Which case won?

The case for the plaintiff
  • It’s clear from my previous driver licence that the deceased and I lived together. The address on my driver licence is the same as the address of the deceased’s property.
  • We also lived part of the week at a property that I owned. As my colleague told the court, the deceased would often answer the phone when she rang me there. When I was travelling, she would also contact him for updates if she couldn’t reach me.
  • The deceased and I regularly did the types of things that close couples do, including travelling together, receiving wedding invitations addressed to us jointly, going out to dinner together, attending concerts, and family and social gatherings.
  • The deceased showed his love for me by sending me flowers and messages. After one special trip to Bali he emailed me that it was “special to be with you in Bali too – we probably learnt more about each other in Bali – I love you more than ever…”.
  • I cared for the deceased’s welfare. I would pick up his medication at the chemist and I took him to doctor appointments and for his colonoscopy. I also took the deceased to the hospital a week before he died.
  • The deceased helped my mother with appointments with her solicitor and he also helped me financially, giving me $28,000 for the deposit to settle the purchase of an investment property.
  • The deceased and I talked about getting married. Although we didn’t have children, I fell pregnant by the deceased twice.
  • When the deceased died, I gave the eulogy at his memorial service. After his death, I received flowers and condolences from his relatives and many lovely messages, including one in which a friend said: “I know that you were very important to each other – having spoken to him more than once, my feeling is he loved and admired you very much.”
The case for the brother
  • My brother, the deceased, never told me that he and the plaintiff were living together or that they were committed to supporting each other.
  • The plaintiff’s current driver licence shows a different address from my brother’s property.
  • My brother and the plaintiff did not have any joint bank accounts, joint credit cards, joint investments or joint health insurance.
  • In 2010, my brother told a close friend that the plaintiff “can’t accept that we aren’t in a relationship… she just won’t let it go. I’m sorry that she was hoping for something more, I think she’s worried she might never meet someone in time to have children… but she just refuses to see that this isn’t going to be with me.”
  • My brother also told that friend regarding the plaintiff: “I had to call the police. She is out of her mind. She drove all the way out to my place and scaled the locked gate. I’d only put a lock on the gate because of her.”
  • My brother and his neighbour were close friends who shared confidences about the challenges they were both having dating much younger women. The deceased told him: “the married family-man life has never been for me” and eventually that “the thing he had with [the plaintiff] is most definitely over”.
  • My brother told me in around 2012 that he had changed his land line telephone to a silent number and had resorted to padlocking the gate to his property in order to prevent the plaintiff from getting in.
  • When I went to my brother’s property five days after his death, his clothes, toiletries, and personal possessions were all around. There was nothing to suggest that anyone lived there but him. There were no photos of him and the plaintiff, and there were certainly no female effects.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a36%
case b64%

Expert commentary on the court's decision

Rita Fisher
Rita FisherManaging Director
“In determining whether it has jurisdiction to grant a family provision order, the court sets a high bar for assessing the credibility of the plaintiff’s evidence. Plaintiffs should ensure that they provide plenty of corroborating evidence, including evidence from other witnesses as well as contemporaneous documents.”
Supreme Court dismisses plaintiff’s case

On 28 February 2018, the Supreme Court of NSW in the matter of Bezjak v Wyatt [2018] NSWSC 199 dismissed the application of the plaintiff, Ms Brigita Bezjak, for a family provision order.

The court rejected Ms Bezjak’s argument that she was the de facto partner of the deceased, Mr Peter Wyatt, at the time of his death.

The court accepted Ms Bezjak’s alternative argument that she and Mr Wyatt were members of the same household for a period of time and that she was partly dependent on him. However, the court concluded that this alone did not entitle her to make an application for a family provision order.

Court must have jurisdiction under Succession Act to make family provision order

Section 59(1) of the NSW Succession Act 2006 (“the Act”) confers jurisdiction on the court to make a family provision order in relation to the estate of a deceased person.

To make a family provision order, the court must be satisfied that the plaintiff is an eligible person and that adequate provision for the proper maintenance, education or advancement in the life of the plaintiff has not been made by the will of the deceased.

For some classes of eligible persons, the court must also be satisfied that having regard to all the circumstances of the case, there are factors which warrant the making of the application.

Eligible person who is living in de facto relationship with deceased at time of his death

Under section 57(1)(b) of the Act, a person with whom the deceased person was living in a de facto relationship at the time of the deceased person‘s death is an eligible person.

In relation to a de facto relationship, there is no need for the court to also satisfy itself that there are factors which warrant the making of the application.

