Piggott v Harrex

[2000] TASSC 72

[2000] TASSC 72

CITATION:                 Piggott & Anor v Harrex & Anor [2000] TASSC 72

PARTIES:  PIGGOTT, Russell Howard
  WARE, Noel John
  v
  HARREX, Jonathan
  ISLES, Nicola

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M 359/1999
DELIVERED ON:  21 June 2000
DELIVERED AT:  Hobart
HEARING DATES:  4, 17 May 2000
JUDGMENT OF:  Slicer J

CATCHWORDS:

Succession - Construction and effect of testamentary disposition - Generally - Gifts to a class - Who are entitled - Gifts to children and grandchildren - Determination of grandchildren - Paternity test on mother to determine if children are grandchildren - Discretionary considerations.

Status of Children Act1974 (Tas), ss7, 13, 14.

S (an infant) v S [1972] AC 24; R v Martin (1992) 1 NZLR 313; G v H (1993) 16 Fam LR 525; G v H (1993 - 1994) 181 CLR 387, considered.

Piggott v Piggott (1938 -1939) 61 CLR 378; House v The King (1936) 55 CLR 499; Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170; Duroux v Martin (1993) 17 Fam LR 130; King v Jenkins; Ex parte Morrison [1949] VLR 277, referred to.
Aust Dig Succession [183]

REPRESENTATION:

Counsel:
             Appellant:  T J Williams
             Respondent:  R M Grueber
Solicitors:
             Appellant:  Gunson Pickard & Hann
             Respondent:  Jennings Elliott

Judgment Number:  [2000] TASSC 72
Number of Paragraphs:  20

Serial No M359/1999

File No 72/2000

RUSSELL HOWARD PIGGOTT and NOEL JOHN WARE
v
JONATHAN HARREX and NICOLA ISLES

REASONS FOR JUDGMENT  SLICER J

21 June 2000

1. The executors appointed under a will dated 20 January 1999, seek an order requiring the mother of children to provide biological material which might, upon analysis, determine whether her children are part of a class of persons named in that will.

1. The terms of the will relevantly provide:

"2        …

(a)I GIVE the balance of my residuary estate to my Executors to divide as follows:

(i)        one half to my son RUSSELL HOWARD PIGGOTT absolutely;

(ii)one eighth share to my daughter SUSANNAH STREET absolutely PROVIDED ALWAYS that if my son RUSSELL HOWARD PIGGOTT or my daughter SUSANNAH STREET shall die in my lifetime leaving issue living at my death such issue shall stand in place of such deceased child and take per stirpes and equally between them if more than one the share of my estate which such deceased child would have taken if he or she survived me and attained a vested interest;

(iii)a quarter share to be divided equally between my grandchildren who survive me and attain the age of twenty one years but if any grandchild of mine does (sic) before me leaving children then those children shall on obtaining the age of twenty one years take equally the share which their parent would otherwise have taken;

(iv)one eighth share to XANIA WYNNE HARREX of 11 Longview Avenue Sandy Bay in Tasmania absolutely;"

1. The mother of the children, Xania Harrex, was born on 1 March 1938.  The certificate of birth states her father to be "Russell George Jacob Piggott", the testator, and her mother Dorothy Joyce Piggott.  The testator had disputed paternity claiming that the child had been conceived in an adulterous liaison and that the question of paternity was central to issues of condonation, presumption of legitimacy and evidence of sexual contact ultimately resolved by the High Court in the appeal, Piggott v Piggott (1938 - 1939) 61 CLR 378. The consequence of the appeal was that the decree of dissolution of marriage between the testator and Dorothy Piggott in which the only child referred to was an older male remained as a valid order. It is reasonable to assume that the testator did not accept Xania Harrex as his biological child. The testator remarried in 1945. In the ensuing years, the testator regained contact with Xania, and continued contact with her on a regular basis.

1. It would be fair to summarise (although not exclusively so) the position of the respective parties in the following manner:

(1)The testator as of the date of death either did not believe Xania to be his biological daughter (because of disputation as to times of sexual contact) or did not know whether or not she was his natural child.  However, he recognised and acknowledged her as someone he had wronged.  Whether or not she was his child, he accepted her as part of his life and for whom he had responsibility.  He became involved in her affairs of life and expressed his commitment to her.  In his will by virtue of cl 2(iv) he bequeathed a one eighth share of his estate, an identical portion to that bequeathed to his acknowledged daughter.  In relation to that provision, the executor, Noel Ware, deposed:

"I acted as the deceased's solicitor for twenty years.  The only children the deceased acknowledged to me as being his children were Howard and Susannah."

On the 13^th of January 1999 at 3pm I visited the deceased at his home at 451 Sandy Bay Road for the purposes of presenting him with a draft of a new Will I had drawn for him as a consequence of his instructions given to me on the 26^th of December 1998.  On presenting the draft to him which included an amended clause greatly increasing the legacy he intended to leave Xania Harrex I asked the deceased whether he wished to describe Xania Harrex in the Will as his daughter.  He replied to me without hesitation 'that he did not'."

