McCrae and Burtenshaw v Burtenshaw

DECISION : 3575 of 2004 Lisa Maree McCrae v Leslie Jean Burtenshaw. (1). I declare that the Plaintiff is a person with whom the late Christopher Ronald Burtenshaw ("the Deceased") was living in a de facto relationship at the time of his death. (2). I order that the summons be dismissed. (3). I stand over the proceedings to a date to be fixed by arrangement with my Associate for argument as to costs. 5592 of 2004 Kelly Ann Burtenshaw and Jace Mathew Burtenshaw v Leslie Jean Burtenshaw and Energy Industries Superannuation Scheme Pty Limited. (1). I order that the time for the making of this application be extended up to and including the date of the filing of the summons herein. (2). I order that, in addition to the respective benefits given to them by the will of the late Christopher Ronald Burtenshaw ("the Deceased"), each Plaintiff receive a legacy in the sum of $20,000, such legacies to be payable out of the notional estate of the Deceased. (3). I order that the death benefit payable by the Second Defendant consequent upon the death of the Deceased be designated notional estate of the Deceased to the extent of $40,000. (4). I order that each of the aforesaid legacies not bear interest if paid on or before 9 July 2006, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898, and that any such interest be paid out of the aforesaid death benefit, and, that, to such extent, and in addition to the extent referred to in order 2 hereof, that death benefit be designated notional estate of the Deceased. (5). I stand over the proceedings to a date to be fixed by arrangement with my Associate for argument as to costs.

CATCHWORDS : Succession. Family Provision. Claims by de facto partner and by two adult children. Deceased by will gave his estate between his two children. Status of de facto partner disputed by Defendant. De facto relationship obtained for no more than seven months (possibly for only three months). De facto partner entitled to substantial death benefit consequent upon death of Deceased. Financial and material circumstances of each Plaintiff. Claims by the children not instituted within the prescribed period. Whether that period should be extended. Whether any Plaintiff has established an entitlement to provision, or additional provision, out of estate of Deceased. If so, whether part of the death benefit should be designated notional estate of the Deceased.

Family Provision Act 1982 LEGISLATION CITED : Property (Relationships) Act 1984 Supreme Court Rules Wills, Probate and Administration Act 1898

CASES CITED : Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 79 ALJR 731

Lisa Marie McCrae (Plaintiff in 3575 of 2004) Kelly Ann Burtenshaw (Plaintiff in 5592 of 2004) PARTIES : Jace Mathew Burtenshaw (Plaintiff in 5592 of 2004) Leslie Jean Burtenshaw (Defendant in 3375 of 2004, First Defendant in 5592 of 2004) Energy Industries Superannuation Scheme Pty Limited (Second Defendant in 5592 of 2004)

Mr. J. Drummond (Plaintiff in 3375 of 2004) COUNSEL : Mr. A. Hill (Plaintiff in 5592 of 2004) Mr. J. Wilson SC (for Defendant Leslie Jean Burtenshaw)

McDonald Johnson Lawyers (Plaintiff in 3374 of 2004) SOLICITORS : Armstrongs (Plaintiffs in 5592 of 2004) Lea Smith (for Defendant Leslie Jean Burtenshaw)

• 24 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3575 of 2004 LISA MAREE McCRAE -v- LESLIE JEAN BURTENSHAW

