McGuffie & Anor v Korczynski & Anor No. Scciv-02-1255

McGUFFIE & ANOR v KORCZYNSKI & ANOR
[2003] SASC 178
Nyland J

This is the trial of a preliminary point to be heard and determined with respect to a claim made pursuant to the Inheritance (Family Provision) Act 1972 (the Inheritance Act). The two plaintiffs, Kym Geraldine McGuffie (Kym) and Sean Robert McGuffie (Sean) are the natural children of Emilia Gabriel McGuffie (Emilia Gabriel). The defendants are the executors of the estate of Stanislaw Joseph Korczynski (the deceased) who died on 21 February 2002. The plaintiffs claim as grandchildren of the deceased. They seek an order that provision be made out of his estate for their maintenance, education or advancement in life.
In the course of pre-trial proceedings, a question arose as to the locus standi of the plaintiffs to make a claim against the estate as a dispute arose as to whether the deceased was in fact the biological father of their mother, Emilia Gabriel. It is not disputed that Emilia Gabriel’s mother was Emilia Marie Korcszynski (Emilia Marie) nor that she was wife of the deceased. The defendants say, however, that Emilia Marie was previously married to a man called Knapczyk and that Emilia Gabriel is a child of the Knapczyk marriage and not of her marriage to the deceased.
On 27 September 2002, the defendants filed an application to the court asking that the following question be tried as a preliminary point:
“Whether the plaintiffs or either of them are a child of a child of the above named deceased and therefore entitled to claim a benefit of the Inheritance (Family Provision) Act 1972 in respect of the deceased.”
On the hearing of the application it was agreed that the plaintiffs would act as dux litis. No oral evidence was given with respect to the application and each of the parties relied on a series of documents which were admitted in evidence by consent.
Background
There is no dispute that Kym and Sean are the children of Emilia Gabriel and the grandchildren of Emilia Marie. Emilia Marie died on 11 September 1992. Emilia Gabriel died on 8 February 2000. The deceased died on 21 February 2002.
The will of the deceased which is dated 23 October 1998 appointed the defendants Anna Marie Korcszynski and Stan Peter Korcszynski (Anna Marie and Stan Peter) to be the executors and trustees of the estate. Pursuant to para 4 of that will, the beneficiaries of his estate were stated to be “such of his daughters Emilia Gabriel and Anna Marie and his son Stan Peter who should survive him and if more than one in equal shares, each for his or her sole use and benefit absolutely”. As Emilia Gabriel died during the lifetime of the deceased the estate currently devolves upon Anna Marie and Stan Peter in equal shares.
The question which arises in these proceedings is whether Emilia Gabriel can be determined to be a child of the deceased in order to give her children locus standi to make a claim for their provision out of his estate.
The following documents were tendered by the plaintiffs:
South Australian Marriage Certificate
A marriage certificate issued by the Registrar of Births Deaths and Marriages at Adelaide records a marriage on 29 December 1951 between the deceased, aged 28, of 41 John Street, Hindmarsh and Emilia Knapczyk, aged 26, also of 41 John Street, Hindmarsh. The deceased is described as a bachelor born in Piezonogi, Poland. The bride is described as a spinster born in Krakow, Poland. The bride’s father is stated to be Jan Knapczyk. (emphasis added)
South Australian Birth Certificate
A certificate was issued by the Registrar of Births Deaths and Marriages at Adelaide on 2 July 1958 recording the birth of Emilia [Gabriel]. The date and place of birth are stated to be 31 January 1946 at Mulheim, Germany. Emilia’s father is recorded as being Stanislaw Korcszynski, age 22, born in Peczonogi, Poland. His address is given as 41 John Street, Hindmarsh and he is listed as being the informant. Emilia’s mother is stated to be Emilia Korcszynski, formerly Knapczyk, aged 20 years, born in Krakow, Poland. The registration was entered on 18 January 1952.
