In the Estate of HRA deceased[2021] QSC 29

SUPREME COURT OF QUEENSLAND

The Current Applications

1. [1]
   HRA died on 26 January 2020 at the age of 92.  He had never married and had no children.  His closest relatives at the time of his death were his niece CWK and nephew BKC.  At the time of his death, he was living at a Nursing Home in Gympie and left an estate valued at around $1.6 million including a property at ‘A’ valued at $350,000, a property at ‘M’ valued at $200,000, a term deposit of $1 million, and over $128,000 in various bank accounts.
2. [2]
   Mr HRA’s financial affairs were being managed by the Public Trustee of Queensland as administrator at the time of his death.  His estate has not been administered as he died without leaving a validly executed Will. 
3. [3]
   Mrs CWK and Mr BKC have applied for Letters of Administration on Intestacy as Administrators.
4. [4]
   Mr HRA had however been in a long-term relationship and had lived with a widowed friend SD for about 17 years on his properties at ‘BC’ and then A near Bundaberg.  They had lived together from around 1995 until September 2012 when Mrs SD moved into a Retirement Village in Bundaberg at the age of 75.  She is now 81 years of age.
5. [5]
   The evidence of Mrs SD’s general practitioner Dr Rahmand and the Psychiatrist Dr Laukens indicates that she currently has dementia of the “moderate to severe type and that her memory skills should be considered to be poor”.^[1]  Mrs SD’s attorney under an Enduring Power of Attorney, seeks a declaration that Mrs SD was Mr HRA’s de facto spouse at the time of his death and is entitled to his residuary estate.  Alternatively, she seeks an order pursuant to s 6 of the Succession Act 1981 (Qld) that a handwritten document dated 12 February 2010, found at Mr HRA’s residence, forms his Will. 

The Background to the Current Applications

6. [6]
   Mrs SD was the mother of seven adult children and financially independent when she and Mr HRA commenced living together in 1995.  There is no real dispute that she and Mr HRA lived together as a couple on a genuine domestic basis from that point in time, despite the fact that they always kept separate bank accounts and there was never any intermingling of their finances.  Mrs SD also paid her own personal expenses including running her car. 
7. [7]
   The evidence establishes that during the period they were together, they presented as a couple.  Mr HRA had a good relationship with all of Mrs SD’s children and was included and was actively involved in the events and social life of the SD family during the years they were together. 
8. [8]
   In 2011, Mr HRA began to experience dementia.  In 2012, Mrs SD’s health began to decline and Mr HRA’s dementia became more pronounced.  Despite his medical practitioner’s recommendation that he also move into a retirement village, Mr HRA refused to do so.  In December 2012, Mrs SD contacted Mr HRA’s niece CWK as she was worried about Mr HRA but was feeling “overwhelmed” about what to do.  His licence was revoked on 14 December 2012 due to advanced dementia.  They both attended an appointment with his GP on 31 December 2012, and an ACAT Assessment was organised.  Mrs SD states that after consultation with Mrs CWK:^[2]

“We formed the view that [HRA]’s health had deteriorated to the extent that I could no longer care for him.  His dementia was at the stage that it would have been very difficult for me to even have him live with me at [Retirement Village] to care for him, he really needed to be in a nursing home.”

9. [9]
   In March 2013, Mrs CWK applied to QCAT for orders appointing the Public Trustee as Administrator and the Adult Guardian as Guardian.  Mrs SD was not mentioned in those applications and was not aware of the hearing on 6 June 2013 when those appointments were made.  The Adult Guardian subsequently made a decision to move Mr HRA into a retirement village in Gympie after consultation with his niece who resided in Gympie.  Mrs SD assisted Mrs CWK with moving Mr HRA and attended at the property for that purpose in July 2013. 
10. [10]
    A signed letter dated 12 February 2010 from Mr HRA was found amongst his personal papers at the property.  It had not been witnessed.  It was in the following terms:

“[Address]  12/2/2010

To whom it may concern

This my only Will & Testament

I leave my property at [A] to my partner [SD] who has lived with me for approximately 10 years as my partner to do with as she wishes.  Prior to buying this property we lived together on a property on [street, BC] which I sold in 2002 & bought this property in 2002 at [A].

I also own a property on [street, M] where I used to fatten bullocks  I still own it  a neighbour runs cattle on it on agistment  Kevin Newitt owns the cattle whose address is [street, PR]  both these properties are Freehold Titles   The [PR] property needs to be sold at best advantage   both properties are freehold title the deed are held with the Solicitors in Bundaberg Woongarra St.  Finemore Walters & Storey.  (3 properties) including unit

I have machinery equipment & vehicles on the property on [street, A] which should be sold to best advantage  The [M] property only has 2 sets of yards (one need repair) is boundary fenced and divided into two main paddocks @ holding paddocks situated on the [river] with a dam as well.  Both properties are Freehold Titles.  The property [street, A] has quite a lot of machinery & other equipment that could be sold at best advantage  I suggest Callaghans would be suitable agents to hire and auction sale if need be to conduct any sales that might be needed to finalise the business if necessary depending on what my partner [SD] decides she wants to do with the [A] property in the event of my demise for any reason

My bank the Suncorp Bank in Bourbong St Bundaberg has a considerable amount of money in a term deposit plus a working account for ordinary everyday business purposes.  No money is owing on anything all expenses came out of everyday cheque account which I maintain in working condition.

