Withers & Anor v Bray & Ors [1999] NSWSC 1002

Withers & Anor v Bray & Ors [1999] NSWSC 1002

On the balance of probabilities, having regard to the totality of evidence—cohabitation, mutual emotional support, length and nature of the relationship, joint property and finances, and corroborated witnesses—the existence of a de facto relationship, including a sexual relationship, was established between the deceased and Mr Withers from at least 1976 to 6 April 1994, entitling the estate of Mr Withers to the deceased's estate. Consequently, Letters of Administration were appropriately granted to the plaintiffs.

Jurisdiction
Australia
Judgment Date
01 October 1999
Procedural Posture
Application for Letters of Administration (probate) / Judgment After Hearing at First Instance
Outcome
Letters of Administration granted to the plaintiffs; cross-claim dismissed.
Legal Topics
['de Facto Relationships' 'letters of Administration' 'existence of Sexual Relationship as Indicia' 'intestacy' 'probate Procedure']
['succession Law' 'probate' 'family Law'] ['de Facto Relationships' 'letters of Administration' 'existence of Sexual Relationship as Indicia' 'intestacy' 'probate Procedure']

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Procedural Posture

Application for Letters of Administration (probate) / Judgment After Hearing at First Instance

Legal Issues

  1. 1 ['Whether the deceased and Mr Withers were in a de facto relationship at the time of her death within the meaning of s32G(1) of the Wills, Probate and Administration Act 1898 (NSW)' 'Whether Letters of Administration should be granted to the plaintiffs or to the cross-claimant']

Ratio Decidendi

On the balance of probabilities, having regard to the totality of evidence—cohabitation, mutual emotional support, length and nature of the relationship, joint property and finances, and corroborated witnesses—the existence of a de facto relationship, including a sexual relationship, was established between the deceased and Mr Withers from at least 1976 to 6 April 1994, entitling the estate of Mr Withers to the deceased's estate. Consequently, Letters of Administration were appropriately granted to the plaintiffs.

Court Disposition

Letters of Administration granted to the plaintiffs; cross-claim dismissed.

Orders

  • ['Letters of Administration of the estate of the late Agnes Irene Bray are granted to Brian Joseph Withers and Patrick Bernard Withers.' 'The cross claim is dismissed.' 'Court to hear application as to costs if parties do not agree.']