Plaintiffs v Defendant

PRACTICE AND PROCEDURE - Summary judgment application - Whether plaintiffs have no real prospect of success - Civil Procedure Act 2010, Part 4.4.

1 James Graeme Forrest ('the deceased') died on 29 July 2015. On 27 January 2016, the defendant, who is the deceased's brother, was granted Letters of Administration of the deceased's intestate estate. It is a small estate which, according to the Inventory of Assets, is valued at about $244,000.[1]

2 The plaintiffs each claim to be an eligible person to whom the deceased failed to make adequate provision for their proper maintenance and support pursuant to Part IV of the Administration and Probate Act 1958 ('the Act'). They claim that they each qualify as an eligible person pursuant to paragraph (g) of the definition of eligible person in s 90 of the Act,[2] as for a substantial period during the deceased's life, they believed the deceased was their parent and were treated by the deceased as his natural children.[3]

3 The defendant applies to have the plaintiffs' claim dismissed on the grounds that the plaintiffs are not eligible persons within s 90(g) of the Act, and that the plaintiffs' claim has no real prospects of success. The application is made under ss 62 and 63 of the Civil Procedure Act 2010 ('CPA').

4 The outcome of the application depends on whether an eligible person, within s 90(g) of the Act, can encompass a natural child of the deceased who was adopted by another person or persons before the deceased's death.

5 The defendant asserts that by reason of the Adoption Act 1984 ('the Adoption Act'), the plaintiffs cannot be eligible persons under s 90(g) of the Act and, therefore, there is no reasonable prospect of success in their claims for provision under s91 of the Act.

6 On a plain and ordinary reading of s 90(g) of the Act, the plaintiffs fall squarely within the terms of the section, namely, that for a substantial period during the life of the deceased, they believed that the deceased was their parent and were treated by the deceased as his natural children.

7 It may be arguable that Parliament's intention in wording s 90(g) in the way it did was to include persons who are not a deceased's natural children. But in my view, paragraph (g) reveals an intention to encompasses a class of persons not caught under the categories of a child or stepchild of the deceased.[4] Because the plaintiffs fall within the natural and ordinary meaning of the words of the paragraph, there is a real as opposed to a fanciful prospect that at trial they will be found to be eligible persons.

8 The plaintiffs are the natural children of the deceased and Nevis Campbell Forrest (née McLean) ('Nevis').[5] The first plaintiff ('Kieren') was born on 17 May 1963 and is now 53 years of age. The second plaintiff ('Emelia') was born on 12 April 1966 and is now 50 years of age. The defendant is the brother of the deceased.

9 The deceased and Nevis separated in about 1970. After being divorced, Nevis married Kenneth Innes-Irons ('Ken') in the early 1970s. Ken and Nevis later adopted Kieren and Emelia.[6]

10 Kieren and Emelia claim that Ken reintroduced them to the deceased when they were 18 and 16 years of age, respectively. Kieren and Emelia subsequently developed a close, loving and mutually supportive relationship with the deceased and his second wife, Judi. Kieren lived with the deceased and Judi for a number of years. They both give extensive evidence of a relationship of father and son, and father and daughter, over a period from their respective ages of 18 and 16 up to a short time before his death. Emelia deposes that she was shown a copy of Judi and the deceased's mutual wills where a special bequest was made to the defendant and grandchildren but left the balance of the estate to be divided between Kieren and Emelia.[7] Judi died on 24 December 2006 and the deceased did not remarry or enter into any de facto relationship thereafter. By way of contrast, in his affidavit in support of the application for Letters of Administration, the defendant deposes that the plaintiffs were adopted out in 1973 and had little or no contact with the deceased, despite the deceased being their birth father.[8]

11 Following Judi's death and the serious decline in the deceased's health due to his 2009 diagnosis of a degenerative condition, progressive supranuclear palsy, Kieren and Emelia claim that the deceased was influenced by the defendant to change his will on 26 October 2010, where the balance of the deceased's estate was left to the defendant with a specific grant to an Aircraft Club. The deceased's will of that date did not provide for Kieren or Emelia. This will is not referred to in the defendant's application for the grant of Letters of Administration and the plaintiffs' affidavit material suggests that there is some doubt at present that the defendant made full disclosure in his application.[9]

12 The parties relied on written and oral submissions.

13 Eligibility for family provision under Part IV of the Act has recently undergone sweeping changes.[10] New provisions apply in respect of the estate of any person who dieds on or after 1 January 2015,[11] being the commencement of Part 2 of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014. The amendments create new eligibility requirements for family provision claims by specifying the classes of persons eligible to apply for family provision. Only an applicant that falls within one of the categories of eligible claimant classes can make a claim.

