Fraser v Thom [2010] VSC 626
Re Comfort [1947] VLR 237
[1947] ALR 288
Re Plaister
Perpetual Trustee Company v Crawshaw (1934) 34 SR (NSW) 547
Re Zappullo deceased [1966] VR 390
Wing v Angrave (1860) 8 HL Cas 183
Source
Original judgment source is linked above.
Catchwords
Fraser v Thom [2010] VSC 626
Re Comfort [1947] VLR 237[1947] ALR 288
Re PlaisterPerpetual Trustee Company v Crawshaw (1934) 34 SR (NSW) 547
Re Zappullo deceased [1966] VR 390
Wing v Angrave (1860) 8 HL Cas 183
Judgment (6 paragraphs)
[1]
Solicitors:
NSW Trustee and Guardian (Plaintiff and second Defendant)
File Number(s): 2015/132987
[2]
Judgment
HIS HONOUR: I am dealing with an application, commenced by Summons filed on 5 May 2015, in which the NSW Trustee & Guardian ("the Plaintiff"), in its capacity as administrator of the estate of Rigas Pitsios (hereafter called "the son"), seeks the following relief:
"1. A determination, in the events that have happened, as to the order of the deaths of the late Rigas Pitsios deceased ("Rigas") and the late Angliki Pitsios deceased ("Angeliki").
2. A Declaration that in the event of a determination that Rigas predeceased Angeliki, then the estate of Rigas should be administered and/or distributed firstly pursuant to the provisions of Section 61B (5) (b) of the Wills Probate and Administration Act 1898 ("the WPA") and thereafter Angeliki's estate should be administered and/or distributed pursuant to the provisions of Sections 61B (6) (a) and Section 61C of the WPA.
3. A Declaration that in the event of a determination that Angeliki predeceased Rigas, then the estate of Angeliki should be administered and/or distributed firstly pursuant to the provisions of S61B (4) of the WPA and thereafter Rigas's estate should be administered and/or distributed pursuant to the provisions of S61B (6) (d) or (e) and S61C or alternatively S61B (7) of the WPA.
4. The costs of the Plaintiff be paid out of the estate of Rigas on an indemnity basis."
The only Defendant named in the Summons, was the State of New South Wales, as beneficiary which might be entitled if the estate of the son passed on intestacy as bona vacantia.
The Crown Solicitor, on behalf of the first Defendant, filed a submitting Appearance on 13 May 2015. The first Defendant, otherwise, has not taken any step in the proceedings, or appeared at the hearing.
By notice of motion filed on 7 July 2015, the Plaintiff sought an order that the NSW Trustee & Guardian, in its capacity as administrator of the estate of Angeliki Pitsios (hereafter called "the mother") be joined as a second Defendant, and that leave be granted to serve an amended Summons. The basis of the joinder was that the Public Trustee had signed an Election Letter, dated 2 March 2006, a copy of which was Ex. 1, electing to administer the estate of the mother.
At the hearing, the parties stated that the order sought in the notice of motion had been made by Registrar Studdert, in Chambers, on 20 July 2015. A document headed Short Minutes of Order, signed by the legal representative of each of the Plaintiff and the second Defendant, had been filed on 15 July 2015 and an order in accordance with therewith was made.
Paragraph 3(1)(d) of Schedule 1 to the NSW Trustee and Guardian Act 2009 (NSW), which commenced on 1 July 2009, provides that a reference to the Public Trustee is to be read as a reference to the NSW Trustee & Guardian. By Paragraph 11 of Schedule 1, the NSW Trustee & Guardian is to be taken, for all purposes, to be a continuation of the Public Trustee. The NSW Trustee & Guardian, is constituted as a corporation by s 5 and has the status of a NSW Government agency by s 6 of the NSW Trustee and Guardian Act.
