Lohse v Lewis[2004] QSC 36

SUPREME COURT OF QUEENSLAND

1. 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. 

2. 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

3. The evidence in chief of the witnesses was primarily given on affidavit. Most of the deponents were then cross examined. The hearing commenced, in effect, when two of the applicant’s witnesses, Mr and Mrs Sempf, were cross examined, when the court was sitting in Maryborough in June last. This was arranged because of the ages of Mr and Mrs Sempf.  The hearing of the application then took place in Brisbane between 20 and 22 October 2003.

4. The credit of the applicant was in issue. The applicant could succeed on the application only if her evidence about the nature of her relationship with the deceased and the timing of the commencement of the relationship were accepted. Not surprisingly, whilst the applicant was giving evidence and under cross-examination she was defensive of her position. After considering the applicant’s evidence in the context of all the evidence, I have concluded that her evidence was basically reliable, except for one important aspect which I identify where her evidence overstated what occurred.

Issues

5. The issues can be summarised as follows:

1. whether the applicant was a de facto spouse within the meaning of the relevant definition of the Act;

2. whether the applicant was a dependant of the deceased at the date of the deceased’s death;

3. whether the deceased failed to make adequate provision from his estate for the proper maintenance and support of the applicant;

4. whether the court in the exercise of its discretion should order that provision be made out of the estate of the deceased for the applicant.

Legislation

6. The definition of “de facto spouse” that was found in s 5 of the Act at the date of the deceased’s death was in the following terms:

“de facto spouse”, of a deceased person, 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 totally at least 5 years that include a period ending on the death of the deceased person.”

7. The definition of “dependant” was at the time of deceased’s death found in s 40 of the Act in the following terms:

“dependant” means, in relation to a deceased person, any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death being-

(a)a parent of that deceased person; or

(b)the parent of a surviving child under the age of 18 years of that deceased person; or

(c)a person under the age of 18 years; or

(d)a de facto spouse.”

8. Section 41(1) and (1A) of the Act provide:

“41.(1) If any person (the “deceased person”) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

(1A) However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.”

Applicant’s history

9. The applicant was born on 30 September 1940. When she was 19 years old, she married her husband and they resided at his property which was near Brooweena for 31 years until he died in 1989. The applicant continued to run that property until it was sold in 1991. The applicant and her husband had three children who at the date of the hearing were aged about 42, 40 and 38 years.

10. The applicant received about $110,000 from her husband’s estate, but she had accumulated a significant debt of $48,000 whilst running the property during her husband’s illness which she paid from these funds. She subsequently used the balance of the funds to defray general living expenses.

11. From 1992 the applicant was working casually as a real estate salesperson. She was listing dairy properties for sale. She was given information about the deceased’s property and went to inspect it. When she went to inspect the property a second time, after the deceased had cleaned it up, they talked about the difficulty in obtaining good workers for the dairy and the applicant indicated that she was prepared to run the dairy for the deceased. The deceased agreed to pay the applicant $300 per week and provide her with rent free accommodation, in return for the applicant taking over operating the dairy.

12. At that time the only asset of any value which the applicant had was her Holden Jackaroo 2 door 4WD vehicle which she had obtained as a new vehicle in 1991 and for which she was still making repayments.

Common ground

13. It is common ground that in March 1994 the applicant started working at the dairy on the land described as Portion 37, Kinleymore Road, Proston, lived in the house on that property and was paid $300 per week by the deceased for her duties in operating the dairy. The deceased who had turned 70 years old in September 1993 was a long term resident of the area who had acquired a number of properties that were used for primary production. He had never married and had no children. He was hardworking and in March 1994 was living a relatively frugal existence in the residence on his property known as the piggery block.

14. At some stage after this business relationship commenced, a personal relationship developed between the applicant and the deceased resulting in the deceased taking up residence in the house on Portion 37 with the applicant. It is not in issue that there was a sexual relationship between the applicant and the deceased.

15. It is also common ground that the deceased entered into a share farming agreement with the applicant which was executed on 17 March 1997, but that despite the terms of that agreement, the deceased continued paying the applicant at the rate of $300 per week.

16. The dairy ceased operating on Portion 37 on 28 January 2000. The deceased ceased paying the applicant the weekly sum of $300 around that time. The applicant applied for a Newstart Allowance on 16 February 2000 and then applied for a disability pension on 23 March 2000. As from 25 February 2000, the applicant was in receipt of benefits paid through Centrelink.

17. After the dairy ceased operating, both the deceased and the applicant continued residing in the house on Portion 37. The deceased exchanged the dairy herd for pregnant Hereford beef cows.

18. On 3 March 2000 the deceased entered into a contract to purchase the grazing property known as “Rossgae” at Proston together with the livestock on that property. The total purchase price was $1,050,000. That purchase was settled on 20 April 2000. The deceased intended relocating to Rossgae and it was the common understanding that the applicant would continue to reside with him there. The deceased borrowed $700,000 from Elders Rural Services Limited to assist with the purchase of Rossgae.

19. On 1 June 2000 the deceased was complaining of severe pain in his shoulder and the applicant drove him to Murgon hospital at 7.00am. He was diagnosed as having had a serious heart attack. The deceased asked the applicant to organise for his solicitor Mr Scott Roberts to come and see him.

20. Mr Roberts attended on the deceased that day. He had with him copies of the deceased’s previous wills and took instructions by going through the provisions of the last will that the deceased had made and either confirming that the clause was to remain the same or obtaining fresh instructions. The new will prepared by Mr Roberts was then executed by the deceased on 1 June 2000.

The deceased’s last will

21. Under clause 3 of the deceased’s will the applicant was given Portion 37. Under clause 4 of the deceased’s will he gave another property known as Portion 36 to Ms Susan Magnussen (now Warner) with whom he had worked at Primac Association Limited (“Primac”) and who had assisted him over the years with his banking. The deceased gave another property described as subdivision 1 of Portion 35 under clause 5 of his will to Ms Gayle Hebbel, another friend.

22. Under clause 6 of the deceased’s will he gave another property described as Portion 154 to Ms Dianne Zelinski, who had also worked with the deceased at Primac and who had also assisted the deceased by looking after his accounts with Primac.

23. Under clause 7 of the deceased’s will, he gave Portion 156 to Mr and Ms Lewis as trustees for their son Matthew upon his obtaining the age of 18 years. Ms Lewis is one of the respondents. Mr and Ms Lewis had known the deceased since around 1981 when they bought a grazing property at Kinleymore. Mr and Ms Lewis then bought a dairy property at Windera in 1989 and the deceased developed the habit of visiting them for dinner on a Sunday every 4 to 6 weeks. Ms Lewis would help the deceased occasionally with bookwork or dairying or business problems.

