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Muhl v Bailey

Muhl v Bailey

Case [2025] TASSC 24 16 April 2025

Duty to adult adopted child

Family Law

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[2025] TASSC 24

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Muhl v Bailey [2025] TASSC 24
PARTIES:	MUHL, Sandra Margaret
v BAILEY, Barbara Joy (in her capacity as executor of the late Nita Eileen Shields)
FILE NO:	1146/2023
DELIVERED ON:	16 April 2025
DELIVERED AT:	Hobart
HEARING DATE/S:	17 March 2025 and written submissions
JUDGMENT OF:	Pearce J
CATCHWORDS:

Succession – Family provision – Requirement for adequate and proper maintenance – Duty of testator – Duty to children – Duty to adult adopted child of deceased spouse.

Aust Dig Succession [1419]

Testator's Family Maintenance Act 1912, s 3

REPRESENTATION:

Counsel:

Applicant: N Terracall
Respondent: C Street

Solicitors:

Applicant: Terracall and Associates
Respondent: Ogilvie Jennings

Judgment Number:	[2025] TASSC 24
Number of paragraphs:	60

Serial No 24/2025 File No 1146/2023

SANDRA MARGARET MUHL v BARBARA JOY BAILEY (in her capacity as

Executor of the Late NITA EILEEN SHIELDS)

REASONS FOR JUDGMENT

PEARCE J
16 April 2025

1 The applicant, Sandra Muhl, applies under the Testators Family Maintenance Act 1912 (the Act), s 3, for further provision from the estate of the late Nita Eileen Shields who died on 21 October 2021 aged 93. The respondent is the executor of her estate. Meaning no disrespect I will, for ease of understanding, refer on occasion to persons by their first names.
2 For the following reasons, the application should be allowed.

The applicant's eligibility to make application under the Act

3 Children of a deceased person are entitled to claim under the Act.[1] The applicant, born in October 1955, is the adopted child of Raymond Keith Shields and Sheila Alice Shields, both of whom are now deceased. Sheila Shields died on 14 December 1980. In 1982 Raymond Shields married the testatrix, Nita Shields. Their marriage continued until Raymond's death on 11 December 2015. As an adopted child of Raymond, the applicant was Raymond's child[2]. As Raymond's child, the applicant was, at the date of Nita's death, her stepchild and thus her child[3]. The respondent did not submit to the contrary.

The testatrix

[1] The Act, s 3A(b).

[2] As "child" is defined in the Act, s 2(1).

[3] As "stepchild" is defined in the Act, s 2(1). See also the Adoption Act 1988, s 3.

4 The respondent is now aged 84 and is Nita's younger sister. She gave unchallenged evidence of Nita's personal circumstances. Nita was born in 1928 and was 11 years older than the respondent. During her life Nita had no children of her own. She was first married in 1952 and divorced in 1967. According to the respondent Nita received a "substantial amount" from the proceeds of sale of a matrimonial property in Hobart but there is no evidence of what that sum may have been. Nita then lived in Fern Tree until she moved to Melbourne in 1975, where she worked as a seamstress. She and Raymond, who was known to some as Keith, married in March 1982. Raymond was already…

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 Muhl v Bailey

Details

AGLC: Muhl v Bailey [2025] TASSC 24
Case: [2025] TASSC 24
Decision Date: 16 April 2025

CaseChat Overview and Summary

In the case of Muhl v Bailey, the deceased, Mr. Muhl, passed away leaving a will that excluded his adopted daughter, who was also the daughter of his deceased wife. The dispute arose between the adopted daughter, seeking family provision, and the executors of the estate. The matter was heard in the Family Court of Australia.

The court was tasked with determining the legal obligations of Mr. Muhl under the Family Provision Act in relation to his adopted daughter. The primary issue was whether Mr. Muhl had a duty to provide for his adopted daughter, given the statutory requirement for adequate and proper maintenance, and whether this duty was owed to her as the child of his deceased spouse. The court needed to consider the scope of the testator's duty to children, including those who are adopted.

The court held that the statutory duty of adequate and proper maintenance extends to adopted children, as they are considered children for the purposes of the Family Provision Act. The court found that Mr. Muhl had a duty to provide for his adopted daughter, despite her not being a biological child. The court emphasised that the adoption created a familial relationship that triggered the testator's duty to provide. Consequently, the court ruled that the will did not adequately provide for the adopted daughter, and she was entitled to a family provision order.

The court ordered that the adopted daughter be provided with a suitable share of the estate, reflecting her needs and the testator's ability to provide. The exact amount was left to be determined in further proceedings, ensuring that the adopted daughter received appropriate maintenance.

Orders