Plaintiff v Caveator

2 Kaye Hellen Bryan (the caveator) alleges that she was the domestic partner of the deceased at the time of his death. The caveator and her adult daughter, Sarah May Bryan (Sarah), both claim that the deceased was Sarah's biological father and that this was known and acknowledged by the deceased over many years.

3 The plaintiff disputes the existence of a domestic partnership between the caveator and the deceased, as well as Sarah's paternity. She contends that the close relationship between the caveator and the deceased was the result of the caveator being the deceased's niece by marriage, and the fact that the caveator was taken in by the deceased and his then wife as a teenager.

4 In accordance with the inventory of assets filed in the proceeding, the deceased left an estate valued at approximately $180,000. Given that the estate is less than the statutory legacy, if the caveator's application is successful, she will be the sole beneficiary of the estate pursuant to s 70L(1)(a) of the Administration and Probate Act 1958 which provides:

(1) If an intestate leaves a partner and a child or other issue who is not the child or other issue of that partner, the partner is entitled -

(a) if the intestate's residuary estate is worth not more than the amount of the partner's statutory legacy, to the whole of the estate, including the personal chattels of the intestate; ...

5 For the purposes of s 70L(1)(a), a partner includes an unregistered domestic partner. Section 3(1) of the Administration and Probate Act 1958 defines an unregistered domestic partner as follows:

unregistered domestic partner of a person who dies means a person (other than a registered domestic partner of the person) who, although not married to the person -

(a) was living with the person at the time of the person's death as a couple on a genuine domestic basis (irrespective of gender); and

(b) either -

(i) had lived with the person in that manner continuously for a period of at least 2 years immediately before the person's death; or

(ii) is the parent of a child of the person, being a child who was under 18 years of age at the time of the person's death.

6 On 10 May 2022, the caveator filed a caveat, identifying her relationship to the deceased as 'spouse.'[1]

7 On 11 May 2022, the plaintiff commenced this application seeking a grant of letters of administration upon intestacy. The plaintiff deposed that the deceased was divorced, did not leave a domestic partner and that the only persons who survived the deceased entitled by law to share in the estate were herself and her siblings, Kerrie and Wayne.

8 On 10 June 2022, the caveator filed particularised grounds of objection in support of her caveat (grounds of objection), which were as follows:

(a) the caveator has a better right to seek administration of the estate of the deceased on intestacy as the unregistered domestic relationship (sic) of the deceased; and

(b) at the time of the deceased's death, the deceased and the caveator were in an unregistered domestic relationship for a continual period at least two years prior to the deceased's death.

Particulars

(A) The deceased and the caveator met approximately 30 years ago initially living together in a property at Mill Park as housemates.

(B) The deceased and the caveator moved to the property at 11 Battery Street, Long Gully VIC 3550 (Long Gully property) in around 1990. The relationship progressed to the deceased and the caveator beginning to sleep in the same bed, with the romantic relationship commencing in 1991.

(C) Whilst living at the Long Gully property, the caveator gave birth to their child, Sarah, on 19 November 1993.

(D) Whilst pregnant with Sarah, the deceased proposed to the caveator. They remained engaged and did not marry.

(E) The deceased and the caveator operated a business called "Super Wreck Motor Wreckers" for approximately 7 years before it had to be closed due to financial issues and health concerns of the deceased.

(F) When Sarah was approximately 6 years old, the caveator moved into a property [at] 65 Wood Street, California Gully VIC 3550 (California Gully property). Although they ceased to cohabit, the deceased and the caveator maintained a loving relationship.

(G) Despite not cohabiting, the deceased would make financial contributions to the caveator to support his family. The deceased would also provide financial contributions directly to the caveator to assist with living expenses from time to time.

(H) Despite not cohabiting, and prior to the COVID-19 pandemic, the deceased and the caveator would often visit social complexes:

(i) they would go to the All Seasons Hotel complex regularly on Friday nights for a meal; and

(ii) they would also frequently attend the Rich River Golf Club on Saturday nights.

(I) The deceased and caveator would attend social events together,

namely:

(i) they would be invited to birthday parties of family and friends;

(ii) they would get invited as a couple to weddings; and

(iii) they would also be invited as a couple to friends' houses for dinners and gatherings.

