Sun v Chapman [2022] NSWCA 132

19 Sep Sun v Chapman [2022] NSWCA 132

This case illustrates that a de facto relationship can continue until the time of death, notwithstanding periods of separation and the fact that a physical relationship had ceased many years earlier (thus permitting a claim on a deceased estate for additional provision).

Facts

Ms Wei (Rose) Sun and the deceased, Mr Robin Alan Richard Chapman, lived together for some 21 years up until his decease on 2 February 2019. Initially, Ms Sun began living with Mr Chapman in 1998 in response to a newspaper advertisement which offered free accommodation in return for domestic services. Ms Sun claimed that she and the deceased began an intimate relationship in 1999 which continued for approximately four or five years, and that a de facto relationship continued thereafter. Ms Sun led evidence that they continued to cohabit and presented in public as a couple, shared holiday expenses and some living expenses. The deceased’s last will in 1996 made no provision for Ms Sun.

She sought an order under s 59 of the Succession Act 2006 (NSW) (“the Act”) for provision to be made regarding her maintenance and advancement in life. The deceased’s assets consisted of a house in Seaforth, sold by the executor for $2,400,100, as well as other assets amounting to approximately $180,000 in value.

Ms Sun’s initial application was dismissed on the basis that the de facto relationship was not ongoing at the time of death. She appealed this decision to the Court of Appeal.

Decision

The Court of Appeal, comprising of Justices Leeming, White, and Brereton considered the following issues:

1. Whether the de facto relationship between Ms Sun and the deceased had concluded before his death.
2. What would Ms Sun be entitled to if she were eligible for a family provision order.

To be an eligible person under s 57 of the Act, you must be one of the following: married at the time of death; a person whom the deceased person was living in a de facto relationship with at the time of death; a former spouse; a child of the deceased person; a person who was financially dependent wholly or in part on the deceased person; or a person whom the deceased person was living in a close personal relationship with at the time of death.

Ms Sun asserted that her de facto relationship with the deceased did not end before his death, as the deceased did not at any point communicate to her that it had. The Court found that non-communication of the end of the relationship while relevant, was not determinative (see Hibberson v George (1989) 12 Fam LR 725 at 740). The Court found that a de facto relationship continued up until the death of Mr Chapman, notwithstanding that they spent a substantial period of time separated due to his ill health and spending time in hospital, and that that a relationship of patient and carer was not inconsistent with an ongoing de facto relationship. Further, ‘nor does a de facto relationship cease to be such because it becomes fractious and the parties cease to love each other’ [at 70].

The Court of Appeal took into account the following matters in finding a de facto relationship existed: the fact that Ms Sun lived rent-free at Mr Chapman’s residence; any physical separations between the two were only temporary; evidence portraying a romantic relationship in the form of trips and holidays which occurred as late as 2017; consistent hospital visits from Ms Sun when Mr Chapman was ill; and that the documented arguments between them bore similarities to that of arguments between married couples. The Court of Appeal held that the primary judge erred by not finding Ms Sun and the deceased to have been in a de facto relationship at the time of his death.

Regarding Ms Sun’s entitlements under the will, the Court of Appeal stipulated that ‘there are no hard and fast rules as to the approach to be taken to the awarding of provision to a surviving wife or de facto wife out of her partner’s estate and there is no general rule that a widow’s claim is paramount’ [at 172]. But, a testator does have a moral duty to ‘…his widow of a long marriage, so far as the estate permits, to make provision for her to ensure that she is secure in her accommodation, has an adequate income and a fund for modest luxuries and contingencies’, as per Steinmetz v Shannon [2019] NSWCA 114 at [98]-[109], [151].

Ms Sun owned a property mortgaged for approximately $555,000, and could service that loan from her income as a sterilisation technician. It is common in these situations for the court to award an amount for contingencies in addition to a fund for accommodation. In this case, the Court found that the deceased’s moral duty did not go beyond providing Ms Sun with sufficient funds to discharge her mortgage debt. This was because of Ms Sun’s financial need was a result of the generous gifts to her son. The Court noted that this decision was made with the assumption that the Department of Veterans’ Affairs would reinstate Ms Sun’s war widow pension, and that if this pension is not reinstated, Ms Sun could seek a family provision order under s 59(3)(a) of the Act which covers where there has been a ‘…substantial detrimental change in the eligible person’s circumstances since a family provision order was last made in favour of the person’. The Court ordered the estate not be fully distributed until the Department of Veterans’ Affairs made a decision regarding Ms Sun’s war widow pension.

The Court awarded Ms Sun $555,000 from the estate to discharge her mortgage, and ordered the respondent pay her costs of the proceedings and of the appeal amounting to $267,062.