Dare to Care: Close personal relationship in FPA (NSW)

Many people would have a different view of exactly what a “close personal relationship” may look like.

In New South Wales Family Provision law, their collection of people who may make a claim on an estate further further provision is much wider than that of Queensland.  Under section 57(1)(f) of the Succession Act 2006 (NSW), “a person which whom the deceased person was living in a close personal relationship at the time of the deceased person’s death” is eligible to apply to the Court for family provision.

A close personal relationship is defined in section 3(3) of that act as “a close personal relationship (other than a marriage of de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.”

The recent case of Estate MPS, deceased [2017] NSWSC 482 dealt with a family provision claim by a gentleman who claimed he was in a close personal relationship with the deceased, MPS.  MPS passed away in October 2014 without a Will and left no spouse, children or parents, leaving her sole surviving brother to become her sole beneficiary and the administrator of her estate.  MPS had left an estate of approximately $2 million.

The parties names were anonymised to offer protection to the applicant whom suffers a mental health disability.

The applicant, NTS, has been on a disability pension for many years and suffers from mental health challenges throughout his life.  NTS had claimed that he knew MPS since 1979 and at one time had a sexual relationship with her.  NTS and MPS went their separate ways and then refreshed their friendship and relationship in 2012. When they met again, MPS was terminally ill and often in pain. NTS claims that during the course of their friendship, he served as her carer, had lived with her (although they maintained separate residences) and was substantially maintained by her between their meeting in 2012 and her death in 2014.

The Court considered the definition of “close personal relationship” as it related to NTS’s eligibility to claim on the estate of MPS. In considering whether NTS fit category, the Court considered:

  • The concept of “living together” in the context of the legislation and noted that it does not necessitate the existence of a single residence nor does it require that they spend all their time together: para 26.
  • The concept of “living together” in the the definition of “close personal relationship” can apply to the reality of domestic life and whilst does not require being a “couple”, can be by way “a relationship that is close, personal and attended by provision by one or each of them to the other with the domestic support and personal care.”: para 27
  • Noting that MPS and NTS often held themselves in public to be “aunty” and “nephew”, the Court said that that idea was not inconsistent with people who provide domestic support and personal care within a private relationship.
  • Whether there was “fee or reward” for the personal care and service NTS provided MPS (which if construed in the affirmative, would negate the existence of a close personal relationship under section s(4) of the Act).

The defendant brother and administrator of MPS’s estate, claimed that NTS had demonstrated conduct that should disentitle him to any provision from the estate. In particular, the defendant claimed that NTS had not provided adequate care for his sister, that his lack of care was grave and his conduct callous and indifferent and therefore constituted disentitling conduct.

In considering the case, the Court summarised 7 points relevant to the Court’s considerations:

  1. The evidence of the triple-0 call that NTS had made on discovering MPS has passed away and the way he conducted himself during the course of that conversation that spoke of his mental illness and authenticity in his distress of her passing.
  2. A note that NTS had claimed he had written to show MPS how much money she was spending on carers when he wanted to suggest that she could spend less if she had let him feed her and let him buy necessary items for her.
  3. Correspondence between NTS and his bank, stating that he was working “for” his “aunty” as a “carer” in the context of him attempting to stave them off as a creditor. The Court noted there was never any formal arrangement in realtion to any remuneration to NTS as a carer.
  4. NTS had freely conceded in the trial that he had provided a false CV to a recruitment agency in desperation as he wanted to escape unemployment.
  5. NTS had freely acknowledged that he would lie to Centrelink, in trial, about receipt of earnings incompatible with receipt of a disability pension. NTS rationalised this by saying “You’ve got to survive somehow”.  The Court stated that this was “not evidence of an able man.  It is consistent with the mindset of a mentally disabled person”. (para 86)
  6. NTS’s reasons for seeking the security of accommodation from his family provision claim.  The Court sought answers directly from NTS during the trial and his answers suggested a present awareness of his disability.
  7. NTS refused to state his current address where he had claimed to be living almost homeless.  He claimed to fear for his life if his address was stated in Court. The Court found it difficult not to see this as evidence of paranoia.

