NSW Trustee and Guardian v McGrath & Ors [2013] NSWSC 1894

NSW Trustee and Guardian v McGrath & Ors [2013] NSWSC 1894

Although the case was borderline and Mr McGrath and the deceased did not formally live together, the uncontradicted evidence showed a long, intimate, mutually committed relationship with regular weekend stays, holidays, family inclusion, hospital and nursing-home involvement, care decisions, funeral arrangements and practical support. Applying the authorities that fulltime shared residence is not essential to living together as a couple, the evidence just established a de facto relationship. The plaintiff was therefore justified in distributing the estate on the basis that Mr McGrath was the deceased's de facto spouse at her death.

Jurisdiction
Australia
Judgment Date
17 December 2013
Procedural Posture
Application for Judicial Advice by Administrator of Intestate Estate / Principal Judgment
Outcome
Plaintiff advised that it would be justified in distributing the estate on the basis that Maurice Vivian McGrath was the de facto spouse of the deceased at the time of her death.
Legal Topics
['intestacy' 'de Facto Relationship' 'distribution of Estate' 'judicial Advice' 'benjamin Order']
['succession' 'equity' 'trusts'] ['intestacy' 'de Facto Relationship' 'distribution of Estate' 'judicial Advice' 'benjamin Order']

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Procedural Posture

Application for Judicial Advice by Administrator of Intestate Estate / Principal Judgment

Legal Issues

  1. 1 ['Whether Maurice Vivian McGrath was the de facto spouse of Ethel Rose Clarke at the date of her death for the purposes of intestate succession.' "Whether the plaintiff administrator would be justified in distributing the estate on the basis that Mr McGrath was the deceased's de facto spouse." "The scope of the Court's consideration on an application for advice analogous to a Benjamin order or under s 63 of the Trustee Act 1925."]

Ratio Decidendi

Although the case was borderline and Mr McGrath and the deceased did not formally live together, the uncontradicted evidence showed a long, intimate, mutually committed relationship with regular weekend stays, holidays, family inclusion, hospital and nursing-home involvement, care decisions, funeral arrangements and practical support. Applying the authorities that fulltime shared residence is not essential to living together as a couple, the evidence just established a de facto relationship. The plaintiff was therefore justified in distributing the estate on the basis that Mr McGrath was the deceased's de facto spouse at her death.

Court Disposition

Plaintiff advised that it would be justified in distributing the estate on the basis that Maurice Vivian McGrath was the de facto spouse of the deceased at the time of her death.

Orders

  • ["The estate should be distributed on the basis that Mr McGrath was the deceased's de facto spouse at the time of her death." 'The costs of all parties to the proceedings are to come out of the estate.']