Pursuant to s 21(1) of the NSW Trustee & Guardian Act, the NSW Trustee & Guardian, acting in one capacity, may maintain proceedings against itself acting in another capacity. It is clear that the sub-section applies, where, as in this case, the NSW Trustee and Guardian is the administrator (or executor) of two estates that have rights or obligations against the other: Abu-Arab v NSW Trustee & Guardian [2014] NSWSC 954, per Davies J, at [50].
However, in any such case the NSW Trustee & Guardian may apply to this Court for directions as to the manner in which the opposing interests are to be represented and must comply with the Court's directions: s 21(2) of the NSW Trustee & Guardian Act. No directions were sought in this case. It was unnecessary to do so because the facts, as far as they are able to be discerned, are not in dispute. In addition, in an affidavit affirmed 7 July 2015, by Ms S Macmillan, a solicitor employed by the Plaintiff, the court was informed that "different solicitors employed by the NSW Trustee & Guardian will have the care and control of each estate and different counsel [will be] engaged to appear for each estate at the hearing".
On 21 July 2015, the Plaintiff filed an amended Summons, naming the NSW Trustee & Guardian as the second Defendant, as a result of its consent to being joined and the order made by Registrar Studdert. The relief sought in that document was the same as the relief sought in the Summons that I have set out above.
At the hearing, Mr D Flaherty of counsel appeared for the Plaintiff and Ms J Brouwer, solicitor, appeared for the second Defendant. In accordance with directions, Mr Flaherty filed and served a written Outline of Submissions and a chronology, which I have read, and which I have found helpful. Ms Brouwer's short written submissions confirmed that the second Defendant did not dispute any of the matters included in the Plaintiff's written submissions and, in fact, supported the submissions on who, of the mother and son, had survived the other. Those documents will be retained in the Court file.
None of the possible natural persons entitled on intestacy in either estate were represented at the hearing. However, I am satisfied that the issues were sufficiently considered, and argued, by the legal representatives of the Plaintiff and of the second Defendant.
[3]
Background Facts
The evidence read at the hearing, which was not the subject of any dispute, enables me to recite the following facts in this rather tragic case:
(a) Both the mother and the son died, intestate, in or about September 2005. They were found dead, in circumstances to which I shall come, at a property in Acacia Street, Rooty Hill, which was their home.
(b) The particulars in the Death Certificate of the mother, recorded pursuant to the Births, Deaths and Marriages Registration Act 1995 (NSW), included that the mother was aged about 94 years; that she was a widow at the date of death; and that her only child was the son. It is more than likely, bearing her age at the date of her death, that her parents predeceased her.
(c) The particulars in the Death Certificate of the son, recorded pursuant to the Births, Deaths and Marriages Registration Act 1995 (NSW), included that the son was aged about 66 years, and that the mother was his mother. There was no information relating to the marriage of the son and whether he had any children included.
(d) A copy of a NSW marriage search for the son reveals that "no trace can be found of the registration, from 1955 to 2005 inclusive, of the marriage of Rigas Pitsios to any person". There is no suggestion that the son was in a de facto relationship at the date of his death.
(e) A copy of a NSW issue search for the son reveals that "from 1955 to 2006… no entry was located recording Rigas Pitsios as the parent of any child".
(f) A report, dated 20 December 2007, from Macbeth Genealogical Services, regarding the outcome of its searches for the Death Certificate of the son's father, the marriage certificate of the mother, and an issue search in Egypt, records that "[t]he family claimed Greek nationality, and lived in Egypt"; that "primary proofs could not be located"; and that the naturalisation records, relating to the mother, were obtained in order to serve as secondary proofs.
(g) The copy documents provided to the Plaintiff reveal that the mother married her husband, Theodore Pitsios, in Ismailia, Egypt, in 1938 and that he died in 1943, with only one child of their marriage, being the son. They also reveal that the mother was born in October 1911 and that she arrived in Sydney in November 1957.
(h) There is no suggestion in any of the evidence that the mother remarried, or entered into a de facto relationship, at any time after the death of her husband. There is no evidence that she had any other issue.
