KIEREN INNES-IRONS and EMELIA HARDING-COLLISS	Plaintiffs
v
ROGER CRANFIELD FORREST (who is sued as the Administrator of the Estate of the abovenamed deceased)	Defendant

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2016
DATE OF JUDGMENT:	15 December 2016
CASE MAY BE CITED AS:	Innes-Irons & Anor v Forrest
MEDIUM NEUTRAL CITATION:	[2016] VSC 782

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TESTATORS’ FAMILY MAINTENANCE – Whether plaintiffs are eligible persons under Administration and Probate Act 1958, Part IV – Whether a child adopted out from their natural parent can be an eligible person within Administration and Probate Act 1958, Part IV, s 90, definition of ‘eligible person’ paragraph (g) – Adoption Act 1984 (Vic) s 53 – There is a real as opposed to a fanciful prospect that the plaintiffs are eligible persons under paragraph (g) of the definition of eligible person.

PRACTICE AND PROCEDURE – Summary judgment application – Whether plaintiffs have no real prospect of success – Civil Procedure Act 2010, Part 4.4.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R A Edmunds	Bowlen Dunstan & Associates
For the Defendant	Mr S A Rowland	JKB Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Summary of conclusions................................................................................................................... 1

Background......................................................................................................................................... 2

Applicable Law................................................................................................................................... 3

Eligibility requirement under the Act....................................................................................... 3
The Adoption Act.......................................................................................................................... 6
Summary Judgment test............................................................................................................... 7

Defendant’s Submissions................................................................................................................. 8

Plaintiffs’ Submissions................................................................................................................... 10

Consideration.................................................................................................................................... 12

The Act.......................................................................................................................................... 12
Extrinsic material........................................................................................................................ 15

Conclusion......................................................................................................................................... 19

HIS HONOUR:

Introduction

James Graeme Forrest (‘the deceased’) died on 29 July 2015. On 27 January 2016, the defendant, who is the deceased’s brother, was granted Letters of Administration of the deceased’s intestate estate. It is a small estate which, according to the Inventory of Assets, is valued at about $244,000.[1]
[1]Exhibit KI-5 to the affidavit of Kieren Innes-Irons filed 20 July 2016 as amended by his affidavit affirmed 13 September 2016 (‘Kieren’s Affidavit’). There is, however, some dispute about the value of the estate: see Kieren’s Affidavit, [57]-[59].

The plaintiffs each claim to be an eligible person to whom the deceased failed to make adequate provision for their proper maintenance and support pursuant to Part IV of the Administration and Probate Act 1958 (‘the Act’). They claim that they each qualify as an eligible person pursuant to paragraph (g) of the definition of eligible person in s 90 of the Act,[2] as for a substantial period during the deceased’s life, they believed the deceased was their parent and were treated by the deceased as his natural children.[3]
[2]I will call that definition ‘s 90(g)’.
[3]The phrase ‘natural children’ is used throughout this judgment because it is the language of s 90 of the Act. The modern equivalent is ‘biological’ or ‘birth’ children.

The defendant applies to have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Innes-Irons v Forrest

Details

AGLC: Innes-Irons v Forrest [2016] VSC 782
Case: [2016] VSC 782
Decision Date: 15 December 2016

CaseChat Overview and Summary

In the matter of Innes-Irons v Forrest, the plaintiffs, who were natural children of the deceased, sought to challenge a will on the basis of inadequate provision for their maintenance. They contended that they were eligible persons under the Administration and Probate Act 1958, Part IV, which governs testamentary disputes. This required the court to determine whether they fell within the definition of ‘eligible person’ in section 90 of the Act. A critical issue was whether adoption under the Adoption Act 1984 (Vic) could disqualify a child from being an eligible person for maintenance purposes. The court had to consider whether the plaintiffs, who were adopted out, could still be considered eligible persons within the meaning of the Act.

The primary legal issue before the court was whether the plaintiffs, who were natural children adopted out by their parents, could be considered eligible persons under the definition in section 90(1)(g) of the Administration and Probate Act 1958. This section defines ‘eligible person’ to include a child of the deceased, but the plaintiffs argued that the definition should be interpreted to include adopted children as well. The court also had to determine whether there was a real prospect that the plaintiffs could succeed in their claim for maintenance. This involved interpreting the relevant provisions of the Adoption Act 1984 (Vic) and considering the broader policy implications of denying maintenance to adopted children.

The court held that there was a real prospect that the plaintiffs could be considered eligible persons under the Administration and Probate Act 1958. It noted that section 90(1)(g) of the Act defines an ‘eligible person’ to include a child of the deceased, and the court was of the view that the term ‘child’ should be interpreted broadly. The court found that the Adoption Act 1984 (Vic) did not preclude adopted children from being considered eligible persons for maintenance purposes. It was emphasised that the purpose of the legislation was to ensure that the deceased's family received adequate maintenance, and denying this to adopted children would run counter to this objective. Consequently, the court found that there was a real prospect that the plaintiffs could succeed in their claim.

The court dismissed the defendant's application for summary judgment. It ruled that the plaintiffs had a real prospect of being found eligible persons under the Administration and Probate Act 1958, and thus, their claim for maintenance could proceed. The court noted that the plaintiffs' adoption did not preclude them from being considered eligible persons, and there was a real prospect that they could be entitled to maintenance from the deceased's estate. The case was therefore to proceed to a full hearing to determine the merits of the plaintiffs' claim.

Orders