| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S CI 2016 02552
IN THE MATTER of Part IV of the Administration and Probate Act 1958
- and –
IN THE MATTER of the Estate of SIEGFRIED RUOPP, deceased
BETWEEN
| LAURACE BAIL | Plaintiff |
| v | |
| JOHN EWEN SCOTT-MACKENZIE (who is sued as the Executor of the Estate of SIEGFRIED RUOPP, deceased) | Defendant |
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JUDGE: | Derham AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 July 2016 and 19 September 2016. |
DATE OF JUDGMENT: | 20 September 2016 |
CASE MAY BE CITED AS: | Bail v Scott-Mackenzie |
MEDIUM NEUTRAL CITATION: | [2016] VSC 563 Second revision: 20 December 2016 |
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TESTATORS’ FAMILY MAINTENANCE – Whether plaintiff is an eligible person under Administration and Probate Act 1958, Part IV – Whether a child of a former domestic partner of the deceased is a stepchild of the deceased – Whether relationship of stepchild-stepparent ends on death of natural parent – Plaintiff held to be an eligible person – Administration and Probate Act 1958, Part IV, s 90.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J D Catlin | Armstrong Legal |
| For the Defendant | Mr R Boaden | Devenish Lawyers |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Summary of Conclusions................................................................................................................. 1
Background......................................................................................................................................... 2
Applicable Law................................................................................................................................... 3
Defendant’s Submissions................................................................................................................. 7
Plaintiff’s Submissions..................................................................................................................... 8
Further Material................................................................................................................................ 10
Further Submissions........................................................................................................................ 11
Consideration.................................................................................................................................... 14
Introduction................................................................................................................................. 14
The Text and Context.................................................................................................................. 17
The Mischief Rule – does it help?............................................................................................ 21
The History of the Provisions................................................................................................... 21
The Authorities............................................................................................................................ 31
Status of Children Act..................................................................................................................... 41
Conclusion......................................................................................................................................... 42
HIS HONOUR:
Introduction
The defendant applies to have the plaintiff’s claim dismissed on the grounds that the plaintiff is not an eligible person within the definition of s 90 of the Administration and Probate Act 1958 (‘the Act’) and the plaintiff’s claim has no real prospects of success.[1] The application is made under s 61 of the Civil Procedure Act 2010.
[1]Summons filed 15 July 2016.
The plaintiff claims to be an eligible person to whom Siegfried Ruopp (‘the deceased’) failed to make adequate provision for her proper maintenance and support pursuant to Part IV of the Act. She claims that she is the deceased’s stepchild. Her mother was the domestic partner of the deceased for a period of over 40 years. That relationship ended on the death of her mother about 15 years before the deceased’s death. The deceased’s will did not provide for the plaintiff and his entire estate went to his new domestic partner.
The determination of the application depends on whether the plaintiff falls within the definition of ‘stepchild’ as an eligible person and whether this includes a child of a former domestic partner of the deceased. That also involves the question of whether the relationship of stepchild and stepparent survives the death of the natural parent when that parent predeceases the deceased.
The parties were initially content to rely upon written submissions alone. However, in the course of writing, I discovered further material not referred to by…
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- AGLC
- Bail v Scott-Mackenzie [2016] VSC 563
- Case
- [2016] VSC 563
- Decision Date
CaseChat Overview and Summary
The court considered the definition of "child" and "stepchild" under the Administration and Probate Act 1958, Part IV. It examined whether the statutory definition encompasses a child of a former domestic partner and whether the stepchild relationship continues after the death of the natural parent. The court also looked at relevant case law and statutory interpretation principles to ascertain the intention of the legislature in defining "eligible persons" for maintenance purposes. The court needed to reconcile the statutory provisions with the factual circumstances of the relationship between the plaintiff and the deceased.
After careful analysis, the court found that the plaintiff is indeed an eligible person under section 90 of the Administration and Probate Act 1958, Part IV. The court concluded that the relationship of stepchild-stepparent does not necessarily terminate upon the death of the natural parent. As such, the plaintiff was entitled to maintenance from the estate of the deceased. The court’s decision hinged on the interpretation of the statutory language and the broader legislative intent to provide for the maintenance of those closely connected to the deceased.
The court ordered that the plaintiff be recognised as an eligible person under the Act and granted her entitlement to maintenance from the estate of the deceased. This decision provides clarity on the eligibility of children of former domestic partners and the continuation of the stepchild relationship for maintenance purposes under the Act.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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