Eligible person who is a member of deceased’s household and dependent on deceased

Under section 57(1)(e) of the Act, a person is also an eligible person if they were at any time wholly or partly dependent on the deceased person and at that time or at any other time, were a member of the household of which the deceased person was a member.

However, unlike with a de facto relationship, the court must also be satisfied that there are factors which warrant the making of the application.

“Living in a de facto relationship” defined by court

The court noted that for the purposes of section 57(1)(b) of the Act, de facto relationship is defined by section 21C of the NSW Interpretation Act 1987.

Section 21C of the Interpretation Act states that person is in a de facto relationship with another person if they have a relationship as a couple living together, and they are not married to one another or related by family.

“Relationship as a couple” defined by court

In determining whether two people have a relationship as a couple, all the circumstances of the relationship are to be considered.

Section 21C provides a list of relevant circumstances, including amongst other things, the degree of mutual commitment to a shared life, the nature and extent of common residence and the reputation and public aspects of the relationship.

While the list of relevant circumstances in section 21C is used to assist in determining whether the parties are in “a relationship as a couple”, the list is not decisive or exhaustive. It is necessary to look at the composite picture, rather than isolating individual factors or attributing relative degrees of importance to them.

“Living together” defined by court

The court stated that in determining if two persons are living together, they should consider factors such as whether there was sufficient shared residence, simultaneous physical presence at the residence, the sharing of domestic tasks, deciding household questions together and sharing the burden of maintaining the household.

Evidence of de facto relationship found not to be credible

The court noted that ultimately, the conclusion as to the existence, or otherwise, of a de facto relationship is a question of fact.

The court highlighted that Ms Bezjak bore the onus of proof to establish that she and Mr Wyatt were in a de facto relationship.

Ms Bezjak’s case was based, principally, upon her own testimonial evidence.

In assessing the credibility of Ms Bezjak’s evidence, the court emphasised that evidence of conversations involving a person subsequently deceased need to be carefully scrutinised, especially if no corroborating evidence is provided.

The court also pointed out that where self-interest in giving evidence favourable to one’s own case is obvious, the evidence should be viewed with much caution.

In cases involving events which occurred some time before the litigation, the court also said it prefers to rely upon contemporaneous, or near contemporaneous, documents, over what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation.

Ms Bezjak not in de facto relationship with Mr Wyatt at time of his death

Considering Ms Bezjak’s lack of documentary and other evidence that could have been, but was not provided by her, the court found that Ms Bezjak was not in a de facto relationship with Mr Wyatt at the time of his death.

In the court’s view, the relationship, while romantic, and perhaps, even loving, prior to 2010, changed, significantly, after that time. It could not be described as a de facto relationship at the date of the deceased’s death.” 

Ms Bezjak as member of Mr Wyatt’s household

Although the court did not accept that Ms Bezjak was in a de facto relationship with Mr Wyattit did accept her argument that she was an eligible person because she was a member of Mr Wyatt’s household and dependent on him.

In the court’s view: it is the characteristics and dimension of the domestic relationship that make it a household. The concept connotes a degree of continuity and permanency of mutual living arrangements.

The Act does not specify a length of time during which the plaintiff must have been a member of the household of which the deceased was a member.

The court referred to Ms Bezjak’s driver licence that expired in 2010 and listed her address as Mr Wyatt’s address, in concluding that they were members of the same household for a period of time.

Ms Bezjak dependent on Mr Wyatt

In the court’s view, a person would be dependent on the deceased if they would naturally rely upon or look to the deceased, rather than to others, for anything necessary or desirable for their maintenance and support. This includes financial and/or emotional support. 

The court concluded that Ms Bezjak was partly dependent on Mr Wyatt and that he provided her with emotional and other support, even after their romantic relationship had ended.

No factors warranting making of application for family provision order

Although Ms Bezjak was an eligible person as a member of Mr Wyatt’s householdthe court also had to satisfy itself that there were factors warranting the making of Ms Bezjak’s application for a family provision order.

The court concluded that there were no factors demonstrating a social, domestic, or moral obligation on the deceased to make some provision for Ms Bezjak.

Accordingly, Ms Bezjak’s summons was dismissed.

Credibility of evidence critical to convincing court to grant family provision order

The concept of a de facto relationship is complex and diverse. Ultimatelyit is up to the plaintiff to prove that such a relationship existed at the time of the deceased’s death.

In determining whether it has jurisdiction to grant a family provision order, the court sets a high bar for assessing the credibility of the plaintiff’s evidence. Plaintiffs should ensure that they provide plenty of corroborating evidence, including evidence from other witnesses, as well as contemporaneous documents.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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