5592 of 2004 KELLY ANN BURTENSHAW and JACE MATHEW BURTENSHAW -v- LESLIE JEAN BURTENSHAW JUDGMENT 1 HIS HONOUR: These are two proceedings under the Family Provision Act 1982. 2 By summons 3575 of 2004 filed on 23 June 2004 Lisa Maree McCrae claims an order for provision for her maintenance, education and advancement in life out of the estate and/or notional estate of the late Christopher Ronald Burtenshaw (to whom I shall refer as "the Deceased"), whom she asserts was her de facto partner at the time of his death. (I shall for convenience, and without intending any disrespect, refer to that Plaintiff as "Lisa".) 3 By summons 5592 of 2004 filed on 14 October 2004 Kelly Ann Burtenshaw and Jace Mathew Burtenshaw each claims an order for provision for her and his maintenance, education and advancement in life out of the estate and/or notional estate of the Deceased, who was their father. (I shall for convenience, and without intending any disrespect, refer to those Plaintiffs as, respectively, "Kelly" and "Jace".) 4 Subsequently those Plaintiffs filed an amended summons on 20 December 2004 and later a further amended summons (entitled first further amended summons) on 5 December 2005. Each of the amended summons and the first further amended summons named as the Second Defendant thereto Energy Industries Superannuation Scheme Pty Limited. That Defendant subsequently filed a submitting appearance. 5 Proceedings 5592 of 2004 were not filed within the period of eighteen months after the death of the Deceased, as required by section 16 of the Family Provision Act. Accordingly, the Plaintiffs in those proceedings seek an order that the time for the making of their application be extended up to and including the date on which their summons was filed. 6 The Deceased died, unexpectedly, on 29 January 2003. He left a will dated 6 January 1995, probate whereof was on 3 November 2003 granted to his mother Leslie Jean Burtenshaw, the executor named in such will (who is the Defendant to proceedings 3575 of 2004; and the First Defendant to proceedings 5592 of 2004; I will refer to her as "the Defendant" or "the Defendant executor"). By that will the Deceased left the entirety of his estate on trust for his two children Kelly Ann and Jace Mathew (who are the Plaintiffs in proceedings 5592 of 2004). 7 The Deceased, who was born on 17 June 1958, was aged 44 at the time of his death. Of his marriage to Mrs Denise Burtenshaw were born two children, Kelly (who was born in 12 June 1981 and is presently aged 24 and Jace (who was born on 20 May 1984 and is presently aged 21). The Plaintiff and his wife separated in August 1993 and subsequently divorced. 8 The inventory of property discloses the following assets of the Deceased at the time of his death and the estimated or known value thereof: House property situate at and known as 23 Elwin Road, Raymond Terrace - $235,000 2000 Holden SS Commodore motor vehicle - $28,000 Newcastle Permanent Building Society Limited - $233 Commonwealth Bank - $1,575 Superannuation, Energy Industries Superannuation Scheme - $190,886 Final Payment from employer, Energy Australia - $37,563 Electrical Trade Unions death benefit - $1,500 Enerserve - Energy Australia Staff Club - death Benefit - $200

9 The executor has got in assets totalling almost $102,000, which are presently held in the trust account of the Defendant's solicitor. 10 Liabilities of the Deceased and of the estate, totalling $54,178, have been paid. Further liabilities of the estate, comprising legal costs, municipal rates, insurances, in a total amount of $17,535, have not yet been paid. 11 The house property at Raymond Terrace is subject to a mortgage debt, which is presently in an estimated amount of about $77,000. During the hearing it was noted that the agreed present value of that property is $235,000. 12 It is estimated by the Defendant that the present net value of the estate is a little over $343,000. However, as I understand it, that figure includes the death benefit (referred to in the inventory of property as superannuation) payable by the Energy Industries Superannuation Scheme. 13 In calculating the value of the estate available for distribution, the costs of the present proceedings must be taken into consideration, since each Plaintiff, if successful, will be entitled to an order that her or his costs be paid out of the estate, whilst the Defendant executor, irrespective of the outcome of the proceedings, will be entitled in each proceedings to an order that her costs be paid out of the estate. It is estimated on behalf of the Plaintiffs that their costs will be in a total amount of about $94,000 (being about $44,000 for the costs of Lisa and $50,000 for the costs of Kelly and Jace). 14 In his affidavit of 5 December 2005 the solicitor for the Defendant estimated that, upon the basis of a hearing occupying three days, the costs of the Defendant of the proceedings (including disbursements) will total $60,000. That amount includes costs thrown away by reason of an adjournment of the hearing on 27 July 2005, which the Plaintiff Lisa was ordered to pay. The Defendant's costs payable by Lisa in respect of that adjournment have not yet been assessed. Of the costs incurred by the Defendant an amount of $27,000 has already been paid. As I understand it, therefore, there remains outstanding an amount of $33,000 in respect to the costs of the Defendant, but of those costs an amount (presently unquantified) should be repaid by the Plaintiff Lisa.