In appreciating the evidence gathered at trial, the Court said:

The plaintiff’s evidence, his conduct and the quality of his care for the deceased all fall to be assessed in the context of his disability. I do not believe that he was consciously dishonest in any of the evidence he gave to the Court, but recognition of his disability invites caution in the acceptance, or rejection, of what he says about particular facts. (para 90)

Whilst the Court accepted that the the “support” and “care” of MPS was not high quality, and both inappropriate and inadequate, the Court accepted that NTS was “living together” with MPS and provided her with “domestic support” and “personal care” within the meaning of the Act.  (para 106 and 107) The Court also found that the care was not for “fee or reward” (para 108)

In determining that NTS was an eligible person, the Court said:

  1. Although all the plaintiff’s comings and goings might not have been noticed by witnesses from whom the defendant obtained affidavits, and his limited personal contact with them might have been an alienating experience for them, I accept the evidence of the plaintiff that he generally spent part of each day with the plaintiff, or at her beck and call; that, from time to time, he slept at her place of abode and, at least in the early days of their relationship, she sometimes slept at his; and that, as best as he was able, he attended to her needs.
  2. Had he been a stronger, more stable personality, he might have succeeded, where nobody else did, in persuading her (or in forcing her) to submit to professional, palliative care; but, as it was, as she was and as he was, he probably paid too much, not too little, regard for her subjective, reclusive preference to die in squalor as she did. The manner of her death was tragic, but responsibility for the tragedy cannot be sheeted home to the plaintiff, himself a tragic, marginalised person in whose close company she chose to live.
  3. I do not discount the possibility that, in the early days of their relationship, there was a sexual element to it – after all, the deceased complained (he says falsely) to the Police that he had demanded payment for sex – but it is difficult to imagine anything other than nominal sexual encounters given the state of the deceased’s deteriorating health.
  4. Be that as it may, I am satisfied (for the purpose of section 59(1)(a)) that the plaintiff is an “eligible person” within the meaning of section 57(1)(f).

In light of MPS acknowledging NTS as “Next of Kin”, “Person to Notify” and “Nephew” in many of her hospital and medical records throughout her last years, the Court was satisfied that MPS considered NTS her family, “faults and all” (para 119).

Despite the assistance MPS provided NTS during her life by way of payments, from time to time, the Court was satisfied that adequate provision had not been made for NTS from MPS’s estate.

The Court awarded NTS a legacy of $550,000.00 from the estate of MPS but noted that concern that NTS may not adequate manage such an amount.

  1. In my assessment, the appropriate form of order for provision is one which provides for the payment of a legacy in a sum which, assuming prudential management, is sufficient, for a reasonable time (not necessarily for life) to provide the plaintiff with ongoing rental assistance, and a fund from which ordinary living expenses (including, but not limited to, allowances for medical and dental treatment) can be paid and contingencies can be provided for, as reasonably required.
  2. I propose to grant the plaintiff a legacy in the sum of $550,000, but I very much doubt his capacity to manage such a sum without professional assistance. The course of his life to date, the nature of his disability and his future prospects all suggest that, whilst he might be able to manage small amounts of money in payment of ordinary living expenses, he cannot be relied upon to deal with any substantial amount prudentially. If he were paid a substantial sum today, without a protective mechanism to maintain its integrity, I fear it could be gone tomorrow or, perhaps, the day after, with nothing to show for its dissipation.
  3. A possibility that the plaintiff might squander provision made for him is not a ground for denial of provision, but a factor that goes to the form of any order made for provision: Carroll v Cowburn [2003] NSWSC 248 at [17]; West v France [2010] NSWSC 845 at [82]-[88].
  4. The Court’s powers on a grant of family provision relief extend to imposition of conditions and the making of consequential orders affecting the manner in which provision is to be provided: Succession Act, sections 65-66. In McLean v Public Trustee [2001] NSWSC 970 at [20]-[21] and [24] Master Macready (exercising comparable powers under the Family Provision Act 1982) ordered that a legacy be paid out of an estate to be held by the Public Trustee (a statutory predecessor of the NSW Trustee) on protective trusts for a plaintiff who was a compulsive gambler. Something similar is required in the present case.

The Court awarded the legacy and reserved the consideration of whether the orders for NTS should be managed by the NSW Trustee for his benefit.

The legal costs of NTS were paid from the estate on the ordinary basis and the defendant administrator’s costs were paid out of the estate on the indemnity basis. It is worthy to note that the costs were extremely high at $292,800.00 for the defendant and $135,000.00 for NTS.  Counsel for the defendant had explained that until 6 May 2016, NTS had been unrepresented and the conduct of the matter complex. The Court also inferred that the costs incurred on both sides would have been impacted by NTS mental health.

You can read the case here.




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