24. Under clause 8 of his will, the deceased left another property comprising Lot 2 on RP 171464 and Lot 1 on RP 208881 to the son, William Keys, of another couple with whom he was quite close. The deceased had, in fact, purchased that property from Mr and Mrs Keys when they had sought to relocate from Kinleymore to Mundubbera and from that time had talked about that property being for their son William. Mr and Mrs Keys, together with a cousin of the deceased, had organised the surprise party for the deceased’s 70^th birthday.

25. Under clause 9 of the deceased’s will he left another property, Portion 173, to Mrs Maree Richards whose family had been friends with the deceased.

26. Clause 10 of the deceased’s will provided for the property Rossgae and all livestock and all plant and machinery on that property to be given to the applicant and the deceased’s cousin’s son Mr Peter Ruthenberg as tenants in common in equal shares “subject to them accepting liability for payment of the balance of any security attaching to the land or personal property”.

27. There was disagreement about the construction of this clause. It was construed by this court to mean that, before the devise and bequest could take effect, both beneficiaries had to accept the associated liability, and on both of them accepting that liability, they held the property as tenants in common, but if both did not accept the liability, than the whole of the property fell into residue: Lewis & Anor v Lohse & Ors [2003] QCA 199.  Although the applicant had originally accepted the gift provided for in clause 10, she subsequently withdrew that acceptance.  That withdrawal was held to be effective with the consequence that the whole of the property which would have passed under clause 10 of the deceased’s will fell into residue. 

28. Under clause 11 of the will, the deceased left another property to his sister Mrs Violet Guse. The beneficiaries of the residuary estate were named in clause 12 of the deceased’s will as his sisters Mrs Amy Bond (one of the respondents) and Mrs Guse.

Value of the deceased’s estate

29. In view of the deceased’s extensive property ownership, the size of his estate at the date of his death was significant. The respondents obtained valuations of all properties from valuer Mr Colin Otto as at mid July 2001. The list of assets and liabilities disclosed by the respondents in their affidavit filed on 2 October 2001 was based on these valuations. The respondents therefore did not provide a list of assets and liabilities as at the date of the deceased’s death, but as at the date of swearing that affidavit on 27 September 2001. The net value of the estate estimated by the respondents at that time was $2.13m.

30. The respondents prepared a statement of assets and liabilities of the deceased’s estate as at 22 October 2003 (Ex 12). This was based on the updated valuations of Mr Otto. It can be summarised as follows:

Assets

Less estimated liabilities

31. Apart from the value of Rossgae, there was no real challenge to the estimate of assets and liabilities prepared by the respondents. The applicant considered that Mr Otto was too conservative in his valuation and relied on valuer Mr Allan Spackman to value Rossgae. Mr Spackman was of the opinion that the market value of Rossgae as at 12 September 2001 was $960,000. Mr Otto’s valuation of Rossgae as at 14 July 2001 was $650,000.

32. When the deceased purchased Rossgae he completed a declaration in Form S(a) for the purpose of the Stamp Act 1894.  In that form the purchase price was apportioned, in round terms, to the freehold, as to $345,000, and to the livestock, as to $705,000.  Each of the valuers was informed that the apportioned figure was $300,000 for stock and $750,000 for the freehold.  The respondents consider that an error was made in the apportionment in the declaration as, based on the number of cattle purchased and their likely market value at the time of purchase, the figure of $350,000 was appropriate to the livestock. 

33. Mr Spackman did an updated valuation of Rossgae as at 6 August 2003 (Ex 1). He concluded that the market value of Rossgae as at that date was $1.05m. Mr Otto updated his valuation of Rossgae to $800,000, as at 13 October 2003. The issue between the parties is whether the value of Rossgae at the date of the hearing should be treated as $800,000 or $1.05m.

34. Each of the valuers was cross-examined. The difference between them was primarily how they applied the available sales evidence to Rossgae. If it were necessary to decide between the valuers, I preferred the evidence of Mr Otto. He displayed a much greater familiarity than Mr Spackman with Rossgae and the properties the subject of comparable sales. His explanation as to why the existence of 5 titles for Rossgae did not make a great deal of difference to its value was reasonable.

35. Ultimately, it is not strictly necessary to decide between the valuers, as it makes little difference to the outcome of the application whether Rossgae is included at a value of $800,000 or $1.05m.

Whether applicant was a de facto spouse

36. There are two bases on which the respondents dispute that the applicant was the deceased’s de facto spouse within the meaning of the relevant definition in the Act. The first basis is that the relationship between the applicant and the deceased had not commenced by 2 June 1995, in order to fulfil the requirement that the relationship be for a continuous period of at least 5 years at the death of the deceased. The second basis is that the relationship between the applicant and the deceased could not be characterised as connubial.

37. There is no definition in the Act of “connubial relationship”. It is a term or concept, however, that has been considered in many authorities. In Tulk v Tulk [1907] VLR 64 which was concerned with whether the ground of desertion could be proved in order to obtain the dissolution of the marriage, Cussen J stated at 65 – 66:

“Marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation, making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist.  The weight of each of these elements varies with the health, position in life, and all other circumstances of the parties.”

38. The Full Court of the Family Court had to consider what separation involved in order to establish the breakdown of the marital relationship for the purposes of the Family Law Act 1975 in In the Marriage of Pavey (1976) 25 FLR 450.  The court approved the statement made in In the Marriage of Todd (No 2) (1976) 25 FLR 260, 262:

“What comprises the marital relationship for each couple will vary.  Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.”

39. Kirby P (as he then was) observed in AA Tegel Pty Ltd v Madden (1985) 2 NSWLR 591, 593 as to the nature of de facto relationships:

“… the relationships between persons who, though not legally married live together sharing domestic circumstances and bound by affection and, usually, sexual relations.”

40. There are decisions on the De Facto Relationships Act 1984 (NSW) where factors were identified which may be indicative of whether or not a de facto relationship exists.  This arose because the term “de facto relationship” was defined in that Act to mean “the relationship between de facto partners, being the relationship of living or having lived together as husband and wife on a bona fide domestic basis although not married to each other”.  Powell J stated in Roy v Sturgeon (1986) 11 NSWLR 454,  458-459:

“…it seems to me that each case will involve the Court making a value judgment having regard to a variety of factors relating to the particular relationship, those factors including, but not being limited to, the following:

1. the duration of the relationship;

2. the nature and extent of the common residence;

3. whether or not a sexual relationship existed;

4. the degree of financial interdependence, and any arrangements for support, between or by the parties;

5. the ownership, use and acquisition of property;

6. the procreation of children;

7. the care and support of children;

8. the performance of household duties;

9. the degree of mutual commitment and mutual support;

10. reputation and “public” aspects of the relationship.”