(i) On 22 March 2006, this court granted Letters of Administration to the Plaintiff in relation to the son's estate.
(j) Earlier, I have referred to the second Defendant's election to administer the mother's estate made on 8 March 2006.
(k) At the date of his death, the son's estate was disclosed as having an estimated value of $939,639. The estate was said to consist of the Rooty Hill property ($400,000), real estate at Watanobbi ($340,000), furniture, watches and jewellery ($1,200), money in banks or financial institutions on deposit ($151,915), a Centrelink pension payment ($277), shares in public companies ($39,904), a motor vehicle ($5,000) and other personal property ($142). An interest in the mother's estate ($1,200) was also disclosed. (I have omitted, and shall omit, any reference to cents in the amounts stated which will explain any apparent mathematical miscalculations.)
(l) At the date of the hearing, the court was informed from the bar Table, without objection, that son's estate was said to have an estimated, or known, net value of $829,764. It consisted entirely of cash held by the Plaintiff as administrator of the son's estate.
(m) A copy of an undated statement of account of the second Defendant, relating to the mother's estate, tendered at the hearing (Ex. 2), reveals that the mother's estate, as at 24 March 2006, had an estimated value of $3,152, but that after the payment of debts, funeral and testamentary expenses, and the transfer of some assets of modest value to the son's estate, the estate had a nil value.
(n) The son had been the mother's full-time carer. A copy of a document headed "Health Professional Assessment" dated 3 January 2005, the original of which, apparently, was signed by both the mother and the son, contained the notation, seemingly in the handwriting of the son, stating "My mother… whose full time carer I am, is said to show signs of senile dementia and (in August 2004) has suffered a stroke." The original of this document bears a stamp dated 4 January 2005, of the Centrelink Office, Mount Druitt.
(o) The copy document also includes the assertion that the "physical" and "psychiatric" disabilities from which the mother was said to suffer resulted in "the need for constant care on a daily basis to carry out routine personal activities" and that "[the mother] may be at risk to themselves or to another"; that she had cataracts; that she was "unable" to feed herself; that she was immobile; and that she had "no sitting balance".
(p) In 2005, the son, also, was suffering from a number of health problems, including glioblastoma multiforme (a common and aggressive malignant primary brain tumour) causing, amongst other things, seizures and speech difficulties. He was hospitalised in May 2005. He was reported as having had a good recovery from his operation and was, in July 2005, receiving radiotherapy. He seems to have received some ongoing treatment from a neurosurgeon thereafter.
(q) A copy statement dated 31 October 2005 of Dimitra Lambrou, a niece of the mother and a cousin of the son, reveals that the mother was one of six children born in Egypt to Maria and Dimitri Vaporidis. Of those six children, only the mother and Ms Lambrou's mother, Afroditi, migrated to Australia.
(r) Ms Lambrou also states that the son would bring the mother to Afroditi's home every Saturday, when Afroditi was still alive. She describes the son as being "devoted to [the mother] as [the mother] was to him and he spent his entire life caring for her".
(s) The mother's other siblings predeceased her. In a "Declaration of Kinship - Nephew or Niece" dated 9 December 2005 (Ex. 3), by Ms Lambrou, filed with the Public Trustee, she stated the name of each of the mother's siblings and the approximate date of death of each sibling. No doubt, however, further searches, by the NSW Trustee & Guardian, as administrator of the mother's estate, will be required to confirm the death of each sibling, and to ascertain whether she, or he, died with issue.
The circumstances surrounding the deaths of the mother and the son are not entirely clear. As stated, the body of each was discovered by police in the Rooty Hill property some weeks after death.
