Dead man's mother and partner in tug of war

Scott Hillman was making plans for his future with Crystal Costello when a sudden illness struck and he died, aged 26.

By that time, they had adopted a dog, bought an investment property in Whitby together, and taken out corresponding $300,000 life insurance policies that could cover their mortgage.

He even made sure that, if he and Costello split, he could still leave the relationship in his Pontiac Le Mans classic car.

But he never made a will, and the High Court at Wellington heard that now Costello and his mother cannot agree what should happen to the property that would have been his had he lived.

Part of the problem is they have not been able to agree on when the couple's relationship had legally begun for property purposes. A de facto relationship needs to have existed for three years to trigger an equal division of assets under the Property (Relationships) Act.

One of the possibilities is that his property might pass to his parents.

In late October 2008, a bad headache led to seizures, brain swelling, and finally death after the heartbreaking decision to turn off life support. A coroner found Hillman died on November 6, 2008, of encephalitis, inflammation of the brain tissue, its cause unknown.

According to a court judgment, it was not long before his mother, Annette Thompson, and Costello had issues about what was to happen to his estate and who was to administer it.

The couple had chosen to own their investment property as joint tenants. Without the inheritance issues being decided, Costello - as the owner through survivorship of their property and the insurance policy proceeds - sold the house for $310,000.

What would have been the return of Hillman's $30,000 cash deposit and his share of the proceeds, $165,000, sits in a lawyer's trust account waiting for the legal dust to clear.

His mother - who apparently would have preferred the woman he gave up for Costello to have remained as his partner - does not doubt his love for Costello. He had the words "love you" engraved inside a ring he gave her, along with a bangle, for her 21st birthday.

About three months after the couple bought the house in February 2008, they signed an agreement contracting out of the Property (Relationships) Act so that Hillman's Pontiac and his $30,000 cash for the house stayed his property.

The agreement also named June 10, 2006, as the start of their de facto relationship. If that date stood, then Hillman died before three years had elapsed, making it a relationship of short duration for property relationship purposes.

But a Family Court judge said the agreement did not necessarily record the true start of the relationship. She found it had actually begun in September 2005, taking it past the three-year mark.

Thompson appealed and a High Court judge, Denis Clifford, this week agreed with her. He thought "reasonably compelling" evidence would be needed to set the start of the relationship differently to the June 2006 date the couple had nominated in their property relationship.

But he also said he did not necessarily see the finding as being as important to resolving the property issues as the parties did. 

Further hearings are expected.

The Dominion Post