15 It is estimated on behalf of the Plaintiff Lisa that her legal costs, on the basis of a two day hearing, will total about $40,000 plus GST (that is, about $44,000). Since the hearing occupied two and half days, it is likely that the estimate of Lisa's costs (about $44,000) is too low, since that estimate was based upon a hearing of only two days. 16 Upon my calculations, the total costs of all three Plaintiffs will be in an amount in excess of $94,000, whilst the total costs of the Defendant will be $60,000 (of which latter amount $27,000 has already been paid). That means that from the present net value of the estate of $343,000 there should be deducted at least $33,000 (being the outstanding balance of the Defendant's costs), or, prudently, $127,000, in order to calculate the value of the estate available for distribution. Upon my calculations that value would be in an amount of no more than $310,000 (or, possibly, $216,000). 17 Those amounts, however, assume that the death benefit (referred to in the inventory of property as superannuation) is an asset in the estate of the Deceased. If that benefit is not such an asset, then the major part of the net assets of the estate will be expended in meeting the costs of the present proceedings, and there will be a relatively small fund available for distribution among any of the Plaintiffs. That is, if the death benefit be not such an asset and if the costs of all parties (totalling about $127,000) be payable out of the estate, there will be a fund of only about $25,000 available to be divided between the beneficiaries named in the will or to meet any order for provision which might be made in favour of Lisa. If only the costs of Kelly and Jace ($50,000) and the outstanding costs of the Defendant ($33,000) be payable out of the estate, then, in the circumstances postulated, there would remain only about $69,000 to be divided between the beneficiaries named in the will or to meet any order for provision which might be made in favour of Lisa. 18 In her affidavit of 5 April 2005, being the affidavit filed in compliance with Part 77 rule 59 of the Supreme Court Rules, the Defendant states that there is notional estate comprising the superannuation fund held by the Second Defendant, in an amount of $190,886.94. 19 Lisa has made application to the Second Defendant, Energy Industries Superannuation Scheme Pty Limited for the entirety of the death benefit of the Deceased to be paid to her. The Defendant executor has lodged an objection with the Second Defendant against payment of any part of that death benefit to Lisa. The Second Defendant by letter dated 17 December 2004 informed the solicitors for the Defendant that the trustee of the Energy Industry Superannuation Scheme has deferred its decision as to whom and how it is to pay the death benefit standing to the credit of the Deceased until any or all legal proceedings in relation to the Family Provision Act are finalised and any relevant outcomes notified to the trustee. 20 It should here be recorded that the Plaintiff Lisa asserts that she is the de facto widow of the Deceased. At the outset of the hearing Senior Counsel for the Defendant acknowledged the status of Lisa as an eligible person in relation to the Deceased, being a person in a domestic relationship with the Deceased, but disputed that she had been in a de facto relationship with the Deceased. 21 Lisa was born on 19 June 1962 and is presently aged 43. She married in 1982 and divorced in 1989. Of that marriage were born three children, now all adults. At the time when she met the Deceased in mid-1996 Lisa was residing with her three children in accommodation at Comadore Close, which she had been occupying for the preceding twelve years and which she was renting from the Department of Housing, paying rent of about $140 a fortnight. At that time the Deceased was residing in the house property at 23 Elwin Road, Raymond Terrace, which constitutes the chief asset in his estate. At that time the Deceased was divorced, and his son Jace was residing with him, whilst his daughter Kelly was residing with her mother in Newcastle. 22 The respective residences of Lisa and the Deceased were located in geographical proximity. According to Lisa, she and the Deceased saw each other each day, they spent three or four nights each week at either the Deceased's residence or Lisa's residence, and they regularly had meals together, as well as attending family functions together and participating together on social occasions and in entertainments. In about September 2001 Jace removed from the Deceased's residence and commenced to reside with his mother. According to Lisa, the Deceased shortly thereafter requested her to marry him, and they purchased an engagement ring in July 2002. 23 Lisa and her youngest child, Richard (then aged about 17) moved into the Elwin Road residence in late 2002. Lisa at that time gave up her occupancy of the Comadore Close residence. She also ceased receiving the Centrelink payments which she had previously been receiving, and, on account of the income of the Deceased, Richard was no longer eligible to receive Austudy payments. Lisa continued to work part-time in a casual capacity at a surf shop in Raymond Terrace. It was the evidence of Lisa that whilst she was residing with him the Deceased paid all household bills, including electricity, telephone and insurance, whilst Lisa performed most of the household duties, including washing, ironing, cooking and cleaning. Lisa brought with her into Elwin Road all her furniture and household items which she had possessed at the Comadore Close residence. 24 Lisa gave evidence concerning extensive restoration, landscaping and gardening work which she said that she and the Deceased performed upon the Elwin Road residence. 25 Lisa has continued to reside in the Elwin Road residence since the death of the Deceased, by an arrangement with the Defendant under which she pays to the estate an occupation fee in an amount equivalent to the mortgage repayments. 26 Lisa ceased her casual part-time employment after the death of the Deceased, and was unemployed until she commenced work as a sales assistant with Noni B at Raymond Terrace in about October 2003. In that position she earns, on average, about $175 a week. In addition, she receives about $175 a week from Centrelink. These are her only sources of income. Lisa gave evidence of her current outgoings, totalling $390 a week. The most significant item in those outgoings is the amount of $175 a week which she pays to the estate of the Deceased for her occupancy of the Elwin Road residence. 27 Apart from the household contents which she brought with her to Elwin Road, Lisa does not have any assets. She does not own a motor vehicle, since, according to her evidence, during the lifetime of the Deceased he allowed her to use his motor vehicle. Lisa has only a nominal amount of superannuation. She owes about $900 on a credit card. Lisa gave evidence concerning her restricted lifestyle, on account of her lack of funds, and her desire to take out insurance and to enhance her lifestyle (for example, by holidays or social occasions). She said that at the time of the death of the Deceased she had about $2,500 of savings in her bank account, but that since then it had been necessary for her to expend the entirety of that money in order to meet day to day living expenses. 28 The Plaintiff Kelly was born on 12 June 1981, and is presently aged 24. She is a qualified hairdresser, employed as such in a full-time capacity in a salon in East Maitland. She receives $480 net a week. It is necessary for her to drive to and from work. Kelly gave evidence of expenses and outgoings totalling $468 a week. Kelly has little in the way of assets, other than a 1994 Mazda motor car, worth now about $7,000, upon which she makes loan repayments of $70 a week; and a computer, which she purchased for $1,440 and upon which she makes loan repayments of $30 a week. 29 After her parents separated in about mid-August 1993 (when Kelly was aged 13 and Jace was aged 10) she resided with her mother, but spent every weekend with the Deceased. After Kelly obtained her driver's licence in June 1997 she saw her father frequently, whenever she so desired. Kelly had a very close relationship with the Deceased. 30 The Plaintiff Jace was born on 20 May 1984 and is presently aged 21. He also had a very close relationship with the Deceased. During the period after his parents' separation in mid-August 1993 Jace, who was aged about 10 at the time, saw his father for weekends, every week or every fortnight. In about 1994 he decided that he wished to return to live with the Deceased. In consequence he moved back to the Elwin Road residence, and thereafter attended the Grahamstown Public School. 31 When Jace left school in 2001 he commenced to spend time both with the Deceased at Raymond Terrace and with his mother at Newcastle. In early 2002 he started to reside with his mother on a more permanent basis, visiting the Deceased on weekends. The Deceased was in the habit of giving Jace about $50 as pocket money, usually each week, and he also bought clothes for Jace. When Jace was required to have braces on his teeth the costs were shared equally between his mother and the Deceased. It may be necessary for Jace to incur additional expense for further dental treatment in the future. 32 Until July 2004 Jace was unemployed and received Centrelink Youth Allowance payments of $177 a fortnight. 33 Jace purchased his first motor car from the Deceased for $600, that sum being paid from savings which Jace had obtained from casual employment at McDonald's at Raymond Terrace. Subsequently Jace sold that motor vehicle, a 1985/6 VK Holden Commodore for $200, and purchased a 1989 Nissan Pulsar from Kelly for $1,700. That purchase price, together with associated costs relating to the transfer of the motor vehicle to Jace and third party insurance was borrowed by him, in a total amount of $2,500, from his maternal grandparents, to whom Jace still owes that sum. 34 In February 2003 Jace purchased another motor car, this time a 1992 VP Holden Commodore, for $12,800. That purchase price, together with insurance expenses, was also lent to him by his maternal grandparents, and that indebtedness is still outstanding. 35 Jace enrolled at Glendale TAFE for an automotive airbrushing course. He completed stage one of that course in November 2003, but was not able to afford the cost of completing stage two. 36 In mid-August 2004 Jace had an accident when his motor car hit a kangaroo. In consequence of the extensive damage to that vehicle Jace has had to pay almost $3,000 in respect to insurance excess and repairs. That sum has again been lent to him by his maternal grandparents. 37 At the present time Jace is employed at Newcastle Muffler Service at Bennetts Green, where he has been working since about August 2004.