Baptism Certificate
A Baptism certificate of “Emilia Knuperyk Korcszynski” is dated 18 June 1953. Her parents are stated to be Stanislaw Korcszynski and “Emillia nee Knaperyk”. It states that her date of birth is 31 January 1946.
Emilia Gabriel’s Death Certificate
Emilia Gabriel’s death certificate was recorded at the office of Births Deaths and Marriages in Adelaide on 17 February 2000. It lists her father as the deceased and gives her mother’s maiden name as “Knapczyk, Emilia Maria”. Emilia Gabriel’s date of death is stated to be 8 February 2000.
Will dated 30 April 1992
On 30 April 1992, the deceased made a will (not being the will admitted to probate) in which he appointed his daughter Emilia Gabriel to be the executor and trustee of his will if his wife failed to survive him or was unable or unwilling to perform those roles. (emphasis added)
Will dated 23 October 1998
This is the will admitted to probate in which the defendants were appointed executors. The will includes a provision inter alia for his daughter Emilia Gabriel to benefit if she survived him.
Other documents
The memorial card and funeral notices with respect to the deceased refer to Emilia Gabriel as his daughter and Kym and Sean as his grandchildren. The funeral notices and memorial cards for Emilia Gabriel also describe the deceased as her father.
The following documents were produced by the defendants:
German birth certificate
A birth certificate issued in Germany on 6 February 1946 states that a girl named “Emilja” was born in Mulheim, Germany on 31 January 1946. Her mother is recorded as being “Emilja Knapzyk nee Kolodon … wife of the locksmith Wladylaw Knapzyk”.
Letter from the office of the Mayor of Mulheim as to German marriage
A letter dated 23 July 2002 from the office of the Mayor of Mulheim states that there is a record in that office of the marriage of “Emilja Kolodon” to “Wladystow Knapzyk” on 15 May 1945 at the registry office in Velbert.
Application for assistance
An application for assistance dated 27 October 1947 gives the family name of “Knapczyk”. The marital status of the applicant is given as “m”. It lists “Emilia Kolodzan” as the head of the family, having been born on 18 October 1925 in Krakow in Poland. It refers to two children, namely, a daughter “Emilja” born on 31 January 1946 in Mulheim Germany and a son, Stanislaw, born on 14 July 1948. His place of birth is not recorded. His name appears to have been added to the document at a later time than the other two. The document also lists Emilia [Marie’s] places of residence for the preceding 10 years. Between 1937 and April 1941, she resided in Krakow, Poland. From April 1941 to May 1945, she lived in Velbert-skeiuland, Germany. From May 1945 to November 1946 she lived in a DP camp in Mulheim Germany with her daughter. Between November 1946 and October 1947 she was in a DP camp in Neu-Krakow-Menden, Westfalin, Germany, also with her daughter. The documents produced by her at the time of that application include a birth certificate for her daughter issued by the registry at Mulheim and dated 6 November 1946.
International Refugee Organisation (IRO) Certificate
An IRO certificate for eligibility dated 12 April 1950, records that “Emilia Knapczyk nee Kolodzan” born on 18 October 1925, is accompanied by her daughter Emilja born on 31 January 1946 and a son Stanislaw born on 14 July 1948. The signature “Knapczyk Emilia” on the certificate appears to be similar to that which appears on the South Australian marriage certificate.
Letter from Births Deaths and Marriages Adelaide
A letter obtained by the defendants and dated 4 October 2002 from the Registrar of Births Deaths and Marriages in South Australia states:
“[A]ccording to a letter dated 15 May 1958 from the then Deputy registrar, ‘the registration of birth of your two children Stanislaw and Emilia were entered into the records of this office on the declaration and evidence given by you and your wife in 1952.”