14 Because the deceased died after 1 January 2015, the plaintiffs must be able to establish that they are eligible persons with the meaning of s 90 of the Act.

15 Section 90 of the Act now includes the following relevant definitions:

In this Part unless inconsistent with the context or subject-matter -

(a) a person who was the spouse or domestic partner of the deceased at the time of the deceased's death;

(b) a child of the deceased, including a child adopted by the deceased who, at the time of the deceased's death, was -

(ii) a full-time student aged between 18 years and 25 years; or

(c) a stepchild of the deceased who, at the time of the deceased's death, was -

(ii) a full-time student aged between 18 years and 25 years; or

(d) a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated by the deceased as a natural child of the deceased who, at the time of the deceased's death, was -

(ii) a full-time student aged between 18 years and 25 years; or

(e) a former spouse or former domestic partner of the deceased if the person, at the time of the deceased's death -

(i) would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth; and

(B) commenced but not finalised those proceedings; and

(iii) is now prevented from taking or finalising those proceedings because of the death of the deceased;

(f) a child or stepchild of the deceased not referred to in paragraph (b) or (c);

(g) a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated as a natural child of the deceased not referred to in (d);

(j) a spouse or domestic partner of a child of the deceased (including a stepchild or person referred to in paragraph(d) or (g)) if the child of the deceased dies within one year of the deceased's death;

(k) a person who, at the time of the deceased's death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member;

16 Subject to certain requirements, s 90A of the Act provides that an application for a family provision order may be made to the Court by, or on behalf of, an eligible person. Section 91(1) of the Act empowers the Court to order that provision be made out of the estate of a deceased person for the proper maintenance and support of an eligible person. Section 91(2) of the Act provides that the Court must not make a family provision order under subsection (1) unless satisfied of certain mandatory factors. That sub-section provides:

(2) The Court must not make a family provision order under subsection (1) unless satisfied -

(a) that the person is an eligible person; and

(b) in the case of a person referred to in paragraphs (h) to (k) of the definition of eligible person, that the person was wholly or partly dependent on the deceased for the eligible person's proper maintenance and support; and

(c) that, at the time of death, the deceased had a moral duty to provide for the eligible person's proper maintenance and support; and

(d) that the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person, whether by -

(iii) both the will and the operation of Division 6 of Part I.

17 Sub-sections 91(4) and (5) then set out mandatory requirements to be taken into account in determining the amount of any family provision ordered. The Court is then required also to consider both mandatory and discretionary factors in making a family provision order. Section 91A(1) of the Act sets out the mandatory factors to which the Court must have regard to, including the deceased's will (if any),[12] any evidence of the deceased's reasons for making the dispositions in the will (if any)[13] and any other evidence of the deceased's intentions in relation to providing for the eligible person.[14] Section 91A(2) sets out the discretionary factors.

18 The Court places itself in the position of the testator. The applicable test is of a wise and just testator, rather than a fond and foolish one.[15] The wise and just testator is to be judged according to current community standards.[16] However, it is not for the Court to rewrite the will by reference to abstract considerations of fairness.[17]

The Adoption Act

19 The Adoption Act was introduced to amend and re-enact the law relating to adoption. The effect of adoption orders is set out in s 53 of the Adoption Act, which so far as relevant, provides:

(1) Subject to this Act and to the provisions of any other Act that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order -

(a) the adopted child shall be treated in law as a child of the adoptive parent or adoptive parents, and the adoptive parent or adoptive parents shall be treated in law as the parent or parents of the child, as if the child had been born -

(b) the adopted child shall be treated in law as if the adopted child were not a child of any person who was a parent (whether natural or adoptive) of the child before the making of the adoption order, and any such person shall be treated in law as if the person were not a parent of the child;

(c) the relationship to one another of all persons (including the adopted child and an adoptive parent or former parent of the adopted child) shall be determined on the basis of the foregoing provisions of this subsection so far as they are relevant;

(d) any guardianship of the adopted child ceases to have effect; and

(e) any previous adoption of the child (whether effected under the law of Victoria or otherwise) ceases to have effect.