There is an affidavit made on 17 March 2015 of Mario Victor Guillaumier, a Detective Sergeant of Police attached to Mt Druitt Local Area Command, who attended at the Rooty Hill property on the morning of 24 October 2005 shortly after the bodies were found. He states:
"12. Upon entering the premises, I walked into the dining / lounge room and I observed the body of Angeliki Pitsios lying on the floor of the dining room near a wheel chair, a pink coloured five spoke office chair, a small rolling table and a walking frame. The small rolling table had been overturned and was lying across the body of Angeliki Pitsios. Angeliki Pitsios was clad in a blue floral dress, a beige slip and was wearing an adult diaper. The diaper was heavily soiled and appeared to not have been changed for some considerable time. The body of Angeliki Pitsios was in a state of decomposition.
13. In the bath within the bathroom of the house, I saw the body of Rigas Pitsios. Rigas Pitsios was lying on his back with his legs bent up and his knees splayed. His head was turned slightly to the right. The feet of Rigas Pitsios were closest to the tap end of the bath and his body was in an advanced state of decomposition. There was no water in the bath and the bath plug was located outside the bath on the floor of the bathroom at the end of the bath where the feet of Rigas Pitsios were.
14. My examination of the home found the house to be in a tidy and maintained state. The house was frugally furnished, particularly so in the living areas."
Detective Sergeant Guillaumier, in his affidavit, also sets out his observations about the bodies of each of the son and the mother and of the house in which they were found:
"24. There was a disparity in the conditions that each of the respective bodies were exposed to. Rigas Pitsios was lying in the bath in a darkened bathroom. The room was of average temperature. The body of Angeliki Pitsios was lying on the floor adjacent to two large windows. Her body was exposed to sunlight throughout the day whilst it laid in that position. The varied exposure to the bodies would have impacted on the decomposition rates of each body.
25. In spite of the varied exposure of each body, my experience with decomposed bodies leads me to believe that the body of Rigas Pitsios was in a more advanced stage of decomposition that [sic] the body of Angeliki Pitsios. Given the variation in the position of the bodies, I would expect that Angeliki Pitsios body would have decomposed more quickly given it's [sic] exposure to sunlight. Despite this, Rigas Pitsios appeared to be more decomposed.
26. The condition of the house and the statements of neighbours who reported seeing Rigas Pitsios regularly taking his mother out and generally looking after her as well as the statement of Dimitra Lambrou lead me to the conclusion that Rigas Pitsios was alert and attentive to the needs of his aged and disabled mother and he carried out his caring duties to the highest possible level. This is further evident in his refusal to admit his mother to care following her hospitalisation in July 2005.
27. There is no evidence whatsoever to indicate that Rigas Pitsios neglected his duties as a carer for his mother. This being the case, it seems most unlikely he would go… have a bath, leaving his dead mother on the floor.
28. Evidence within the house indicates that Angeliki and Rigas Pitsios died after the 18th of September, 2005. Located on a bench in the kitchen was a Woolworths receipt dated 18/09/05 12:56pm. The receipt was from the Mt. Druitt store for the purchase of a 2 litre carton of milk and some bread rolls. A packet of bread rolls in Woolworths packaging was located on the kitchen table. This package showed a baking date of 18th September, 2005 and a best before date of 20th September, 2005. A 2 litre carton of 'Pura' milk in the refrigerator showed a use by date of 29th September, 2005.
29. The mail which had built up in the letterbox was examined and the earliest post marked item was an envelope containing correspondence from 'Nova Investment Solutions'. This envelope is post dated on 20th September, 2005 and most likely arrived in the letterbox a day or two later.
…
31. Given the date of death around the 18th of September, 2005, Rigas Pitsios has layed [sic] dead for six weeks prior to his discovery. The state of decomposition of Rigas Pitsios was consistent with that length of time and consistent with decomposed deceased persons that I have previously encountered.
32. The position of the body of Angeliki Pitsios is consistent with having fallen. Her proximity to her wheel chair and the rolling table which has fallen across her body suggests that she has attempted to stand using the table and has collapsed to the ground overturning the table in the process. Her attempt to stand, unaided by her son suggests strongly that her son was not present to assist her when this happened. Given the known history of their relationship, the absence of the son very strongly suggests that he was already deceased when Angeliki Pitsios attempted to stand from her chair.