It is a reasonable inference that the testator, (especially given the evidence of premature birth referred to in the judgment of the High Court in Piggott (supra)) did not know, as a positive belief, that Xania was his natural child, but regarded her as an integral part of his life.

(2)The executors are required to give effect to the terms of the will. The bequest to "grandchildren" requires an initial determination as to whether the children are biological issue of the testator. Their biological status might not warrant the conclusion that the testator intended to encompass them in the class of "grandchildren" but the issue of "biological status" requires resolution before that question can be considered. The executors might not have the protection of the Act, s6, in relation to a claim made by a person about whom they had received notice. The evidence sought would be relevant to any issue arising by virtue of the Wills Act 1997, s36.

(3)Xania and the children (who are adults) are said to have the same interest.  Accepting such to be the case, their combined position can be said to be both emotional and forensic.  Xania believes the testator to be her natural father and knows that for all intents and purposes he regarded her as such.  A scientific test which shows her belief to be illusory would have a devastating effect on her being.  History ought not be re-written because of technological advance and reasonable belief ought be respected.  Her position, under the terms of the will, are neither enhanced or lessened by the results of scientific analysis.  The children respect their mother's position and are content to pursue their claim as part of a class of persons named in the will, on the basis of inference and presumption.

1. At common law there was no power to compel a person of adult age and capacity to undergo a blood test (S (an infant) v S [1972] AC 24; Re The Marriage of J & P (1985) 80 FLR 126; R v Martin (1992) 1 NZLR 313). It is not necessary to consider whether the Rules of Court relating to powers of discovery and medical examination or inherent power permit a court to order the provision of samples (see King v Jenkins; Ex parte Morrison [1949] VLR 277 at 280 - 285).

1. The executors seek the application of the provision of the Status of Children Act 1974 ("the Act") which defines a child as meaning "a son or daughter of any age". The Act provides for presumption of parentage (s5), paternity (ss8, 8A, 8B, 8C) and declarations (s10). Section 4(1) maintains previous rules of construction for "instruments executed before the commencement of this Act".

1. Section 7 relevantly provides:

   "(1)      The relationship of father and child and any other relationship traced in any degree through that relationship shall, for any purpose related to succession of property or to the construction of any will … be recognised only if ¾

   (a)the father and the mother of the child were married to each other at the time of its conception … or

   (b)paternity has been admitted (expressly or by implication) by or established against the father in his lifetime (whether by one or more of the types of evidence specified by this Act or otherwise) and, if that purpose is for the benefit of the father, paternity has been so admitted or established while the child was living."

2. There is a tension between the provision of section 7(1) and the power to make declarations afforded by s10 (in particular s10(3)). Section 7 permits the recognition of an acknowledged child or one shown to be such by evidence permitted by the legislation. In this case the tissue samples were taken from the testator (before his death and for purposes unrelated to these proceedings). The court which determines the substantive issue raised by these proceedings will be required to consider the effect of the will as of a notional time immediately preceding the death of the testator. The provision relates to presumption and, in the circumstances of this case, does not prevent the exercise of power provided by the Act, Part IV, which relevantly provides:

   "12 ¾  If in any proceedings the parentage of a child is an issue, a party to the proceedings or a person representing the child may request the court to make an order requiring a parentage testing procedure to be carried out.

   Orders for parentage testing procedure

   13 ¾ (1) A court, on request or of its own motion, may make an order requiring a parentage testing procedure to be carried out in relation to any one or more of the following persons:

   (a)a particular child;

   (b)the mother of the child;

   (c)any other person the court considers relevant in order to assist in determining the parentage of a child.

   (2) An order under subsection (1) may be made subject to any terms and conditions a court considers appropriate."

1. The effect of s13(1)(c) is to extend power to permit the testing of a person who is not a direct party to the proceedings. In this case, Xania is a party to the proceedings in the sense that the amount of her entitlement will be affected by the resolution of the substantive issue. Here, the proceedings are dependent upon the parentage of Xania. The children, and those affected by determination of status, are entitled to rely on the presumptions stated in the legislation and also to the aid of the Act, Pt IV. The court has power to order another to undergo a medical procedure which is relevant to those proceedings. The provisions of the Act, s14(4) which state:

"14 ¾ …

(4) A person over the age of 18 years who fails to comply with an order is not liable to a penalty but the court may draw such inferences as it considers just in the circumstances."

might protect Xania in the event of refusal and there might be argument that refusal cannot give rise to inferences adverse to the children, but they are matters going to discretion, not to existence of statutory power.

