Lohse v Lewis - [2004] QSC 36

SUPREME COURT OF QUEENSLAND

CITATION:

Lohse v Lewis & Anor [2004] QSC 36

PARTIES:

CYNTHIA JUNE LOHSE
(applicant)
v
ROSMOND ANN LEWIS
AMY BOND
(respondents)

FILE NO:

Maryborough S5 of 2001
BS6050 of 2003

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

5 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

19 June and 20-22 October 2003

JUDGE:

Mullins J

ORDER:

1. That further provision be made for the proper maintenance and support of the applicant out of the estate of Roy Ruthenberg deceased by a distribution to the applicant of the sum of $500,000 from the residue of the estate.
2. That pursuant to s 41(3) of the Succession Act 1981 the estate of Roy Ruthenberg deceased, other than the residue, be exonerated from the payment of the said sum of $500,000 to the applicant.

CATCHWORDS:

TESTATOR”S FAMILY MAINTENANCE – APPLICATION OF DE FACTO SPOUSE – whether the applicant was a de facto spouse within the definition in s 5 Succession Act 1981 (Q) – meaning of “connubial relationship” – whether connubial relationship had existed for at least five years prior to the deceased’s death

TESTATOR”S FAMILY MAINTENANCE – APPLICATION OF DE FACTO SPOUSE – whether the applicant was a “dependant” of the deceased within the definition in s 40 Succession Act 1981 (Q) – meaning of “wholly or substantially maintained or supported” – whether the deceased made adequate provision from his estate for maintenance of the applicant

Succession Act 1981

Aafjes v Kearney (1976) 180 CLR 199
AA Tegel Pty Ltd v Madden (1985) 2 NSWLR 591
Re Bonny [1986] 2 Qd R 80
Re Cobb [1989] 1 Qd R 522
Commissioner for Superannuation v Scott (1987) 13 FCR 404
Department of Social Security v Wetter (1993) 40 FCR 22
Re Will of MacKenzie (unreported, S Ct (Qld), Ryan J, 27 November 1992)
In the Marriage of Pavey (1976) 25 FLR 450
Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 62 FLR 437

Roy v Sturgeon (1986) 11 NSWLR 454
Singer v Berghouse (1994) 181 CLR 201
In the Marriage of Todd(No 2) (1976) 25 FLR 260
Tulk v Tulk [1907] VLR 64
Williams v Aucutt [2000] 2 NZLR 479

COUNSEL:

MP Amerena for the applicant
DRM Murphy for the respondents

SOLICITORS:

Morton & Morton for the applicant
Nicol Robinson Halletts as town agents for Roberts and Kuskie for the respondents

MULLINS J: Ms Cynthia June Lohse (“the applicant”) seeks further provision pursuant to s 41 of the Succession Act 1981 (“the Act”) from the estate of the late Roy Ruthenberg (“the deceased”) who died on 2 June 2000. The applicant seeks the order on the basis that she was the de facto spouse of the deceased.

Probate of the last will of the deceased made on 1 June 2000 was granted to the executrices named in that will Ms Rosmond Ann Lewis and Mrs Amy Bond (“the respondents”).

Evidence

The evidence in chief of the witnesses was primarily given on…

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 Lohse v Lewis

Details

AGLC: Lohse v Lewis [2004] QSC 36
Case: [2004] QSC 36
Decision Date: 5 March 2004

CaseChat Overview and Summary

In the case of Lohse v Lewis, the applicant sought a distribution from the estate of the deceased, Roy Ruthenberg, pursuant to the Succession Act 1981. The applicant argued she was a de facto spouse of the deceased and thus entitled to maintenance from his estate. The court was required to determine if the applicant qualified as a de facto spouse under the Act, and if so, whether she was a "dependant" who was "wholly or substantially maintained or supported" by the deceased. The crux of the matter lay in the interpretation of the term "connubial relationship" and whether such a relationship existed for at least five years prior to the deceased’s death.