41. The applicant was helped in her relocation to Portion 37 and visited by some elderly relatives, Mr and Mrs Sempf. The deceased and Mr Sempf found they had a lot in common and the deceased stayed for lunch a few times on the first visit of Mr and Mrs Sempf. When Mr and Mrs Sempf visited again in May 1994, the deceased went with Mr and Mrs Sempf and the applicant for dinner each Friday night of their stay to the RSL in Wondai. The deceased and the applicant started going to the RSL in Wondai for dinner themselves in about June/July 1994. The applicant described that the deceased starting visiting her alone at home and stayed often for lunch and increasingly for dinner.

42. The applicant could recall that on one occasion in about August 1994 after the deceased had purchased the property described as “the airstrip paddock”, he said words to the effect that “if I looked after him he would give me the paddock”.

43. At around this time the applicant had noticed how dirty the deceased’s clothes were and offered to do his laundry. The applicant stated that the deceased eventually accepted this offer. The applicant identified the commencement of their sexual relationship around the date of the deceased’s birthday on 5 September 1994. The applicant described how from that time the deceased starting staying for dinner every night and staying on after and that he would go home at about midnight, unless he had an early start the next day when he would leave a little earlier. The deceased started bringing groceries from town to the applicant’s house or giving the applicant some money for groceries.

44. The applicant recalled that it was in October 1994 (which was about a month after their sexual relationship commenced) that the deceased brought his clothes and personal effects and some furniture to the applicant’s house and lived with the applicant from that time, although he continued to use his residence on the piggery block as his office.

45. Some support for the applicant’s recollection of that date is given by her son Mr Robert Lohse who visited his mother late at night after his daughter was born on 17 November 1994. Mr Lohse noticed there were men’s boots just inside the door and said “Those boots look a bit big for you mother” and described that his mother seemed a bit embarrassed about them. Mr Lohse also commented upon the television, because he knew that his mother did not have a television and stated that she told him “that’s Roy’s TV”. The applicant stated that she offered no further explanation about the television, although Mr Lohse thought that his mother said something to the effect “Roy stays here” or “Roy lives here”. Whether or not that was said, the fact that the deceased’s television and boots were in the applicant’s house on that visit supports the timing of either the overnight stays by the deceased or the move by the deceased to the applicant’s house.

46. The applicant’s daughter, Mrs Kristine Penrose, can recall visiting her mother a couple of weeks before her son was born on 20 September 1994. That was the first time that Mrs Penrose met the deceased. Mrs Penrose could recall that on another occasion when she was visiting her mother, she went into her mother’s bedroom to feed her baby and saw the deceased’s good clothes and boots there. Mrs Penrose thought that it was her son who was born on 20 September 1994 whom she was feeding at that time, but could not be any more precise about when this occasion was.

47. From the time the applicant moved to Portion 37, Mr and Mrs Sempf visited the applicant at various times over a period of about three years. Mr Sempf stated that on one visit that took place some months after the applicant had moved, he noticed that the deceased had moved his things into the applicant’s residence and was staying there. Mr Sempf was unable to say with any certainty what the date of this particular visit was, but considered that it would have been around September 1994. Mrs Sempf had a similar recollection of these matters. As the applicant does not assert that the deceased moved in with her until October 1994, Mr and Mrs Sempf were mistaken in fixing September 1994 as when they observed that had occurred. What Mr and Mrs Sempf were clear about was that it was it was only a matter of months, before the deceased had moved in with the applicant. I accept that their observations of this were made in the earlier part of the period during which they visited the applicant.

48. Although not decisive in any way of the nature of the relationship, it is common ground that the deceased accompanied the applicant to the home of her daughter, Mrs Noela Augustine, at Mundubbera for Christmas Day in 1994. Mrs Augustine had invited the deceased to join this family gathering. Although Christmas Day in 1994 was the first occasion on which Mrs Augustine met the deceased, she stated that she had spoken to him on the telephone several times before that, as he answered the telephone on some occasions when Mrs Augustine had rung to speak to her mother. Mrs Augustine stated that following Christmas 1994 she saw her mother and the deceased on a fairly regular basis and that whenever she stayed with her mother, her mother and the deceased shared their own room. Mrs Augustine cannot recall how soon after Christmas 1994 she had her first visit to Portion 37. The applicant conceded that she was mistaken in her recollection recorded in her affidavit that this visit by Mrs Augustine took place in late November or early December 1994.

49. When the applicant moved to the house on Portion 37, she organised for the telephone to be connected in the name of her son, Mr Robert Lohse. The applicant stated that when the deceased moved in with her, he still used his own place as an office and made a lot of telephone calls from there. The applicant stated although the deceased did not use her telephone much for a start, he eventually did and changed the telephone service into his name. The applicant would then pay him for what she described as her share of the telephone. She stated that the deceased paid approximately $500 per year and she paid the balance which was a greater share than paid by the deceased, because she made more telephone calls.

50. The White Pages issued in March 1996 show that the telephone service to Portion 37 was in the applicant’s name and that the deceased maintained the telephone service to his residence in Hivesville-Proston Road. The 1997 White Pages show that the telephone service for Portion 37 was in the deceased’s name.

51. In relation to the electricity account for Portion 37, the applicant stated that she paid it most of the time, but the deceased paid some of it and described it as “a give and take arrangement”. The respondents ascertained that the electricity was disconnected to the deceased’s residence on the piggery block in September 1996. The applicant also used her wages for paying her Bankcard and buying food for the dogs which she kept and trained.

52. The applicant stated that in around 1997 or 1998 the deceased bought for her use a second hand Toyota Land Cruiser which was registered in the deceased’s name, but was driven usually by the applicant. The applicant stated that the deceased would refer to that vehicle as “Cynthia’s Toyota”.

53. From the time the deceased moved in with the applicant, the applicant stated that she cooked all his meals, washed and ironed his clothes and kept the house clean. She stated that she would do all the deceased’s banking and would pay his accounts with cheques provided by the deceased. The applicant stated that she also undertook errands in relation to the deceased’s properties. The deceased had an operation on his knees in July 1996 to alleviate the pain he was suffering from osteoarthritis. The applicant stated that she massaged the deceased’s knees each night.

