subject of cross-examination.
The plaintiff said that he suffered a heart attack in August 2017 and that, as a result, he was unable to interact with the Deceased for a few months. He said that he gradually resumed supporting the Deceased by starting to clean his garage followed by "the other locations" which, I assume, was intended to refer to the yard and one of the rooms in the Deceased's house. The plaintiff said that, having removed all of the waste, he made bookings with the Inner West Council to remove the waste from outside the house.
The plaintiff said that he and the Deceased planned to fix the deteriorated floor of the main room of the Deceased's house and that he and the Deceased purchased the necessary wood from Bunnings Warehouse. He said that, during January to March 2018, he cleaned and fixed the floor, which, he said, was completely filled with useless rubbish. He tendered photographs of the room before and after the work was done, labelled "Room inside the House" taken "before" on 28 January 2018 and "after" on 28 March 2018. During examination in chief, the plaintiff initially identified those photographs as being of the kitchen, but later described them as the sunroom. The photographs were in black and white and of poor quality. However, the "before" images appear to show a room with collapsed flooring, whereas the "after" image shows the same room with what appears to be timber floorboards.
Mira Uher, a neighbour of the Deceased, said that the Deceased told her that the plaintiff dismantled the old floor pilings and stored them in the backyard and that he had to stop him after completing about one metre of new flooring. Ms Uher said that the deceased told her he had to go to Bunnings to get more information about how the work should be done and that he was not happy with the plaintiff's work. She said her son, Roman Uher, completed the job for the Deceased and that the Deceased paid him for doing so.
Barbara Uher, the daughter of Mira Uher, was also a neighbour of the Deceased. She gave evidence that, at around the time the plaintiff was fixing the floors, she saw her brother, Roman, working at Eric's house and observed a large number of new timber boards in the backyard. Barbara Uher said that she asking the Deceased what all the timber was for and that he told her that the floor had collapsed, that he brought wood from Bunnings with the plaintiff but that it was not right after the plaintiff put it in because it was "for outdoor not indoor". She said that the Deceased told her that Roman had to fix it because the plaintiff did not do it right and that the plaintiff knew that he was not happy with it and that he had not seen him since he paid him.
In cross-examination, the plaintiff denied that he had had a disagreement with the Deceased about the floor. When it was suggested to the plaintiff that did not visit the Deceased for some time after he was paid for that work, he denied that he was paid for the work but did not indicate whether or not he stopped visiting the Deceased for a period of time. Roman Uher did not give evidence.
The plaintiff said that, in March 2018 soon after he completed the floor, he cleaned the Deceased's kitchen and made bookings to get rid of the accumulating rubbish that was present in the Deceased's kitchen. He said that the smell in the Deceased's house was very nauseating and that, even though he wore a facemask, the smell lingered as he removed the waste and placed it in the yard. The plaintiff suffered another heart attack in March 2018 shortly after removing the rubbish from the Deceased's "overwhelmingly dirty kitchen", as the plaintiff described it.
The plaintiff said in the his affidavit that, in November 2018 to June 2019, the Deceased gave him his 1996 Mercedes E230 to use. There was no objection to that assertion. However, he was subsequently cross-examined in relation to the motor vehicle, which is still in his possession on a basis that is unclear. The plaintiff suggested in cross-examination that the motor vehicle was given to him as his own rather than "to use", as he said in his affidavit.
The plaintiff said that he and the Deceased used to go shopping together at least once a week. He said that, when conversing with the Deceased during shopping, the Deceased discussed plans for looking for two properties with lots of room to rent out to students. The plaintiff said that he told the Deceased that he did not have money and that the Deceased agreed "to do it on a half-half basis" as he said that he could not do it alone. Once again, the context of that statement is unclear and was not explained. There was no evidence that the plaintiff followed up the suggestion made by the Deceased.
Much of the evidence given in chief by the plaintiff concerned the last few weeks of the life of the Deceased. The plaintiff's evidence was directed to establishing that the Executor and his family were undeserving because they did not pay sufficient attention to the Deceased in his final years, during which, the plaintiff claims, the plaintiff was his only family.
The plaintiff said in his affidavit of 30 June 2020 that, on 21 April 2019, he visited the Deceased to check on his status. The plaintiff considered that the Deceased did not look physically well, in that his legs were severely swollen and exhibited randomly scattered clusters of cysts in the mid region of his leg. The plaintiff said that the Deceased was urinating and defecating frequently without visiting the bathroom.
The plaintiff deduced that something must be wrong and encouraged the Deceased to let him assist him to go to hospital or call an ambulance to take him into hospital. The plaintiff said that the Deceased continually exhibited what the plaintiff characterised as "his paranoia" against health workers and doctors. The plaintiff said that, with the consent of the Deceased, he recorded his physical condition and symptoms on his telephone. He said that he intended to show the recording to his general practitioner in order to seek advice as to what should be done with the Deceased. The recording was not tendered.
There is no evidence that the plaintiff took any further action in relation to Deceased until 17 May 2019. On that day, the Deceased called the plaintiff's mobile number 16 times. When the plaintiff returned the calls, it was 10pm. The plaintiff said that, while he was not feeling well, he telephoned the Deceased and asked what was wrong. The Deceased told the plaintiff that he was very cold and asked if he could bring him a blanket. The Deceased told the plaintiff that he had attempted to call Mr Roman Uher, Barbara Uher's brother, the son of Mira Uher. The Deceased said that Mira Uher had replied that he was busy. The plaintiff said that he then decided to take a blanket to the Deceased and went to the Deceased's house where he comforted the Deceased by covering him with a blanket. The plaintiff turned on the Deceased's heater and subsequently returned home.