Singed [HRA]”

11. [11]
    Whilst the letter is described as Mr HRA’s “only Will and Testament” and expresses a clear wish for the A property to go to his “partner” SD, the document did not otherwise dispose of his bank accounts and other personal property.  He did not name an executor.
12. [12]
    It is uncontroversial that the couple have not resided together since 2012.  The evidence is that Mrs SD visited Mr HRA twice in the seven-year period from 2013 to 2020 with the last occasion being February 2016.  Mrs SD’s evidence is contained in a Statutory Declaration sworn under the Oaths Act 1867 (Qld) on 17 May 2019 and was tendered without objection pursuant to s 92 of the Evidence Act 1977 (Qld). 

The Issues

13. [13]
    On 29 May 2020, the applicants CWK and BKC, applied for Letters of Administration on intestacy of the estate of HRA deceased, to be granted to them as Administrators.
14. [14]
    On 24 June 2020, the respondent SD filed an application which sought a number of orders in the alternative:

    1. (a)
       a declaration that she is the de facto spouse of the deceased HRA and is entitled to his residuary estate on intestacy;
    2. (b)
       that Letters of Administration be granted to her as Administrator; or
    3. (c)
       that the original handwritten document dated 12 February 2010 forms the draft Will of the deceased.
15. [15]
    The first question which needs to be determined is whether Mrs SD and the deceased were in a de facto relationship for a continuous period of at least two years prior to his death; that is, from 25 January 2018 to 26 January 2020.
16. [16]
    It is common ground that if Mrs SD and the deceased: 

    1. (a)
       were not in a de facto relationship for the relevant period, then the deceased died without a “spouse”^[3] and his niece and nephew are entitled to an equal share of the deceased’s estate on intestacy; and also have priority for Letters of Administration on intestacy; or

    2. (b)
       were in a de facto relationship for the relevant period, then Mrs SD was the deceased’s spouse and as such is entitled to 100% of the deceased’s estate on intestacy;^[4] and has priority for Letters of Administration on intestacy.
17. [17]
    It is only after that issue is determined that consideration then needs to be given to the status of the informal document dated 10 February 2010.
18. [18]
    Accordingly, the first question for determination is whether Mrs SD and Mr HRA “had lived together as a couple on a genuine domestic basis within the meaning of the Acts Interpretation Act 1954, s 32DA for a continuous period of at least two years ending on the deceased’s death”.^[5]
19. [19]
    Unlike the situation with a couple who are legally married, the onus of proving the existence of a de facto relationship lies on the party asserting its existence: in this case, Mrs SD.^[6]  As Dutney J commented in S v B:^[7]

“The reverse applies in the case of a de facto relationship in the sense that the party asserting the continuing relationship must prove the positive aspects of the relationship rather than the party asserting separation being required to prove the negatives.”

The Law

20. [20]
    Prior to 2002, the term “spouse” in the Succession Act 1981 (Qld) (the Act) only referred to married persons.
21. [21]
    Section 5AA of the Act was inserted in 2002 and expanded the definition to include de facto spouses.^[8]
22. [22]
    “Spouse” is defined in s 5AA of the Act as follows:

“5AAWho is a person’s spouse

3. (1)
   Generally, a person’s spouse is the person’s—

1. (a)
   husband or wife; or

2. (b)
   de facto partner, as defined in the Acts Interpretation Act 1954 (the AIA), section 32DA; or

3. (c)
   civil partner, as defined in the AIA, schedule 1.

3. (2)
   However, a person is a spouse of a deceased person only if, on the deceased’s death—

1. (a)
   the person was the deceased’s husband or wife; or

2. (b)
   the following applied to the person—

1. (i)
   the person was the deceased’s de facto partner, as defined in the AIA, section 32DA;

2. (ii)
   the person and the deceased had lived together as a couple on a genuine domestic basis within the meaning of the AIA, section 32DA for a continuous period of at least 2 years ending on the deceased’s death; or

…

3. (3)
   Subsection (2) applies—

1. (a)
   despite the AIA, section 32DA(6) and schedule 1, definition spouse; and

2. (b)
   whether the deceased died testate or intestate.

…”

23. [23]
    Section 32DA of the Acts Interpretation Act 1954 (QLD) (AIA) provides:

“32DAMeaning of de facto partner

3. (1)
   In an Act, a reference to a de facto partner is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.

3. (2)
   In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances—

1. (a)
   The nature and extent of their common residence;

2. (b)
   The length of their relationship;

3. (c)
   Whether or not a sexual relationship exists or existed;

4. (d)
   The degree of financial dependence or interdependence, and any arrangements for financial support;

5. (e)
   Their ownership, use and acquisition of property;

6. (f)
   The degree of mutual commitment to a shared life, including the care and support of each other;

7. (g)
   The care and support of children;

8. (h)
   The performance of household tasks;

1. (i)
   The reputation and public aspects of their relationship.

3. (3)
   No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis.”

Was there a De Facto Relationship in Existence up to September 2012?

24. [24]
    There is no doubt that the question as to whether a de facto relationship exists within the meaning of the AIA is a question of fact and that the criteria set out above are to be considered within the context of the entire relationship.  As Keane JA stated in FO v HAF:^[9]

“None of the matters listed in s 32DA(2) of the Acts Interpretation Act 1954 is necessarily of decisive significance in this regard: those matters are identified as relevant considerations. The ultimate issue to which they are relevant, however, is whether the parties are ‘living together…on a genuine domestic basis’. This phrase necessarily draws attention to whether the parties are living, or have lived, together to maintain a household in a relationship which exhibits the characteristics of the relationship of marriage, save for the solemnities involved in the formal exchange of wedding vows.”