The court examined the nature of the relationship between the applicant and the deceased, assessing the evidence of their cohabitation and the extent to which the applicant was financially supported by the deceased. The definition of "connubial relationship" was critically analysed, alongside the evidence presented on the duration and nature of their relationship. The court concluded that the applicant did qualify as a de facto spouse, as the relationship met the statutory requirements in terms of duration and character. Additionally, the court found that the applicant was wholly or substantially maintained or supported by the deceased, satisfying the criteria for being a dependant under the Act.

Consequently, the court ordered that a sum of $500,000 be distributed to the applicant from the residue of the deceased's estate, to ensure her proper maintenance and support. The court also ruled that the other portions of the estate were not liable for this payment, thereby limiting the financial burden on other potential beneficiaries. This decision highlights the importance of the interpretation of statutory definitions and the weight of evidence in determining the entitlements of applicants under the Succession Act.

Orders

Orders of the court

1. That further provision be made for the proper maintenance and support of the applicant out of the estate of Roy Ruthenberg deceased by a distribution to the applicant of the sum of $500,000 from the residue of the estate.

2. That pursuant to s 41(3) of the Succession Act 1981 the estate of Roy Ruthenberg deceased, other than the residue, be exonerated from the payment of the said sum of $500,000 to the applicant.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lohse v Lewis & Anor [2004] QSC 36
PARTIES:	CYNTHIA JUNE LOHSE (applicant) v ROSMOND ANN LEWIS AMY BOND (respondents)
FILE NO:	Maryborough S5 of 2001 BS6050 of 2003
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	5 March 2004
DELIVERED AT:	Brisbane
HEARING DATE:	19 June and 20-22 October 2003
JUDGE:	Mullins J
ORDER:	1. That further provision be made for the proper maintenance and support of the applicant out of the estate of Roy Ruthenberg deceased by a distribution to the applicant of the sum of $500,000 from the residue of the estate. 2. That pursuant to s 41(3) of the Succession Act 1981 the estate of Roy Ruthenberg deceased, other than the residue, be exonerated from the payment of the said sum of $500,000 to the applicant.
CATCHWORDS:	TESTATOR”S FAMILY MAINTENANCE – APPLICATION OF DE FACTO SPOUSE – whether the applicant was a de facto spouse within the definition in s 5 Succession Act 1981 (Q) – meaning of “connubial relationship” – whether connubial relationship had existed for at least five years prior to the deceased’s death TESTATOR”S FAMILY MAINTENANCE – APPLICATION OF DE FACTO SPOUSE – whether the applicant was a “dependant” of the deceased within the definition in s 40 Succession Act 1981 (Q) – meaning of “wholly or substantially maintained or supported” – whether the deceased made adequate provision from his estate for maintenance of the applicant Succession Act 1981 Aafjes v Kearney (1976) 180 CLR 199 AA Tegel Pty Ltd v Madden (1985) 2 NSWLR 591 Re Bonny [1986] 2 Qd R 80 Re Cobb [1989] 1 Qd R 522 Commissioner for Superannuation v Scott (1987) 13 FCR 404 Department of Social Security v Wetter (1993) 40 FCR 22 Re Will of MacKenzie (unreported, S Ct (Qld), Ryan J, 27 November 1992) In the Marriage of Pavey (1976) 25 FLR 450 Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 62 FLR 437 Roy v Sturgeon (1986) 11 NSWLR 454 Singer v Berghouse (1994) 181 CLR 201 In the Marriage of Todd(No 2) (1976) 25 FLR 260 Tulk v Tulk [1907] VLR 64 Williams v Aucutt [2000] 2 NZLR 479
COUNSEL:	MP Amerena for the applicant DRM Murphy for the respondents
SOLICITORS:	Morton & Morton for the applicant Nicol Robinson Halletts as town agents for Roberts and Kuskie for the respondents