Schor v Mary Furesh (as administrator of the intestate estate of Paul Slipcevich)
[2011] WASC 346
•14 DECEMBER 2011
SCHOR -v- MARY FURESH (as administrator of the intestate estate of PAUL SLIPCEVICH) [2011] WASC 346
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 346 | |
| Case No: | CIV:2389/2009 | 6 DECEMBER 2011 | |
| Coram: | MASTER SANDERSON | 14/12/11 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | GABRIELA MARIA ANGELA SCHOR MARY FURESH (as administrator of the intestate estate of PAUL SLIPCEVICH) MARY FURESH (as a beneficiary of the intestate estate of PAUL SLIPCEVICH) |
Catchwords: | Practice and procedure Application for trial of preliminary issue Turns on own facts |
Legislation: | Administration Act 1903 (WA), s 12A |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MARY FURESH (as administrator of the intestate estate of PAUL SLIPCEVICH)
First Defendant
MARY FURESH (as a beneficiary of the intestate estate of PAUL SLIPCEVICH)
Second Defendant
Catchwords:
Practice and procedure - Application for trial of preliminary issue - Turns on own facts
Legislation:
Administration Act 1903 (WA), s 12A
(Page 2)
Result:
Application refused
Category: B
Representation:
Counsel:
Plaintiff : Mr P J Hannan
First Defendant : Dr P R MacMillan
Second Defendant : Dr P R MacMillan
Solicitors:
Plaintiff : Leach Legal
First Defendant : Maxim Litigation Consultants
Second Defendant : Maxim Litigation Consultants
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 MASTER SANDERSON: Paul Slipcevich died on 28 May 2008. He was 79 years of age. His daughter Mary Furesh applied for and was granted letters of administration on 19 December 2008. The plaintiff claims she is the natural daughter of the deceased. She says the deceased had an extra-marital relationship with her mother. The defendant denies the plaintiff is the daughter of the deceased.
2 By chamber summons issued 4 November 2011, the plaintiff sought orders requiring both her and the second defendant to submit to DNA testing. Affidavit evidence filed in support of the application established if both were tested, it would disclose whether they were children of the same biological father.
3 The matter came on for mention in chambers on 6 December. Counsel for the defendants proposed the application for parentage testing be adjourned sine die. He submitted the proper course was to determine a preliminary issue framed in the following way:
Given that parentage was not established against the father during his lifetime, is DNA evidence obtained after his death relevant to any issue in the action given the provisions of section 12A(2)(b)(i) of the Administration Act 1903 (WA)?
4 Section 12A of the Administration Act 1903 (WA) is in the following terms:
12A. Entitlement to participation in distribution of intestate estates
(1) Where, after the coming into operation of the Administration Act Amendment Act 1971, any person dies intestate as respects all or any of his property, for the purpose of determining who is entitled to participate in the distribution of that part of his estate to which the intestacy applies the relationship between a child and his parents shall be determined irrespective of whether the parents are or have been married to each other, and all other relationships, whether lineal or collateral, shall be determined accordingly.
(2) In any proceedings where a person relies on a matter of fact made relevant by the provisions of subsection (1) -
(a) that fact shall not be taken to be proved unless it is established to the reasonable satisfaction of the Court; and
(b) where the parents are not, or have not been, married to each other, the relationship between a
- child and his parent, and all other lineal or collateral relationships, shall be recognized only -
(i) if parentage is admitted by or established against the parent in his lifetime; and
(ii) where the purpose for which the relationship is to be determined enures for the benefit of the parent, if parentage has been so admitted or established in the lifetime of the child.
- (2a) Subsection (2)(b) does not apply to or in respect of a relationship established by the Artificial Conception Act 1985.
(3) The estates of all persons who have died intestate as to the whole or any part thereof before the coming into operation of the Administration Act Amendment Act 1971, shall be distributed in accordance with the enactments and rules of law which would have applied to them if that Act had not been passed.
(4) The estates of all persons who have died intestate as to the whole or any part thereof before the coming into operation of Part 2 of the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 shall be distributed in accordance with the enactments and rules of law which would have applied to them if that Act had not been passed.
5 Subsection (2) of this section involves two distinct and separate elements. In this case, it is necessary for the plaintiff to establish 'to the reasonable satisfaction of the court' she is a child of the deceased. The DNA testing proposed would go to that end. Secondly, the plaintiff needs to establish that parentage was admitted during the lifetime of the deceased. Of course, any DNA testing would not be relevant to s 12A(2)(b)(i) because even if it established the deceased was a parent of the plaintiff, it was not so established during his lifetime. So the plaintiff is faced with establishing the deceased admitted parentage irrespective of what the DNA test shows.
6 The plaintiff's statement of claim alleges the deceased did admit parentage during his lifetime. Of course, whether the plaintiff is able to establish that fact, remains to be seen. But even if there was such an admission, it is possible the court may not be reasonably satisfied the deceased was the father of the plaintiff. It is possible to imagine where the deceased made an acknowledgement in an off-handed way in circumstances which give rise to a suspicion the deceased did not actually
(Page 5)
- believe what he was saying. In these circumstances, DNA testing would be relevant.
7 In my view, there is no warrant for trial of a preliminary issue in this matter. The better course is to deal with the plaintiff's application for DNA testing. The parties should bring in a minute which facilitates the early resolution of this issue. The costs of this application will be reserved.
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