Regrettably there are no records now in existence to explain why that action was taken, nor have any supporting declarations or evidence survived. The letter further states that the author was “unable to establish on what basis the children’s births were registered, nor on what evidence Mr Korczynski was entered as the legitimate father of the children”. The registrar indicated that pursuant to the legislation then in force, viz Births Deaths and Marriages Act 1936 (the 1936 Act), there was no statutory provision for the registration in South Australia for children born overseas. The registrar also stated that “to the best of my knowledge it has never been the policy of this office to register children born overseas”.
Plaintiffs’ argument
The plaintiffs submitted that there were three alternative bases upon which I could find that Emilia Gabriel was a child of the deceased:
First, that the evidence established on the balance of probabilities that Emilia Gabriel was the biological child of the deceased.
Secondly, consistently with the reasoning of the court in Re Sinodinos (1994) 63 SASR 42, the deceased could be deemed to be the father of Emilia Gabriel by virtue of the definition of “child” in s 4 of the Inheritance Act and s 7(b) of the Family Relationships Act 1975 (SA) (the Relationships Act).
Thirdly, that “child” in the Inheritance Act should be given a liberal interpretation to include persons formally acknowledged or held out by the deceased person to be his child.
I now turn to each of the arguments advanced by the plaintiffs.
First, does the evidence establish that Emilia Gabriel was the biological child of the deceased?
Section 6 of the Inheritance Act states that:
“6.The following persons are, in respect of the estate of a deceased person, entitled to claim the benefit of this Act:-
(a)    the spouse of the deceased person;
(b)    a person who has been divorced from the deceased person;
(c)    a child of the deceased person;
…
(g)    a child of a spouse of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death;
(h)    a child of the child of the deceased person;
(i)     a parent of the deceased person who satisfies the court that he cared for, or contributed the maintenance of, the deceased person during his lifetime;
(j)     a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.”
The plaintiffs rely on s 6(h) of the Act. They maintain that the evidence establishes on the balance of probabilities that Emilia Gabriel is the biological child of the deceased and they are therefore entitled to make a claim as her children. This requires an analysis of the documents which have been placed before me.
The South Australian birth certificate clearly states that the deceased was the father of Emilia Gabriel. It appears that he and his wife Emilia Marie provided a declaration to the registrar to support that registration although the content of that declaration is unknown.
The various other South Australian documents also indicate that the deceased held Emilia Gabriel to be his daughter during his lifetime. The German birth certificate, however, records the father of the child Emilia (Emilja) as being Wladyslow Knapzyk. The reference to Emilia in the German certificate is clearly a reference to Emilia Gabriel as the place and date of birth are identical to the particulars contained in the South Australian certificate. The German birth certificate records her mother as Emilia Knapzyk nee Kolodin but in the South Australian birth certificate her mother is referred to as Emilia Korcszynski, formerly Knapczyk. In the South Australian marriage certificate, however, Emilia Marie’s father is said to be “Jan Knapcyk”.
It was submitted on behalf of the plaintiffs that I should rely upon the South Australian birth certificate in preference to the German birth certificate on the basis that the defendants had not stated the provenance of the German certificate and there was no evidence that the records were kept under “sanction of public authority” or that they are “recognised as authentic records”: Lyell v Kennedy (1889) 14 App Cas 437. They also submitted that there was no evidence before the court of any safeguards to ensure the accuracy of the documents which purported to establish the truth or otherwise of events that occurred 58 years ago. Further, I could take judicial notice of the situation in Germany in 1945-46 and find that as a consequence record keeping may have been less than a priority.
The German certificate appears, however, on its face to be a valid document. It is signed by the registrar. The registrar has certified that the copy is identical to the one held at the registry office. It bears a stamp which appears to be authentic of the Registry Office of Mulheim an der Ruhr.
Under the common law “[f] oreign registers of baptisms and marriages or certified extracts from them, are receivable in evidence in the Courts of this country, as to those matters which are properly and regularly recorded in them, when it sufficiently appears (in the words of Mr Hubback’s learned work on Evidence) that they ‘have been kept under the sanction of public authority, and are recognised by the tribunals of the country’ (ie of the country of where they are kept) ‘as authentic records’.” Lyell v Kennedy (supra) at 448-9 per Earl of Selbourne.
