WILLS AND ESTATES - Where deceased died intestate - Where plaintiff seeks grant on intestacy as domestic partner of deceased - Deceased's sister alleges plaintiff not in domestic relationship when deceased died - Where sister asserts she has a better claim to administer the estate as the deceased's next of kin - Dow v Hoskins [2003] VSC 206 - Relationships Act 2008

2 The plaintiff claims to be the domestic partner of the deceased and entitled to letters of administration on intestacy of the deceased's estate. In the event that the plaintiff is not the domestic partner of the deceased, the estate would pass to the deceased's minor children. In those circumstances, the plaintiff seeks to be appointed administrator of the estate on behalf of the minor children.

3 By originating motion filed 20 July 2018, the plaintiff sought a grant of letters of administration of the estate of the deceased on intestacy. The plaintiff described her relationship with the deceased as domestic partner or, alternatively, as natural guardian of the deceased's minor children. In the inventory of assets and liabilities, the plaintiff estimated the assets of the deceased at $300,000 for a property in Wallan and $10,000 for the personal estate.

4 By email dated 23 July 2018, the Assistant Registrar of Probates raised a number of requisitions, including noting that the intestacy laws in force at the date of death of the deceased meant that the deceased's children were also entitled to share in the estate. In those circumstances, the Assistant Registrar required the plaintiff to file a surety guarantee of $140,000. On 25 July 2018, the plaintiff filed a surety guarantee provided by her mother for that amount.

5 On 29 August 2018, the deceased's sister, Ms Jennings ('the caveatrix'), filed grounds of objection to the application alleging that the plaintiff was not the deceased's unregistered domestic partner at the date of death and was not entitled to a distribution from the estate. As the paternal aunt of the deceased's children, the caveatrix sought an order appointing her as the guardian of the children for the purposes of administering the estate and negotiating a property settlement with the plaintiff. The caveatrix's parents and two siblings are alive. However, the caveatrix asserts that, to the best of her knowledge, her parents do not wish to obtain a grant of representation in the estate of the deceased.

6 In her grounds, the caveatrix alleged that the deceased and the plaintiff were in a domestic relationship from about mid-2005 to about mid-2015 but, after that time, the relationship broke down and they separated permanently. Thereafter, an intervention order was obtained against the deceased, listing the plaintiff and the children as protected persons. The caveatrix also alleged that, in October 2017, the plaintiff sought to negotiate a property settlement out of the deceased's estate with her on the basis that the plaintiff was the former domestic partner of the deceased and on the assumption that the caveatrix would be granted letters of administration.

7 On 13 December 2018, orders were made for the filing of affidavits, with any objections to affidavits to be determined on the papers, as well as the issue of the standing of the caveatrix to object to the plaintiff's application.

8 The plaintiff relies on her affidavits filed 23 November 2018 and 18 December 2018. The caveatrix relies on her affidavits filed 14 November 2018 and 6 February 2019 and affidavits by the each of the deceased's parents filed 6 February 2019.

9 The plaintiff deposes that she was the genuine domestic partner of the deceased from around 2005 until his death. Initially, they lived together in the plaintiff's parents' house and then moved to rented accommodation. The children were born in February 2007 and May 2008. In or around September 2008, the plaintiff and the deceased purchased the family home, which they subsequently started to renovate, with the assistance of the plaintiff's parents. They shared their finances and each contributed to the payment of bills and other outgoings. They cared for their children jointly, socialised with the deceased's family, who recognised their relationship, and their relationship was recognised publicly as a serious and committed relationship. They both contributed to household expenses, with the deceased paying the mortgage and the plaintiff paying the utilities, rates and other bills. In 2010, they purchased an onsite caravan where they spent weekends and school holidays. In 2015, they discussed marriage and researched possible wedding venues together with the plaintiff's parents.