25. [25]
    In terms of the history of the relationship, I am satisfied that the affidavit material exhibits a plethora of material which indicates that Mr HRA and Mrs SD were living together on a genuine domestic basis and were maintaining a household together at the time of Mrs SD’s move to a retirement village in September 2012.  Although they never mixed their financial affairs in any significant way, they jointly contributed to the household expenses and presented to the world as a couple.  This finding is substantiated by Mr HRA’s reference in his 2010 letter to Mrs SD as his partner and his desire that she inherit from him the property they had resided in together at A.  The applicants do not contest the fact that the couple were living together on a genuine domestic basis for at least the period from 1995 to 2012.
26. [26]
    In her statutory declaration, Mrs SD swears that she moved in with the deceased on 8 January 1995 as it was linked to the sale of her former property to her son SL. Mr HRA also stated in his letter of February 2010 that she has been his partner for “approximately 10 years”. 
27. [27]
    I am satisfied that as at September 2012 they were a de facto couple and Mrs SD was Mr HRA’s de facto partner as defined in the AIA at that point in time.

Was that Relationship in Existence for a Continuous Period of at least Two Years ending on the Deceased’s Death?

28. [28]
    The real question is whether that relationship continued when the couple ceased living together in 2012.  In FO v HAF,^[10] Keane JA stated that “continuing cohabitation in a common residence is not necessary to establish the continuation of a ‘de facto relationship’ where the parties have lived together as a couple, and have not effected a permanent separation”.  Numerous decisions of the Queensland Court of Appeal have confirmed that approach.^[11]  There are a series of cases which establish that a de facto relationship can continue, despite the fact the parties are separated by distance and no longer living together.  In PY v CY,^[12] Jerrard J stated:

“The appellant’s argument focuses heavily on the fact that in the period under challenge the parties were not sharing the one residence, and in his counsel’s submissions, were accordingly not ‘living together as a couple on a genuine domestic basis’.  But people who have lived together, perhaps for many years, can find themselves obliged to undergo a period of separation in which they live in separate cities or countries, that separation being caused by events the parties regard as beyond their control, as by definition, is the length of that separation.  An example which readily springs to mind is when a quickly emerging situation resulted in an overseas posting for a member of the armed services for an indefinite period, hoped to be short, at the end of which both parties intend that their cohabitation as a family in the one residence will be resumed.  Another common enough example will be when prevailing family and economic circumstances, such as a sudden illness, or as occurred in this case, force a physical separation.

The defacto spouse of a member of the armed services posted overseas in the circumstances suggested above would not accept that the de facto marriage had come to an end because of that posting, and that it would not exist until cohabitation on the other partner’s return to this country.”

29. [29]
    In her statutory declaration, Mrs SD swears that she wrote to Mr HRA in August, September and October 2013 without a response.  She subsequently rang and visited him in November 2013.  Due to distance and her own health issues she did not continue to visit, but would receive updates on him from her children who did visit him.  She states:^[13]

“At no time did I consider our relationship to be ended when I moved to the retirement village, or when [HRA] had to move to Gympie to live in a nursing home. I consider we are only separated by distance, and had [HRA] not had dementia, or had I been capable of continuing to care for [HRA] at home, we would still be living together. At no time did [HRA] and I have a conversation [sic] end our relationship.”

30. [30]
    Counsel for Mrs SD relies on the recent decision of the Victorian Supreme Court in Re Meuleman; Quminakelo v Amidzic^[14] to argue that the de facto relationship continued until Mr HRA’s death despite the fact they had not resided together for over seven years, because an examination of the history and circumstances of the relationship indicated that neither party had formed an intention to affect a permanent separation.  Counsel’s submissions were as follows:^[15]

“…

44. This is especially relevant to de facto relationships involving elderly persons, where ill health brought on by advanced age and other requirements may necessitate an involuntary separation.
45. For example, in Re Meuleman; Quminakelo v Amidzic, an applicant’s entitlement to provision under the Administration and Probate Act 1958 (Vic) turned on whether she was a “member of the household” of the deceased.  That required a finding that the applicant cohabitated with the deceased.  Although the parties cohabitated for a period of approximately five years, the onset of dementia led to the deceased being admitted to an aged care facility for the final four years of her life.
46. Though it was not disputed that a ‘warmly affectionate and genuinely caring’ relationship existed between the parties, the respondent beneficiaries of the estate contended that the applicant was doomed to fail on the basis that she did not live under the same roof as the deceased, so was incapable of cohabitating and thus unable to bring herself within the meaning of a ‘member of the household’.  In considering this submission, the court stated:

‘Once Olive was admitted to care, the question arises was did their membership of a “household” ceased? [sic] The defendant does not concede that the women were ever members of the same household, but submits it was impossible for them to be members of the same household after Olive went into a nursing home, unless Inise was also admitted to the same facility, as they lived in separate locations.  This focus on location misses the broader relationship context of a household.  For example, is a child at boarding school still a member of the parents’ household?

