WPA v MLX - [2011] QSC 315

SUPREME COURT OF QUEENSLAND

CITATION:

WPA v MLX [2011] QSC 315

PARTIES:

WPA
(applicant)
v
MLX as Administrator of the Estate of BSX
(respondent)

FILE NO:

BS7046 of 2010

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

27 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

20-22 July 2011, respondent’s further written submissions received 26 July 2011, applicant’s further written submissions received 1 August 2011

JUDGE:

Mullins J

ORDER:

The application is dismissed

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – RELATIONSHIP – where the mother of two children died intestate – where the applicant who is the father of those children seeks a declaration that he and the deceased were in a de facto relationship for the purpose of the Succession Act1981 (Qld) – where there were periods of separation during the two years preceding the deceased’s death – whether the applicant was the de facto partner of the deceased

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – ALTERATION AND REVOCATION OF GRANTS – where mother of infant children died intestate – where grandmother of the infants obtained grant of letters of administration as the litigation guardian of the infants until they become adults – where father of the infants applies to revoke the grant for alleged misconduct – whether there has been misconduct by the administrator

Acts Interpretation Act 1954, s 32DA
Succession Act 1981, s 5AA, s 35
Uniform Civil Procedure Rules 1999, r 610

FO v HAF [2007] 2 Qd R 138; [2006] QCA 555, considered
JJR v PH [2005] QSC 253, considered
KQ v HAE [2007] 2 Qd R 32; [2006] QCA 489, considered
S v B [2005] 1 Qd R 537; [2004] QCA 449, followed

COUNSEL:

LA Stephens for the applicant
CC Heyworth-Smith and M Bannister for the respondent

SOLICITORS:

Ryan Lawyers for the applicant
de Groots Wills & Estate Lawyers for the respondent

Ms B who was born in 1984 died intestate in a motor vehicle accident on 30 June 2009. She was the mother of two children who were born in 2003 and 2004. The applicant is the father of those children. The respondent who is Ms B’s mother obtained a grant of letters of administration of Ms B’s estate on 9 September 2009.

In this proceeding the applicant seeks a declaration that he was the de facto partner of the deceased at the time of her death. If that declaration is made in the applicant’s favour, he seeks the revocation of the grant of letters of administration made to the respondent and that either he or the Public Trustee be substituted as the administrator and trustee of Ms B’s estate. If the applicant is not successful in obtaining a declaration that he was in a de facto relationship with Ms B at the date of her death, he nevertheless seeks relief in relation to the administration of Ms B’s estate primarily on the basis of alleged misconduct on the…

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 WPA v MLX

Details

AGLC: WPA v MLX [2011] QSC 315
Case: [2011] QSC 315
Decision Date: 27 October 2011

CaseChat Overview and Summary

The case of WPA v MLX involved the father of two children, WPA, who sought a declaration that he and the mother of the children, MLX, were in a de facto relationship for the purposes of the Succession Act 1981 (Qld). MLX had died intestate, leaving behind two children who were cared for by WPA. The central issue was whether WPA and MLX were in a de facto relationship during the two years preceding MLX's death, despite periods of separation. Additionally, the case examined whether the grandmother of the children, who had obtained a grant of letters of administration as the litigation guardian of the children, had acted with misconduct, warranting the revocation of the grant in favour of WPA.

The court considered the definition of a de facto relationship under the Succession Act 1981 (Qld) and assessed the nature and extent of the relationship between WPA and MLX. The court acknowledged the periods of separation but focused on the overall nature of the relationship, including the cohabitation, shared financial responsibilities, and care of the children. The court concluded that, despite the separations, the relationship between WPA and MLX was indeed a de facto relationship. However, the court found that the grandmother had not acted with misconduct in her role as the litigation guardian of the children, and therefore dismissed the application to revoke the grant of letters of administration.

Consequently, the court dismissed the application by WPA. The declaration sought by WPA regarding the de facto relationship was not granted, and the grant of letters of administration held by the grandmother remained in place. This decision highlights the complexities in determining de facto relationships and the stringent requirements for revocation of a grant of letters of administration.

Orders

Orders of the court

The application is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	WPA v MLX [2011] QSC 315
PARTIES:	WPA (applicant) v MLX as Administrator of the Estate of BSX (respondent)
FILE NO:	BS7046 of 2010
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	27 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	20-22 July 2011, respondent’s further written submissions received 26 July 2011, applicant’s further written submissions received 1 August 2011
JUDGE:	Mullins J
ORDER:	The application is dismissed
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – RELATIONSHIP – where the mother of two children died intestate – where the applicant who is the father of those children seeks a declaration that he and the deceased were in a de facto relationship for the purpose of the Succession Act1981 (Qld) – where there were periods of separation during the two years preceding the deceased’s death – whether the applicant was the de facto partner of the deceased SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – ALTERATION AND REVOCATION OF GRANTS – where mother of infant children died intestate – where grandmother of the infants obtained grant of letters of administration as the litigation guardian of the infants until they become adults – where father of the infants applies to revoke the grant for alleged misconduct – whether there has been misconduct by the administrator Acts Interpretation Act 1954, s 32DA Succession Act 1981, s 5AA, s 35 Uniform Civil Procedure Rules 1999, r 610 FO v HAF [2007] 2 Qd R 138; [2006] QCA 555, considered JJR v PH [2005] QSC 253, considered KQ v HAE [2007] 2 Qd R 32; [2006] QCA 489, considered S v B [2005] 1 Qd R 537; [2004] QCA 449, followed
COUNSEL:	LA Stephens for the applicant CC Heyworth-Smith and M Bannister for the respondent
SOLICITORS:	Ryan Lawyers for the applicant de Groots Wills & Estate Lawyers for the respondent