10 At a time unknown to the plaintiff, the deceased started using methamphetamines and the plaintiff noticed significant changes in the deceased's behaviour, such as increasing anger and violence. The deceased was often unpredictable, agitated and incapable of helping with the children. In September 2014, the plaintiff noticed that the deceased's spending had increased and that approximately $400 per week was missing. The plaintiff severed their joint bank account and sought to monitor the deceased's spending so that there were sufficient funds for the mortgage and other bills.

11 In October 2014, the deceased evicted the plaintiff and the children from the family home for approximately three months. At that time, the plaintiff lodged a caveat on the title to the family property to protect her interest and to prevent the deceased from drawing down any further on the mortgage. The deceased promised to seek professional help for his addictions and he pleaded for the plaintiff to come back to the family home with the children. By Christmas 2014, the plaintiff and the children had returned to the family home.

12 In early 2015, the deceased made some attempts at seeking help but his outbursts and threats continued and he attempted suicide on a number of occasions. The plaintiff found the deceased's behaviour increasingly erratic, violent and self-harming. She continued to urge the deceased to seek professional help so they could maintain their family life together. In mid-2015, the plaintiff and the deceased cancelled their plans to marry because of the deceased's addiction and their financial difficulties as a result of his addiction. The deceased stopped attending at his work and both parents paid the mortgage repayments for some months. In around September 2015, the deceased stopped working and the plaintiff returned to full-time work. In October 2015, the plaintiff and the deceased attended a psychologist and the plaintiff encouraged him to seek further professional help.

13 On 11 November 2015, the police were called to the family home by the neighbours as a result of the deceased inflicting verbal and physical abuse on the plaintiff in front of the children. The police removed the deceased from the family home and he was remanded in custody. The deceased's mother said around this time, the deceased told her that the plaintiff and he had been arguing constantly and that the deceased thought the plaintiff was a liar.

14 On 19 November 2015, on behalf of the plaintiff and the children, the police applied for and obtained an intervention order against the deceased. The orders prevented the deceased from contacting them or attending at the family home.

15 The deceased was convicted and sentenced to imprisonment for three months.

16 The caveatrix states that, during the summer school holidays and whilst the deceased was in prison, the plaintiff told her that she was scared of the deceased and that she did not want him to have contact with the children until he had changed his ways.

17 On the deceased's release from prison in February 2016, he lived with his father in Diamond Creek until July 2016. During this time, the deceased attended weekly drug tests and ongoing psychological and domestic violence counselling. He also met with his parole officer each Friday. The plaintiff was happy with the deceased's progress and wanted to reunite the family. She and the children visited the deceased on a number of supervised access visits. The deceased's father expressed the view that the purpose of the visits was for the deceased to see the children and not an attempt to reconcile the relationship. The plaintiff states that she thought the deceased appeared to be improving and that they talked about their future together as a family. The children also spoke to the deceased on the telephone. The deceased's father states that he occasionally overheard the plaintiff and the defendant speaking on the telephone and on a few occasions the police warned the deceased he was not allowed to contact the plaintiff.

18 On 24 March 2016, following the apparent improvement of the deceased's mental state, the plaintiff applied to have the intervention order against the deceased varied so that the deceased could see the children. In her grounds, the plaintiff stated that she did 'not have concerns', that the deceased was 'not a threat' and that he was 'completing all community corrections requests'. Notwithstanding, the order was not varied.

19 In April 2016, the deceased applied to a redundancy fund to release funds to pay the mortgage, which had been in arrears. Since then, the plaintiff has made the mortgage repayments.

20 In May or June 2016, the deceased's mother arranged with the plaintiff for the deceased's tools to be collected from the shed on the family property, as the deceased was assisting his uncle with building a house.

21 In July 2016, the deceased moved to his mother's house, which was a few kilometres from the family home, as a result of a falling out with the owner of his father's house. The deceased's mother deposes to a conversation at around this time wherein the deceased said that he and the plaintiff had discussed splitting their property equally between them. He remained living with his mother until his death in September 2016.