Marital relationships may continue during separations caused by external circumstances, like military service, imprisonment, temporary hospitalisation or admission to residential aged care.  So too, domestic partners may be involuntarily separated, but the relationship continues, despite the lack of cohabitation, so long as the parties intend it to continue.  The existence of a de facto relationship is a question of fact, requiring proof of “living together” (although not necessarily full time or in one location) and proof of the nature and extent of the relationship between the parties.  Domestic partners separated by one of the partners being admitted to residential age care remain in a relationship, albeit in a new phase, if the couples’ mutual commitment to each other continues.’

47. The court held that it was possible for the applicant and deceased to remain ‘members of the same household’ notwithstanding the deceased’s admission to aged care.  Relevantly, the court stated:

‘An involuntary separation does not end a domestic or de facto relationship which depends on ‘living together’ and mutual commitment for its existence.  Neither does an involuntary or forced separation means that parties to a legal marriage have formally separated.  It may be that the involuntary nature of Olive’s removal from her home and the continued family-like commitment given to Olive’s welfare by Inise preserves their “household” as such things preserved in the marriage of the husband with his wife in Stanford.  Like spouses, the relationship of ‘member of the household’ depends on a legal definition, not a biological relationship.  An involuntary separation can occur in many households.  For example, a dependent parent who had been living with an adult child until the adult child is admitted to palliative care for the final months of a terminal illness.’

48. In coming to that view, the court relied on the High Court’s decision in Stanford v Stanford.  In that case, the very elderly wife had been admitted to residential aged care after suffering a stroke and then dementia.  The wife’s adult children succeeded in obtaining a property settlement under the Family Law Act which necessitated the sale of the matrimonial home in which the nearly as elderly husband resided.  The husband contended that although his wife resided in an aged care facility with dementia, their marriage remained intact such that no property settlement could or should be made.”

31. [31]
    Counsel argues therefore that Mrs SD and Mr HRA were in a lengthy de facto relationship and whilst cohabitation ceased in September 2012, when Mrs SD relocated due to a combination of Mr HRA’s dementia and her medical conditions, that was an involuntary separation and there was never an intention to affect a permanent separation.  As I understand it, Counsel argues in essence that they were an illness-separated de facto couple. 
32. [32]
    It is necessary therefore to consider the circumstances and events surrounding the move into the retirement village as well as and particularly the state of health of the couple at the time.  The affidavit material clearly indicates that Mr HRA had been experiencing increasing memory loss and confusion for a number of years.  The Consultation Records from the Linden Medical Centre on 28 July 2011 noted cognitive decline which Dr Forster considered was “almost certainly alzheimers dementia”.  Mr HRA was prescribed Aricept medication and advised to make a will and to organise an enduring power of attorney.  The medical records and ACAT Assessment record a diagnosis of dementia by late 2012.  On 18 October 2012, Mr HRA had his annual health assessment with Dr Forster and had an MMSE score of 22, which was recorded as “mild cognitive impairment”. He was also noted to be “deteriorating” and under the heading “Recommendations”, Dr Forster noted:

“Planning to move into town with [SD] eventually.  Currently staying on farm while [SD] is in town.”

33. [33]
    On 2 November 2012, Mr HRA and Mrs SD attended on Dr Forster who noted (errors as per original):

“discussed his continued driving now that [SD] has moved to town leaving him alone on the [A] property

He feels hes fine although he cant find [SD]s unit in town because it up and down sidestreets

[SD] feels memory getting worse…

advised he needs to drive with someone with him and should move into town with [SD]

even though he doesn’t think there is a problem

they will discuss it

advise I will not renew his fitness to drive.”

34. [34]
    As Mr HRA’s dementia increased, he began calling Mrs SD at all hours of the night.  This was the subject of a note made by Dr Forster on 14 December 2012 (errors as per original):

“drivers licence medical attended to

medical condition affecting driving increasing dementia

short term memory has deteriorated since august assessment

is phoning [SD] daily confused as to what he should be doing at farm

is phoning here daily asking if he has a medical appointment

concern from partner [SD] that he cant find his way into her home in Bundaberg and is a danger on the road

concern from other family members he is a danger on the road

i vave witnessed him driving at 20km hr along Bundaberg streets and not indicating to turn into boylans stockfeeds

has apparently misplaced/lost his licence somewhere

advised must take certificate to dept main roads in production avenue to be notified of failing medical standard to be put in main roads computer

he as expected doesnt agree as living at [A] he feels he must be able to drive

previously advised he should move into Bundaberg with partner [SD]

paperwork completed advising failure to meet medical standard for driving

copies to be sent to department transport.”

35. [35]
    There is no doubt that Mrs SD also had multiple medical conditions which were outlined by her Counsel in his submissions. These conditions included haemochromatosis, a blood condition, diagnosed in 2007 which required numerous venesections i.e., the drawing or removal of blood which caused her to feel “lightheaded”, or “faint”, and to have “frequent falls”.  She was also noted to suffer from anxiety as well as hypertension.
36. [36]
    The records indicate that on 20 February 2012, Dr Aslam recorded that Mrs SD “feels very low teary and anxious moods low”.  She diagnosed Mrs SD with depression and started her on Alepam.  She noted that by March 2012, there was some improvement in Mrs SD’s mood and that she was feeling better.  Mrs SD’s neighbour, TSW, states that in late 2012 she told him “she couldn’t handle”^[16] living with the deceased any longer.  In December 2012, after testing, she was diagnosed with bronchiectasis, a disease of the airways.  Mrs SD sets out the circumstances surrounding her move in her Statutory Declaration in the following terms:

“30. I had many conversations with [HRA] about my desire for us to move into town.  Eventually, and in the hope it would change his mind, I said to him that if he refused to come, that I would move in without him.  He still refused to come.