38 After residing in rented accommodation at Maryland, Jace, Elizabeth, his mother and Kelly are now residing in a four bedroom rented residence at 30 Cypress Close, Fletcher, for which Jace and Elizabeth contribute $200 a week for rent and for food. Their weekly expenses and outgoings total $619. According to Jace, he and Elizabeth find it difficult to manage on the income they receive, and Jace's mother pays for their food each week. Kelly has also provided some financial assistance to Jace. Jace now receives $438 net a week in his employment with Newcastle Muffler Service, the total weekly income of himself and Elizabeth now being $620. A baby was born to Jace and Elizabeth on 22 June 2005. Elizabeth ceased work in May 2005 before the baby's birth. Until then she was in casual part-time employment in a retail shop. She currently receives $182 a week from Centrelink, by way of Family Tax Benefits, Rent Assistance and Parenting Payment.

39 Jace expressed the intention that he would use any money which he might receive from the estate of the Deceased to purchase a residence for himself, his partner and their son. 40 Jace and Elizabeth have weekly expenses and outgoings totalling $233. As well as the borrowings, totalling $22,000 from his maternal grandparents for the purchase of various motor vehicles and for associated expenses, Jace also borrowed $1,000 from his maternal aunt. He has been repaying that amount by instalments. The sum of $350 remains outstanding. When that indebtedness has been repaid to his aunt Jace proposes to start paying $50 a week to his maternal grandmother (or grandparents) in reduction of his foregoing indebtedness. Elizabeth's only asset disclosed in the evidence is a 1991 Mazda motor car, which was not in good condition and would need to be replaced. According to Jace's evidence, the public transport in the area where he, Elizabeth, his mother and Kelly reside is irregular and not very good. 41 Kelly has aspirations of acquiring a residence of her own, and eventually purchasing her own hairdressing business. Any financial benefit which she might receive from her father's estate would be used for those purposes.

