Barnes v De Jesus [2001] NSWSC 19

Barnes v De Jesus [2001] NSWSC 19

Although there was a close affectionate relationship, the defendant did not establish that he was living with the deceased as her de facto husband for the required two-year period. The facts supporting the claim were outweighed by the apparent lack of commitment, periods of separation, insistence on separate property, and evidence concerning the deceased's instructions for a will. The cross-claim was therefore dismissed, and if the deceased died intestate the plaintiff was entitled to a grant of letters of administration.

Jurisdiction
Australia
Judgment Date
02 February 2001
Procedural Posture
Competing Applications for Grant of Letters of Administration in Probate List / Judgment After Contested Hearing
Outcome
Cross-claim dismissed; declaration made that, if the deceased died intestate, the plaintiff is entitled to a grant of Letters of Administration; application referred back to the Registrar.
Legal Topics
['letters of Administration' 'intestacy' 'competing Applications for Administration' 'whether De Facto Relationship Established' 'entitlement to Estate of Intestate Deceased']
['succession' 'probate' 'de Facto Relationships'] ['letters of Administration' 'intestacy' 'competing Applications for Administration' 'whether De Facto Relationship Established' 'entitlement to Estate of Intestate Deceased']

Case Brief

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Procedural Posture

Competing Applications for Grant of Letters of Administration in Probate List / Judgment After Contested Hearing

Legal Issues

  1. 1 ['Whether Antonio Manuel De Jesus was the de facto husband of Doris Lillian Barnes for a continuous period of not less than two years before her death.' "Whether, if the deceased died intestate, Leila Alison Barnes was entitled to a grant of letters of administration of the deceased's estate." 'Whether the defendant/cross-claimant was entitled to the whole estate under ss61B(3B) and 61B(13) of the Wills Probate and Administration Act 1898.']

Ratio Decidendi

Although there was a close affectionate relationship, the defendant did not establish that he was living with the deceased as her de facto husband for the required two-year period. The facts supporting the claim were outweighed by the apparent lack of commitment, periods of separation, insistence on separate property, and evidence concerning the deceased's instructions for a will. The cross-claim was therefore dismissed, and if the deceased died intestate the plaintiff was entitled to a grant of letters of administration.

Court Disposition

Cross-claim dismissed; declaration made that, if the deceased died intestate, the plaintiff is entitled to a grant of Letters of Administration; application referred back to the Registrar.

Orders

  • ['Declare that if the deceased, Doris Lillian Barnes, died intestate, the plaintiff is entitled to a grant of Letters of Administration of her estate.' 'Refer the application back to the Registrar for determination in accordance with the said declaration.' 'The cross-claim be dismissed.' "The...