20 Part 4.4 of the CPA sets out the test for summary judgment. A court may give summary judgment if satisfied that a claim, defence or counterclaim or part of the claim, defence or counterclaim, has no real prospect of success.[18]

21 This liberalises the rules governing summary judgment in Victoria, such that it is easier to dispose of unmeritorious claims or defences summarily. The Court of Appeal has stated that the test:

(a) should be construed as one of whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success. The 'real chance of success' test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test;[19] and

(b) must be applied according to its own terms and not according to considerations of whether the proceeding is 'hopeless' or 'bound to fail'.[20]

22 Courts must, however, continue to exercise the power to terminate proceedings summarily with caution. Courts should therefore only exercise the power if it is clear that there is no real question to be tried.[21]

23 The power to give summary judgment must be exercised in accordance with the overarching purpose of the CPA and taking into account the fact that, if granted, a party will be deprived of the chance to pursue its claim or defence.[22]

24 These principles were confirmed by the Court of Appeal in Mandie v Memart Nominees Pty Ltd,[23] where Kyrou, Ferguson and McLeish JJA observed:

According to Lysaght: a prospect which is not 'real' is 'fanciful'; although the 'no real prospect of success' test in s 63(1) of the CP Act is more liberal than the common law test of 'hopeless' or 'bound to fail', there may not be much difference between them in practice; and, properly understood, a real question to be tried is one which realistically might result in the respondent to an application for summary judgment succeeding in the proceeding. [Footnote omitted].

25 If there is no real prospect of success, a court may nevertheless allow a matter to proceed to trial if:

(a) it is not in the interests of justice to summarily dispose of the proceeding;[24] or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.[25]

26 The defendant submitted that by operation of the Adoption Act, the plaintiffs cannot each claim to be a child of the deceased or a person who thought they were a natural child of the deceased.[26] The definition in s 90(g) of the Act only applies to those persons who believed they were in a parent-child relationship where they in fact were not.

27 Section 53 of the Adoption Act creates a statutory fiction. Subject to its opening words, it treats adopted children in law as a child of the adoptive parents, and treats the adoptive parents in law as if they were the natural parents of the adopted child.[27] In addition, it treats the adopted child as if not a child of the parent (natural or adoptive) who was such a parent before the adoption order. Because of this statutory fiction, unless the opening words of s 53(1) apply, the plaintiffs cannot be children of the deceased and cannot have believed the deceased was their parent.

28 At the hearing, counsel for the defendant submitted that s 90(g) was intended to cover the situation of persons finding 'Moses in the bulrushes'; that is, people who take in a child and treat him or her as their own natural child and raise the child as their own. Moreover, counsel submitted that:

(a) the plaintiffs cannot have 'believed' that the deceased was their parent because it was the fact. It is implicit in s 90(g) of the Act that where a person believes the deceased was a parent, it must be the case that in fact the deceased was not a parent;

(b) the plaintiffs' application ought rightly have been brought under s 90(f) of the Act on the basis that the plaintiffs are the deceased's children.[28] However, this is bound to fail as the Adoption Act unambiguously states that once adopted, a child is treated in law as the child of the adoptive parents, not the child of any other person who was a parent before the making of the adoption order.[29] Instead, the plaintiffs are attempting to circumvent the eligibility requirements of the Act; because they do not fall within the definition of 'child', they avoid an implied exclusion from eligibility arising by virtue of the Adoption Act by making an application under s 90(g);

(c) the plaintiffs cannot fall within s 90(g) of the Act as they both possessed the knowledge that they were adopted by Ken, and therefore cannot claim to have two fathers. The plaintiffs cannot say that although they are not the children of the deceased in law, they believed for a substantial period of time that they were the natural children of the deceased;[30] and

(d) the wording of s 90(g) of the Act shows it was Parliament's intention to create a catch-all to enable eligibility for a person who is not the deceased's child and of whom the deceased is not a parent. To allow adopted children to claim on their birth parent would read down the intentions of the Adoption Act.