54. Mrs Patricia Rea and her husband, Mr Phillip Rea, were share farmers and dairy farmers with the deceased. From 1989 until April 1996 Mr and Mrs Rea worked the dairy on what was referred to as the Keys property and resided in the house on that property which was across the road and about 100 metres from the house in which the deceased was living, before he moved to the house on Portion 37.

55. Mrs Rea sought to fix when events occurred, by reference to the letter dated 14 December 1995 which her husband received from the deceased’s solicitors. That letter claimed that Mr Rea had breached the share farming agreement by selling hay from a pasture or that Mr Rea had withheld the deceased’s rightful share of the hay. That letter gave notice terminating the share farming agreement as from 31 December 1995 and required Mr Rea to vacate the property. Mr and Mrs Rea departed the property in April 1996.

56. Mrs Rea stated that the deceased has ceased residing in the house opposite them and moved in to live with the applicant around 3 or 4 months before they received the letter of 14 December 1995, ie. around August or September 1995. Mrs Rea stated that for a period of about 6 months prior to that, ie. between February and August 1995, she observed that the deceased left his residence after dark and returned early in the morning. Mrs Rea stated that when the deceased left at night on some occasions she could see the lights of his vehicle going over the hill towards the applicant’s residence. At that stage the deceased had a border collie dog which Mrs Rea stated barked whenever the deceased left or returned to the residence. She recalled that during this period of 6 months whenever the deceased returned early in the morning, his dog would start barking. Mrs Rea did not state that she ever discussed with the deceased why he was returning to the residence on the piggery block each morning during this period. Mrs Rea equated his moving out to when he took the dog. It could easily have been that for some part of this period of 6 months described by Mrs Rea that the deceased was returning to the piggery block in the early morning to work and not because he was still living there himself.

57. Mrs Rea conceded that she was not asked to recall these events until she provided her affidavit in December 2002. She conceded that it could have been earlier than August or September 1995 that the deceased was no longer residing on the piggery block. Mrs Rea also conceded that she did not take much notice of when the deceased started leaving his residence after dark and returning early the following morning and that it could have been happening for a period before she had taken notice that it was occurring. She did not consider, however, that it was happening as early as October 1994 or before Christmas 1994.

58. Mr Ashley Trapp and Mr Graham Trapp resided on a property which was in Kinleymore School Road, but on the other side of the road from Portion 37. Because of the sizes of the properties, the distance between the houses on the respective properties was about 1.75kms. Mr Ashley Trapp stated that the deceased moved in to live with the applicant around the end of October 1995. He fixed the date on the basis that he remembered it was just prior to the deceased holding a clearing sale on Portion 37 in January 1996. Mr Ashley Trapp stated that for a few weeks before the deceased took up residence with the applicant, he saw the deceased’s vehicle travelling to the applicant’s residence and just before 6.00am he would see the deceased’s vehicle heading back up the road towards the deceased’s residence. According to Mr Trapp, the deceased would visit his house on a weekly basis, but it was only rarely that the applicant accompanied him.

59. Mr Graham Trapp recalled that he and his brother Ashley collected the deceased to attend an agricultural show in Toowoomba from the house in Hivesville-Proston Road. Mr Graham Trapp identified the date on which this was done by reference to cheque butts he wrote on 5 September 1995 in connection with Agfest. Mr Graham Trapp was also able to recall that particular occasion as the one when the deceased commented in respect of Mr and Mrs Rea that they would not be there much longer.

60. Mr Graham Trapp stated in his affidavit that the deceased started staying overnight at the applicant’s residence around October 1995 during a period of about a month. During cross-examination Mr Trapp stated that the deceased would take hay down to Portion 37 just on dark and he would see him going back with the lights on and that happened for 6 months prior to the deceased commencing to stay overnight. Mr Trapp stated that in October 1995 he had also seen the deceased’s truck parked down between the sheds on Portion 37. Mr Trapp did concede that he could only give his evidence by reference to when it was that he had noticed these things.

61. Mr Noel Trapp who is the brother of Mr Graham Trapp and Mr Ashley Trapp was living on the property adjoining Portion 37. Mr Trapp can see the applicant’s residence from his residence. Although the applicant had estimated the distance between the houses as 1.25kms, Mr Trapp considered that it was about 0.75kms. It is not necessary to reconcile these estimates, as the aerial photograph in Ex 13 shows the proximity of the two houses.

62. Mr Noel Trapp did not observe the deceased to be a constant visitor at the applicant’s residence, prior to Christmas 1995 which was when he stated that the deceased took up residence with the applicant. Mr Noel Trapp did not observe the deceased’s vehicle parked outside the applicant’s residence overnight, prior to the deceased moving to Portion 37.

63. It is apparent from the Trapp brothers’ descriptions of their relationship with the deceased and the applicant’s observations of the deceased’s relationship with the Trapp brothers (which I accept) that the Trapp brothers were acquaintances rather than close friends of the deceased. The Trapp brothers had no reason at the time the relationship between the applicant and the deceased developed to be precise in remembering the timing of their observations. It is consistent with the applicant’s description of the deceased and what can be gleaned about the deceased from other witnesses that he valued his privacy. It is consistent that a man of his age and status in the local community may have been more comfortable in keeping the nature of his developing relationship with the applicant to himself, rather than discussing it with neighbours. I accept that Mr Graham Trapp and Mr Ashley Trapp collected the deceased from the residence on the piggery block and not Portion 37 on 5 September 1995. All that shows was that the deceased was at the residence on the piggery block on that morning and does not assist in determining the nature of the relationship between the deceased and the applicant at that stage. I do not consider that the evidence from each of the Trapp brothers assists in showing when the relationship between the applicant and the deceased commenced.

64. Ms Lewis could recall only one occasion on which she invited the deceased to bring the applicant with him when he visited the Lewis’ home for dinner and that the applicant did come. The applicant could recall about three occasions on which she had gone with the deceased for a meal at the Lewis’ home. On any view there was little socialising by the deceased with Ms Lewis involving the applicant. Ms Lewis stated that the deceased made no mention during his conversations with her of any personal relationship with the applicant. When it is clear that such a personal relationship did exist, there is little significance in the failure of the deceased to mention the matter to Ms Lewis. It is consistent with the deceased maintaining his long term friendship with the Lewis’ family separate from his new relationship.

65. The respondents have not disputed the applicant’s recollection that she and the deceased went to dinner with Mrs Guse and her husband at the Wondai RSL on Christmas Eve on about three occasions and that the applicant accompanied the deceased to a combined pre-wedding and 18^th birthday party at the Murgon RSL for a member of Mrs Bond’s family.  The applicant and the deceased also visited Mr and Mrs Guse at their home for an overnight stay around 1997 or 1998. 

