Re Carri-Ann Rowlings; Fraser v Thom - [2010] VSC 626

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT

No. 2010 of 3554

IN THE MATTER of s 184 of the Property Law Act 1958

AND

IN THE MATTER of the intestate estate of CARRI-ANN MARION ROWLINGS (deceased)

BETWEEN:

and

JILLIAN ELIZABETH MARION FRASER (as representative of the intestate estate of the deceased)	Plaintiff
And
CHARLENE JANE THOM (as representative of the intestate estate of Geoffrey Graeme Rowlings deceased)	Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2010
DATE OF JUDGMENT:	23 December 2010
CASE MAY BE CITED AS:	Re Carri-Ann Rowlings; Fraser v Thom
MEDIUM NEUTRAL CITATION:	[2010] VSC 626

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ADMINISTRATION AND PROBATE - Husband and wife both died in the same car accident – uncertainty as to order of deaths – meaning of “uncertainty” – s 184 Property Law Act 1958 - In Re Comfort (dec’d) [1947] VLR 237; In Re Zappullo (dec’d) [1966] VR 390; Re Brush (dec’d) [1962] VR 596 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Verspaandonk	Williams Winter
For the Defendant	Mr M Simon	McGindle Dalgleish Lawyers

HIS HONOUR:

Introduction

Carri-Ann Rowlings and Geoffrey Rowlings, a married couple, died as a result of a head on collision between their vehicle and another on 27 January 2008. The question for the purpose of this application is the order in which they died.

The plaintiff, Mrs Rowlings’ mother, commenced the proceeding by originating motion seeking, amongst other things, an order that she be appointed to represent Mrs Rowlings’ estate in the proceeding, and a declaration for the purposes of s 184 of the Property Law Act 1958 that the circumstances in which Mr and Mrs Rowlings died render it uncertain which of them survived the other.

This matter came before me by summons dated 5 November 2010 seeking only the declaration to which I have referred.

If it is ‘uncertain’ which of them survived the other then s 184 of the Property Law Act 1958 (Vic) (‘the Act’) deems that Mrs Rowlings survived Mr Rowlings because, at the time of death, she was the younger of the two. Section 184 of the Act provides:

In all cases where, after the second day of December One thousand nine hundred and twenty-five, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the Court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.

The question regarding the sequence of their deaths is relevant to the destination of their respective estates. Both died without leaving a will. Only Mrs Rowlings had any net assets (approximately $272,000). Mr Rowlings’ estate had a net deficiency (approximately $23,000). Mr Rowlings died leaving a five year old daughter of a previous relationship. Mrs Rowlings had no children.

The combined operation…

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.

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Details

Case: [2010] VSC 626
Decision Date: 23 December 2010

CaseChat Overview and Summary

Fraser v Thom involved a dispute regarding the administration of the estates of Carri-Ann Rowlings and her husband, who both died in a car accident. The primary issue was the uncertainty surrounding the order of their deaths and its implications under section 184 of the Property Law Act 1958. The Supreme Court of Victoria was tasked with determining the legal consequences of this uncertainty on the distribution of their estates.

The court considered whether the uncertainty as to the order of deaths was such that it could not be resolved, which would affect the application of section 184. This section of the Act provides that where there is uncertainty as to the order of deaths, the property is to be dealt with as if the earlier death occurred first. The court examined previous cases, including Re Comfort, Re Zappullo, and Re Brush, which established that the test for uncertainty is whether the order of deaths can be ascertained based on the available evidence.

The court concluded that the evidence did not allow for a determination of the order of deaths, thereby satisfying the criteria for uncertainty under section 184. As a result, the property was to be dealt with as if Carri-Ann had predeceased her husband. The court ordered that the estate should be administered as though the husband survived the wife, thus ensuring the correct distribution of their assets.

The final orders included the administration of the estates in accordance with the findings regarding the order of deaths, ensuring that the property was distributed in line with the statutory provisions and the evidence presented.

Orders