…
35. My assessment of the evidence is that Rigas Pitsios died in the bath on the 18th of September, 2005. Angeliki Pitsios remained alive waiting for her son's return and it was only when her need became so dire as to drive her to attempt to stand unaided that, she has then fallen, toppling the rolling table with her and subsequently died on the floor of the dining room.
36. One Hundred and Sixteen photographs as well as notes of the scene and the examination of the scene are retained by me. I will not release them due to their traumatic nature but can make them available for viewing should that be required."
Detective Sergeant Guillaumier was not cross-examined. There is no reason not to accept his evidence. However, his "assessment of the evidence", which was not the subject of objection, is an opinion upon the question which, ultimately, the court must decide.
It was not possible, on autopsy conducted on 25 October 2005, to determine the direct cause of death of the son, or the mother, in each case, due to the decomposition of his and her body respectively. In the Forensic Medicine Final Report, Coroners Act, 1980, dated 10 January 2006, in relation to the son, this was confirmed, although the author, Dr Peter S J Ellis, added "but a seizure was one possibility as was acute heart failure. It was not possible to exclude drowning as the final event. There was no evidence of significant trauma". In the Forensic Medicine Final Report, Coroners Act, 1980, dated 1 March 2006, in relation to the mother, Dr Ellis, stated that "[t]he cause of death was not evident due to the long period between death and discovery. Given the history of frailty and the coincident death of her son, the possibility of starvation cannot be excluded although it cannot be proved… There was no evidence that any violence or trauma played any part in [her] death".
[4]
The Applicable Law
Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), rule 54.3(2) relevantly provides that proceedings may be brought for the determination of any question which could be determined in administration proceedings, including any question arising in the administration of an estate or in the execution of a trust, or any question as to the composition of any class of persons having a beneficial interest in an estate, or any question as to the rights, or interests, of a person who claims to be entitled on the intestacy of a deceased person. On occasion, these types of questions are referred to as "next of kin proceedings".
The principal question at issue, at this stage, is the sequence of the deaths of the mother and the son. That sequence is relevant to the destination of her, and his, estate respectively, and the person, or persons, entitled on intestacy. Accordingly, there can be no dispute that the Summons relates to the determination of a question that has arisen in the administration of the estate of each of the mother and the son.
Succession to moveable property on intestacy is determined by the law of the domicile of the intestate at the time of death (see P E Nygh and M Davies, Conflict of Laws in Australia (7th ed 2002, LexisNexis Butterworths) at 679-680. Since each of the mother and son was domiciled in New South Wales at the time of her, and his, death, respectively, succession to the deceased's intestate estate is to be determined by the law of New South Wales: Public Trustee v Kehagias [2009] NSWSC 972, at [11].
Chapter 4 of the Succession Act 2006 (NSW) (which Chapter relates to intestacy) applies where the death of the intestate occurred on, or after, 1 March 2010, the date of the commencement of that Chapter: Schedule 1, Part 4, Succession Act 2006; Succession Amendment (Intestacy) Act 2009 (NSW). The Chapter does not apply in the circumstances of this case.
Since both the mother and the son died prior to 1 March 2010, sections 61A-61F of the Wills, Probate and Administration Act 1898 (NSW) do apply in this case. Relevantly, s 61B sets out the applicable scheme of distribution on intestacy. That section, so far as is relevant to this case, provides:
"(1) Where a person dies wholly intestate, the real and personal estate of that person shall, subject to the payment of all such funeral and administration expenses, debts and other liabilities as are properly payable out of the estate, be distributed or held in trust in the manner specified in this section, and the real estate of that person shall be held as if it had been devised to the persons for whom it is held in trust under this section.
(2) If the intestate leaves a spouse but no issue, the estate shall be held in trust for the spouse absolutely.
