Legal Research
Cases
Piggott v Harrex

Piggott v Harrex

Case [2000] TASSC 72 21 June 2000

Construction of Wills

Paternity

Parentage Testing

Presumptions of Law

Discretionary Considerations

Succession Law

Family Law

Type to search within this case.

[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

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.

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;"

The mother of the children, Xania Harrex, was born on 1 March 1938. The…

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 Piggott v Harrex

Details

AGLC: Piggott v Harrex [2000] TASSC 72
Case: [2000] TASSC 72
Decision Date: 21 June 2000

CaseChat Overview and Summary

The Supreme Court of Tasmania was called upon to decide a dispute concerning the interpretation of a will and the application of the Status of Children Act 1974. The will in question bequeathed various shares of the testator's estate to different beneficiaries, including specific provisions for his son, daughter, and grandchildren. The primary legal issue was whether the children of Xania Harrex, who was born out of wedlock and whose paternity was disputed by the testator, qualified as his grandchildren under the terms of the will. The executors sought to compel Xania to undergo a DNA test to determine whether she was the biological daughter of the testator, which would in turn determine the eligibility of her children as potential beneficiaries.

The court considered the provisions of the Status of Children Act 1974, which allows for parentage testing to establish relationships for succession purposes. The court found that the act permitted the court to order such testing, even if it required a party to provide biological samples. However, the court also had to balance the competing interests of privacy and the need for certainty in the interpretation of the will. The court concluded that while privacy considerations were significant, the need for evidence to resolve the dispute and give effect to the testator's wishes was paramount.

Ultimately, the court exercised its discretion to order the parentage testing procedure, directing that Xania provide a bodily sample for DNA typing. The court ruled that the costs of the testing and any subsequent reporting should be borne by the executors, and that a copy of the report should be provided to the respondents. The court emphasized that the decision to undergo testing remained with Xania, and that the court would not draw adverse inferences if she chose not to participate. The court's ruling aimed to balance the respect for personal beliefs and the legal requirements to provide evidence for the interpretation of the will.

Orders