O'Neill v Martini

[2012] QSC 198

SUPREME COURT OF QUEENSLAND

CITATION:

O’Neill v Martini & Anor [2012] QSC 198

PARTIES:

RAQUEL O’NEILL

(applicant)

v

PABLO MARTINI & RUDISINDO ALONSO AS EXECUTORS OF THE ESTATE OF MANUEL RODRIGUEZ (D’CED)

(respondent)

FILE NO/S:

BS3812/08

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

2 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

2, 3, 4 April 2012

JUDGE:

Douglas J

ORDER:

Application dismissed

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – JURISDICTION – PERSONS IN WHOSE FAVOUR ORDER MAY BE MADE – where the applicant alleged that she and the deceased had been in a de facto relationship since October 2003 – where the deceased left his estate to his brothers and made no provision for the applicant – where the deceased died on 8 July 2006 – where evidence that no serious relationship existed between the applicant and the deceased until some time in 2005 – where issues of credit of the applicant – whether the estate of the deceased person was liable for maintenance – whether there was a de facto relationship for any period

Acts Interpretation Act1954 (Qld), s 32DA

Succession Act1981 (Qld), ss 5AA, 41

J A McBeath Nominees Pty Ltd v Jenkins Development Corporation Pty Ltd [1992] 2 Qd R 121, referred

S v B [2004] QCA 449, cited

Weston v Public Trustee (1986) 4 NSWLR 407, referred

COUNSEL:

R O’Neil (self-represented) for the applicant

V G Brennan for the respondent

SOLICITORS:

R O’Neil (self-represented) for the applicant

Quadrio Lee Lawyers for the respondent

1. Douglas J:  The applicant claims to have been the de facto partner of the deceased for more than two years before his death.  If she were she would be entitled to seek better provision from his estate than he made for her, which was nothing.[1]

   [1]See s 41 of the Succession Act1981 (Qld) and the definition of “spouse” in s 5AA of that Act and s 32DA of the Acts Interpretation Act1954 (Qld).

1. If she were not his de facto spouse she is not entitled to anything. My conclusion is that she was in some form of a relationship with the deceased for a limited period of less than two years before his death, which was probably not a de facto relationship, so that she has no claim against his estate. 

Background facts

1. The deceased, Manuel Rodriguez, died on 8 July 2006 leaving a will executed on 18 May 1995 which left his estate to his brothers who lived in Leon in Spain.  The respondent, Rudisindo Alonso, is his executor.  Mr Rodriguez had never married. 

1. The applicant’s case is that she and Mr Rodriguez had been partners in a de facto relationship since October 2003.  For reasons which will become obvious I do not believe her. The critical issue is whether such a relationship existed from 8 July 2004. 

When did a relationship commence?

1. Mrs O’Neill and her two children, Kymberly and Griffith O’Neill, gave evidence that the relationship between her and Mr Rodriguez began in…