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 meaning of Part 4.

Section 41(1) of the Act provides, in effect, that, amongst others, a child of a

deceased person may apply for an order that provision be made for him or her out of the

estate of that deceased person. Section 40 then defines "child" to include a stepchild and

defines "stepchild" to mean, in relation to a deceased person, a child of that person's

spouse who is not a child of the deceased person.

Marstella, the facts of which are materially identical to this case, followed the

previous decision of the Full Court in Re Burt [1988] 1 Qd.R. 23 which had decided, in

materially identical circumstances, that an applicant was not a stepchild of the deceased

under earlier legislation. In Marstella the Court said that there was no material difference

between the previous legislation and Part 4 in this respect. We agree with that view.

The essential requirement of a stepchild under the definition in s.40 is that that

person be a child of the deceased's spouse. One simple reason why the decision in

Marstella is correct may be that, at the time of death of the deceased, his former wife, having predeceased him, was no longer his spouse either at common law or under the

extended meaning of that term in s.40. No doubt a contrary view is open, based on

common usage of the term "spouse", or more commonly "wife" or "husband", that those

terms include a former wife or husband who has died: Marstella at 642. But the former is

at least as persuasive a construction as the latter.

There is also a good deal to be said for the view of McPherson J. in Burt at 27-8

that the relationship which the term "stepchild" connotes is ordinarily regarded as coming

to an end upon termination of the marriage that gave rise to it. There is nothing in the

context of Part 4 which would require a contrary construction.

The main argument for the appellant was that the construction adopted in Burt and

Marstella may work injustice in some cases. One example given was where the parent of

the applicant child died simultaneously or almost simultaneously with his or her spouse in

circumstances where the commorientes rule applies. No doubt there will be some cases,

whichever construction is adopted, in which it can be asserted that the result may be unfair.

But in the end any unfairness which might result, in some cases, from the construction

adopted by the Full Court in the earlier cases is not sufficient to compel a conclusion that

those decisions are wrong. On the contrary, as we have indicated, though the question of

construction may be a finely balanced one, there is at least as much to be said for the view

adopted in those cases as there is for the contrary construction. This is plainly not a case

in which this Court is compelled to the conclusion that the former view is wrong. Moreover

there have been a number of single judge decisions both before and since Marstella, in

which that construction has been applied.

For all of the above reasons this Court should follow those decisions and should

therefore dismiss this appeal.