31. [HRA] was upset when I said I was going to move into town.  He didn’t want me to move.  He couldn’t understand why I would possibly want to move into town.  I told him that it was because it was getting too far to drive in, but he didn’t really accept that.  He never accepted that he was no longer fit to drive.
32. Eventually I signed a contract to move into the retirement village without [HRA].  It was a very difficult decision for me, as I did not want to leave [HRA] at home at [A], but at the same time, I felt that I also needed to do what was best for me.  I felt safer by moving into town, I was worried about us being stuck out at [A] and not being able to get out of the house.
33. I did not take a lot of things from our [A] home, I purchased a lot of new things for the unit and really only took my personal effects.  I left most things there as [HRA] would need them.
34. My plan was that I would go out to [A] and help [HRA] as much as I could.  I also knew that our neighbours would keep an eye out on him.  We had two lots of neighbours who had cattle agisted on the property and they would call in a few times a week.
35. Despite my move into town, [HRA] and I did not consider our relationship to be over.  There was an open invitation for him to come and live at the village with me.  I still had hopes that he would move into town with me.”

37. [37]
    Clearly then they both had medical issues in 2012 which reached a crucial point in late-2012 and early-2013.  In my view, when Mrs SD moved into the Retirement Village in late 2012, there is no clear evidence that she intended to affect a permanent separation.  It would seem to me that Dr Forster’s records show Mrs SD’s continued involvement in Mr HRA’s care including her visits to the property to assist him, and her expressed wish that he join her at the retirement village, all support this conclusion. 
38. [38]
    Having considered Counsel’s submissions and the affidavit material, I am not satisfied that Mrs SD had an intention to affect a permanent separation when she moved into Bundaberg in late-2012.  The real question is whether that situation subsequently changed.  In order to answer this question, it is necessary to consider what constitutes a permanent separation.  This issue was discussed in S v B,^[17] where Dutney J said:

“Applying the passage of Mahoney JA in Hibberson v George, which I set out earlier, a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart.  It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision.  I do not think it is necessary that the other party agree with or accept the decision.  Once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the de facto relationship ceases.  The relationship ceases even though one party is still anxious to try to save it.” (my emphasis)

39. [39]
    Counsel for Mrs SD argues that there was a continuation of the pre-existing de facto relationship and that the real issue is whether the evidence as to the relationship between Mr HRA and Mrs SD between 1982 and his death 38 years later, on 26 January 2020, is “sufficient to establish that the pre-existing de facto relationship continued until that later date”.  Counsel for Mrs SD made the following submissions:^[18]

“155. Where the issue is whether a pre-existing de facto relationship has continued, it is not necessary to establish continuing cohabitation in a common residence to establish the continuation of a de fact relationship, provided that the parties have lived together as a couple and have not formed the intention to effect a permanent separation.

156. In coming to a conclusion as to that, it is submitted that the law is not insensitive to the reality of the human condition and intimate human relationships.  It is not ignorant of the fact that, as people age, their bodily and mental health may require them to seek or obtain care, support and other assistance, and indeed, compel them to move into residential aged care.  The law has only recently started to grapple with the problem of accommodating the extreme old age of one or both of the partners to a marriage or de facto relationship with the continuation of that relationship.  However, the authorities to which we have referred seem to establish that, whether it be in the context of a marriage or a de facto relationship, the necessity for one spouse/partner to be admitted to residential aged care will not, without more, effect a separation or bring the relationship to an end.
157. The present case raises the problem in a particularly acute form.  In cases such as Stanford v Stanford and Re Meuleman, the husband, in the former, and member of the household, in the latter, were in a position to be able to regularly visit the spouse/other household member in residential aged care.  In Stanford, the elderly husband was able to visit his wife three times per week and continued to financially support her and the trial judge held that he was likely to continue to visit her ‘as long as he is able’.  In Meuleman, the applicant for family provision, who claimed to be a member of the deceased’s household, was able to visit the deceased daily and continued to manage her affairs.
158. In the present case, [HRA] was moved to care in another city, making it difficult for [SD] even to communicate with him, given the severity of his dementia, must less to see him.  But, it is submitted, analysis of the evidence should ultimately lead the court to conclude that neither [SD] nor [HRA] intended to effect a permanent separation between them.  Their separation was an involuntary one forced on them by the unfortunate exigencies of old age, in [SD]’s case, and extreme old age, in [HRA]’s.
159. It is submitted that the court should conclude that the relationship between them continued until [HRA]’s death, with the result that [SD] remained his ‘spouse’, within the meaning of section 5AA of the Succession Act, and is entitled to his estate on intestacy.”

40. [40]
    As I understand this submission, it would seem that Counsel is arguing that the relationship between the parties continued to exist, irrespective of the actual input into that relationship by either party during the last seven years of Mr HRA’s life, because the relationship up to 2012 was one that satisfied the criteria for a de facto relationship and there is no definitive evidence it came to an end. 
41. [41]
    That is not however the test.  The onus is clearly on Mrs SD to establish the existence of a de facto relationship in the last two years before Mr HRA’s death.   In my view, it is not just a question as to what evidence there is that the relationship ended, but rather what evidence there is that there was such a relationship actually in existence in the relevant last two years of Mr HRA’s life.  The question is therefore whether there was any indication by Mrs SD that she continued to manifest a wish to live in the required degree of mutuality with Mr HRA.
42. [42]
    In this regard I note the fundamental fragility of a de facto relationship.  As was stated at [33] in S v B:^[19]

“De facto relationships are by nature fragile. The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement. It has been recognised, however, that the persistence of those indicia are fundamental to the continuance of a de facto relationship. In Hibberson v George Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows:

‘There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to “live together” with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.’”