In this case, the German certificate appears to have been kept under sanction of public authority and to be recognised as an authentic record as illustrated by the certification of the document and the accompanying letter from the office of the Mayor of Mulheim. There is nothing to suggest that the documents are inaccurate. I reject the invitation to take judicial notice of the situation in Germany during the aftermath of World War II to find that there was anything unsatisfactory about the record keeping at that time. In my opinion, the German birth certificate is properly admissible in these proceedings.
I am satisfied that Emilia Gabriel was born in Mulheim Germany on 31 January 1946 as that information appears consistently in the South Australian birth certificate, the German birth certificate, her Baptism certificate and the application for assistance, and in any event there does not appear to be any dispute about that. Further, the coincidence of birth date and name satisfies me that Emilia Gabriel is the person referred to in each of those documents. The letter from the Mayor of Mulheim refers to a record of the marriage of “Emilja Kolodon” to “Wladyslow Knapzyk” on 15 May 1945. That is about eight months prior to Emilia Gabriel’s birth. There is no other evidence about Knapzyk, although the application for assistance dated 27 October 1947 gives the family name of Knapczyk and records the marital status of Emilia (Kolodeon) as married. The South Australian marriage certificate which records the marriage of the deceased to Emilia Marie, however, describes her as a spinster and gives her father’s name as “Jan Knapczyk”.
The history of this matter is therefore a confusing and is undoubtedly complicated by the movement of displaced persons at the conclusion of the second World War. The lack of direct evidence from any of the parties involved in the events which took place between 1945 and 1958, however, makes this a very difficult matter to resolve. At the end of the day I am faced with two ostensibly valid documents, ie the South Australian and German birth certificates both of which relate to Emilia Gabriel but each of which designates a different person to be her father. As the German certificate chronologically precedes the South Australian certificate, in my opinion, the probability is that Wladyslow Knapzyk referred to therein was the biological father of Emilia Gabriel. At best the probabilities are equal. The plaintiffs however carry the onus of establishing that it is more likely than not that the deceased was the biological father of Emilia Gabriel. They have failed to discharge that onus. I am not satisfied that Emilia Gabriel was the biological daughter of the deceased. The first argument advanced on behalf of the plaintiffs therefore fails.
The second argument was couched in the following terms:
Consistently with the reasoning of the court in Re Sinodinos (1994) 63 SASR 42, can the deceased be deemed to be the father of Emilia Gabriel by virtue of the definition of “child” in s 4 of the Inheritance Act and s 7(b) of the Relationships Act?
Section 4 of the Inheritance Act defines a child in relation to a deceased person to include “… a person who is recognized as a child of that person by virtue of the Family Relationships Act, 1975 …”.
Section 7 of the Relationships Act provides that:
“A person shall be recognized as the father of a child born outside marriage only if –
…
(b) he was acknowledge in proceedings for registration of the birth of the child (either in this State or in some other place) that he is the father of the child;
…”
The plaintiffs refer to the fact that a marriage certificate recording the marriage between Emilia Maria and Wladyslaw Kanpzyk has not been produced. The South Australian marriage certificate describes Emilia Maria as a “spinster”. Emilia Gabriel was born on 31 January 1946. She was therefore born prior to the date of Emilia Maria’s marriage to the deceased on 29 December 1951. Emilia Gabriel can therefore be determined to be a child born outside of marriage. The procedure by which Emilia Gabriel’s birth was recorded at the South Australian office of Births Deaths and Marriages in 1952 as evidence by Emilia Gabriel’s birth certificate and the letter from the Office of Consumer and Business Affairs dated 4 October 2002, constitute “proceedings for the registration the birth”. Section 7(b) of the Relationships Act therefore applies.