29 Counsel for the defendant also submitted that the plaintiffs cannot be said to fall within s 90(g) of the Act because they did not have a belief that the deceased was their parent, but rather, they had actual knowledge of this fact. In the alternative, if Kieren and Emelia did believe that the deceased was their parent, this cannot be categorised as a belief, as they knew this was not true, as their adoptive father, Ken, was their parent to the exclusion of all others.

30 The plaintiffs submit[31] that they are eligible persons within the meaning of s 90(g) of the Act as they are persons who, for a substantial period during the deceased's life, believed that the deceased was their parent and were treated as the deceased's natural children.

31 The plaintiffs' submissions and affidavits[32] go into considerable detail to set out the long history between the deceased and the plaintiffs and how, after they were reintroduced, the relationship developed.[33] Kieren and Emelia say that they were included by the deceased as part of his family and spent holiday periods together and visited each other often.[34] Kieren moved with the deceased and Judi to South Africa for a number of years[35] and Emelia had both the deceased and Ken walk her down the aisle on her wedding day.[36]

32 The plaintiffs referred to the second reading debates in relation to the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014, which introduced the categories of eligible persons, to illustrate that legislation must grapple with modern societal changes such as the recognition of blended families and non-binary familiar structures[37] and categories of people entitled to claim that reflect changing social and family circumstances.[38]

33 The plaintiffs' written submissions outline the authorities that consider the interplay between the Adoption Act and former versions of the Act. I consider these to be of limited assistance because they do not concern the new eligibility criteria.

34 It is the plaintiffs' submission that s 53 of the Adoption Act does not disqualify them from bringing a claim under s 90(g) of the Act. This is supported by the factual evidence that Kieren and Emelia knew that the deceased was their natural father, and that despite the adoption order, were treated by the deceased as his natural children. On this basis, the summary dismissal ought to be refused.[39]

35 The plaintiffs point to the fact that an adopted child reuniting with his or her biological parent/(s) is not a remote possibility and would likely have been considered and expressly provided for by the legislature.[40]

36 In oral submissions, the plaintiffs' counsel reiterated that the plaintiffs fall squarely within s 90(g) of the Act and that this paragraph exists for a purpose, to give effect to the ideas outlined in the Parliamentary debates that there are blended families and this can encompass much more than merely second marriages.

37 It was submitted that had the plaintiffs' relationship with the deceased not been re-established, Kieren and Emelia would not fall within the ambit of s 90(g) of the Act. The plaintiffs say that it is within the comprehension of the legislature that there is a good likelihood that adopted children may reconnect with their biological parents and develop a close relationship.

38 An applicant under Part IV of the Act must establish that he or she is an eligible person. This is a threshold question which opens the gateway to a second level of mandatory factors to be satisfied as set out in s 91(2)(b) to (d) of the Act. An eligible person may still fail to establish an entitlement to further provision because, for example, of a finding that at the time of the deceased's death they had no moral duty to provide for the eligible person's proper maintenance and support. But this second level will usually require a trial, or at least a more extensive consideration of the evidence than on a summary dismissal application.

39 In Bail v Scott-MacKenzie,[41] I set out certain relevant principles of statutory interpretation. I will not repeat them here.

40 In this case, I consider that the natural and ordinary meaning of the words are clear. In my view, contrary to the defendant's submission, the fact that a natural child and an adopted child are included in paragraph 90(b) and (f) of the Act does not bring with it the consequence that a natural child is thereby excluded from paragraph 90(g) if the child otherwise satisfies the requirements of that paragraph. This was not expressed by the defendant as the application of the maxim expressio unius est exclusio alterius, but that must be the effect of the submission.