43. [43]
    In this regard I am guided by the indicia set out in s 32DA(2) of the AIA to determine whether, on the evidence in this case, the parties were in fact a de facto couple for the relevant period namely between 26 January 2018 and 26 January 2020 when Mr HRA died.^[20]  I will therefore address the essential criteria.

The Nature and Extent of their Common Residence

44. [44]
    There is no controversy that they shared a residence, in two separate locations, up until Mrs SD moved out of Mr HRA’s A property to the Retirement Village in Bundaberg in 2012. 
45. [45]
    I accept therefore that whilst the parties did not share a common residence in the last two years before Mr HRA’s death, that is, between January 2018 and January 2020, there is no doubt they shared a common residence for at least 12 years on Mr HRA’s account and quite possibly 17 years on the evidence of Mrs SD which is accepted by the applicants. 

The Length of their Relationship

46. [46]
    The actual relationship between the parties had commenced much earlier than the period of cohabitation.  Mrs SD’s evidence is that she was widowed in 1980 and was left to raise seven children between the ages of five and 17.  She lived near Mr HRA at BC and they started seeing each other in 1982.  The affidavits of Mrs SD’s daughters WCF^[21] and JB^[22] indicate that Mr HRA became part of the SD family.  They celebrated his birthdays as a family and the grandchildren referred to him as “Poppy [HRA]”.  I also note that Mr BKC and Mrs CWK both accept that the relationship started in 1995 and “may have been earlier”.^[23]
47. [47]
    It is necessary however to look objectively at the whole circumstances of the relationship in the seven-year period between September 2012 and January 2020.
48. [48]
    First, I note that Mrs SD made a clear choice to cease living with Mr HRA.  Whilst it was a completely understandable decision, she made a conscious decision to leave in circumstances where it was clear to her that Mr HRA was refusing to leave.  It would seem to me that Mrs SD could not cope and made the perfectly rational decision that she needed to look after her own interests first.  Whilst she may have hoped Mr HRA would join her, that was never certain. 
49. [49]
    In that seven-year period, there were three attempts at contact and a visit by Mrs SD in 2016.  The nursing home notes record Mrs SD as Mr HRA’s next of kin, and also record that information was provided from time to time about Mr HRA’s health to Mrs SD via her daughter WCF. 
50. [50]
    There is simply no evidence which records any attempt by Mrs SD to contact, communicate or inquire about Mr HRA in any way whatsoever in the relevant last two years of his life and probably no real effort after 2016.

Whether or not a Sexual Relationship Existed

51. [51]
    Whilst there is no explicit evidence of a sexual relationship, I accept that they slept together in the same bedroom^[24], and Mr HRA referred to Mrs SD as his partner.  There is also evidence from Mrs SD’s daughter WCF that she saw the deceased “flirt” with the respondent by “tapping her bottom.^[25]  I infer therefore that there was a sexual relationship at some point. 
52. [52]
    As there had been no contact between 2016 and Mr HRA’s death in January 2020, there is clearly no evidence of an ongoing sexual relationship for the relevant period between January 2018 and January 2020.

The Degree of Financial Dependence or Interdependence, and any Arrangement for Financial Support

53. [53]
    Mrs SD, in her statutory declaration, stated that Mr HRA paid for things like phone bills and electricity, but they would both pick up groceries if they were in town.  She would pay for her own personal expenses including her own vehicle and fuel.^[26]  Her evidence was that they always kept their finances separate.^[27]
54. [54]
    Mrs SD also makes it clear that she was financially independent to a large extent, as she had her own sources of money.  She stated that “I did have some of my own money received from my late husband’s life insurance, an inheritance from my mother and an inheritance from my uncle.  I also received some money from [SL] when he purchased my property from me”.^[28]  Mrs SD also told her daughter, SGM, that “she could support herself financially” and that she “did not need to rely” on Mr HRA.^[29]  She also said something similar to their neighbour TSW in 2012 prior to moving to Bundaberg.^[30]
55. [55]
    Accordingly, whilst there may have been some minor financial interdependence during the period the couple lived together, there is simply no evidence of any financial dependence or interdependence between the parties within the relevant period. 

Their Ownership, Use and Acquisition of Property

56. [56]
    On Mrs SD’s evidence, when they lived together it was on properties owned by the deceased and there is no evidence that they jointly owned or purchased property in that period.  Mr HRA had purchased A in his own name in 2002 and it would seem Mrs SD purchased the unit in the Retirement Village in her own name in 2012.  There was no jointly-owned property purchased during the relevant period.