In support of this submission, the plaintiffs rely on the decision of Olsson J in Re Sinodinos (supra). In that case, two infant children of Yasmin Sinodinos, who was said to be a child of the deceased or testator, sought provision out of the estate of the testator pursuant to provisions of the Inheritance (Family Provision) Act 1972. During the course of the hearing a question arose as to whether Yasmin was the biological daughter of the deceased. A preliminary issue was raised as to whether, in the event that Yasmin proved not to be the biological child of the testator, her children were eligible children for the purposes of s 6(h) of the Act or were otherwise entitled to claim.
Yasmin’s mother was married to the testator. They subsequently divorced with the order becoming absolute on 30 October 1965. Yasmin was born on 4 February 1966. The testator signed the relevant documentation for registering the birth in his capacity as father and had treated Yasmin as his daughter during his lifetime.
For the purpose of determining the preliminary point it was assumed that Yasmin was not the biological daughter of the testator. Given that assumption Yasmin was treated as a “child born outside of marriage” within the meaning of the Family Relationships Act. At the time of Yasmin’s birth, the registration of children born outside of marriage was governed by s 19 of the Birth and Deaths Registration Act 1936. This section stated a man could not be entered into the register as the father, except in certain circumstances. One of those circumstances was where the father had signed the certificate jointly with the mother (s 19(4)).
Olsson J held that by signing a notification of birth form, the testator had acknowledged he was Yasmin’s father in accordance with provisions for the registration of births in the Births and Deaths Registration Act. He stated that “ ‘[P]roceedings’, within the meaning of that section are clearly not confined to legal proceedings, but extend to the processes to lead to registration of both envisaged by the registration act”. Therefore under s 7(b) of the Relationships Act Yasmin was a child of the testator, and her children were entitled to make a claim under s 6(h) of the Inheritance Act.

The defendants agree that Emilia Gabriel was a child born outside the marriage of Emilia Marie and the deceased although they say that she is a child of the marriage of Emilia Marie to Wladyslow Knapzyk. They agree, however, that if Emilia Gabriel is regarded as a child born outside the South Australian marriage, the deceased could not be recognised as her father except by virtue of s 7(b) of the Relationships Act. They say, however, that that section does not apply as the application for registration for Emilia Gabriel’s birth in 1952 did not constitute “proceedings for the registration of the birth” as there was no provision in the 1936 Act which allowed for registration in South Australia of a child born overseas. The defendants further submitted that Re Sinodinos (supra) was wrongly decided or at least that it could be distinguished.
On the face of it, the facts of Re Sinodinos are very similar to the facts of this case which would make it appropriate to adopt the reasoning of Olsson J to find that the plaintiffs are entitled to make a claim. There is, however, a distinguishing feature. Although the deceased participated in the process by which Emilia Gabriel’s birth was recorded in South Australia, it is clear that the 1936 Act did not permit the registration of children born overseas.
Section 15(1) provides that “[t]he parent of every child born alive in the State shall furnish or cause to be furnished particulars for the registration of the birth.”. Section 17(1) refers to children born at sea but states that “[I]f a child is born at sea whose parents ordinarily reside in the State, the birth may be registered in the State by a parent of the child in manner provided by this Part for the registration of children born within the State”. That therefore limits the registration of births to those born locally. There is no provision to allow for the registration of foreign births. The Registrar of Births Deaths and Marriages in her letter dated 4 October 2002 confirms that there was no statutory provision in force at the relevant time for the registration of children born overseas and comments that to the best of her knowledge it has never been the policy of the office to register such children. She mentions that under the present legislation it is only possible to do so using discretionary powers, in very narrowly defined circumstances, which did not apply in this case.
