Burton v Spencer - [2015] QSC 356

SUPREME COURT OF QUEENSLAND

CITATION:

Burton v Spencer [2015] QSC 356

PARTIES:

DAPHNE BURTON

(applicant)

v
KENT RICHARD SPENCER also known as KENNETH RICHARD SPENCER

(respondent)

FILE NO/S:

No 820 of 2012

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

15 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

2, 3, 4, 5 November 2015

JUDGE:

Atkinson J

ORDERS:

1. It is declared that the respondent was not a spouse or a de facto partner of Sharon Ann Burton (deceased) (as those terms are defined in the Succession Act 1981 (Qld) and the Acts Interpretation Act 1954 (Qld)).

2. It is ordered that Letters of Administration on Intestacy be granted to the applicant.

CATCHWORDS:

SUCCESSION LAW – INTESTACY AND DISTRIBUTION ON INTESTACY – where the applicant and the deceased had been in a relationship for some years – where there was evidence that the applicant and the deceased had lived together for some of that period – where the nature of that relationship had changed over the years, including a breakdown in the de facto relationship during 2008 to 2011 – whether the applicant and the deceased had lived together as a couple in a genuine domestic relationship for a continuous period of two years prior to her death – whether letters of administration should be granted to the respondent, the mother of the deceased

Acts Interpretation Act 1954 (Qld) s 32DA
Succession Act 1981 (Qld) s 5AA, s 35, sch 2

Uniform Civil Procedure Rules 1999 (Qld) r 610(1), r 610(3)

Burton v Spencer [2015] QSC 187 cited
S v B [2005] 1 Qd R 537 followed

Spencer v Burton [2015] QCA 104 cited and applied

COUNSEL:

JA Greggery for the applicant

SJ Keim SC with RA Quirk for the respondent

SOLICITORS:

Connolly Suthers for the applicant

Purcell Taylor for the respondent

ATKINSON J: Sharon Burton[1] died on 6 July 2012 after suffering from metastatic breast cancer. She was 56 years old, having been born on 19 June 1956. She left behind many devastated friends and relatives. Unfortunately, she had not made a Will so this case was necessary to determine who should administer her estate and who should be its beneficiaries.
[1] She referred to herself as “Miss” so that is the title used in this judgment.
The distribution of a person’s estate when the person dies without a Will is determined by s 35 of the Succession Act 1981 (Qld). That section refers to Schedule 2 of the Succession Act which provides that, if the intestate is not survived by issue but is survived by a spouse, and there is only one surviving spouse, the spouse is entitled to the whole of the residuary estate. If the intestate is not survived by any spouse or any issue but is survived by a parent, then the parent is entitled to the whole of the residuary estate.
Priority for the grant of letters of administration on intestacy is governed by r 610(1) of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burton v Spencer

Details

AGLC: Burton v Spencer [2015] QSC 356
Case: [2015] QSC 356
Decision Date: 15 December 2015

CaseChat Overview and Summary

The case of Burton v Spencer involved a dispute over the succession rights of two parties in relation to the estate of Sharon Ann Burton, who had passed away. The applicant, who sought letters of administration on intestacy, contended that they had been in a relationship with the deceased for several years and had lived together at some point during that period. The respondent, the mother of the deceased, contested the applicant’s claim, arguing that they were entitled to the estate. The legal issue before the court was whether the applicant and the deceased had lived together as a couple in a genuine domestic relationship for a continuous period of two years prior to her death, which would entitle the applicant to letters of administration.

The court considered the evidence presented by the parties and their witnesses regarding the nature of the relationship between the applicant and the deceased. While there was evidence that the applicant and the deceased had been in a relationship for some years, there were differing opinions among the witnesses about whether they had lived together as a couple in a genuine domestic relationship for the required period. The court also noted that the relationship between the parties had changed over time, including a breakdown in 2008 to early 2011. After reviewing all the evidence, the court concluded that it was not satisfied that the applicant and the deceased had lived together as a couple in a genuine domestic relationship for a continuous period of two years prior to her death.

In light of the above findings, the court declared that the respondent was not a spouse or a de facto partner of the deceased and granted letters of administration on intestacy to the applicant. The court further ordered that the parties be heard on any consequential orders and costs. This decision highlights the importance of proving the existence of a genuine domestic relationship in succession disputes and the need for clear and compelling evidence to support such claims.

Orders

Orders of the court

1. It is declared that the respondent was not a spouse or a de facto partner of Sharon Ann Burton (deceased) (as those terms are defined in the Succession Act 1981 (Qld) and the Acts Interpretation Act 1954 (Qld)).

2. It is ordered that Letters of Administration on Intestacy be granted to the applicant.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There was a division of opinion from the witnesses about this aspect of the relationship between Mr Spencer and Miss Burton. Her family did not regard them as being in a marriage-like relationship. Many of their friends knew that the relationship between them had existed for a long time but were partisan in their expression of views about, or ignorant of, whether or not that relationship changed during 2008 to early in 2011. Conclusion Taking into account all of the evidence before me as I have, I am not satisfied that Mr Spencer and Miss Burton were de facto partners for a continuous period of at least two years ending when Miss Burton died on 6 July 2012. Orders Accordingly, I make the following orders:1.It is declared that the respondent was not a spouse or a de facto partner of Sharon Ann Burton (deceased) (as those terms are defined in the Succession Act 1981 (Qld) and the Acts Interpretation Act 1954 (Qld)).2.It is ordered that Letters of Administration on Intestacy be granted to the applicant. I will hear the parties as to any consequential orders and as to costs.

Ratio Decidendi

Legal Principle Established

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CITATION:	Burton v Spencer [2015] QSC 356
PARTIES:	DAPHNE BURTON (applicant) v KENT RICHARD SPENCER also known as KENNETH RICHARD SPENCER (respondent)
FILE NO/S:	No 820 of 2012
DIVISION:	Trial Division
PROCEEDING:	Civil Trial
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	15 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	2, 3, 4, 5 November 2015
JUDGE:	Atkinson J
ORDERS:	1. It is declared that the respondent was not a spouse or a de facto partner of Sharon Ann Burton (deceased) (as those terms are defined in the Succession Act 1981 (Qld) and the Acts Interpretation Act 1954 (Qld)). 2. It is ordered that Letters of Administration on Intestacy be granted to the applicant.
CATCHWORDS:	SUCCESSION LAW – INTESTACY AND DISTRIBUTION ON INTESTACY – where the applicant and the deceased had been in a relationship for some years – where there was evidence that the applicant and the deceased had lived together for some of that period – where the nature of that relationship had changed over the years, including a breakdown in the de facto relationship during 2008 to 2011 – whether the applicant and the deceased had lived together as a couple in a genuine domestic relationship for a continuous period of two years prior to her death – whether letters of administration should be granted to the respondent, the mother of the deceased Acts Interpretation Act 1954 (Qld) s 32DA Succession Act 1981 (Qld) s 5AA, s 35, sch 2 Uniform Civil Procedure Rules 1999 (Qld) r 610(1), r 610(3) Burton v Spencer [2015] QSC 187 cited S v B [2005] 1 Qd R 537 followed Spencer v Burton [2015] QCA 104 cited and applied
COUNSEL:	JA Greggery for the applicant SJ Keim SC with RA Quirk for the respondent
SOLICITORS:	Connolly Suthers for the applicant Purcell Taylor for the respondent