41 It is well established that the principle of construction expressed in the maxim expressio unius est exclusio alterius must be applied with extreme caution,[42] for it is not a maxim of universal application and applies only when the intention it expresses is discoverable on the face of the instrument.[43] It is a valuable servant but a dangerous master.[44] Moreover, the principle of construction is not to be applied if it brings about a result which the legislature is unlikely to have intended.[45] To the extent that the maxim is concerned with the drawing of an inference, (specifically, a negative inference) it can only be applied if the inference is not inconsistent with other provisions of the Act and is otherwise permitted by the ordinary rules of construction.[46]

42 There is no reason on the face of s 90 of the Act to conclude that the express mention of a 'child' in paragraph (b) (which because of the reference to 'including a child adopted by the deceased' must mean a natural child) means that a natural child cannot fall within paragraph (g). For that to be discoverable on the face of the section, one is required to read extra words into paragraph (g), so that it reads:

a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated as if the person was a natural child of the deceased not referred to in (d) [added words in bold]

43 The defendant puts this argument another way by submitting that the term 'treated as a natural child' within s 90(g) of the Act carries the necessary implication that the person treated in this matter excludes the deceased's natural child. The defendant argues that Parliament's intention in inserting this section was to capture those persons who fall outside the definition in s 90(b) or (f) of the Act.

44 Subject to the opening words of s 53(1) of the Adoption Act excluding the operation of that section to the categories of eligible persons under Part IV of the Act, on their adoption the defendants ceased to be eligible persons as the natural children of the deceased under s 90(b) and (f). That is, as a consequence of the operation of s 53(1)(b) of the Adoption Act, they cannot be treated as the natural children of the deceased for the purposes of s 90(b) or (f). The Adoption Act unambiguously bars the plaintiffs from claiming that they are anyone but their adoptive parents' children.

45 The Act uses the term 'treated as a natural child' in its natural and ordinary meaning with no definitional provision expanding on this. The Macquarie Dictionary[47] defines to 'treat' as 'to act or behave towards in some specified way', and 'treatment' as 'the act or manner of treating or the action or behaviour towards a person.' It seems to me that the term 'treated' refers to the mere behaviour towards another, and contains no negative or exclusionary connotations, as is advanced by the defendant.

46 As I have said, in order to give to s 90(g) of the Act the meaning advanced by the defendant, it is necessary to read into the provision additional words, namely, that 'the person was treated as if the person was a natural child of the deceased.' Treated 'as' a natural child of the deceased and treated 'as if' the natural child of the deceased appear to be different propositions. Treating someone 'as' a natural child has a wider meaning than treating someone 'as if' they were a natural child. The latter may exclude those persons who are in fact the deceased's natural children.

47 The defendant contends that even if Kieren and Emelia did believe that the deceased was their parent, this cannot appropriately be categorised as a belief within s 90(g) of the Act. Rather, it is impossible to believe the deceased was their parent because this was a fact, which they knew. I do not consider that being correct in a belief, as the plaintiffs were in this case about the deceased being their parent, operates to prevent the plaintiffs from bringing a claim under s 90(g) of the Act. I accept the plaintiffs' proposition that Kieren and Emelia knew that the deceased was their biological father merely results in them being correct in their belief.

48 One of the matters the Court raised in argument is whether the reference in s 90(b) to a child 'including a child adopted by the deceased' expressly distinguishes in any way between a child and an adopted child so as to prevent the application of s 53(1) of the Adoption Act in this case.

49 If that is the correct construction of s 90(b) of the Act, then the reference in that paragraph to a child will include the plaintiffs because they are the natural children of the deceased. But of course, they are not under 18, full time students or disabled so they are not eligible under that paragraph. Then the question is whether they are eligible under s 90(f) of the Act. If, as I think to be the case, s 90(f) should be read as if it included the words 'including a child adopted by the deceased', then s 53 of the Adoption Act may not be applicable because s 90(f) 'distinguishes between adopted children and children other than adopted children' for the purposes of the Adoption Act, and the plaintiffs fall within s 90(f).

50 In this case, however, the plaintiffs are not within the class referred to in s 90(b) or (f), as they were adopted by persons other than the deceased. That may mean that s 90(b) and (f) are not provisions of 'any other Act that expressly distinguishes in any way between adopted children and children other than adopted children'. On the other hand, the reference to 'in any way' in those opening words may be seen to include the distinction drawn in s 90(b) of the Act (and presumably in s 90(f)) so as to exclude the effect of s 53(1)(a), (b) and (c) of the Adoption Act.