66. Mr George William Roberts was the deceased’s tax agent. Mr Roberts described the deceased’s record keeping as “the shoe box system”. Each year the deceased would bring to Mr Roberts a handwritten statement of his income and expenses with accompanying receipts and records and Mr Roberts found that he could usually reconcile the information.

67. Mr Roberts exhibited to his affidavit the deceased’s income tax returns between 1994 and 1999 and the tax return for the period 1 July 1999 to the date of death that was prepared on the respondents’ instructions. The deceased did not disclose the applicant as his de facto spouse in any of his tax returns for the years ended 30 June 1995 to 1997, when there was provision in the return for such information to be included. Mr Roberts also exhibited the handwritten notes with which he was provided each year by the deceased. The following payments made to the applicant are identified as expenses in the respective tax returns:

68. The payment of $15,600 annually corresponds to the arrangement that the deceased would pay the applicant $300 per week. Although the deceased for the 1995 tax return had noted on his handwritten summary that the applicant was paid wages of $1,560, Ms Lewis inspected the deceased’s cheque butts for the relevant period and can state that the amount of $1,560 was incorrect and should have been $15,600. Ms Lewis stated that the total payments made by the deceased to the applicant, according to the cheque butts, for the period 3 July 1994 to 18 June 1995 was $15,288.80 and for the period 2 July 1995 to 30 June 1996 was $15,950. The deceased did not list the payments made to the applicant in his summary of payments made to share farmers and for wages for the year ended 30 June 1996. It did not make any difference to the income tax paid by the deceased in that year as he made a loss from primary production, according to his return. For the 1998 tax return, the applicant’s name is not identified in the deceased’s summary of payments, but he has shown as an amount paid to share farmer $15,600 which was likely to have been a reference to the applicant. Mr Roberts could not recall whether he gave any advice to the deceased about the desirability of having a written share farming agreement with the applicant. The applicant stated that the deceased mentioned entering into a written share farming agreement after a visit to Mr Roberts.

69. In respect of the period during which the applicant worked for the deceased and received the wages of $300 per week, she did not lodge any tax returns. The applicant stated that she asked the deceased whether she had to do a tax return and that he responded “No. I pay that tax.” and that it was left at that.

70. The share farming agreement that was entered into by the deceased and the applicant and dated 17 May 1997 was prepared by Mr Scott Roberts after taking instructions from, at least, the deceased on 26 November 1996. Mr Scott Roberts believed that the applicant attended at his office on that occasion to also provide instructions. The applicant does not have that recollection. Nothing turns on whose recollection about this is correct.

71. This agreement formalised the original arrangement under which the applicant took up residence of Portion 37, except that the agreement did not provide for the payment of $300 per week. Instead clause 12 of the agreement provided for the deceased to pay to the applicant at the end of each month 30% of the net revenue received for the sale of the milk from the dairy farm. Despite that provision, the deceased continued paying the applicant at $300 per week and did not account for the net revenue from the sale of the milk in the manner provided for by clause 12. That is consistent with the written agreement being entered, as a result of advice from the tax agent, and not with any intention to change the arrangement that was originally made between the deceased and the applicant for operating the dairy.

72. When the dairy closed, the applicant stated that the deceased told her that he had no money to pay her, that his money was required for the Melrose property that he was negotiating to buy and that she would have to go on “the dole”. The applicant stated that she responded that there may be trouble if the Department of Social Security found out they were living together. The applicant stated that the deceased’s response was that “plenty of others do it”. The applicant stated that she was shocked at this response, but nevertheless applied for social security benefits, as she needed money to feed and look after her 12 working dogs.

73. The information provided by the applicant to Centrelink when making the claim for the Newstart allowance office was that her marital status was widowed and that she was sharing accommodation. In March 2000 when the applicant completed the form to obtain the disability pension, she ticked the box that showed that she was widowed and not the box appropriate for a person living in a de facto relationship. The applicant conceded in cross-examination that she lied to Centrelink, but stated that she did that as she needed to have some money and felt that, as a result of the deceased’s expressed attitude, she did not have much choice.

74. It was put to the applicant in cross-examination that by the time the dairy closed in January 2000, the de facto relationship between the applicant and the deceased was over and that was why the applicant did not disclose to Centrelink that she was in a de facto relationship. The applicant was firm and convincing in refuting this suggestion.

75. Another neighbour, Mrs Jenny Watson, moved into the area in May 1999. She described how she developed a friendship with the applicant and the deceased and I accept that they presented to and socialised with her as a couple.

76. The applicant stated that the deceased took her with him when he inspected Rossgae and she recalled that they inspected it twice with the agent. The applicant described how the deceased had talked of buying a grazing property where the applicant would not have to milk cows and that “life would be easier”.

77. There was a formal reading of the deceased’s will at the office of his solicitors on 6 June 2000. It was apparent from the affidavits of the applicant and the respondents that some tension existed between them in the administration of the deceased’s estate thereafter. On 9 June 2000 Mr and Ms Lewis and Mr and Mrs Bond attended at Portion 37 to collect the deceased’s personal effects, but the applicant had not yet packed them up. Words were exchanged between the parties. The respondents stated that the applicant said on that occasion, “I am just an unpaid housekeeper”. The applicant denied making such a statement. Even if such a statement were made by the applicant on that occasion, it was made in the heat of the moment when the applicant was disappointed about her treatment under the deceased’s will. I do not consider that such a statement, if made, assists in determining the nature of the relationship between the deceased and the applicant.

78. In applying the list of factors that assist in determining whether a connubial relationship existed, the personalities and ages of the parties involved and their circumstances must be considered. I accept the applicant’s evidence that the sexual relationship between the deceased and her commenced in September 1994 and continued until the deceased died. By the date of the deceased’s death, the applicant and the deceased were considered a couple in the community in which they resided and were intending to relocate together to Rossgae for the future. They were treated as a couple by the applicant’s family and those with whom they socialised together. I find they had been in such a relationship for a number of years, despite the fact that there also existed the business relationship between them in respect of the running of the dairy by the applicant. Apart from the wages that the deceased paid the applicant in respect of the share farming arrangement, the deceased provided his furniture and furnishings for the use and enjoyment of both of them and provided funds and goods for their daily living. It is clear from the applicant’s evidence that she and the deceased were mutually supportive of each other’s needs and plans. Having regard to their respective ages, it is not surprising that at that stage of their lives together, they did not commence to intermingle their finances. Each had long established habits. I accept the applicant’s explanation as to why she applied for social security benefits in February and March 2000 and that such action on her part in her circumstances at the time was not contrary to the continuance of the de facto relationship between the applicant and the deceased. From around the time the deceased moved into the residence on Portion 37 with the applicant, there was a public aspect to their relationship which was consistent only with the relationship being connubial.

