Foulsham & Geddes recently defended a family provision claim against a deceased estate, all the way to the NSW Supreme Court of Appeal in Amprimo v Wynn [2015] NSWCA 286 (click here for appeal judgment).
The estate in question was that of the late Michael Ryan, a solicitor. The claimant’s name was Janet Amprimo.
Ms Amprimo’s case was unsuccessful before Rein J at first instance in the NSW Supreme Court in Amprimo v Wynn [2014] NSWSC 991 (click here for original judgment). Ms Amprimo appealed the decision to the Court of Appeal and she lost.
The claim essentially revolved around the concept of “eligible person” within the meaning of section 57 of the Succession Act 2006 (NSW).
Provision can be made for an “eligible person” by the Court if it considers that adequate provision for the proper maintenance, education or advancement in life the person has not been made in the deceased’s will.
Ordinarily, an “eligible person” will be:
- a person who was the wife or husband of the deceased person at the time of the deceased person’s death;
- a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death;
- a child of the deceased person;
- a former wife or husband of the deceased person;
- a person:
- who was, at any particular time, wholly or partly dependent on the deceased person, and
- who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member; or
- a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
Ms Amprimo argued that the deceased should have included her in his will. Her claim raised three arguments:
- the plaintiff was living in a de facto relationship with the deceased at the time of his death;
- the plaintiff was living in a close personal relationship with the deceased at the time of his death; and/or
- the plaintiff was wholly or partly dependant on the deceased.
There were a number of alleged facts which were put forward to support the argument that Ms Amprimo and Mr Ryan were “living together” in a de facto relationship or close personal relationship. Some of these included caring for the deceased in the later stages of his life and attending to domestic duties on his behalf and other things.
Rein J:
55. I accept that the plaintiff did provide domestic support to the deceased in the period November 2010 to his death. I accept that she provided personal care … What I am not satisfied of is that the parties were “living together” in that period or that she was providing personal care to the deceased after January 2011..
56. [The plaintiff] had asked the defendant’s permission to stay at [the deceased’s home], that she slept on the sofa on many of the nights she was at [the deceased’s home] and always in a separate room, and even accepting that the plaintiff stayed at [the deceased’s home] on many of the occasions she was in Sydney, I am not persuaded that the plaintiff and the deceased were “living together” in the usual sense of those words in the third period.
Ultimately his Honour concluded “…Whilst the relationship between the plaintiff and the deceased was unusual and difficult to characterise…the plaintiff is not an eligible person within the meaning of s 57 of the Act, is not entitled to an order under s 59 of the Act.” (see [34]-[58] of the Rein J for full reasons).
Court of Appeal Decision – McColl JA, Meagher JA and Gleeson JA.
The Court of Appeal held that Rein J did not err when making the findings in the original judgment and said that the decision was justified because the relationship between the plaintiff and the deceased did not extend beyond arrangements necessary for the plaintiff to provide domestic care to the deceased. There was no evidence of a commitment to sharing a de facto relationship or a close personal relationship.
“…there was no permanency or continuity about the arrangements under which [the plaintiff] stayed at [the deceased’s home] and she maintained a home and independent life in Perth.”
It also found that the plaintiff was not financially dependent upon the deceased.
If you or someone you know need help with a family provision claim, please contact our Estate Dispute Lawyers today on 02 9232 8033.