The Degree of Mutual Commitment to a Shared Life, including the Care and Support of Each Other

57. [57]
    Mr TSW’s evidence was that Mr HRA was not coping after Mrs SD left, and he had to contact Mrs CWK to make decisions about Mr HRA’s future because his efforts to involve Mrs SD proved futile.  On my assessment of the medical records of Dr Forster, Mrs SD was happy for Mrs CWK to step in and make the arrangements for Mr HRA’s future care.  When decisions were made about his placement in Gympie, near his niece, she did not object when she became aware of that fact, no doubt content that Mrs CWK would look after his interests. 
58. [58]
    The evidence indicates that there were efforts by both Mr HRA and Mrs SD to keep in contact in 2013.  It would seem clear that any type of communication with Mr HRA was difficult given not only his advancing dementia and confusion but his hearing loss as well.  There was, it would seem, no ability for Mr HRA to make a contribution to a continuing relationship once his dementia became severe.  It would seem to me that that position was reached by mid-2013.  I accept that Mr HRA had no ability to form an intention to bring the relationship to an end.
59. [59]
    Despite the fact that one party in a relationship has lost capacity and indeed the ability to communicate meaningfully, the other part can still continue to evidence a commitment to that relationship.  This is shown in a myriad of ways every day in nursing homes, hospitals and retirement villages and family homes in our community.   This commitment is usually manifested by efforts at continuing engagement with the other by being interested and involved in that other person.  This is shown by providing care as well as by visits, letters, cards, flowers and gifts.  If distance is a problem, arrangements are usually made for updates from nursing staff and a continuing involvement in decisions about their care.  There is usually some objective manifestation of a continuing desire to be involved in their life and some commitment or effort to make that happen. 
60. [60]
    That level of commitment and mutuality was discussed in some detail by Slattery J in Dakin v Floyd^[31] in these terms:

“It may seem unfair to Mansueta in determining that a de facto relationship ended when Les was taken away to Sydney. After all, marriages and other relationships do not end simply because one partner has been admitted to a nursing home. Such relationships merely enter a new phase, where the parties are not able to actually live under the same roof because of the disability of one of them.

But the continuation of the relationship in such circumstances can be tested in other ways: frequency and length of visitation, proximity of residence, and expressions of preference of the person in care to spend exclusive time with the more mobile partner compared with other people. Other factors will be relevant depending on the circumstances. Such factors do not point strongly here towards the continuation of a de facto relationship between Les and Mansueta.”

61. [61]
    It was also discussed in Re Meuleman; Quminakelo v Amidzic,^[32] and was referred to as “the continued family-like commitment” given to the person’s welfare.  In that case it was manifested as follows:^[33]

“On 2 June 2013, Olive was admitted into residential aged care after being diagnosed with dementia and ‘deemed incapable of living in her own home’. Inise visited Olive daily ‘without fail’, taking her favourite foods and other gifts, as well as giving direct personal care.

On 22 July 2013, the Victorian Civil and Administrative Tribunal appointed Inise administrator of Olive’s financial affairs under the then Guardianship and Administration Act 1986 (Vic). In this role, Inise undertook the tasks of dealing Olive’s aged care service provider, paying all bills, selling Olive’s home (so to reduce aged care daily fees and improve Olive’s financial position) and generally managing her money.

The continuing attentive and supportive nature of Inise’s relationship with Olive is confirmed by the chaplain of Olive’s nursing home, Dr Louise Gray, from 2015 (when the chaplain was appointed) to Olive’s death in April 2017.”

62. [62]
    The question therefore is whether, when one looks at the period of time from 2012 to 2020 and particularly the critical two years before Mr HRA’s death, what evidence is there of any intention by Mrs SD of a continuing interest in Mr HRA’s life or his care? 
63. [63]
    The evidence of the A neighbour TSW is that:

    1. (a)
       he contacted Mrs SD after she had moved out of A to inform her that the deceased “was not coping” however she “was unconcerned regarding the matter”;^[34]

    2. (b)
       on inspection of Mr HRA’s fridge in mid-January 2013, he found out-of-date and spoiled milk and rotting meat, fruit and vegetables;^[35]
    3. (c)
       on inspection of his pantry on the same date, he found two dozen boxes of Cornflakes and Weetbix, and replenished the fridge with fresh food;^[36]
    4. (d)
       he saw Mr HRA on a daily basis, monitoring his food stock and replacing it when necessary.^[37]  Whenever he visited Mrs SD was never there;^[38] and
    5. (e)
       he contacted Mrs CWK informing her of Mr HRA’s needs after his contact with Mrs SD proved futile.^[39]
64. [64]
    After Mr HRA moved into the nursing home, Mrs SD visited him twice.  Once when her daughter-in-law, SKM, took her to visit the deceased shortly after he moved into the nursing home^[40] and then in February 2016, when her daughter, CLJ, drove her.^[41] 
65. [65]
    As already noted, the evidence indicates that Mrs SD wrote to the deceased on 23 August 2013, 18 September 2013 and 16 October 2013.  She last spoke to Mr HRA on the phone on 6 November 2013.
66. [66]
    Initially, there was evidence of mutual commitment to each other, given Mr HRA was continually ringing Mrs SD in late-2012 and drove into Bundaberg to visit her until mid-December 2012 when his licence was revoked.  Mrs SD also made some efforts to assist him in early 2013.  However, there is simply no evidence of Mr HRA initiating any contact after he moved to Gympie in 2013 and evidence of only very isolated efforts at contact by Mrs SD after the move.  It is accepted that the last real contact was in 2016. 
67. [67]
    It is significant that there is no evidence of any contact by mail, telephone or personal visits between the couple after 2016 and accordingly there is therefore no evidence of any continuing contact in the last two years before Mr HRA’s death. 
68. [68]
    Although Mrs SD stated that due to her age and the physical distance it became more difficult to visit Mr HRA,^[42] the following matters, as noted by the applicants, would seem to be significant:^[43]