(3) If the intestate leaves a spouse and also leaves issue, then if the value of the estate (excluding any household chattels) does not exceed the prescribed amount, the whole estate shall be held in trust for the spouse, but if the value of the estate (excluding any household chattels) exceeds the prescribed amount, then:
(a) the household chattels (if any),
(b) the prescribed amount, and
(c) one-half of the estate (excluding any household chattels and the prescribed amount),
shall be held in trust for the spouse and the residue of the estate shall be held in statutory trust for the issue of the intestate.
…
(4) If the intestate leaves issue but no spouse, the estate shall be held in statutory trust for the issue of the intestate.
(5) If the intestate leaves no spouse and no issue but one or both of the intestate's parents, the estate shall be held:
(a) where both parents survive the intestate, in trust for those parents in equal shares, or
(b) where only one parent survives the intestate, in trust for that parent absolutely.
(6) If the intestate leaves no spouse, no issue and no parents, the estate shall be held for the following persons living at the death of the intestate and in the following order and manner:
(a) firstly, in statutory trust for the brothers and sisters of the whole blood of the intestate; but if there are no such brothers or sisters, then
(b) secondly, in statutory trust for the brothers and sisters of the half blood of the intestate; but if there are no such brothers or sisters, then
(c) thirdly, in trust for the grandparents of the intestate and, if more than one of them survive the intestate, in equal shares; but if there are no such grandparents, then
(d) fourthly, in trust for the uncles and aunts of the intestate (being brothers or sisters of the whole blood of a parent of the intestate) and, if more than one of them survive the intestate, in equal shares; but if there are no such uncles or aunts, then
(e) fifthly, in trust for the uncles and aunts of the intestate (being brothers or sisters of the half blood of a parent of the intestate) and, if more than one of them survive the intestate, in equal shares.
(7) In default of any person taking an interest under subsections (2) to (6), the estate shall belong to the Crown as bona vacantia, and in place of any right to escheat."
If the son died before the mother, then s 61B(5)(b) applies, with the consequence that the whole of his estate passes to the mother. Then, since the mother died without a spouse, issue, and parents, s 61B(6) applies. As there appears to be a lack of complete information to establish the identity of the brothers and sisters of the whole blood of the mother, albeit that there is evidence that she did have six siblings of the whole blood, the second Defendant must carry out further searches relating to those siblings. In other words, it will be necessary for the second Defendant to establish the identity of all of the siblings of the mother who share the same parents, and, if appropriate, those claiming through each of them who did not survive the deceased.
Section 61C(3) of the Wills Probate & Administration Act provided that, where the estate, or part of it, was directed to be held on statutory trust for any class of relatives other than issue of the deceased "that estate, or part, shall be held in trust corresponding to the statutory trust for the issue of the intestate as if that trust were repeated with the substitution of references to the members or member of that class for references to the children or child of the intestate".
Thus, the mother's property would be divided into shares equal in number to the number of her brothers and sisters of the whole blood who either survived her, or who predeceased her leaving issue who survived her. Any surviving sibling of the mother would be entitled to one of the shares, whereas in the case of a sibling of the mother who predeceased the mother leaving issue who survived her, the issue would be entitled to divide one of the shares amongst themselves.
In Re Boyd (No 2) (Supreme Court (NSW), 19 July 1995, unrep) Young J (as his Honour then was) referred to the meaning of s 61C(3) as follows:
"It seems to me that the key words in subs 3 are 'in trust corresponding to the statutory trust', which is one composite expression. The work that s 61C (3) has to do is to equate all statutory trusts to the statutory trust for issue to save the drafter having to repeat it over and over again.
On this construction, all one does is to see, whether there is a brother and sister of the intestate, whether there is a child or more remote issue of that brother or sister alive at the date of death of the intestate. If there is, that person takes the share that the brother or sister of the intestate would have taken had he or she not predeceased the intestate."
