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Re an application by State Trustees Ltd

Re an application by State Trustees Ltd

Case [2024] VSC 536 2 September 2024

Presumption of Paternity

Marriage

Intestacy

Presumption of Parenthood

Statutory Interpretation

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2023 01742

IN THE MATTER of an application by STATE TRUSTEES LIMITED (as the administrator of the estate of LESLIE NORMAN JOHN SHOLL deceased) pursuant to r 54.02 for directions in relation to the administration of the Estate

APPLICATION BY:

STATE TRUSTEES LIMITED (as the administrator of the estate of LESLIE NORMAN JOHN SHOLL deceased)

Plaintiff

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JUDGE:	Barrett AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2023, with further written submissions on 18 and 25 August 2023 and 28 August 2024
DATE OF JUDGMENT:	2 September 2024
CASE MAY BE CITED AS:	Re an application by State Trustees Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 536

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ADMINISTRATION AND PROBATE — Intestacy — Whether relationship of father and child existed for purposes of succession - bigamous marriage — Status of Children Act 1974 (Vic) (SOCA), ss 2, 5 and 7 — ‘marriage’ includes ‘void marriage’ — Whether proof of dissolution or annulment of marriage — Whether presumption of parenthood — Whether presumption displaced — Standard of proof — G v H (1994) 181 CLR 387 applied — Held: parents recorded in Registry records as having been married, were married at the time the deceased was born – Presumption of paternity arises by operation of s 5 SOCA - Relationship of father and child recognised for purposes of succession pursuant to s 7(1)(a) of the SOCA.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Mah of counsel	State Trustees Victoria

TABLE OF CONTENTS

Introduction

Background

Relevant legislation and principles

Consideration

Conclusion

HIS HONOUR:

Introduction

Leslie Norman John Sholl (‘the deceased’) died on 6 November 2020, leaving an estate worth approximately $547,000 but without leaving a will, or spouse, or children, or any maternal relatives. On 10 August 2021, the plaintiff was granted Letters of Administration.
By originating motion filed on 28 April 2023,[1] the plaintiff applies to the Court for an answer to the question whether a relationship of father and child existed between the deceased and Leslie Norman Bull (‘Mr Bull’), which in the circumstances is critical to the administration of the estate.[2] If there was such a relationship, the estate will pass to Mr Bull’s relatives. If there was not, it will pass to the State of Victoria.
[1]The application is made pursuant to rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) for directions in relation to the administration of the estate.
[2]Rules (n 1) r 54.02(a)(i).
The plaintiff has conducted extensive inquiries into the deceased’s history including genealogical investigations. The evidence includes an affidavit sworn by Ms Ann Church (‘Ms Church’) on 24 April 2023, a genealogist in the employ of State Trustees Ltd, who has uncovered various public records and a newspaper article which provide limited but colourful details relevant to the issues to be resolved. The background set out below is…

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 Re an application by State Trustees Ltd

Details

AGLC: Re an application by State Trustees Ltd [2024] VSC 536
Case: [2024] VSC 536
Decision Date: 2 September 2024

CaseChat Overview and Summary

In the case of Re an application by State Trustees Ltd, the dispute concerned the legitimacy of a claim to inheritance by a child born to a father who was in a bigamous marriage at the time of the child's birth. The court was required to determine whether the relationship between the father and the child could be recognised for the purposes of succession under the Status of Children Act 1974 (Vic). The case was heard by the Supreme Court of Victoria.

The central legal issues that the court had to address were whether the marriage between the father and the mother was valid for the purposes of succession, and whether the child could be recognised as the father's legitimate child. The court had to consider the definition of 'marriage' under the Status of Children Act, which includes 'void marriage', and whether the father's bigamous marriage could still be considered valid. Additionally, the court needed to determine if the presumption of parenthood under section 5 of the Act could be displaced and the standard of proof required to do so.

The court found that the father and mother were recorded in the Registry records as having been married at the time the deceased was born. Consequently, the presumption of paternity arose by operation of section 5 of the Status of Children Act. The court held that the relationship of father and child was recognised for the purposes of succession pursuant to section 7(1)(a) of the Act. The court applied the decision in G v H to determine the standard of proof required to displace the presumption of parenthood, and concluded that the claimant met this standard. The court's decision recognised the child as the legitimate offspring of the deceased for the purposes of inheritance.

As a result of the court's findings, the child was recognised as the legitimate child of the deceased for the purposes of succession. The court's decision ensures that the child is entitled to inherit under the provisions of the Status of Children Act, despite the father's bigamous marriage.

Orders