42 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the respective claims of Lisa and of Kelly and Jace. 43 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file. 44 At the outset it is necessary to determine the nature and value of the assets which comprise the estate of the Deceased. The question arises whether the death benefit payable by Energy Industries Superannuation Scheme in consequence of the death of the Deceased constitutes such an asset. The effect of the terms of that scheme, in the circumstances of the instant case, is that if Lisa establishes that she was the de facto spouse of the Deceased at the time of his death, she will be entitled to receive that death benefit. Therefore it is of crucial significance to Lisa's claim that she establish that she was the Deceased's de facto spouse at the time of his death. Not only does that status have a considerable bearing upon the merits of Lisa's claim under the Family Provision Act, but the establishment of that status will have the effect that she will receive directly from the superannuation scheme the sum of almost $191,000. Such a benefit will significantly affect the financial circumstances of Lisa, and in consequence, will have a significant effect upon her present claim for an order for provision out of the estate of the Deceased. 45 If, however, Lisa cannot establish her status as the de facto spouse of the Deceased at the time of his death, then the effect of the provisions of the superannuation scheme is that the foregoing death benefit in an amount of almost $191,000 will pass to the estate of the Deceased, and will thus be available to be the subject of any order for provision which might be made in either or both of the present proceedings. In this latter regard, it will, however, be appreciated that if the death benefit becomes an asset in the estate of the Deceased, then under the terms of the will of the Deceased that asset will be divided equally between Kelly and Jace. 46 In those circumstances, therefore, it will not become necessary for the Court to proceed to a consideration of whether or not that death benefit should be treated as notional estate of the Deceased. If Lisa was not the de facto partner of the Deceased, then the death benefit is payable to the estate and it becomes part of the actual estate of the Deceased, to be dealt with in accordance with the provisions of the will. 47 If, however, Lisa as the de facto spouse of the Deceased is held to be directly entitled to the death benefit, then it is submitted on behalf of Kelly and Jace that that death benefit constitutes notional estate of the Deceased, in that, so it is submitted, the Deceased entered into a prescribed transaction of the nature described in section 22(4)(e) of the Family Provision Act, in that the Deceased was a member or participant in the Energy Industry Superannuation Scheme and, as a result thereof and of the Deceased's death, the death benefit becomes held by Lisa. 48 Whether or not the Court should make an order designating the foregoing death benefit as notional estate of the Deceased will depend upon whether either or both of Kelly and Jace can establish that, by reason of the terms of the will of the Deceased leaving to them equally the entirety of his estate, she or he has been left without adequate provision for her or his maintenance, education or advancement in life. 49 I have already recorded that the trustee of the superannuation scheme has filed a submitting appearance in proceedings 5592 of 2004. 50 Further, I have already recorded that at the outset of the hearing Senior Counsel for the Defendant stated that the Defendant acknowledged that Lisa was an eligible person, but did not concede that she was in a de facto relationship with the Deceased. It was acknowledged on behalf of the Defendant that Lisa was an eligible person within paragraph (a)(ii) of the definition of that phrase contained section 6(1) of the Family Provision Act, in that she was a person with whom the Deceased was living in a domestic relationship at the time of the Deceased's death. The phrase "domestic relationship" has, by section 6 of the Family Provision Act, the same meaning as in the Property (Relationships) Act 1984. Section 5 of that latter statute provides, in subsection (1), For the purposes of this Act, a domestic relationship is: (a) a de facto relationship, or (b) 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. 51 The foregoing acknowledgment made on behalf of the Defendant executor that Lisa was in a domestic relationship with the Deceased, but that she was not in a de facto relationship with him, has the effect that the Defendant executor concedes the existence of a close personal relationship of the nature described in subsection (1)(b) of the foregoing definition contained in section 5 of the Property (Relationships) Act, being an acknowledgment that there was at the time of the death of the Deceased a close personal relationship between himself and Lisa, "who [were] living together, one or each of whom [provided] the other with domestic support and personal care". 52 Further, it is acknowledged on behalf of the Defendant executor that Lisa is also an eligible person within paragraph (d) of the foregoing definition of that phrase, in that she and the Deceased were members of the same household and that she was partly dependent upon the Deceased. 53 It follows from the foregoing acknowledgments made on behalf of the Defendant executor that Lisa is an eligible person in relation to the Deceased and that, in consequence, she has the standing to bring the present proceedings. 54 Each of Kelly and Jace, as a child of the Deceased, is an eligible person within paragraph (b) of the foregoing definition. As such, each of Kelly and Jace has the standing to bring the present proceedings. 55 Apart from the three Plaintiffs, the other persons who are identified as being eligible persons in relation to the Deceased are Richard William McCrae, son of Lisa, who aged about 17 accompanied his mother when she moved into residence in the Elwin Road property in 2002, and Denise Burtenshaw, the former wife of the Deceased. Neither of those persons has made a claim against the estate of the Deceased, and the prescribed period for the making of such a claim (under section 16 of the Family Provision Act) has now elapsed. 56 Accordingly, it is necessary for the Court to consider only the claims of the three Plaintiffs. Kelly and Jace, whilst opposing the claim of Lisa, are not in dispute between themselves, and neither suggests that she or he should receive more than the other from the estate of their late father. 