22 The plaintiff deposes that she thought the deceased was seeking the professional help needed to rehabilitate and enable them to be a family unit. Despite this, in August 2016, the deceased's behaviour deteriorated and he attempted suicide on two occasions. On the second occasion, the deceased made video contact with the plaintiff, pleading to return to the family life he had known. As he was unstable, he was admitted to the Bendigo Hospital Psychiatric Unit. Upon his release, he returned to live with his mother. The deceased called or texted the plaintiff and she found his behaviour continued to be erratic, violent and self-harming, and she feared for the family's safety. On the deceased's birthday at the end of August, the children spoke with the him over the telephone. The deceased wanted to see the children on Father's Day, however, the plaintiff was fearful for the safety of the children. The deceased's mother states that the deceased told her he was concerned he would be going back to prison and that he would not be able to see the children on Father's Day.

23 On 3 September 2016, the deceased left his mother's house, without his belongings. The next day, on 4 September 2016, the police attended at the mother's house to arrest the deceased for breaches of the intervention order. The deceased's mother told the police she did not know where the deceased was and the police informed her that the deceased would be listed as a missing person.

24 On 6 September 2016, the deceased took his own life.

25 The plaintiff deposes that, even though the intervention order was in place, the deceased and the plaintiff maintained contact by telephone and they planned to be together as a family once the deceased had rehabilitated from his drug addiction and behavioural problems. They planned to move to another city so that the deceased would not be around people who had access to drugs.

26 Part IA of the Administration and Probate Act 1958 provides for the distribution of an intestate estate under the current legislation. For deceased persons who died intestate prior to 1 November 2017, their estates are distributed pursuant to ss 51-52 of the Administration and Probate Act 1958 (version 122).

27 Where an intestate deceased person leaves a child or children, a partner is entitled to:

(a) the personal chattels of the deceased;

(b) the sum of $100,000 and interest on that amount; and

(c) one third of the balance of the estate.[1]

28 The remaining two thirds of the balance of the estate pass to the children equally.[2]

29 An unregistered domestic partner is a person who, although not married to the deceased person, was living with the person on a genuine domestic basis (irrespective of gender) and either had lived with that person in that manner continuously for a period of at least two years immediately before the person's death or 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.[3]

30 To determine whether a person meets the definition of an unregistered domestic partner, the Court must take all the circumstances of the relationship into account, including any one or more matters referred to in the Relationships Act 2008 as may be relevant on the facts of the case.[4] The following factors may be relevant:

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

(b) the duration of the relationship;

(c) the nature and extent of common residence;

(d) whether or not a sexual relationship exists;

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

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

(g) the care and support of children; and

(h) the reputation and public aspects of the relationship.[5]

31 The onus of proving the existence of a domestic partnership lies with the person asserting its existence, and it is for that party to show positively that its defining characteristics are in existence, rather than the other party being required to prove the negatives.[6] Where one of the alleged partners is deceased, the Court should adopt a cautious attitude to making a determination that a person was a domestic partner of the deceased. This is because the deceased is not available to give evidence to demonstrate or rebut the existence of the relationship.[7]

32 In submissions, both parties referred to the case of Dow v Hoskins.[8] Key to the existence of a genuine partnership in that case was the shared intention of the parties to continue their relationship despite the existence of extenuating difficulties. Evidence of a shared intention is required, in the absence of which an intention should not be inferred, even if the separation is merely to enable one party or the other to decide whether the relationship should continue.[9]

33 The affidavits relied on by the plaintiff and the caveatrix primarily cover the period from 2015 to after the deceased's death on 6 September 2016. Most of the evidence was by way of recollection of events and conversations that took place during that time. In recollecting events over a lengthy period of time, there are obvious difficulties arising from fading memories and the tendency for a witness to tailor the evidence to suit his or her case.

