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 2003DIVISION:
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 1981Aafjes 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 437Roy 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 479COUNSEL:
MP Amerena for the applicant
DRM Murphy for the respondentsSOLICITORS:
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…
Continue reading Lohse v Lewis
Sign in free to access the full text
- AGLC
- Lohse v Lewis [2004] QSC 36
- Case
- [2004] QSC 36
- Decision Date
CaseChat Overview and Summary
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.