79. On the issue of when the connubial relationship between the applicant and the deceased commenced, the applicant was in the best position to be able to give evidence of what actually happened between the deceased and her.

80. The one aspect of the applicant’s evidence that is difficult to reconcile with other evidence and the circumstances of the parties was that after they had commenced a sexual relationship in early September 1994, the deceased who had been single all his life had within about a month moved completely to the applicant’s residence with all his furniture and personal effects.

81. This is not consistent with the observations of Mrs Rea who could recall a period of some months of the deceased travelling to and from the applicant’s house, before the deceased finally moved out. The applicant’s own evidence that the deceased maintained the residence on the piggery block as an office after October 1994 also suggests that the deceased was still travelling between the applicant’s residence and the residence on the piggery block for some period of time.

82. In all the circumstances, it is more likely than not that there was a transitional period during which the deceased was moving his personal belongings and furniture to the applicant’s residence, until he was eventually staying each night with the applicant, but returning early in the morning to his residence on the piggery block (as observed by Mrs Rea) in order to maintain appearances and to begin work for the day. It would only be natural that as the period from when the deceased commenced to stay overnight with the applicant grew into weeks and then months, the deceased became less concerned with returning to the residence on the piggery block early in the morning for the purpose of maintaining appearances.

83. I find that the applicant overstated what actually occurred when she asserted that the deceased commenced living with her in October 1994 and that it was more likely that in October 1994 the deceased started staying overnight and returning to the residence on the piggery block early the next morning. I find support for this conclusion in Mrs Rea’s recollection that over a period of about 6 months the deceased would leave the residence on the piggery block at night and return early the following morning. Although the commencement of this period in October 1994 does not accord with Mrs Rea’s recollection, she did concede that the end of that period could have been earlier than August or September 1995. Support for the overnight stays commencing in October 1994 is also obtained from what was observed by the applicant’s son, Mr and Mrs Sempf and, to a lessor extent, Mrs Penrose about the deceased’s personal effects being in the applicant’s residence. Those observations by the applicant’s son, Mrs Penrose and Mr and Mrs Sempf, together with the applicant’s description of how her relationship with the deceased developed make it likely that in the weeks or few months following the commencement of the deceased staying overnight with the applicant the habit of the deceased staying overnight with the applicant and his relocation reached the point that, even if he still returned to the residence on the piggery block early in the morning to work, he was residing with the applicant. I am satisfied that in the light of all the evidence it is more probable than not that the relationship had developed to a connubial relationship some time after October 1994 but well before 2 June 1995. The applicant was therefore the deceased’s de facto spouse within the definition in s 5 of the Act.

Whether the applicant was a dependant

84. The critical time for determining whether a person was a dependant for the purpose of making an application under s 40 of the Act is at the date of the death of the relevant deceased. In order to be a dependant the person must at the date of the deceased’s death be “wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person”.

85. On any view the applicant was not wholly maintained or supported by the deceased at the date of his death, as she was in receipt of the benefits being paid through Centrelink. It is therefore a question of whether the applicant was being substantially maintained or supported by the deceased.

86. The parties differed as to what construction should be given to the word “substantially” in this context.

87. The issue was considered in Re Cobb [1989] 1 Qd R 522.  The parties in that matter until Mr Cobb’s death had both worked, earning substantially the same amounts of income and had come to an agreement as to the dispositions of their respective incomes with the applicant in that matter spending the whole of her income on groceries, electricity, the telephone and her personal expenses and Mr Cobb paying the rent and for the maintenance of the premises in which they lived.  Mr Cobb lived very frugally and after the agreed payments out of his income he had balances which by agreement between the parties were banked in his name, but were intended in due course to be used for the establishment of a jointly owned home.  Kneipp J stated at 523:

“However, I do not think that it is necessary that the provision of support or maintenance is necessarily confined to the provision of support or services or the like.  It seems to me that if savings are being accumulated for the benefit of two parties, and if the savings come out of the income of one party, there is support or maintenance being provided to the other if the moneys are to be used partly or wholly for the benefit of that other in the event that the relevant plans come to fruition.  In the present case, having regard to the agreement between the parties as to the dispositions of their respective incomes, it seems to me to be at least arguable that the applicant might have claimed a proportion of the moneys which had been invested by the deceased in accordance with the agreement between them.  In the result, it seems to me that one should take an overall view of the situation, and in these circumstances I think that one can appropriately take the view that each was contributing to the support of the other as a result of their living together in a household to whose finances both made contributions.  I therefore find, although I must confess I have found the matter to be one of considerable difficulty, that the applicant was a dependant of the deceased.”

88. This approach of Kneipp J reflects the view expressed by Gibbs J in a worker’s compensation claim by a dependant that dependence at a particular date should not be determined by looking only to the circumstances as they existed at that date and that past events and future probabilities should also be considered. In Aafjes v Kearney (1976) 180 CLR 199 a worker was killed in the course of his employment leaving a child.  The worker’s marriage with the child’s mother had been dissolved and she had remarried.  The worker was obliged to make maintenance payments to the mother and the child was being supported out of those maintenance payments, although the step-father provided accommodation for the child in the matrimonial home and the mother made her clothes and supplied the furnishings and equipment that the child required for daily living.  The Workers’ Compensation Commission determined that at the time of the worker’s death the child was wholly dependent for support upon him.  The High Court determined that there was no error of law that allowed that finding to be reviewed.  Gibbs J stated at 207-208:

“In Kauri Timber Co (Tas) Pty Ltd v Reeman, I accepted that one person is dependent on another for support if the former in fact depends on the latter for support, even though he does not need to do so and could have provided some or all of his necessities from another source. I adhere to that view, but it does not follow from it that a person who in fact receives some support from one person cannot properly be said to be wholly dependent on another. It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters. The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date; “past events and future probabilities” have to be considered. The fact that at the date of death a daughter was being supplied with some of the necessities of life by some third person does not necessarily mean that she was not then wholly dependent for her support upon her father. Obviously enough if the assistance provided by the third person was only intermittent or casual, and unlikely to be continued in the future, it would not prevent the daughter from being wholly dependent on her father. But even if the assistance was substantial and likely to be continued, it would not necessarily have the effect that the child had to be regarded as a partial dependent of her benefactor and therefore as not wholly dependent on her father.”