If the mother predeceased the son, then the whole of her estate, if any, passes to him. Since the son died without a spouse, any issue, parents, brothers or sisters of the whole, or half, blood, and grandparents, the identity of any uncles or aunts, first of the whole blood, who survived him, and if none, uncles and aunts of the half-blood who survived him, must be established. (It will be appreciated that s 61B(6)(d) and (e) each include the words "on trust" not "on statutory trust" with the result that s 61C is irrelevant.) The surviving uncles and aunts of the son, who survived him, will share the estate equally. If there are none, then, the whole of the son's estate will pass to the Crown as bona vacantia.
I should mention that the Wills Probate & Administration Act did not include a section similar to s 107(1)(a) of the Succession Act (also found in Chapter 4), which contains a 30 day survivorship provision (in cases other than if, as a result of its application, the intestate estate would pass to the State: s 107(2) Succession Act).
Section 35 of the Conveyancing Act 1919 (NSW) provides:
"In all cases where two or more persons have died under circumstances rendering it uncertain which of them survived, the deaths shall for all purposes affecting the title to any property be presumed to have taken place in order of seniority, and the younger be deemed to have survived the elder."
The section applies where two or more persons have died, where the circumstances of the death of each are known, and where those circumstances render it uncertain which of them survived the other or others. It is not limited to multiple deaths arising out of a common event or circumstances common to both deaths. The section operates in circumstances where two or more deaths, whether occurring together or separately, produce uncertainty as to who of them survived the other or others. The primary, and in fact, the sole, object of the legislation is to meet the case where the court is unable to determine the precise order of the deaths.
It is, of course, also necessary to establish that reliance upon the section is for "purposes affecting title to property". The section does not apply where no question of title arises: Perpetual Trustee Co Ltd v Commissioner of Stamp Duties (NSW) (1980) 10 ATR 589; (1980) 80 ATC 4073. In s 7 of the Conveyancing Act, "Property" is defined as including "real and personal property, and any estate or interest in any property real or personal, and any debt, and any thing in action, and any other right or interest".
Where no statutory presumption arises, there is no presumption based upon age, gender, or any other attribute, of the persons who died together: Wing v Angrave (1860) 8 HL Cas 183; (1860) 11 ER 397; Perpetual Trustee Co Ltd v Commissioner of Stamp Duties (NSW).
Counsel for the Plaintiff and the solicitor for the second Defendant join in submitting that the evidence relied upon makes it reasonably clear that the son died first and that his death was followed by the mother's death, with the result that reliance upon the presumption in the section is unnecessary. Implicit in the submission is the requirement for the court, itself, to consider the evidence before relying upon the presumption in s 35.
I respectfully agree that the court should analyse the available evidence, since what is sought includes a declaration which depends upon a particular view of that evidence. In any event, as has recently been affirmed (in respect of the equivalent Victorian section), the section "does not absolve the Court from its task of weighing all the evidence to endeavour to ascertain, without recourse to the presumption, which of the two persons died first": Re Carri-Ann Rowlings; Fraser v Thom [2010] VSC 626, per Macaulay J, at [10].
This proposition is not novel. It had been said, by Harvey CJ in Eq in Re Plaister; Perpetual Trustee Company v Crawshaw (1934) 34 SR (NSW) 547, at 551:
"It has been suggested to me that I must hold that the facts render it uncertain in what order these people died, inasmuch as it has to be determined by circumstantial evidence, and circumstantial evidence of a not demonstratively conclusive character. In my opinion I ought not to hold that 'uncertain' means that it has not been demonstratively proved, not proved with scientific accuracy. I think that s 35 of the Conveyancing Act really was meant to fill up a gap which existed previously in the law, where the Court was unable by a balance of testimony satisfactory to itself to come to a conclusion as to the order of the deaths…. [The section] was not [intended] to take away from the Court the power which it had previously of deciding that fact, if it could decide it, by evidence; it is a mere rule of thumb presumption."
(Also see, Re Comfort [1947] VLR 237; [1947] ALR 288 and Re Zappullo deceased [1966] VR 390.)