I am satisfied therefore that the procedure whereby Emilia Gabriel’s birth was registered in South Australia was invalid. I do not think, therefore, that the procedure by which Emilia Gabriel’s birth was registered can be classed as “proceedings for the registration of the birth”. Section 7(b) of the Relationships Act does not therefore apply and Re Sinodinos can be distinguished. The plaintiffs are not therefore entitled to make a claim based on that basis.
I now turn to the third argument advanced on behalf of the plaintiffs:
Should the definition of “child” in the Inheritance Act be given a liberal interpretation to include persons formally acknowledged or held out by the deceased person to be their child?
The plaintiffs argue that the Inheritance Act is a beneficial remedial statute and as such “it should be construed so as to give the fullest relief which the fair meaning of its language will allow: Bull v A-G (NSW) 1913 17 CLR 370 at 384.
The plaintiffs submitted that there was no reason in law or policy to restrict the meaning of “child” in the Inheritance Act only to biological children. “Child” should be interpreted as being any person formally acknowledged or held out by a testator in his lifetime as his child as had occurred in this case. It was further submitted that if the issue of biological paternity was at all relevant under the Inheritance Act it should only be taken into account in the assessment of the adequacy of any provision left for the testator’s children, in this particular case, the grandchildren.
I am satisfied that in this case the deceased acknowledged and maintained throughout his life that Emilia Gabriel was his daughter. This is clearly demonstrated not only by the fact that he participated in the registration of her birth in 1952, but that in each of the wills made by him in 1992 and 1998 he referred to her as his daughter.
The suggestion that the term “child” in the Inheritance Act should be given an expanded meaning was one of the arguments put to Olsson J in Re Sinodinos. He referred to that argument (at p 45) and said:
“… It was strongly pressed on me that, having regard to the obvious social objects of the statute, a liberal interpretation should be placed upon the word “child”, so as to encompass (inter alia) persons acknowledged and/or held out by a testator, in his lifetime, as his natural child. Thus it was contended that, whatever was the true biological status of Yasmin, she was, on the evidence, a “child” of the testator – so that her children were, in turn, entitled to claim the benefit of the Inheritance Act.
Such a contention raises a substantial issue of general importance and potential widespread impact. If this case fell to be disposed of solely on such a basis then I would consider the issue to be one appropriate for the consideration of the Full Court.”
Ultimately, however, he did not find it necessary to determine the issue on the facts of that case. Subsequently, in Popple v Rowe [1998] 1VR 651, the Victorian Supreme Court considered a similar argument in relation to stepchildren.
In Popple v Rowe stepchildren of the deceased sought provision under Pt IV of the Administration and Probate Act 1958 (Vic). The deceased died in May1995. His wife had died in 1982. There were no children of the marriage, although the wife had three children from a previous marriage who made the application for provision under Pt IV.
A master ordered that the following question be determined as a preliminary point:
“Do the plaintiffs, as children of the deceased’s wife, who are not children of the deceased and who were never adopted by the deceased, have standing to bring this proceeding pursuant to Part IV of the Administration and Probate Act seeking provision for their maintenance and support out of the estate of the estate of the deceased?”
The judge, at first instance, determined that the word “children” in the Act included stepchildren and found that the applicants had the capacity to initiate Part IV proceedings. In so doing, the judge referred to a number of matters that were said to show that family relationships had changed greatly in recent years and that what once might have been seen to be essential to the understanding of “family” was no longer so. Reference was also made to dramatic changes which had taken place in reproductive technology and which was relevant to show that significant changes had taken place in society.
The executor of the estate appealed to the Full Court. On appeal, the argument put by counsel for the respondent was similar to that which the plaintiffs now urge upon me, viz that as the Family Provision legislation was remedial in nature it should be given a wide and liberal construction so that its fundamental purpose of ensuring that persons within the deceased’s family who have a legitimate claim upon the estate were adequately maintained. Thus it was submitted that “children” should be given a “popular and flexible” meaning, consistent with current social conditions.