    1. (a)
       in November 2011, Mrs SD visited her family in Tully,  which is a 17.5 hour train trip from Bundaberg;

    2. (b)
       in April 2017, Mrs SD was assessed as capable of visiting her daughter in Tully;
    3. (c)
       in August 2017, Mrs SD travelled to Mt Isa to visit her daughter, SGM;
    4. (d)
       Mrs SD appeared to have been driving between 2012 to at least April 2019;
    5. (e)
       in or around May 2019, the Mrs SD visited Cairns for “a wedding and a break”; and
    6. (f)
       with the exception of the one visit in 2013 with SKM,  there is no evidence that Mrs SD ever asked any of her seven children to take her to see Mr HRA in the nursing home despite the fact that she was advised by her solicitor, Mr Krebs, on 8 November 2013:

“You should also keep in touch and communicate with Mr [HRA] and see him whenever you can and you should keep a diary of all action you take as evidence for the future.”

69. [69]
    It would seem to me that whilst Mr HRA could not contribute in any way to an ongoing relationship after 2013, it is also clear that whilst Mrs SD did have the capacity and the ability to make an objective commitment to him in some objective way, she simply chose not to do so.  In my view, Mrs SD made a choice to disengage with Mr HRA.  Whilst she may not have made a deliberate choice to end the relationship, she did not nurture or maintain it in any way.  In short, it did not in fact continue.  In my view, there was no objective, observable manifestation of that relationship in the relevant last two years of Mr HRA’s life.

The Care and Support of Children

70. [70]
    There has never been any joint care and/or support of children.
71. [71]
    The parties did not have any children together.^[44] 
72. [72]
    The respondent’s children were all adults when the parties commenced cohabiting in 1995.
73. [73]
    Although there is some evidence that the respondent’s children and grandchildren visited the deceased during the relevant period, such contact does not, and cannot, be an indicia of a de facto relationship between the parties for the purposes of the Act.
74. [74]
    Even though visits by the respondent’s children are not relevant to determining the nature of the respondent and the deceased’s relationship, it is noted that, apart from some early visits from WCF, every other single visit by the respondent’s children post-dated Mrs CWK ringing the respondent in February 2019 telling her that the deceased had been hospitalised.^[45]

The Performance of Household Tasks

75. [75]
    The respondent did not perform any household tasks for the deceased:

    1. (a)
       during the relevant period; and/or

    2. (b)
       since the deceased moved into the nursing home in 2013.
76. [76]
    Prior to the deceased moving to the nursing home, and post the respondent moving out of A in 2012, the respondent’s evidence, whilst very vague as to dates, is that she:

    1. (a)
       picked up and paid for some groceries;

    2. (b)
       helped the deceased on the farm;
    3. (c)
       performed household cleaning;
    4. (d)
       occasionally cooked; and
    5. (e)
       mended the deceased’s clothes.

The Reputation and Public Aspects of their Relationship

77. [77]
    There is no evidence of any public declaration that the parties were in a relationship during the relevant period.  
78. [78]
    In fact, the respondent declared she did not have a spouse on all of her tax returns between 2012 and 2019. 
79. [79]
    Further, when the respondent saw her solicitor, Glen Krebs, to draft a new Will on 25 October 2012 and 12 November 2012, she did not mention to him that she had a partner. 
80. [80]
    Mr Krebs states that he has no recollection of this attendance but then states he likely ticked the box that described the respondent as “single”.^[46]  Further, under “Executors and Trustees” there is a cross through the words “Spouse / partner”.^[47]
81. [81]
    It would seem clear that Mr Krebs’ evidence indicates that Mrs SD failed to tell Mr Krebs she had a partner or was in a relationship in December 2012. 
82. [82]
    I also note that in April 2019, the nursing home staff where Mr HRA was residing asked Mrs SD’s daughter WCF to provide evidence that Mrs SD was Mr HRA’s spouse.^[48] 

Conclusion

83. [83]
    Having considered all of the evidence, I am not satisfied that Mrs SD has satisfied the onus on her to establish that she was in a de facto relationship with Mr HRA for a continuous period of at least two years ending on his death.

The Informal Will

84. [84]
    The next issue relates to the relevance of the informal document that was found at Mr HRA’s residence. There is no doubt that the document does not satisfy the formal execution requirements for a valid will as required by s 10 of the Act.  Whilst there could be an argument that it might satisfy the requirements of s 18 of the Act, it is unnecessary to turn to a consideration of that issue given s 15B of the Act.
85. [85]
    Section 15B of the Act provides as follows:

“15B Effect of end of de facto relationship on a will

3. (1)
   The ending of a testator’s de facto relationship revokes—

3. (3)
   Subsection (1) does not apply if a contrary intention appears in the will.

3. (5)
   In this section—

former de facto partner, in relation to a testator, means the person who was the de facto partner of the testator immediately before the ending of the testator’s de facto relationship.”

86. [86]
    Accordingly having concluded that the de facto relationship ended prior to the relevant two-year period before Mr HRA’s death on 26 January 2020 and that there was no evidence of a de facto relationship in existence between 26 January 2018 and 26 January 2020 it would seem that the legal position is clear. Even if I were satisfied that the requirements of s 18 were satisfied, any disposition to Mrs SD would be revoked.
87. [87]
    It is therefore not necessary to consider that issue any further.
88. [88]
    There should therefore be orders that Letters of Administration on intestacy should issue to CWK and BKC.
89. [89]
    I will hear from the parties as to the form of the order and as to costs.