Then, Macaulay J added, in Re Carri-Ann Rowlings; Fraser v Thom, at [11]-[14]:
"Secondly, the word 'uncertain'… does not merely denote the state of mind in which one entertains doubt as to the matter such that unless the judge is 'certain', in the sense of being free of any such doubt, the presumption applies. Rather, if a court is able to come to a conclusion on all the facts upon the usual civil standard of proof - i.e. on the balance of probabilities - then the statutory presumption is not engaged and the finding of fact is made without recourse to [the section]. It is only if no finding can be made either way that there is relevant uncertainty.
Thirdly, if the statute is engaged because the sequence of deaths is 'uncertain' in the sense that a judge cannot be satisfied, on the balance of probabilities, either way, then the court must determine that the deaths occurred in the order of seniority so that the younger is deemed to have survived the older.
Fourthly, and in amplification of the third point, once the presumption is engaged there is no further or residual discretion in the court to decide otherwise, for example, in accordance with a particular perception of justice, fairness or deserving circumstance."
Thus, it seems to me, that there are two results which might follow from an inquiry into the facts. The first might be that evidence, to the satisfaction of the court, enables the court to conclude, on the balance of probabilities, the order of the deaths of the two, or more, persons who have died. If the order of deaths is established to the satisfaction of the court, it will be unnecessary to resort to, or consider, the statutory provision giving rise to a presumption in law when the order of deaths is uncertain and cannot be established. The second result might be that reasoning based on probabilities can yield no result, because, on the evidence, the court cannot reach a conclusion as to the order of deaths of the two, or more, persons who have died. Then, there being no preponderance of probability one way or the other, there would be "uncertainty" and the court will resort to s 35.
(This is a civil case and as such the standard of proof is on the balance of probabilities. No new, or different, standard of proof is introduced by the word "uncertain" when that word is considered in its context. However, s 140 Evidence Act 1995 (NSW), enables the court to take into account the nature of the cause of action, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged.)
[5]
Determination
Having closely considered all of the evidence to which I have referred, I am satisfied the Plaintiff has established, on the balance of probabilities, that the son died before the mother. Whilst there was no common calamity, the deaths do, at least, appear to be linked in time and connected by circumstances.
A number of the facts, as well as inferences from the facts, point to this conclusion. These include the position of each of the son's, and the mother's, body. I respectfully agree that it is unlikely that the son would have left the mother lying dead in the room, and in the state, in which she was found, whilst he took a bath. Secondly, the conclusion reached that the possibility of starvation as a non-excluded cause of death of the mother is relevant. The possibility of starvation, in the circumstances of this case, supports the death of the son and the inability of the mother, after his death, to feed herself. Otherwise, starvation would not have been considered as a possible cause of death, bearing in mind the food that was found in the house. Thirdly, the extent of the decomposition, as observed by Detective Sergeant Guillaumier, supports that conclusion also.
Being so satisfied, it is not "uncertain", which of the mother and son survived, and the court is able to determine who did survive the other without resort to any statutory presumption referred to in s 35 of the Conveyancing Act.
In the circumstances, the Court:
(a) Determines that it is satisfied that Rigas Pitsios died before Angeliki Pitsios.
(b) Declares that the whole of the estate of Rigas Pitsios passes to Angeliki Pitsios, to be held by the second Defendant in accordance with s 61B(6)(a) of the Wills Probate & Administration Act 1898 (NSW), that is to say, on statutory trust for the brothers and sisters of the whole blood of Angeliki Pitsios.
(c) Orders that the costs of the Plaintiff calculated on the indemnity basis be paid out of the estate of Rigas Pitsios.
(d) Orders that the costs of the second Defendant calculated on the indemnity basis be paid out of the estate of Angeliki Pitsios.
(e) Orders that the costs of the submitting appearance of the first Defendant be paid out of the estate of Rigas Pitsios.
[6]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 12 August 2015