On the following day, the plaintiff spoke to the Deceased again, when the Deceased refused to be taken to hospital. He asked the plaintiff to make his bed and chair for him at a suitable height so that he could sit high enough without difficulty and discomfort. The plaintiff began to comply with the Deceased's request but began to feel unwell and went home to bed.
On 19 May 2019, the plaintiff called an ambulance since the condition of the Deceased did not appear to be normal. The Deceased had called him to let him know that he was in distress. The plaintiff went to the Deceased's house and an ambulance arrived shortly thereafter. The plaintiff informed the ambulance officers that the Deceased did not want to go to hospital and the officers replied that it was a matter for the Deceased whether he went or not.
Nevertheless, the plaintiff encouraged the ambulance officers to take the Deceased to Royal Prince Alfred Hospital where he was admitted on 19 May 2019. The Deceased was showered when he was admitted because he had not had a shower for a very long time since he had no access to a shower in his home. When admitted, the Deceased was asked for contact details. The plaintiff said that the Deceased told the admitting officer to put him, the plaintiff, down as the Deceased's next of kin, saying that the plaintiff was the Deceased's first contact while he was in hospital.
The plaintiff said in his affidavit that, while in hospital, the Deceased asked the plaintiff to "fix his bed" at his home to make the bed higher for him. The plaintiff said that he complied with that request and, in the process of doing so, found a gun under the plaintiff's bed. The plaintiff took the weapon to Marrickville police station.
On 21 May 2019, Mira Uher and her son visited the Deceased in hospital and used his phone to contact Dominique Antarakis, the niece of the Deceased. The plaintiff said that he also contacted Michael Antarakis, the nephew of the Deceased, as well as Dominique, and asked them why they had not come to check up on the Deceased. The plaintiff said that they responded that they were unable to come to the hospital until the following week. The plaintiff asserted that the response was given in "an arrogant and rude manner".
The plaintiff said that he asked the Deceased on 21 May 2019 where and how he would like "to be placed" if he were to die. The plaintiff said that he gave several possibilities to the Deceased but the Deceased did not respond. The plaintiff attaches significance to the fact that the Deceased did not mention his family in that context. The plaintiff asserted in his affidavit that the Deceased thanked him several times "for helping him out" and that in the last 10 hours before his death the Deceased began to reminisce about his fear of doctors. Nevertheless, the plaintiff said, Deceased could remember the names of the plaintiff's children when asked but he did not mention his relatives. The Deceased died on the following day.
The plaintiff also points to the discussion that he said he had with the Deceased about a possible move to the country and the possibility of buying properties with lots of room to rent out to students. Those discussions, however, appear to have led nowhere and were never repeated. The comments were without context and there was no suggestion that the matters were raised in any serious context.
Finally, the plaintiff asserts that neither he nor the Deceased had any intention that their relationship would cease or that the plaintiff would cease to spend long periods of time at the Deceased's house. That of course leads nowhere unless the relationship between them was anything other than a close friendship.
The plaintiff relies on various matters to support of his contention that he provided the Deceased with domestic support and personal care. Thus, he says, he assisted the Deceased with toileting, bought new clothes for the Deceased, cleaned the Deceased's dishes, assisted the Deceased to buy a motor vehicle, brought meals to the Deceased and ate meals with the Deceased to keep him company and carried out work on the Deceased's motor vehicles. He says that he provided all of those benefits to the Deceased without a fee and that he was "a consistent presence in the life Deceased". The plaintiff points to the relatively lonely lifestyle led by the Deceased and invites the Court to draw the inference that the plaintiff was one of the Deceased's few social contacts upon which he relied and that he spent long periods discussing various topics when he visited the Deceased.
Even if I were to accept all of the assertions made by the plaintiff as to the assistance that he provided to the Deceased over several years, I do not consider that that supports a conclusion that the plaintiff and the Deceased were living together so as to satisfy the definition of close personal relationship for the purposes of s 57(1)(f) of the Succession Act. Further, even if I reached a different conclusion, it is difficult to see what factors would warrant the plaintiff making the present application. I do not consider that the actions of the plaintiff constitute anything more than those of a good friend of the Deceased. I do not consider that the relationship that he had with the Deceased was such as would give him the status of a person who would generally be regarded as a natural object of testamentary recognition by the Deceased. [5]
While there is evidence that the Deceased recognised some moral obligation to the plaintiff, I do not consider that the evidence is capable of supporting the conclusion that there are factors warranting the application for a family provision order by the plaintiff. In any event, in circumstances where I have concluded that the plaintiff and the Deceased were not living together in a close personal relationship within the meaning of the Succession Act and is not otherwise an eligible person for the purposes of the Succession Act, it would be quite artificial to consider whether there are factors warranting an application by him. For similar reasons, it would be quite artificial to endeavour to determine what would be an adequate provision for the plaintiff out of the estate of the Deceased in circumstances where I have concluded that the jurisdiction of the Succession Act has not been attracted.
It follows that the proceedings should be dismissed. The plaintiff must pay the costs of the Administratrix.