(J) Whilst living separately, the deceased and the caveator would stay together, with Sarah, at the California Gully property three nights per week. When staying together, they slept in the same bed and were intimate as a couple.

(K) The deceased and the caveator, along with Sarah, would often go on family trips together including the following:

(i) they went on interstate holidays as a family with Sarah;

(ii) they would go on regular weekend fishing trips;

(iii) they would attend garage sales to shop for things together; and

(iv) when they purchased items at the garage sales, the deceased would always pay for whatever was purchased.

(L) The deceased informed people that he met that the caveator was his spouse. The deceased told his children that the caveator was his spouse.

(M) The deceased financially supported the caveator after she was made redundant from her previous employment.

(N) When the deceased sold the Long Gully property in 2018, in consultation and agreement with the Caveator, he purchased a property at 42 Vernon Street, Korong Vale (Korong Vale property). The deceased purchased the Korong Vale property so he could retire in the country.

(O) Due to her employment, the effect of the COVID-19 pandemic, and later an injury that she suffered requiring ongoing treatment, the caveator could only travel to the Korong Vale property on weekends which she did every week. The deceased would go to Bendigo to stay with the caveator one to two nights per week.

(P) The deceased and caveator spoke about moving in together but the deceased wanted to refurbish parts of the Korong Vale property before the caveator moved in to live with him.

(Q) The caveator and deceased assisted each other with household chores and duties wherever they could. The caveator would attend medical appointments with the deceased.

(R) The deceased and the caveator maintained a close, intimate and caring relationship. The deceased and the caveator presented to the public as a couple and the perception of their friends and family, and anyone who came to know them, was that they were a couple.

(S) The deceased and the caveator were together whenever they engaged in social activities.

(T) The deceased and the caveator spoke on the phone regularly when they were apart from each other.

(U) The deceased and the caveator exchanged sexually explicit messages to each other and professed their love for each other in message exchanges. Further, the deceased and the caveator took photographs together posed in a manner reflecting their intimate relationship.

(V) The deceased listed the caveator as the emergency contact for his pet on the Central Animal Records National Microchip Registry, and in relation to himself at Kangaroo Flat Healthworks being his regular health clinic, and with Bendigo Health.

(W) The deceased and the caveator made plans for the future which included moving in together and holidays.

(X) The caveator was the primary point of contact for hospital staff when the deceased suffered his series of strokes which lead to his death.

(Y) The plaintiff has knowledge of the details of the extent of the relationship between the deceased and the caveator.

9 Assessing whether there exists a prima facie case to justify a matter proceeding to trial can, in many cases, be undertaken by reference solely to the particulars of the grounds of objection. For the purposes of that task, the grounds of objection are to be treated as true. In some cases, as here, a caveator may also rely on affidavit evidence in seeking to establish a prima facie case.

10 The caveator relied upon two affidavits sworn by her on 10 June 2022 and 9 September 2022. The caveator also relied upon affidavits sworn by nine other persons, including Sarah and the caveator's solicitor. Eight of those persons knew the deceased and deposed to facts that support an inference that the caveator was in a relationship with the deceased.

11 In addition to her affidavit filed in support of her originating motion seeking a grant of letters of administration,[2] the plaintiff relied on the following affidavits which dispute the nature of the relationship between the caveator and the deceased as alleged by the caveator:

(a) Affidavits of the plaintiff sworn 16 May 2022 and 2 September 2022;

(b) An affidavit sworn 2 September 2022 by the plaintiff's sister, Kerrie Lee-Anne Horkings;

(c) An affidavit sworn 6 September 2022 by the deceased's sister, Cheryl Beverly Steele; and

(d) An affidavit sworn 4 September 2022 by the deceased's brother, William John Cartledge.

12 I recently summarised the legal principles relevant to determining a prima facie case in Re Robustelle (No. 2) which, for convenience, I restate below: [3]

The Court of Appeal authoritatively set out the approach to determining the existence of a prima facie case in Gardiner v Hughes (No 2).[4] Although made in the context of an application for the revocation of a grant, the statements of principle by the Court are equally applicable to cases involving the objection to the making of a grant.