(footnotes omitted) 

89. In Re Will of MacKenzie (unreported, S Ct (Qld), Ryan J, 27 November 1992) the parties lived in a house which was owned by them as tenants in common in equal shares for 9 years until Mr MacKenzie’s death.  Mrs Hayes was in receipt of a social security benefit for about 5 years prior to Mr MacKenzie’s death, but it was found that she used that for gambling purposes and the living expenses of the household were being met by Mr MacKenzie.  Ryan J concluded that Mrs Hayes was being substantially maintained by Mr MacKenzie on the basis that:

“He provided a substantial part of the resources that went into the maintenance of their life together.”

90. Mr Amerena of Counsel on behalf of the applicant submitted that as Part IV of the Act is remedial legislation, a beneficial interpretation should be given to the expression “substantially”. The applicant relied on the statement of Lockhart J in Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 62 FLR 437, 444:

“The word “substantial” is imprecise and ambiguous.  Its meaning must be taken from its context.  It can mean considerable or big: Palser v. Grinling [1948] A.C. 291 at p. 317 per Viscount Simons.  It can also mean not merely nominal, ephemeral or minimal.  Sometimes it is used in a relative sense, and at other times to indicate an absolute size or quantity.”

91. The term “wholly or substantially dependent on” in the definition of “relict” in the State Service Superannuation Act 1872 had to be construed in Re Bonny [1986] 2 Qd R 80.  What was in issue was whether the appellant who had lived in a de facto relationship with Mr Knight for 7 years before his death was entitled to a pension.  Ambrose J stated at 82:

“In my view however that approach is not of assistance when one is construing the phrase “wholly or substantially dependent on” because the connotation of the term “substantially” within that phrase is governed by the conjugational position of the word “wholly” immediately before it.

In my view when considered in the context of a definition that talks of a person who is “wholly or substantially dependant on” another, the term “substantially” connotes “in the main”, or “essentially”.

The matter under appeal is whether or not the appellant is a “relict” within the definition of the Act and this must be determined by considering whether she was “in the main” or “essentially” dependent upon the deceased at the time of his death.”

That approach was followed in Commissioner for Superannuation v Scott (1987) 13 FCR 404, 407 – 408.  The applicant submitted, however, that this line of authority was inconsistent with the beneficial interpretation which should prevail in respect of the Act. 

92. The applicant also relied on the approach of the New Zealand Court of Appeal in Williams v Aucutt [2000] 2 NZLR 479 (“Williams”) to argue that the interpretation of the word “substantially” depended on what was meant by “support” and that “support” was a much broader concept than “maintenance”.  In Williams Ms Aucutt applied for greater provision from the estate of her mother, Mrs Henderson, who had chosen to benefit her other daughter, Ms Williams, on the basis that Ms Williams’ assets were modest, but the assets of Ms Aucutt and her husband were considerable.  At the date of death, Mrs Henderson’s estate was valued at $920,000.  The bequest under the will to Ms Aucutt of family possessions and shares had a market value of about $50,000 of the date of Mrs Henderson’s death.  The trial judge ordered that Ms Aucutt be entitled to further provision by way of a share of 25% of the residue (resulting in an additional sum of about $200,000) which gave Ms Williams the balance of the residue of 75%.  The appeal was successful and the amount of provision in favour of Ms Aucutt was reduced to the additional sum of $50,000.

93. The issue on the appeal in Williams was whether Mrs Henderson had failed to make “proper maintenance and support” for Ms Aucutt.  As a daughter, Ms Aucutt was in that category of persons who was entitled to make an application for further provision from her mother’s estate under the relevant legislation, subject to being able to show that adequate provision was not made for her proper maintenance and support.  Richardson P delivered the joint judgment of four members of the court and stated at para [52]:

“The test is whether adequate provision has been made for the proper maintenance and support of the claimant.  “Support” is an additional and wider term than “maintenance”.  In using the composite expression, and requiring “proper” maintenance and support, the legislation recognises a broader approach is required and the authorities referred to establish that moral and ethical considerations are to be taken into account in determining the scope of the duty.  “Support” is used in its wider dictionary sense of “sustaining, providing comfort”.  A child’s path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the deceased.  Just what provision will constitute proper support in this latter respect is a matter of judgment in all the circumstances of the particular case.  It may take the form of lifetime gifts or a bequest of family possessions precious to its members and often part of the family history.  And where there is no economic need it may also be met by a legacy of a moderate amount.  On the other hand, where the estate comprises the accumulation of the family assets and is more than sufficient to meet other needs, provision so small as to leave a justifiable sense of exclusion from participation in the family estate might not amount to proper support for a family member.”

94. Although I accept that the word “support” is a wider concept than “maintenance”, the type of support that was the subject of the decision in Williams has no relevance to the applicant’s claim in this matter. 

95. The phrase “wholly or substantially maintained or supported (otherwise than for valuable consideration) by that deceased person at the time of the person’s death” has to be construed in the context of prescribing the condition precedent that the applicant, as a de facto spouse, must establish in order to obtain relief as a dependant at the date of the deceased’s death. It would make a nonsense of the requirement, if the word “substantially” did not take its meaning from the context given by the use of the word “wholly”. The word “wholly” is unambiguous. The word “substantially” indicates something less than “wholly”, but it connotes something which is still significant. It could not possibly mean in that context “not merely nominal, ephemeral or minimal”. It could in this context be appropriately paraphrased by the words “in the main” or “as to the greater part”: cf Department of Social Security v Wetter (1993) 40 FCR 22, 30.  In determining whether the maintenance or support at the date of death is substantial, consistent with the approach in Re Cobb [1989] 1 Qd R 522, the future arrangements that had been planned between the parties and for which provision was made must also be taken into account. 

96. At the date of the deceased’s death, he was providing a home for the applicant including his furniture and furnishings, her means of transport and for her financial needs, except to the extent that she could meet her personal expenses and the expenses of keeping her dogs from the Centrelink benefits. By way of support for the applicant’s future with him, the deceased had made a considerable investment in purchasing Rossgae and was proposing that they both relocate for an “easier” life. The probabilities also are that if the applicant’s Centrelink benefits had been discontinued whilst the deceased was alive, the deceased would have paid for those expenses that the applicant managed to meet out of the Centrelink benefits.

97. In these circumstances the applicant has shown that at the date of the deceased’s death she was being substantially maintained or supported by him. The applicant was therefore a dependant at the time of the deceased’s death within the meaning of the definition in s 40 of the Act.   

Applicant’s circumstances at date of deceased’s death

98. At the date of the deceased’s death he was aware of the applicant’s poor financial circumstances. He knew that she was receiving benefits paid through Centrelink (to which she was not entitled) and that she had no assets, apart from her Jackaroo vehicle which was not in use.

