Zimmerman v Public Trustee

[2022] TASSC 3

[2022] TASSC 3

COURT:                  SUPREME COURT OF TASMANIA

CITATION:             Zimmerman v Public Trustee [2022] TASSC 3

PARTIES:  ZIMMERMAN, Dianne Jean
  v
  PUBLIC TRUSTEE

FILE NO:  3213/2019
DELIVERED ON:  3 February 2022
DELIVERED AT:  Hobart
HEARING DATES:                   31 January 2021 and 1 February 2022
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Succession – Intestacy and distribution on intestacy – Adoption – Tasmania – Extinguishes biological parent and child relationship and replaces it with adoptive parent and child relationship and consequential family relationships.

Intestacy Act2010 (Tas), s 10

Aust Dig Succession  [1332]

REPRESENTATION:

Counsel:

Applicant:  R Meredith   
           Respondent:  M Flanagan

Solicitors:

Applicant:  WMM Law              
           Respondent:  Public Trustee

Judgment Number:  [2022] TASSC 3

Number of paragraphs:  13

Serial No 3/2022

File No 3213/2019

DIANNE JEAN ZIMMERMAN v PUBLIC TRUSTEE

REASONS FOR JUDGMENT   HOLT AsJ

3 February 2022

1. This proceeding concerns the application of the Intestacy Act 2010 where adoption orders have been made.

2. The applicant is the biological mother of Werner Ihenfeld who died in Tasmania in April 2018, aged 54 years. He died intestate without leaving a spouse or issue with the result that a surviving parent or parents would take the whole of his estate under the Intestacy Act and the further result that if there was no surviving parent the estate would pass to other relatives.

3. Letters of Administration were granted to the Public Trustee on 1 March 2019 on the basis of the intestacy and uncertainty as to the identity of the next of kin.

4. The deceased was born on 29 June 1963 and when he was 3 days old, the applicant gave him up for adoption. On 4 September 1963 an order was made in Tasmania under the Adoption of Children Act 1920, with Werner and Anna Ihenfeld becoming the adoptive parents.

5. The adoptive parents died in the mid 1980s when the deceased was in his early 20s. Thereafter the deceased sought out his biological mother and for about the next thirty years, up until his death in April 2018, he and the applicant enjoyed the relationship which exists between mutually loving and caring child and parent. Underpinned by this loving relationship and the biological relationship, the applicant claims the entitlement of a parent.

6. In reliance on the Intestacy Act the applicant has applied to the Court, in effect, for the determination of the question of whether the Act affords to her a right of distribution.

7. It is clear that that Act excludes the claimed entitlement. Section 10 is as follows:

   "Adoption

   An adopted child is to be regarded, for the purposes of distribution on an intestacy, as a child of the adoptive parent or parents and –

   (a)      the child's family relationships are to be determined accordingly; and

   (b)      family relationships that exist as a matter of biological fact, and are not consistent with the relationship created by adoption, are to be ignored."

8. The relevant relationship created by the adoption was, so far as distribution on intestacy is concerned, as specified in the opening words of s 10, namely the relationship of parents and child between the adoptive parents and the deceased. Subparagraph (a) makes it clear that the consequential family relationships are to be determined accordingly to the effect that the relatives of the adoptive parents are to be regarded as the relatives of the adopted child for intestacy purposes. Subparagraph (b) mandates that matters of biological fact which are inconsistent with the new family relationships created by the adoption are excluded in the ascertainment of entitlements on intestacy. An example is the exclusion of biological siblings.

9. There is no ambiguity or obscurity in the provision and it is consistent with other provisions of the Act, namely ss 4 and 29. Both provisions contemplate that there can only be two parents for intestacy purposes.

10. Section 4 includes the following:

    "Interpretation

    In this Act, unless the contrary intention appears –

    brother or sister – a person is the 'brother or sister' of another person if they have one or both parents in common;"

11. Section 29 provides:

    “Parents

    (1)    The parents of an intestate are entitled to the whole of the intestate estate if the intestate leaves –

    (a) no spouse; and

    (b) no issue.

    (2)      If there is only one surviving parent, the entitlement vests in the parent and, if both survive, it vests in equal shares."

12. The statutory intestacy distribution rules do not contain provision for reversion to the biological relationships when the adoptive parents die. Nor do the statutory rules contain scope for an evaluative assessment as part of the determination of the existence or otherwise of family relationships.

13. The application as filed is expressed in terms of the applicant seeking a declaration in her favour. She is not the mother of the deceased within the meaning of the Act and so not entitled to a distribution. Accordingly, I make the following orders:

    1The application is dismissed.

    2Unless within 14 days application for a contrary costs order is made, the applicant is to pay the respondent's taxed costs of the application.