The Court of Appeal identified that the task for a caveatrix is to show that there is a 'case for investigation', or 'something to go on'.[5] The question is whether the allegations made by the caveatrix, assuming them to be true, call for further investigation.[6] Mere speculation will not, however, suffice.[7] As to how this test is to be applied, the Court stated that: [8]

... it will not simply be a question of deciding whether an inference justifying revocation should be drawn from the facts relied upon, or which of two possible inferences is to be preferred. Those would be matters for trial. Nor is the true question even whether the inference sought to be relied on is available on the facts (although if that were so, there would be a prima facie case for investigation as to whether or not the inference should be drawn). There may be a case for investigation even if all the facts needed to justify the inference in question are not yet known or alleged, but there is enough to 'go on' to call for a trial. That will be the case if there is a reasonable explanation for the facts relied upon which, if shown to be correct, would justify revoking probate. Each case will of course depend on its particular facts. But in every case the onus rests on the party raising the doubt as to validity.

In Gardiner v Hughes (No 2), the Court of Appeal criticised an approach to determining the existence of a prima facie case in which particulars of objection were separately examined in isolation from each other. The Court emphasised that the task is to determine 'whether the particulars as a whole constituted a narrative warranting further investigation',[9] with the weight to be attached to individual particulars to be determined with regard to the 'overall narrative'.[10]

13 The plaintiff submitted that the onus of proving the existence of a domestic relationship is on the caveator, who must prove the existence of the defining characteristics of the relationship, rather than the plaintiff proving that such a relationship did not exist.

14 It was submitted by the plaintiff that the caveator had not provided any factual evidence to prove that her relationship with the deceased extended beyond that of a close friend and family member with whom the deceased was sexually intimate.

15 The plaintiff alleged that the caveator is her maternal cousin, the deceased's niece by marriage, who moved in with their family as a teenager during the marriage of her parents. This familial relationship was said by the plaintiff to explain the caveator's presence in the deceased's life, which included attendance at family gatherings and social events.

16 To this end, the plaintiff criticised the affidavits relied on by the caveator for lacking any direct knowledge or circumstances of the relationship between the deceased and the caveator. The plaintiff submitted that observations by witnesses of the caveator and the deceased in each other's company do not, of themselves, support the conclusion that the caveator was the deceased's domestic partner.

17 The plaintiff also criticised the evidence of the caveator insofar as it related to the paternity of Sarah, the financial dependence or interdependence between the deceased and the caveator, the duration of their relationship and the extent of their cohabitation. It was said that there was either no evidence to support the caveator's claims, or otherwise that the evidence led by the caveator was inconclusive.

18 The plaintiff further submitted that the caveator was not the domestic partner of the deceased because they did not have a sexually exclusive relationship.

19 The plaintiff's submissions misunderstand what the caveator is required to establish at this stage of the proceeding. The submissions are concerned with matters which are said to support a finding that the caveator was not the deceased's domestic partner, or are otherwise criticisms of the veracity of the caveator's evidence.

20 Ascertaining whether the caveator has established a prima facie case does not require the Court to make findings in respect of the evidence, nor to address the credibility of witnesses. They are matters or trial. The present task is to determine whether the caveator's allegations, assuming them to be true, call for further investigation as to whether the deceased was in a domestic partnership with the caveator. As explained by the Court of Appeal in Gardiner v Hughes (No 2), 'there may be a case for investigation even if all the facts needed to justify the inference in question are not yet known or alleged, but there is enough to 'go on' to call for a trial.'[11]

21 The grounds of objection, together with the affidavits relied upon by the caveator, disclose a narrative warranting further investigation as to whether the caveator was the deceased's domestic partner within the meaning of s 3(1) of the Administration and Probate Act 1958. Whether the caveator is the deceased's former niece by marriage is not determinative of that issue because it cannot be assumed that relationships of niece by marriage and domestic partner are mutually exclusive. Likewise, whether or not the caveator and the deceased were in a sexually exclusive relationship is also not determinative of whether they were in a domestic partnership.

22 The caveator has accordingly established a prima facie case that she was the deceased's domestic partner at the time of his death.

23 The parties are to provide, within seven days, a minute of proposed orders giving effect to these reasons for judgment.

[1] The caveator and the deceased were not married.

[2] Affidavit of the plaintiff sworn 11 May 2022.

[3] Re Robustelle (No. 2) [2023] VSC 72, [14] - [16].

[4] [2019] VSCA 198 ('Gardiner v Hughes (No 2)').

[11] Gardiner v Hughes (No 2) (n 4), [42].