57 As I have already observed, it is critical not only to the claim of Lisa, but also to the claims of Kelly and Jace, that the Court determine whether or not Lisa was the de facto spouse of the Deceased at the time of his death. 58 It was the case for Lisa that she and the Deceased were in a de facto relationship from shortly after the time when they met in 1996, although it was conceded by her that she did not move into residence with the Deceased until July 2002. According to Lisa, although the Deceased on at least three separate occasions requested that she should move into his residence at Elwin Road, she declined to do so until the second half of 2002 because Jace was still living there with his father until mid-2002. Although it was Lisa's evidence that the Deceased spent three or four nights a week at Lisa's residence until July 2002, nevertheless it emerged under cross-examination that the Deceased was not in the habit of allowing Jace to be left on his own in the Elwin Road residence. I am satisfied that the nights which the Deceased spent at Lisa's residence were essentially only Friday nights and Saturday nights, during the periods when Jace was spending weekends with Jace's mother. 59 Taking into consideration the various matters referred to in subsection (2) of section 4 of the Property (Relationships) Act, I am not satisfied that any de facto relationship between the Plaintiff and the Deceased commenced before July 2002, when, according to Lisa herself, she moved into the Elwin Road residence. 60 It was disputed on behalf of the Defendant that Lisa in fact moved into the Elwin Road residence in July of that year, the Defendant asserting that she did not move in until several months later. In this regard the Defendant relied upon the following matters. On 11 September 2002 Lisa made a statutory declaration (exhibit G) in which she gave her address as Comadore Close, Raymond Terrace. On the same date Lisa signed an authority for rent deduction (exhibit G) in which she gave her address as 3 Comadore Close and in respect of which she left blank any details concerning a partner. Documents from Centrelink disclose that Lisa received a NewStart Allowance from 11 July 2002 until 14 November 2002 (exhibit G). Mrs Jeanette Gordon, the wife of a friend of the Deceased, gave an account of a conversation with Lisa in December 2002 in which Lisa said that she had commenced living with the Deceased in October 2002. Kelly stated that in September 2002 she visited the Deceased at his home and that there was no evidence that Lisa had moved into the Deceased's residence at that time. Lisa's daughter Jade said that she remained in the Comadore Close property until November 2002, whilst Lisa said that Jade moved out of that property when Lisa moved in with the Deceased. 61 In all the circumstances, therefore, I am in agreement with the submission of the Defendant that caution should be exercised in accepting the evidence of Lisa that she moved in with the Deceased in mid-July 2002. But whether it was mid-July or October of that year when Lisa moved into residence with the Deceased, it is quite clear that the period of cohabitation was extremely short, no more than seven months, and possibly as little as three months. 62 Such matters as the Deceased's proposal of marriage, the ordering and acquisition by him of an engagement ring for Lisa, at a price of $6,900, and the statements made by the Deceased to friends and acquaintances that Lisa had moved into residence with him satisfy me that from the time when she moved into his residence Lisa was in a de facto relationship with the Deceased. At its longest, therefore, that de facto relationship obtained for no more than seven months, from mid-July 2002 until the unexpected death of the Deceased on 29 January 2003. It is possible that the relationship obtained for an even shorter period, for only about three months. 63 The conclusion which I have just expressed has the effect that under the terms of the Energy Superannuation Scheme Lisa will be entitled to the death benefit of almost $191,000 payable upon the death of the Deceased. 64 (It should here be interpolated that my conclusion that Lisa was in a de facto relationship with the Deceased makes it unnecessary for me to consider Lisa's claim as an eligible person under any of the parts of the definition of that phrase other than that as the de facto partner of the Deceased.) 65 If the Court does not intervene by making an order for provision in favour of Lisa, or by designating the foregoing death benefit, or part thereof, as notional estate of the Deceased, upon the claims of Kelly and Jace, the effect of the foregoing conclusion will be that Lisa's financial circumstances will be significantly improved. 66 Nevertheless, Lisa seeks that she should receive the Elwin Road residence absolutely. It was noted during the course of the hearing that the parties were in agreement that the present value of that property was $235,000. Lisa has remained in residence in that property since the death of the Deceased, and by arrangement with the Defendant executor, has been making the mortgage repayments. There is presently outstanding an amount of about $77,000 under that mortgage. 67 It will be appreciated that at the time when she met the Deceased and at the time when she entered into the de facto relationship with the Deceased Lisa was living in rented accommodation, in which she had been residing for the preceding twelve years, since 1984. I am not satisfied that an applicant in the circumstances of Lisa, who was the de facto spouse of the Deceased for no more than seven months (and possibly for only about three months) is entitled by virtue of that status, or by virtue of her status as a person in a domestic relationship with the Deceased, to receive a residence from the estate of the Deceased. But, in any event, Lisa will receive (albeit not from the estate of the Deceased) a very significant financial benefit in consequence solely of her status as the de facto spouse of the Deceased, despite the fact that that status obtained for such an extremely short period. 68 Further, the claim of Lisa for provision out of the estate of the Deceased must be approached not only in the context of her own financial and material circumstances (including the financial benefit which she will directly receive in consequence of her status as the de facto spouse of the Deceased) but also in the light of the competing claims of Kelly and Jace. (See Singer v Berghouse (1994) 181 CLR 201, the correctness of the two-stage process identified wherein was affirmed in Vigolo v Bostin (2005) 79 ALJR 731.) 