Competing Relationships: Needs of De Facto vs Adult Children

Relationships and tragedy are a complex maze of emotions.  In the very sad case of Gore v Rouse [2017] QDC 98, Mr Gore was tragically killed in a tree lopping incident at the home of his de facto partner, Mrs Rouse. Mr Gore was 63 years old.

Mr Gore was survived by three adult children, Tracey (from his first marriage), Trevor and Natalie (from his second marriage).

In his Will, Mr Gore had left Tracey a gift of $20,000.00 and the residue of his estate equally between Trevor and Natalie. Mr Gore appointed Trevor as the Executor of his estate.  He left no provision for Mrs Rouse.  Mr Gore’s estate was valued at approximately $800,000.00.

Mrs Rouse made a claim for further provision from Mr Gore’s estate as his surviving de facto partner.

The Court was tasked with a few matters:

  • There was a dispute over two items still in Mrs Rouse’s position (that were left at her home when Mr Gore passed away); namely, a motor vehicle and box trailer (valued at approximately $9,000 at the date of the hearing).  The Court needed to determine whether these items belonged to the estate or to Mrs Rouse;
  • Whether Mrs Rouse was Mr Gore’s de facto partner and therefore entitled to apply for further provision from Mr Gore’s estate;
  • If Mrs Rouse was Mr Gore’s defacto, whether she is entitled to a share of his estate and if so, how much she should receive.

The Court succinctly determined that the motor vehicle and box trailer belonged to the estate.

The Court considered that Mr Gore and Mrs Rouse were in a de facto relationship for a “happy” four years, on the basis of the following:

  • Mr Gore’s son had offered his home to his father to stay after he sold his home in Beaudesert and Mr Gore had often quoted his son’s address as his address for various organisations (including electoral roll). Notwithstanding this, the Court was satisfied that he lived predominately with Mrs Rouse;
  • Mr Gore sold his home in August 2010 and after September 2010, mostly slept at Mrs Rouses’s home;
  • Mr Gore and Mrs Rouse took three trips overseas together during their relationship;
  • In unrelated proceedings where Mrs Rouse was a party, Mrs Rouse had provided evidence in support of that matter noting that Mr Gore had moved in her with personally;
  • In those same unrelated proceedings, Mr Gore himself had provided some evidence for some purpose and had stated that he had began a relationship with Mrs Rouse in September 2010;
  • Mr Gore and Mrs Rouse had met whilst bush walking and there was evidence from a friend involved in a bush walking club with Mr Gore that he had moved into Mrs Rouse’s home and that Mrs Rouse had hosted Mr Gore’s 60th birthday in her home (approximately December 2010) and that she had visited them socially at “their home”.

Following the Court’s determination that a de facto relationship existed, the question then became one of need and quantum.

Importantly, following the tragic incident causing Mr Gore’s death, Mrs Rouse made a claim against the tree-lopping business for loss of dependency on Mr Gore. Mrs Rouse received approximately $285,000.00 after legal expenses.  The executor claimed that this should be taken into account by the Court when weighing Mrs Rouses’s claim. Trevor and Natalie also both suffered nervous shock as a result of their father’s death and received an amount in damages also.

In this situation, the needs of the applicant were weighed carefully against the needs of the residual beneficiaries; Trevor and Natalie.

Sadly, Trevor and Natalie had both suffered significantly after the loss of their father.

Natalie suffers from major depression and had tried to take her life only months after her father’s death. Additional to her mental health challenges, she had also suffered injuries from a motor vehicle accident.  As a result of her struggles, her employment prospects were largely dependent on successful treatment.  Natalie’s net wealth was accepted by the Court to be approximately $279,667,03.

Trevor also suffered major depression as a result of his father’s death.  Whilst he can retain work on a casual basis, his earning capacity is significantly restricted by his mental illness. Trevor’s net wealth was accepted by the Court to be primarily his [now] unencumbered property worth approximately $430,000.00

Mrs Rouse claimed that the division of the estate should be determined as 40% to Natalie, 30% to Trevor and 30% to herself.  In relation to this submission by Mrs Rouse, the Court said:

The brevity of the relationship, the lack of financial contribution by Mrs Rouse, her reasonable financial security and her financial position’s superiority to Natalie’s and Trevor’s lead me to regard that as too high.

In making a final order for provision, the Court said:

  1. Mrs Rouse recovered $285,000 after the deceased’s death, as a result of her judgment against the tree lopping entity. That has reduced her needs and diminishes what is a fit provision for the court to make. Mrs Rouse used more than $50,000 of her judgment for house “maintenance”. I assume all the overdue repairs and incomplete renovations were among the maintenance items attended to. She retains about $208,000.
  1. On the 3% discount table, $208,000.00 is the present value of a payment of $298.00 per week for the 17 years which is Mrs Rouse’s remaining life expectancy. Her annual expenses at the date of death exceeded her income by about $300 per week and I infer that they continue to exceed her income by a similar amount.
  1. What is a fit provision may be more than the bare minimum necessary to ensure that an applicant is housed and fed. [34] What is a fit provision may go beyond the provision of  “the bread and butter of life”, and extend to “a little of the cheese or jam that a wise and just [testator] would appreciate should be provided if circumstances permit”.[35] That approach must be balanced against the needs of the adult beneficiaries in this case and the modesty of the estate.
  1. The appropriate provision from the estate is:

(a)          a bequest of the Mazda motor vehicle;

(b)          a legacy of $70,000.00 (i.e. the present value of a payment of $100.00 per week for Mrs Rouse’s life expectancy, discounted on the 3% tables).

(citations omitted)

As Mrs Rouse did not exonerate Tracey’s bequest in the Will from the burden of her claim, the Court determined that the legacy should be exonerated and the order be paid out of the residue of the estate.

You can read the case here.

Update 10.5.2017: My apologies to all attempting to reach the full text of the judgement.  It appears that the judgement has been removed from Jade Barnet (which is the original link attached to this post).  However it does appear that you can request the full text of the judgement via Document Delivery with the Supreme Court of Qld, if required, via this link. Thanks for your understanding, everyone.

 

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