Sale v Rudys

SUPREME COURT OF QUEENSLAND

CITATION:

Sale v Rudys & Anor [2001] QSC 293

PARTIES:

BEVERLY JEAN SALE
(applicant)
v
FRANK RUDYS
(first respondent)
MARIA AUSRA O’NEILL
(formerly known as MARIA AUSRA RUDYS)
(second respondent)

FILE NO/S:

S6197 of 1999

DIVISION:

Trial Division

DELIVERED ON:

10 August 2001

DELIVERED AT:

Brisbane

HEARING DATE:

19 March 2001

JUDGE:

Douglas J

ORDER:

Application dismissed

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – the deceased died intestate and the applicant filed an application for a grant of letter of administration on the grounds that she was his “de facto spouse” – whether the applicant was in a “connubial relationship”.

Succession Act 1981, s 5

Dobson v Dobson [1947] VLR 244

COUNSEL:

D Murphy for applicant
T Matthews for first and second respondents

SOLICITORS:

De Groot & Company for applicant
Barwicks Wisewoulds Lawyers for first and second respondents

1. DOUGLAS J:   Mikas Rudys (“the deceased”) died in Brisbane on 20 August 1998.  He died intestate.  His only substantial asset was the house in which he lived at 23 Middle Street, Highgate Hill in the State of Queensland.

1. The applicant, Beverly Jean Sale, filed an application for a grant of letters of administration in this Court at Brisbane on 30 June 1999.  She claims an entitlement to that grant on the grounds that she was his “de facto spouse”.  A caveat against the grant was filed on behalf of the deceased’s only sister, Adele Rudys, and his only brother Frank Rudys, on the grounds that they deny that the applicant was the deceased’s de facto spouse.

1. “De facto Spouse” is defined in s 5 of the Succession Act 1981 as:

“… means a person who –

(a)        has lived in a connubial relationship with the deceased person for a continuous period of at least 5 years ending on the death of the deceased person; or

(b)        within the period of 6 years ending on the death of the deceased person, has lived in a connubial relationship with the deceased person for periods totalling at least 5 years that include a period ending on the death of the deceased person.”

1. The deceased’s wife Rita Ona Rudys (known as “Anna”) died on 4 March 1992.

1. The applicant says that she met the deceased shortly after his wife had died.  At the time he was living alone on the property.  They met at the local shop where, she says, he appeared to be “very down, lonely, sad and distraught”.  They formed a relationship and after the first night upon which they slept together (which was shortly after they first met) she says that she moved into the property to live with the deceased.  This was in about May 1992.  She says that they continued to live together at the property until his death on 20 August 1998.  It can be seen therefore that in order to succeed in proving that she was the deceased’s de facto spouse the applicant has,…