69 If no additional provision is made to Lisa out of the estate of the Deceased, then the net distributable estate, in an amount of about $69,000 (or possibly somewhat more, if any of the Defendant's costs are recovered from Lisa), will be divided equally between the two children of the Deceased. 70 Each of Kelly and Jace is a young person who has her or his way to make in life. Jace has accepted family and parental responsibilities in recent times. He, his partner and their infant son, as well as Kelly, are residing with Jace and Kelly's mother. I would not be disposed to make any order in favour of Lisa which would have the effect of reducing the entitlement of Kelly and Jace to share equally the actual estate of their father under the terms of his will, an estate the value whereof has been significantly depleted by the institution of the present proceedings. 71 In respect to the claim of Kelly and Jace it will be recalled that their proceedings, 5592 of 2004, were not instituted within the period of eighteen months prescribed by section 16(1) of the Family Provision Act. The explanation given by them (which is set forth in the affidavit of their solicitor, Stephen John Churches of 25 July 2005) is that until shortly before they first consulted Mr Churches on or about 20 September 2004 (consequent upon the solicitors for the first Defendant advising them to seek independent legal advice relating to the death benefit) Kelly and Jace believed that the death benefit would be paid to the estate of the Deceased pending the outcome of the proceedings which had been instituted by Lisa on 23 June 2004 (that being within the prescribed period). However, shortly before their consultation with Mr Churches Kelly and Jace became aware that Lisa had applied for the release to her of the entirety of the death benefit, upon the basis of her asserted status as the de facto spouse of the Deceased. Mr Churches wrote to the Second Defendant on 30 September 2004, foreshadowing the present claim of Kelly and Jace and putting that entity on notice that the relief sought by them would include an order that the death benefit "be paid into the estate to be dealt with according to our client's application". No response was received to that letter before the institution of proceedings 5592 of 2004 on 14 October 2004. 72 Shortly thereafter the solicitor for Kelly and Jace received from the Second Defendant a letter dated 14 October 2004, which said that the death benefit would be payable in accordance with the provisions of the trust deed and rules of the superannuation scheme and the compliance with superannuation law, and that the benefit would be paid to the estate only if the trustee be satisfied that the Deceased was not survived by a spouse (which includes a de facto spouse at the time of his death). The solicitor for Kelly and Jace then sought from the Second Defendant an undertaking that it would not disburse the funds representing the death benefit pending orders made in the proceedings which had already been instituted by Lisa and which had been instituted by Kelly and Jace. As no such undertaking was forthcoming, Kelly and Jace filed the first further amended summons on 3 December 2005, joining the Energy Industries Superannuation Scheme Pty Limited as a Second Defendant to their proceedings. 73 It was only after such joinder that the Second Defendant filed a submitting appearance. 74 It was not suggested on behalf of either Lisa or the First Defendant that the failure of Kelly or Jace to make their claim for provision within the prescribed period occasioned any prejudice to those other parties. I am satisfied that their failure to institute the proceedings within the prescribed period has been adequately explained, being the consequence of the attitude adopted by the Second Defendant concerning the death benefit. Accordingly, if the Court is ultimately satisfied that it is appropriate that an order for provision should be made in favour of Kelly and Jace, or either of them, it is appropriate that an order should be made extending the prescribed period for the making of their application until the date of the institution of their proceedings. 75 There remains the question, however, of whether part or all of the death benefit should be designated notional estate of the Deceased, and thus be available to meet an order for additional provision in favour of one or both of Kelly and Jace. It will be appreciated that the practical consequences of any such designation will be to reduce the amount which Lisa will receive from the death benefit. 76 I am not persuaded that Lisa, who was the de facto spouse of the Deceased for a period of less than seven months and who, in consequence solely of her status as such, will receive almost $190,000 by way of death benefit, is entitled to any additional benefit out of the estate of the Deceased. But, in any event, even if (contrary to the conclusion which I have just expressed) Lisa could establish such an entitlement, the competing claims of Kelly and Jace are such that I would not be disposed to disturb the interests which Kelly and Jace will receive out of the actual assets of their father's estate. 77 It seems to me, however, that each of Kelly and Jace has made out a claim to receive some additional amount beyond the one half share in the actual assets of the estate of the Deceased. Each of those young persons has embarked upon a career, but their financial returns are not great. Each is in very modest financial circumstances, neither having any significant assets. 78 I consider that each of Kelly and Lisa is entitled to some additional provision for her and his maintenance and advancement in life. Such provision should be by way of a legacy which should be met out of the death benefit, and, to that extent, the death benefit should be designated notional estate of the Deceased. In my conclusion each of Kelly and Jace should receive a further legacy of $20,000 out of the notional estate of the Deceased. Such legacies will have the effect of reducing the benefit to be received by Lisa from the death benefit from about $191,000 to about $151,000. I do not consider, however, that that reduction is in an amount so great that it should properly affect the conclusion which I have already expressed, to the effect that Lisa has not established an entitlement to receive provision out of the estate of the Deceased. 79 I make the following orders:

