Re McKinnon
[2021] VSC 529
•25 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2020 03700
IN THE MATTER of the will and estate of LYNNDALL JOY MCKINNON, deceased
-and-
IN THE MATTER of s 70ZI(1) of the Administration and Probate Act 1958 (Vic)
-and-
IN THE MATTER of an application pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for the determination of questions arising in the administration of the estate
APPLICATION BY:
| CARMEN LEE GIDDENS | Plaintiff |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 25 August 2021 |
CASE MAY BE CITED AS: | Re McKinnon |
MEDIUM NEUTRAL CITATION: | [2021] VSC 529 |
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INTESTACY – Judicial advice – Distribution of intestate estate to siblings of the whole blood only or siblings of both the whole blood and the half blood – Statutory construction – Meaning of ‘sibling’ – Administration and Probate Act 1958 (Vic) s 70ZI – Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 (Vic) ss 9, 11 – Interpretation of Legislation Act 1984 (Vic) s 35 – Watts v Crooke (1690) Shower 108; 1 ER 74.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C McOmish of Counsel | Horseman Sim Pty Ltd |
HER HONOUR:
Introduction
Lynndall Joy McKinnon (‘the deceased’) died intestate on 10 December 2018.
The deceased’s husband, Kenneth Stanley McKinnon, her daughter, Kerrie Lee McKinnon, and her parents, Leroy Clarence Shears and Gladys Dorothy Shears, all predeceased her. The deceased’s daughter did not have any children.
At the date of her death, the deceased did not have a domestic partner.
The deceased was survived by full and half siblings. Her surviving full siblings are Carmen Lee Giddens (‘the plaintiff’), Gregory Alan Shears and Raymond George Shears, who are the children of the marriage of Leroy Clarence Shears and Gladys Dorothy Shears. Another full sibling, John Graham Shears, predeceased the deceased leaving no children.
Her surviving half siblings are Dianne Lee Perkins, Wendy Lee Zanin, Robyn Lee Medew and Debbie Lee Turner. They are the children of Gladys Dorothy Shears and her domestic partner, Robert Arthur Turner. Another half sibling, Donna Lee Turner, predeceased the deceased leaving no children.
On 25 June 2019, letters of administration were granted to the plaintiff. The estate was valued at $153,429.26 in the inventory of assets and liabilities filed in support of the application.
Application
By originating motion the plaintiff seeks answers to the following questions arising in the administration of the estate:
Is the estate of the Deceased to be distributed pursuant to s 70ZI(1) of the Administration and Probate Act 1958 to:
a. the Deceased’s surviving full siblings equally between them?; or
b.the Deceased’s surviving siblings and half siblings equally between them?
Pursuant to orders made on 28 October 2020, the surviving full and half siblings of the deceased were notified of the proceeding and each granted leave to apply to be added as a defendant, provided that such application was made by summons issued by 4 December 2020. No applications were made by any of the siblings.
Applicable legislation
On 1 November 2017, amendments to the intestacy provisions of the Administration and Probate Act 1958 (Vic) (‘the Act’) made by the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 (Vic) (‘the 2017 amendments’) came into effect.
By s 106(1) of the Act, the 2017 amendments apply in respect of any estate of any person who dies on or after the commencement of the 2017 amendments.
Prior to the 2017 amendments, s 52 of the Act set out the statutory scheme for the distribution of property on intestacy in Victoria. Section 52(f)(vii) of the Act provided that if distributing an estate upon intestacy, there shall be no difference between relationship of the whole blood and of the half blood.
Pursuant to ss 9 and 11 of the 2017 amendments, s 52 of the Act was repealed and a new pt IA inserted.
Section 70ZI of pt IA of the Act provides:
Distribution to siblings
(1) If an intestate leaves more than one sibling but no partner, no child or other issue and no parent, the residuary estate must be distributed equally between those siblings.
(2)If the intestate leaves one sibling but no partner, no child or other issue and no parent, the sibling is entitled to the whole residuary estate.
(3)If a sibling of an intestate predeceases the intestate leaving a child who survives the intestate, that child is entitled to the sibling’s share and, if there are 2 or more children, in equal shares.
Part IA of the Act does not include a replacement for s 52(1)(f)(vii), nor does it define ‘sibling’.
Consideration
The questions to be answered involve a question of statutory construction. The meaning of the Act is to be derived from its text, context and purpose. Additionally, s 35 of the Interpretation of Legislation Act 1984 (Vic) provides that, in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object and consideration may be given to reports of law reform commissioners, reports of proceedings in any House of the Parliament and explanatory memoranda presented to any House of the Parliament.
The 2017 amendments had their genesis in a review of Victorian succession laws by the Victorian Law Reform Commission (‘the VLRC’) at the request of the then Attorney-General in 2012.