99. The applicant also had medical problems of which the deceased was aware. The applicant stated that the deceased was aware that she had a painful back that was worsening and was considerate towards her in assisting her to lift things. The applicant had high blood pressure for which she was on medication and the deceased would remind her about taking her tablets. The applicant stated that she developed sleep apnoea in about 1998 and that the deceased was aware that she was having problems getting enough sleep or not sleeping soundly.

100. The deceased also knew that the applicant was intending to embark on the new venture planned with him of grazing beef cattle on Rossgae.

Whether the deceased made adequate provision for the applicant

101. This issue which has been described as the jurisdictional question or the first stage of the two stage process in determining whether an order for further provision should be made requires the following process to be undertaken:

“The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.”

See Singer v Berghouse (1994) 181 CLR 201, 209-210.

102. Whether the net value of the deceased’s estate was $2m or closer to $2.5m at the date of his death, the size of the deceased’s estate was significant. Even though the deceased intended to provide the applicant a benefit pursuant to clause 10 of the will, as the gift under that clause has failed, this application must proceed on the basis that the only provision made for the applicant by the deceased was in respect of the gift of Portion 37 to the applicant pursuant to clause 3 of the will. In mid July 2001 Mr Otto had valued that property at $185,000. The other beneficiaries under the deceased’s will were his sisters and friends or children of friends. No evidence was put forward by the respondents to suggest that there was any need of Mrs Guse or Mrs Bond or moral obligation owed by the deceased to either of them which explained his decision to benefit them. In relation to each of the friends or children of friends who had benefited under the deceased’s will, there is no suggestion that the deceased owed any moral obligation to provide for any of them. Having said that, though, it is also relevant to observe that the court should not ignore the desire of the deceased to benefit his sisters and other persons with whom he had built up relationships over the years.

103. At the date of the deceased’s death, the deceased and the applicant had been living in a de facto relationship for at least 5 years and were planning to enjoy their future together on Rossgae. In view of the applicant’s age, health problems and dependence upon the deceased financially, giving the applicant only the property known as Portion 37 without any other potential means of income fell far short of being adequate provision for the proper maintenance and support of the applicant. Objectively speaking, the jurisdictional question must be answered in favour of the applicant.

Whether further provision for the applicant should be ordered

104. This issue is described as the second stage of the process in determining whether an order for further provision should be made: Singer v Berghouse (1994) 181 CLR 201, 208, 210, 211.  Under s 41(1) of the Act the court is conferred with a discretion as to whether or not to make an order for further provision after the jurisdictional question has been satisfied.  Under s 41(1A) of the Act the court is precluded from making an order “unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant”.    

105. In considering whether to make the order the court must take into account what has happened to the applicants since the deceased’s death and the circumstances of the applicant by the time of the hearing of the application.

106. After the deceased’s death, the applicant remained living on Portion 37. She continued receiving the disability pension until 30 September 2003, when she started receiving the aged pension. The parties agree that the possibility of the receipt of a pension in the future is not a circumstance that should be taken into account in determining the amount of the provision which should be made for the applicant from the deceased’s estate.

107. When the deceased died, the applicant had some cattle which she sold over time, as she needed to meet expenses. She has kept her working dogs and occasionally sells one to pay bills. When the applicant swore her affidavit filed on 24 September 2002 she owned 7 Friesian cows, 12 mixed weaners and about 100 sheep. She also had cattle on agistment on Portion 37. At the date of the hearing the applicant was receiving $300 per month from the agistment.

108. After the deceased died, the applicant made an application for compensation as a share farmer to the government authority in relation to dairy deregulation. The applicant described her claim as “small” and she was successful in receiving a payment, but did not disclose the amount.

109. For the purpose of the application, the applicant was examined on 2 July 2002 by Physician Dr Robert Parkes. He described the applicant as having daily back pain related to long term degenerative disease which was probably a result of her work experiences over her lifetime. Dr Parkes considered that the applicant would benefit from chronic pain management and from making modifications to her home to accommodate the difficulty the applicant had with bending.

110. The applicant was diagnosed with hypertension at the age of 40 years. Over the years she has been treated with various medications and is currently on a combined medication which makes her hypertension stable.

111. Dr Parkes confirmed that the applicant had somnolence and symptoms suggestive of sleep apnoea, although he considered that they could also be attributed to tension arising from this application and the administration of the deceased’s estate. If the applicant did have sleep apnoea, Dr Parkes considered that treatment was available which was effective.

112. The conclusion to be drawn from Dr Parkes’ evidence in combination with the applicant’s evidence as to her health problems and her age is that she is not suited for undertaking paid employment.

113. In dealing with the issue of whether or not the applicant was a dependant at the time of the deceased’s death, my finding that the applicant was substantially maintained or supported by the deceased when he died is relevant in the context of the requirement of s 41(1A) of the Act.

114. An estimate of living expenses for the rest of the applicant’s life, based on mortality according to the Australian Life Tables 1997-1999 was prepared on behalf of the applicant (Ex 15). This calculation showed that on the basis of estimated expenses, if the applicant relocated to the coast she would require a lump sum of $613,216 to cover her living expenses for the rest of her life and a lump sum of $640,097, if she stayed living in the country. The applicant conceded that these figures would need to be reduced to take into account the sum of $300 per month received from agistment. The respondents did not dispute the calculations put forward by the applicant, but disputed that any further provision should be assessed merely by being based on such calculations.

115. As I indicated during the hearing, further provision for an applicant in a family provision application is not equivalent to assessing a loss in a personal injury claim. What it is likely to cost the applicant in the future to maintain herself is a relevant consideration, as is the size of the estate and the desire of the deceased to benefit those persons who were named in his will as beneficiaries.

116. Having regard to the degree to which the applicant was being maintained by the deceased at the date of his death which was substantial maintenance and support, the intention of the deceased and the applicant to continue their life together on Rossgae and the applicant’s age and circumstances, proper provision for the applicant required the deceased to provide a significant lump sum for her, in addition to the gift of Portion 37. In all the circumstances, it is proper that a lump sum of $500,000 should be provided for the applicant out of the deceased’s estate. If this payment is made from the residue, it will, in effect, be funded to some extent by the net value of Rossgae at the date of the deceased’s death which is fitting in view of the deceased’s intention to give the applicant some benefit from that property (even though the gift under clause 10 failed). That would enable the specific devises to the friends and relatives of the deceased to be left intact.

117. The orders which I make are:

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.

118. I will hear submissions on the question of what costs orders should be made.