3575 of 2004 Lisa Maree McCrae v Leslie Jean Burtenshaw

(1). I declare that the Plaintiff is a person with whom the late Christopher Ronald Burtenshaw ("the Deceased") was living in a de facto relationship at the time of his death. (2). I order that the summons be dismissed.

(3). I stand over the proceedings to a date to be fixed by arrangement with my Associate for argument as to costs.

5592 of 2004 Kelly Ann Burtenshaw and Jace Mathew Burtenshaw v Leslie Jean Burtenshaw and Energy Industries Superannuation Scheme Pty Limited

(1). I order that the time for the making of this application be extended up to and including the date of the filing of the summons herein.

(2). I order that, in addition to the respective benefits given to them by the will of the late Christopher Ronald Burtenshaw ("the Deceased"), each Plaintiff receive a legacy in the sum of $20,000, such legacies to be payable out of the notional estate of the Deceased.

(3). I order that the death benefit payable by the Second Defendant consequent upon the death of the Deceased be designated notional estate of the Deceased to the extent of $40,000.

(4). I order that each of the aforesaid legacies not bear interest if paid on or before 9 July 2006, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898, and that any such interest be paid out of the aforesaid death benefit, and, that, to such extent, and in addition to the extent referred to in order 2 hereof, that death benefit be designated notional estate of the Deceased.

(5). I stand over the proceedings to a date to be fixed by arrangement with my Associate for argument as to costs.

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