34 Determining what happened at any particular time in this proceeding is hindered by the limited amount of contemporaneous documentary evidence. Where the recollection of the witnesses is relied upon, any contemporaneous materials are of assistance in determining the facts.

35 The caveatrix accepts that the plaintiff and the deceased were in a domestic relationship for many years but submits that from November 2015, at the latest, the plaintiff and the deceased were separated and there is no evidence of a continuing intention of the parties to resolve their differences and live together. The caveatrix relies on the following events:

(a) In September 2014, the plaintiff severed their joint bank account. In or around October 2014, the deceased evicted the plaintiff and the children from the family home for about three months and the plaintiff lodged a caveat on the property.

(b) In early 2015, the plaintiff and the deceased cancelled their plans to marry. In November 2015, the police were called to the family home, the deceased was remanded in custody, an intervention order was taken out by the police and the deceased was sentenced to three months in prison.

(c) In February 2016, the deceased was released from prison and lived with his father. Between that time until his death, the deceased only saw the plaintiff on a few occasions. In March 2016, the plaintiff applied to vary the intervention order by removing the children as protected persons, but did not seek to remove herself. In May or June 2016, the deceased's mother arranged with the plaintiff for the deceased's tools to be collected from the shed at the family property.

(d) Between January 2018 and June 2018, the plaintiff, through her solicitor, engaged in negotiation with the caveatrix's solicitor, seeking a family law property settlement for the plaintiff.

36 Taken alone, the events relied on by the caveatrix establish many difficulties in the relationship between the deceased and the plaintiff commencing from the deceased's use of illicit drugs. These difficulties seemed to appear in 2014 when the plaintiff found out that he was using their joint funds to purchase drugs. The severance of the joint account by the plaintiff is an obvious reaction to this discovery and was necessary to ensure the family's financial security. The same conclusion can be made by the plaintiff lodging the caveat on the family property.

37 The plaintiff and the defendant planned to marry before the deceased's drug abuse and violence escalated. They intended to continue to reside together as a family and share the care of the children after these issues were addressed. They could not live together because of the intervention order that the police obtained for the protection of the plaintiff and the children. It was for this reason that the deceased lived with his parents after his release from prison. After his release, the deceased did not ask the plaintiff or the children to leave the family home again and they remain living there.

38 During his time in prison and after his release, it appeared to the plaintiff that the deceased was improving as he was not using drugs and he sought professional help and counselling. Notwithstanding the intervention order, the plaintiff and the deceased continued with some communication and the deceased attempted to work through his issues. The deceased maintained contact with the plaintiff and the children by text and telephone calls and the plaintiff visited him with the children when he lived at his father's house. The plaintiff also applied to vary the intervention order in respect of the children but it was not varied and remained in place until the deceased's death. The caveatrix is critical that the plaintiff did not apply to remove herself from the intervention order. However, in view of the deceased's erratic behavioural problems, it was appropriate that the order remain in place for the protection of the plaintiff and the family.

39 The deceased's mental health deteriorated when he recommenced using illicit drugs and he was placed in the Bendigo Psychiatric Unit after attempting suicide. After his release, the deceased and the plaintiff were in contact as he called and messaged her. His behaviour continued to be erratic, violent and self-harming. The deceased was aware that contact with the plaintiff and the children by telephone or text was a breach of the intervention order. He was also aware that a breach could mean he would go back to prison and, if that occurred, he would not be able to see his children on Father's Day. This is consistent with the deceased telling his mother that he was concerned that he would not be able to see the children on Father's Day.