Exercise of Discretion

1. No principles governing the exercise of discretion are stated in the legislation.  The ordinary rules are to be applied (House v The King (1936) 55 CLR 499) in the context that any order might determine substantive rights (Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170). The application of those principles requires, as a precondition, that a party must have an honest and reasonable belief that there is a doubt as to paternity and that that test is rarely to be an objective one (Duroux v Martin (1993) 17 Fam LR 130). The relevant principles are those of competing interests (certainty as against privacy) but remain ones of evidence. The question of paternity is medical rather than legal (G v H (1993) 16 Fam LR 525). The rationale for legislative provisions enabling scientific testing is, ordinarily, to promote the welfare of children in family law proceedings (G v H (supra)) whilst retaining the right of privacy.  As Lord Reid stated in S (an infant) v S [1972] AC 24 at 43:

   "I must now examine the present legal position with regard to blood tests.  There is no doubt that a person of full age and capacity cannot be ordered to undergo a blood test against his will.  In my view, the reason is not that he ought not be required to furnish evidence which may tell against him.  By discovery of documents and in other ways the law often does this.  The real reason is that English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty."

2. In the circumstances of this case, it would be open to the adult children of Xania to provide body samples for testing and although the results of such testing might not be as conclusive as one which used material of persons said to be of direct lineage, those results would fulfil an evidentiary purpose.  No order is sought against them.  However, the question of privacy applies equally to Xania and her children.

1. The evidence establishes that:

"The results of any Paternity Test can have two outcomes:

(1)An exclusion, which means that the alleged father does not have the obligate parental gene types inherited by the child and therefore could not be the biological father of the child.  The Paternity Index is zero and the resultant Probability of Paternity is also zero.

or

(2)An inclusion, which means that the alleged father does have the obligate parental gene types inherited by the child and therefore cannot be excluded from being the biological father of the child.

In accordance with the regulations, inclusionary reports can only be issued with a Paternity Index of 200 to 1 or greater.  This means that the tested man is at least 200 times more likely to be the father of the child than a man chosen at random from the general population.  The Probability of Paternity then becomes 99.5% or greater.

Genetic Technologies routinely performs DNA Paternity Testing in cases with or without the mother being involved in testing.  We routinely aim to issue reports with Paternity Indices of 1000 to 1 or greater.  The Probability of Paternity then becomes 99.9% or greater."

and that such comparative analysis would constitute cogent evidence.

1. The competing interests can be identified in the following manner: the order might, if obeyed, result in the availability of cogent evidence which would provide certainty to one of the questions arising under the terms of the will, namely, whether two persons are the biological descendants of the testator.

1. Xania has a real interest in protecting her belief of identity and memory of relationship which ought to be undisturbed by scientific enquiry.  Distress occasioned to a child might outweigh the benefits of having the procedure conducted (Govers v Luff Estate of Freestone, unreported, New South Wales 1461/1997, 5 November 1997).  This consequence was recognised by Brennan and McHugh JJ in their joint reasons in G v H (1993 - 1994) 181 CLR 387, when they stated at 391:

"The attribution of paternity may be seen by a child's mother to be no more than the means of procuring a maintenance order during the child's infancy, but a finding that a particular man is the child's father might well be of the greatest significance to the child in establishing his or her lifetime identity."

1. Xania's children might be excluded as beneficiaries by reason of an "exclusionary" finding made by scientific enquiry.  That is the third rationale.

1. The third rationale ought be excluded as a factor affecting any exercise of discretion.  A decision made on forensic or tactical grounds is no different from many options which a party might consider in the presentation of a case.  A claim of privilege might be pursued on the basis that disclosure might prejudice a party, but the test to be applied is that of policy rather than consequence.

1. The competing interests described in the first two propositions differ. The first is concerned with the efficacy of law. There is reason to attempt certainty in giving effect to the testator's wishes. A positive or negative result will assist the executors or a court in resolving entitlement. The second touches on the being of Xania. A court ought be reluctant to interfere with the inner self of another. However, that question, here, ought remain one for Xania to answer. She has the protection afforded by the Act, s14(4).

1. Whether a court might draw inferences in relation to the adult children because of non-compliance is not a factor in the exercise of discretion (see generally, G v H (supra)).  The fact that no penalty attaches to Xania by reason of non-compliance is a factor in that exercise.  The question of protection of identity remains one for her to answer.  This court will neither intrude into that process nor allow its consideration to provide a negative answer.  The negative answer would remove from Xania the need to make a difficult decision, but the desirability of presenting cogent evidence in litigation outweighs that consideration.

Orders

1. The following orders are made pursuant to the Act, ss13 and 14:

(1)that the parentage testing procedure prescribed by the Status of Children (Parentage Testing) Regulations 1997, reg 6(e), be carried out in respect of Xania Wynne Harrex;

(2)that Xania Wynne Harrex provides a bodily sample for DNA typing to Hobart Pathology;

(3)that the costs of the testing procedure and reporting be paid by the executors of the estate;

(4)that a copy of any report prepared as a result (including data on which the test was based, if requested) of testing be provided to the respondents within a reasonable time of its receipt by the applicants;

(5)liberty to apply generally;

(6)that the costs of the application be paid by the executors of the estate.

1. There will be a certificate for counsel.