Re Monckton - [1995] QCA 321

IN THE COURT OF APPEAL

[1995] QCA 321

SUPREME COURT OF QUEENSLAND

Appeal No. 117 of 1994

Brisbane

[Zeith and Black v. Public Trustee]

BETWEEN:

GARY DENNIS ZEITH,
GREGORY CHARLES ZEITH and
LYNETTE FAY BLACK

(Applicants) Appellants

AND:

THE PUBLIC TRUSTEE OF QUEENSLAND
as Administrator of the Estate of
VINCENT WILLIAM MONKTON (deceased)

(Respondent) Respondent

Pincus J.A. Davies J.A. Ambrose J.

Judgment delivered 25/07/1995

Judgment of the Court

APPEAL DISMISSED.

CATCHWORDS: SUCCESSION - Intestacy - whether relationship of stepchild/step-parent remains after the death of the natural parent; departure by Court of Appeal from previous decisions of the Full Court Part 4 Succession Act 1981

Re Marstella [1989] 1 Qd.R. 638.

Counsel:	Mr. G. T. Britton for the appellant Mr. A. Wilson for the respondent
Solicitors:	R. G. Kilner & Black as town agents for John Williams & Associates, Rockhampton Public Trust Office for the respondent
Hearing Date:	19 July 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 117 of 1994

Brisbane

Before

Pincus J.A. Davies J.A. Ambrose J.

[Zeith and Black v. Public Trustee]

BETWEEN:

GARY DENNIS ZEITH,
GREGORY CHARLES ZEITH and
LYNETTE FAY BLACK

(Applicants) Appellants

AND:

THE PUBLIC TRUSTEE OF QUEENSLAND
as Administrator of the Estate of
VINCENT WILLIAM MONKTON (deceased)

(Respondent) Respondent

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 25th day of July 1995

This is an appeal from an order of a Supreme Court judge dismissing an

application that adequate provision be made for the proper maintenance and support of

three named applicants out of the estate of Vincent William Monckton deceased. The sole

question before the learned primary Judge and this Court is whether those applicants were,

at the date of death of the deceased, his stepchildren within the meaning of Part 4 of the

Succession Act 1981. The learned primary Judge held, as he was bound to by a decision

of the Full Court, that they were not.

That decision was Re Marstella [1989] 1 Qd.R. 638. It was accepted, on behalf of

the three appellants who had joined in the application that, though this Court was not bound

by previous decisions of the Full Court it should depart from any such decision "cautiously

and only when compelled to the conclusion that the early decision is wrong": Nguyen v.

Nguyen (1990) 169 C.L.R. 245 at 269. However counsel for the appellants contended that

this Court should be compelled to the conclusion that the decision of the Full Court in

Marstella was wrong.

The appellants were children of the deceased's former wife who, whilst still married

to the deceased, predeceased him. There is no doubt that from the time of the marriage

between the deceased and his former wife to her death the appellants were, both in

ordinary usage and within the meaning of Part 4, stepchildren of the deceased. The

precise question in this case is whether, after the death of their mother, they remained

stepchildren of the deceased within 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 Re Monckton

Details

AGLC: Re Monckton [1995] QCA 321
Case: [1995] QCA 321
Decision Date: 25/07/1995

CaseChat Overview and Summary

The appeal in this case was brought by Gary Dennis Zeith, Gregory Charles Zeith, and Lynette Fay Black against The Public Trustee of Queensland, as the administrator of the estate of Vincent William Monckton, who had passed away. The primary issue before the Court was whether the applicants were entitled to be considered stepchildren of the deceased for the purposes of succession under the Succession Act 1981. The applicants argued that they should be entitled to claim under the act because they were stepchildren of the deceased at the time of his death, despite their biological mother having predeceased him.

The legal issues the Court had to resolve included the interpretation of the term "stepchild" as defined in Section 40 of the Succession Act 1981, and whether the relationship of stepchild and step-parent survives the death of the natural parent. The Court also had to consider whether it should depart from the previous Full Court decisions, namely Re Marstella [1989] 1 Qd.R. 638, and Re Burt [1988] 1 Qd.R. 23, which had ruled that a stepchild relationship does not persist after the death of the natural parent.

The Court of Appeal dismissed the appeal, affirming the lower court's decision. The reasoning of the Court was that the definition of "stepchild" in Section 40 of the Succession Act 1981 required the person to be a child of the deceased's spouse. Since the deceased's former wife, who was the applicants' biological mother, had predeceased him, she was no longer his spouse at the time of his death. The Court found that there was nothing in the context of Part 4 of the Succession Act 1981 that would necessitate a different construction of the term "stepchild". The Court also noted that there was significant weight behind the view that the stepchild relationship typically ends upon the termination of the marriage that created it.

The Court concluded that while the interpretation of the term "stepchild" could be seen as finely balanced, the reasoning adopted in the earlier cases by the Full Court was at least as persuasive as any alternative construction. Moreover, the Court observed that any potential unfairness arising from this interpretation was not sufficient to compel a conclusion that the previous decisions were wrong. The Court, therefore, upheld the previous Full Court decisions and dismissed the appeal.

Orders