Sale v Rudys
[2001] QSC 293
•10 August 2001
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 respondentsSOLICITORS: De Groot & Company for applicant
Barwicks Wisewoulds Lawyers for first and second respondents
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.
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.
“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.”
The deceased’s wife Rita Ona Rudys (known as “Anna”) died on 4 March 1992.
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, in terms of the definition referred to above, a period of only about 6 years and 3 months within which to work.
The evidence as to the nature of the relationship between the applicant and the deceased was very mixed. Taken as a whole it revealed a relationship which on the one hand was on and off for the period of about six years and, in the view of a couple of witnesses, constant for almost the whole of that time. There is no doubt that the relationship between them was sometimes aggressive, noisy and drunken. There were many occasions upon which the police were called to their house to seek to end altercations or to act upon the complaint of one or other of them. One Dutton (who gave evidence for the applicant) was of the clear view that the deceased relied upon the applicant for companionship. The deceased apparently referred to the applicant as his “housekeeper” which Dutton took to be a pseudonym for politely saying that she was his girlfriend. He described them as affectionate with one another and would hold hands whenever they went anywhere. He said they did everything together. He described a loving, caring relationship which is difficult to comprehend bearing in mind the police records which were tendered and which show a rather different relationship between them.
Similarly one Airen observed a loving relationship. He saw that from their conversations together and their attitude towards each other. He described the relationship as being generally harmonious although there were a “few blues”. He recalled an occasion when the deceased was intoxicated and told the applicant to “get out”. He described arguments which arose when either of them, or both, had had too much to drink. These, however, would blow over and the next morning everything would be back to normal. He described the longest period that they were apart as being one week which arose as a result of an argument.
This does not sit easily with some other evidence, in particular the evidence of two young solicitors who were both students in a nearby house at the relevant times. Those young men, Messrs Peter Noble and Philip Hall, lived in the house together as students with other people. Noble observed during the two years in 1997 and 1998 when they lived there that the relationship between the applicant and the deceased was on and off. He described it as “Beverley Sale came and went”. He observed several periods of more than a few weeks during that two years when the applicant was absent from the house. He described fights and an occasion when the deceased had blood on his face which needed cleaning up.
It is common ground that the applicant and the deceased were not together in the house for the period of two weeks prior to his death. I do not draw any inference one way or the other from this.
Mr Hall also lived in the nearby house for about two years in 1997 and 1998. He said that for most of that time the applicant appeared to live with the deceased, and that they appeared to be a couple in a relationship. But the relationship he described was an “on again off again” relationship, and that there would be arguments between them and incidents involving the police. He recalled excessive drinking and violence by the applicant towards the deceased. More importantly, from his observations, he did not believe that for a period of about six months prior to the deceased’s death he and the applicant were in a relationship. He says that the applicant was not living at the house and as is common ground was not at the house at the time of his death. He was the person who found the deceased dead on his bed.
The applicant had endeavoured to obtain after the death of the deceased, a favourable statement from Mr Hall as to his observations with respect to the alleged relationship. He wrote two letters, both dated 15 September 1998. In one he wrote inter alia:
“I believe Michael and Beverly were in a defacto relationship when I first met them.
There were many occasions when the relationship seemed to break down, and Beverly would leave the house for short periods – several days or a week – after which they would reconcile.
These occasions became more frequent, and the periods of reconciliation shorter, such that by the middle of this year I would say Beverly was not living at Michael’s house.”
In the other letter Mr Hall wrote inter alia:
“Basically, I can only write what I have observed myself, and I can’t say that you were in a relationship at the time Mikas died because I didn’t see you around much then - that is, (a) I didn’t observe you in a relationship and (b) what I did observe (ie, you not being around) would suggest that you weren’t in a relationship. Do you know what I mean?
BUT, as you said, that doesn’t mean that you weren’t in a relationship, so I’ve changed it to not say that the relationship had ended. I do have to say that you weren’t living there any more though, since that’s a critical factor in the whole thing, and again, if I left that out and it came out in cross-examination it would look pretty bad.
So you see it’s awkward for me to write anything much that’s helpful. What you really need is evidence from the others you were talking about who actually observed you with Mikas close to when he died.
So this is the best I feel I can honestly do. I expect you might burn it, and I’ll understand if you do because I know the whole thing is pretty frustrating for you. I only ask that you believe me when I say that I’m not taking sides; I’m just trying to be honest.”
That evidence is not consistent with the applicant’s evidence.
There was evidence from the applicant and from her daughter as to clothing and furniture which was stored under the house which is said to be evidence of a continued relationship between the applicant and the deceased. I am satisfied that some of the applicant’s daughter’s possessions and some of the applicant’s also were stored under the house. But I do not regard this evidence as being conclusive as anything. Also, the evidence of Messrs Ozkan, Caruso, and Katinas, was unhelpful to the applicant’s claim that she was the deceased’s de facto spouse.
There was, of course, evidence other than that of Airen and Dutton which did depose to a relationship between the applicant and the deceased. It is a question for me to determine whether I am satisfied that the applicant falls within either of the limbs of the definition referred to above.
The testimony of members of the deceased’s family, who had a clear mind set against the applicant, did not assist me one way or the other.
In order to reach a conclusion it is necessary to determine what is meant by the term “connubial relationship” as that term is used in the definition. There does not appear to be any judicial pronouncement as yet on that term. However “it is generally taken to mean a relationship of the usual nature of the parties to a marriage”. See Preece “The Impact of the Law of Inheritance on the Family; Sydney 24-26 July 2000; 7th Australian Institute of Family Studies Conference. I agree with that view.
Further, the discussion by Fullagar J in Dobson v Dobson [1947] VLR 244 at 251, 252 is of assistance. The various dictionaries described the term “connubial” as follows:
(a) “of marriage or wedlock; matrimonial; conjugal”. Macquarie Dictionary;
(b) “connubial state or condition; the practice or right of marrying; any action characteristic of the married state.” Oxford English Dictionary 2nd ed; and
(c) “The general relationship of husband and wife” (Dobson v Dobson (supra). Stroud’ Judicial Dictionary 5th ed.
I am, on the evidence, unable to conclude that the applicant lived in a “connubial relationship” within the meaning of that term as described above with the deceased for a continuous period of at least five years ending on his death. The relationship was clearly one which had its ups and downs and because of that the parties spent many periods apart from each other. I, in particular, accept the evidence of Hall and Noble.
Neither am I able to conclude that the evidence reveals a “connubial relationship” within the meaning of the second limb of the definition. I am satisfied that for a large part of the period between when the applicant says she first moved in with the deceased and his death she did live there. But I am unable to find that such periods totalled at least five years; or that during all of that time the relationship was a connubial one. The preponderance of evidence was that it was at times connubial and at other times aggressive alcoholic and bitter. It follows therefore that I must order that the application be dismissed. In that event, Mr Matthews, of counsel for the deceased indicated that on the giving of judgment he would be in a position to have the appropriate form for a grant of administration of the estate to the deceased’s daughter available.
I shall hear argument as to any consequential orders and costs.
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