In respect of the laws of intestacy, the Attorney-General asked the VLRC to review and report on whether the statutory scheme for distribution of property on intestacy was operating effectively to achieve just and equitable outcomes.[1]
[1]See the Terms of Reference set out in Victorian Law Reform Commission, Succession Laws: Report (August 2013) x.
The VLRC report entitled Succession Laws (‘the VLRC report’) was prepared and tabled in Parliament on 15 October 2013. The VLRC report recommended that the entitlements of all next of kin on intestacy be clearly set out in the Act and those entitled to inherit upon intestacy be limited to the deceased person’s first cousins.[2] No reference or recommendation of limitation was made as to the meaning of ‘sibling’.
[2]Ibid xxv.
The second reading of the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Bill 2016 (Vic) (‘the bill’) before the Legislative Assembly took place on 23 November 2016. The Attorney-General stated in the second reading speech that ‘the report found that Victoria's intestacy regime needs to be modernised, to better reflect the way that families operate in the 21st century’.[3] No reference or recommendation of limitation was made as to the meaning of ‘sibling’.
[3]Victoria, Parliamentary Debates, Legislative Assembly, 23 November 2016, 4540 (Martin Pakula, Attorney-General). See also Victoria, Parliamentary Debates, Legislative Council, 9 March 2017, 1378 (Gayle Tierney, Minister for Training and Skills).
The accompanying explanatory memorandum described the aim of the bill as ‘to implement with some modifications the recommendations from the 2013 Succession Laws Report of the Victorian Law Reform Commission’.[4] It described the introduction of the new s 70ZI as setting out ‘entitlements of brothers and sisters to an intestate's estate’.[5] Again, no reference or recommendation of limitation was made as to the meaning of ‘sibling’.
[4]Explanatory Memorandum, Administration and Probate and Other Acts Amendment (Succession and Related Matters) Bill 2016 (Vic) 1.
[5]Ibid 7.
There is no clear indication from the text and context of the provisions as to whether the meaning of ‘sibling’ creates a distinction between siblings of whole blood or half blood. The second reading speech and explanatory memorandum hold no relevant reference or definition of the meaning of sibling, or record an intention by Parliament to create a distinction between siblings of whole blood or half blood or an intention that the previous Victorian statutory scheme be narrowed to exclude half siblings from receiving any distribution.
Siblings who share both parents are relatives of the whole blood and siblings who have only one parent in common are relatives of the half blood, sometimes referred to as half-brothers or half-sisters. The position at common law has long been that a sibling of the half blood takes an equal share with the sibling of the full blood.[6] The common law position was reflected in the now removed s 52(f)(vii) that specifically provided there was no difference between relationships of the whole blood and of the half blood when distributing an estate upon intestacy. For all intents and purposes, it was unnecessary to include such a definition in view of the long standing common law position on the issues.
[6]Watts v Crooke (1690) Shower 108; 1 ER 74.
Some jurisdictions distinguish entitlements between siblings of the full blood and siblings of the half blood. For example, in the United Kingdom, s 46 of the Administration of Estates Act 1925 (UK) provides that brothers/sisters of full blood take preference in the distribution of the residue of the estate of the intestate to brothers/sisters of half blood.[7]
[7]Administration of Estates Act 1925 (UK) s 46(1)(v).
In Australia, some jurisdictions do not distinguish between the entitlements of siblings of the full blood and siblings of the half blood, and the legislation in some jurisdictions provides a definition of brother or sister, for example, s 101 of the Succession Act 2006 (NSW) or continues to contain provisions that confirm that relationships of the full blood and the half blood are treated equally, for example, s 12B of the Administration Act 1903 (WA).
Furthermore, having regard to the ordinary dictionary meaning of ‘sibling’, ‘brother’ and ‘sister’, had the legislature wished to specifically identify that there was a difference in entitlement between siblings of the full blood and siblings of the half blood, it would be necessary for such an interpretation to have been included in the legislation to displace the standard meaning. This would be particularly so as an interpretation that siblings of the half blood are not entitled would be a substantial change to the long-established intestacy laws in Victoria and inconsistent with the approach taken by other jurisdictions across Australia.
Answers to the questions
The answers to the questions are:
Question 1:
Is the estate of the deceased to be distributed pursuant to s 70ZI(1) of the Administration and Probate Act 1958 (Vic) to the deceased’s surviving full siblings equally between them?
Answer: No
Question 2:
Is the estate of the deceased to be distributed pursuant to s 70ZI(1) of the Administration and Probate Act 1958 (Vic) to the deceased’s surviving siblings and half siblings equally between them?
Answer: Yes
Orders
The Court orders that the plaintiff’s costs of and incidental to the proceeding be borne by the estate of the deceased on an indemnity basis and the proceeding be otherwise dismissed.
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