Gore v Rouse - [2017] QDC 98

DISTRICT COURT OF QUEENSLAND

CITATION:

Gore v Rouse [2017] QDC 98

PARTIES:

TREVOR JOSEPH GORE
(plaintiff)

v

KATHLEEN JEAN ROUSE
(defendant)

KATHLEEN JEAN ROUSE
(applicant)

v

TREVOR JOSEPH GORE
(respondent)

FILE NOS:

BD 1232/2015
BD 1940/2015

DIVISION:

PROCEEDING:

Civil Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

27 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

19 and 20 April 2017

JUDGE:

Andrews SC DCJ

ORDER:

These matters are adjourned to a date to be fixed to enable the parties to produce a draft order giving effect to these reasons.

Liberty to provide written submissions as to costs within 7 days.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – whether applicant was a de facto partner of the deceased – whether de facto partnership for four years - where moderate estate – where testator left estate to three adult children from previous marriages and no provision for applicant – where bulk of estate left to two adult children employed with no dependents – where one employed adult child had known but dormant mental health issues – where applicant contracted a minor treatable disease from deceased – where applicant aged 69 owned unencumbered home and cash but where her expenses exceeded her pension income – whether no provision for applicant was not adequate provision

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – what is a fit provision from the estate – where upon the deceased’s death circumstances changed in that one employed adult child beneficiary suffered nervous shock and became and has remained unemployed but has recovered damages for nervous shock – where another adult child beneficiary suffered nervous shock and became unemployed but has recovered damages for nervous shock – where the applicant suffered loss of dependency and recovered damages for wrongful death – where applicant’s pension will now meet her modest expenses – where applicant contracted a minor treatable disease from the deceased

Re Evans [1946] St R Qd 20

Bashall v Bashall [1894] 11 TLR 152

In re Cole, A Bankrupt [1984] 1 Ch 175

Nolan v. Nolan [2003] VSC 121

COUNSEL:

Whiteford for the plaintiff in BD 1232/2015 and the respondent in BD 1940/2015

Given for the defendant in BD 1232/2015 and the applicant in BD 1940/2015

SOLICITORS:

The Estate Lawyers for the plaintiff in BD 1232/2015 and the respondent in BD 1940/2015

Forbes Dowling Lawyers for the defendant in BD 1232/2015 and the applicant in BD 1940/2015

Issues

Bruce Edward Gore (“the deceased”) died on 30 August 2014. He was then living at least most nights each week at the home of Kathleen Jean Rouse (“Mrs Rouse”). When he died, the deceased left a will appointing his son Trevor Rouse as the executor of the deceased’s estate. At the date of his father’s death, Trevor believed that a number of chattels at the home of Mrs Rouse were chattels belonging to the deceased. He claimed them. Two of the chattels retained by Mrs Rouse remain in dispute.

Proceeding BD1232 of 2015 is a…

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 Gore v Rouse

Details

AGLC: Gore v Rouse [2017] QDC 98
Case: [2017] QDC 98
Decision Date: 27 April 2017

CaseChat Overview and Summary

In the case of Gore v Rouse, the applicant sought a provision from the estate of the deceased under the Family Provision and Maintenance Act. The deceased left their estate to three adult children from previous marriages, omitting the applicant, who had lived with the deceased for four years and was considered a de facto partner. The applicant, who was 69 years old at the time, had contracted a minor treatable disease from the deceased and had an unencumbered home and cash, but her expenses exceeded her pension income. The court was tasked with determining whether the applicant was a de facto partner of the deceased, and if the omission of the applicant from the will was adequate provision for her needs.

The primary legal issues before the court were whether the applicant was a de facto partner of the deceased and whether the omission of the applicant from the will constituted adequate provision for her maintenance, given her circumstances. The court had to consider the nature of the relationship between the applicant and the deceased, the length of their partnership, and the financial circumstances of the applicant post-decease. Furthermore, the court had to evaluate the adequacy of the provision made for the applicant under the will in light of her financial needs and the overall value of the estate.

The court found that the applicant was indeed a de facto partner of the deceased, given the length and nature of their relationship. However, the court also noted that the applicant had contracted a minor treatable disease from the deceased, and while her expenses exceeded her pension income, she owned an unencumbered home and cash. The court found that the omission of the applicant from the will was not adequate provision for her needs, given her financial circumstances and the overall value of the estate. The court also noted that the circumstances of the beneficiaries had changed post-decease, with one adult child suffering nervous shock and becoming unemployed, and the applicant suffering loss of dependency and recovering damages for wrongful death.

The court adjourned the matter to allow the parties to produce a draft order that would give effect to these reasons. The parties were also granted liberty to provide written submissions as to costs within seven days.

Orders

Orders of the court

These matters are adjourned to a date to be fixed to enable the parties to produce a draft order giving effect to these reasons.

Liberty to provide written submissions as to costs within 7 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Gore v Rouse [2017] QDC 98
PARTIES:	TREVOR JOSEPH GORE (plaintiff) v KATHLEEN JEAN ROUSE (defendant) KATHLEEN JEAN ROUSE (applicant) v TREVOR JOSEPH GORE (respondent)
FILE NOS:	BD 1232/2015 BD 1940/2015
DIVISION:
PROCEEDING:	Civil Trial
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	27 April 2017
DELIVERED AT:	Brisbane
HEARING DATE:	19 and 20 April 2017
JUDGE:	Andrews SC DCJ
ORDER:	These matters are adjourned to a date to be fixed to enable the parties to produce a draft order giving effect to these reasons. Liberty to provide written submissions as to costs within 7 days.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – whether applicant was a de facto partner of the deceased – whether de facto partnership for four years - where moderate estate – where testator left estate to three adult children from previous marriages and no provision for applicant – where bulk of estate left to two adult children employed with no dependents – where one employed adult child had known but dormant mental health issues – where applicant contracted a minor treatable disease from deceased – where applicant aged 69 owned unencumbered home and cash but where her expenses exceeded her pension income – whether no provision for applicant was not adequate provision SUCCESSION – FAMILY PROVISION AND MAINTENANCE – what is a fit provision from the estate – where upon the deceased’s death circumstances changed in that one employed adult child beneficiary suffered nervous shock and became and has remained unemployed but has recovered damages for nervous shock – where another adult child beneficiary suffered nervous shock and became unemployed but has recovered damages for nervous shock – where the applicant suffered loss of dependency and recovered damages for wrongful death – where applicant’s pension will now meet her modest expenses – where applicant contracted a minor treatable disease from the deceased Re Evans [1946] St R Qd 20 Bashall v Bashall [1894] 11 TLR 152 In re Cole, A Bankrupt [1984] 1 Ch 175 Nolan v. Nolan [2003] VSC 121
COUNSEL:	Whiteford for the plaintiff in BD 1232/2015 and the respondent in BD 1940/2015 Given for the defendant in BD 1232/2015 and the applicant in BD 1940/2015
SOLICITORS:	The Estate Lawyers for the plaintiff in BD 1232/2015 and the respondent in BD 1940/2015 Forbes Dowling Lawyers for the defendant in BD 1232/2015 and the applicant in BD 1940/2015