40 In determining the issue of whether the plaintiff was the domestic partner of the deceased at the date of death, the Court must also take into account the human reality of the situation between the plaintiff and the deceased and the difficulties that they were undergoing, and not apply a narrow and pedantic view of living together in the circumstances.[10] On balance, the evidence supports that the relationship of the plaintiff and the deceased continued notwithstanding that they were required to live separately as a result of the intervention order being in place. This was required for the protection of the plaintiff and the children and it was proper to remain in place in the circumstances of the deceased's continuing mental health and drug issues. The deceased sought to address the consequences of his addictions and his behavioural issues with partial success. The evidence supports that there was a continuing intention on the part of the plaintiff and the deceased to resolve the issues that caused them to live separately and that they intended to move as a family to another city once the deceased had recovered from his drug addiction and behavioural problems.

41 The Court is satisfied that the plaintiff was the deceased's domestic partner at the date of his death.

42 The caveatrix submits that whether or not the plaintiff is the domestic partner of the deceased, she should be passed over as administrator of the deceased's estate because she would be in a position of conflict of interest. This is because the plaintiff previously supported the caveatrix's application for a grant and had been negotiating a property settlement with her. She also submits that the plaintiff is a poor manager of money, on the basis that the plaintiff told the deceased's mother that she has had difficulties in managing her finances and has had to rely on support from her parents.

43 The caveatrix's proposition that the plaintiff previously supported the caveatrix's application for a grant refers to the application made on 28 August 2017 and refused in its current form by the Registrar of Probates the next day, on 29 August 2017. In that application, the caveatrix obtained the plaintiff's signature to a purported renunciation, as well as renunciations signed by the deceased's parents. As the Registrar informed the caveatrix on 29 August 2017, the renunciation documents are unknown in succession law as a person cannot renounce their right to letters of administration, it being the Court's role to appoint an administrator.

44 The caveatrix's submission that the plaintiff is a poor manager of money is disingenuous. Given her circumstances, it is not surprising that the plaintiff has had difficulties managing her finances. The deceased used their joint funds to purchase drugs, spent three months in prison and then ceased working due to his substance abuse issues. She has taken steps to overcome these difficulties by commencing to work again and by obtaining assistance from her parents. The plaintiff's mother continues to support the plaintiff, having provided a surety guarantee in support of the plaintiff's application.

45 The right to administration usually follows interest. A person seeking to pass over the person entitled to administer the estate of a deceased must establish that he or she has standing by virtue of having an interest in the estate of the deceased. As stated by Windeyer J in Re Culina; Poulos v Pellicer:

Probate litigation is interest litigation. It is not to be undertaken or interfered in by outside busybodies.[11]

46 The caveator has no interest in the estate of the deceased and, therefore, has no standing to make the application.

47 As the domestic partner of the deceased, the plaintiff has the largest interest in the estate and she is the natural guardian of the minor children. Accordingly, the plaintiff is the appropriate person to administer the deceased's estate.

(a) Subject to any further requirements of the Registrar of Probates, letters of administration of the deceased's intestate estate be granted to the plaintiff.

(b) In default of agreement as to costs, the parties submit short written submissions within 14 days.

1. [1] Administration and Probate Act 1958 (Vic) ss 51(2) and 52, later repealed by Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 (Vic) s 9.
2. [2] Administration and Probate Act 1958 (Vic) s 52, later repealed by Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 (Vic) s 9.

[3] Administration and Probate Act 1958 (Vic) s 3.

[4] Administration and Probate Act 1958 (Vic) s 3(3).

[5] Relationships Act 2008 (Vic) s 35(2).

[6] H v P [2011] WASCA 78, [58] (Pullin, Buss & Murphy JJA).

[7] Re Estate of Sigg [2009] VSC 47, [14] (Pagone J).

[8] [2003] VSC 206. See also, S v B [2004] QCA 449; [2005] 1 Qd R 537, [48]-[50] (Dutney J).

1. [9] Dow v Hoskins [2003] VSC 206, [32]-[33] (Cummins J), quoting Hibbertson v George (1989) 12 Fam LR 725, 740 (Mahoney J).

[10] Dow v Hoskins [2003] VSC 206, [34] (Cummins J).

[11] [2004] NSWSC 504, [10].