The Full Court in Popple v Rowe (supra) rejected the arguments put on behalf of the stepchildren. They were unanimous in answering the question in the negative and ordered that the proceedings brought by the stepchildren be dismissed.
In the course of his reasons, Brooking JA said at (at 653) that the word “children” (in s 91) was not used as a “popular, loose and flexible” expression. The word “children” meant the natural children of the deceased. He later said (at 657):
“Remedial the legislation no doubt is, but with all the interpretative benevolence in the world one cannot arrive at the contrary result. I do not derive any real assistance from the notion of a liberal interpretation in considering whether a category of person is intended by Parliament to have any rights at all under the legislation. ‘Children’ in s 91 is not an expression like, say, ‘wireless telegraphy’, to be interpreted, as his Honour thought in this case, in the light of modern scientific advances or changing practices in the community.”
Winneke P (at 659) said:
“It can be accepted that the Family Provision legislation is remedial and that, as a consequence, ‘must be so construed as to give the most complete remedy which the phraseology will permit’: Holmes v Permanent Trustee Co of NSW Ltd (1932) 47 CLR 113 at 119; Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494 at 513. The fact, however, that the legislation is remedial in my view requires that the court should be liberal in the exercise of its powers once it determines to exercise the jurisdiction it has in favour of an eligible applicant. It cannot mean, in my opinion, that it is to be benevolent in its interpretation of those who are or may be eligible to make application.”
He went on to say (at 659) that in his opinion “the word ‘children’ does have a fixed, rather than protean, meaning and it is confined to applicants who have a blood relationship to the deceased unless a statutory provision has been made to the contrary”. He thereafter set out in some detail his reasons for reaching that conclusion and commented (at 659):
“The legislation may be remedial in the sense that I have already attributed to it, but it does invest the court with the power to interfere in the freedom of the deceased to dispose of the estate as he or she wishes. The remedial nature of the Statute enables the court to exercise its jurisdiction benevolently in the interests of those entitled to claim, but it should not be expanded to the point where uncertainty as to eligible applicants will itself contribute to the defeat of the testator’s freedom of disposition.”
In this case, if Emilia Gabriel had survived the deceased the present difficulty would not have arisen. She would have inherited a portion of the deceased’s estate in accordance with the terms of his will in which he made provision for her as his daughter and thereafter the plaintiffs would have been provided for out of her estate. The funeral notices and memorial cards for Emilia Gabriel also indicate that at the time of her death the relationship of father and daughter was also accepted by the rest of the family. In those circumstances, now to deprive the plaintiffs of a claim against the estate of the deceased would appear to be harsh. Nevertheless, for the reasons expressed by the court in Popple v Rowe, I am not persuaded that the definition of “child” should be given the expanded meaning contended by counsel for the plaintiffs so as to make them eligible to claim. In any event, I note that in his will dated 30 April 1992 the deceased included a survivorship clause pursuant to which the children of each of Emilia Gabriel, Anna Marie and Stan Peter would have inherited the share of his/her parent in the event of his/her earlier death. In the will admitted to probate, however, which is dated 23 October 1998, a new clause limited survivorship to the children of Anna Marie and Stan Peter which is indicative of a specific intention on the part of the deceased to exclude the plaintiffs from benefiting from his estate.
Taking all of these matters into account, I do not consider that the circumstances of this case, as unusual as they appear to be, enable me to find that the plaintiffs have a right to claim on the basis of their mother having been held out by the deceased to be his child during his lifetime. To adopt the comments of Winneke P in Popple v Rowe the construction contended by the plaintiffs would, in my opinion, “create uncertainty with regard to those who have standing to make application where … certainty was intended” ... The word “children” should therefore bear “the meaning which it has always borne (subject to statutory exception) and is not to be construed as having a popular, loose or ambulatory meaning”. The plaintiffs are therefore excluded as eligible applicants.
The answer to the preliminary point referred for my determination is therefore “No”.

[2003] SASC 178

20 June 2003