51 If it is right that in s 90(b) of the Act, the definition of eligible person distinguishes between adopted children and children other than adopted children, and that distinction flows through to paragraph (f), then the reference in paragraph (f) to 'a child ... of the deceased not referred to in paragraph (b)...' will include each plaintiff and they are eligible under that paragraph. If, on the other hand, they are not children of the deceased because of the operation of s 53 of the Adoption Act, then they are eligible under paragraph (g). Either way, they are eligible persons under the Act.

52 In Bail v Scott-MacKenzie,[48] I set out the history of the family provision legislation and in particular referred to the radical reversal of the responsibility basis that existed from 1997 to 2014.[49] I referred to the genesis of the amendments that brought about the current category based eligibility requirements. In particular, that the recommendations of the Victorian Law Reform Commission stemmed in part from criticisms of the operation of the law encouraging opportunistic or non-genuine claims and the lack of certainty that exists in this jurisdiction.[50] Unfortunately, the lack of certainty still exists.

53 Unlike the position in relation to stepchildren considered in Bail v Scott-MacKenzie,[51] where the Explanatory Memorandum ('EM')[52] contained some explanation of the meaning of 'stepchild',[53] there is nothing in the EM to illuminate the meaning of s 90(g). The EM was issued in an amended form after changes to the Bill were introduced in the Legislative Council.[54] The major difference between the Bill as introduced and as passed, is referred to conveniently in the Parliamentary debates, to which I refer below. First, however, it is appropriate to have reference to what the Attorney-General said when the Bill was read a second time.

54 The Second Reading Speech of the Attorney-General in the Legislative Assembly[55] contains no mention of the scope of s 90(g) of the Bill. General statements were made that the Bill aims to make the law 'clearer and fairer' and ensure that families are not caught up with unnecessary disputes about wills.[56] The Attorney-General said:

In 1997, the Victorian legislation was amended to remove any requirement for a specific relationship with the deceased, and instead based a person's entitlements to family provision on demonstrating that the deceased had a responsibility to provide for them. However, the fact that there is no restriction on who can make a claim, together with the broad nature of the test to be applied, has led to a wide range of claims, putting pressure on executors, administrators and other beneficiaries to settle even dubious claims in order to prevent the estate being consumed by legal costs.

To reduce the potential for opportunistic claims, and to better reflect the underlying policy objectives of family provision laws, the Bill amends the current family provision scheme to limit who can make a claim on a deceased estate and the grounds on which a claim can be made.

55 The Attorney-General then went on the list some of the specific categories, but did not refer to the substance of the category in s 90(g) of the Bill.

56 The Bill was amended in the Council as a result of the then opposition's dissatisfaction with aspects of the changes proposed by the Bill. The opposition was supported in this by the legal profession and many individuals. The core of the complaint of the opposition is well expressed by the Member for Lyndhurst, Mr Pakula, when he explained that the problem the opposition had with the Bill was that it went too far in restricting the availability of family provision. In the Second Reading debates he said:[57]

The Bill in its first iteration described those classes of people being the spouse or domestic partner of the deceased; a child, including an adopted child, of the deceased who, at the time of the deceased's death, is under 18 years of age, is a full-time student between 18 and 25 years of age or has a disability; a stepchild, or child of a domestic partner, under the same criteria as for children; a person treated as a natural child of the deceased for a substantial period, again under the same criteria as for children; and a former spouse or domestic partner who would have been able to commence divorce and/or spousal maintenance proceedings at the time of the deceased's death.

... The next six classes were subject to a requirement that the Court be satisfied of whole or partial dependency on the deceased at the time of death. They included a child or stepchild not under 18 years of age, not a full-time student between the ages of 18 and 25 and not disabled. In other words a dependency test was to be imposed on adult children of the deceased before they had a right to claim. The other classes were a person treated as a natural child in the same age brackets, a registered caring partner, a grandchild, a spouse or domestic partner of a child if the child dies within one year of the deceased, and a member of the deceased's household or someone who had been and was likely to be a member of the deceased's household.

It was in regard to children, stepchildren and those treated as children of the deceased who were not under 18, not full-time students under 25 and not disabled where the controversy in this Bill lay. That was because the decision of the government to apply the dependency test to those individuals went beyond what was recommended by the Victorian Law Reform Commission, went beyond what most of the legal fraternity believed to be reasonable and was hotly opposed by the Victorian Bar, by the Law Institute of Victoria, by many individual practitioners and by many individuals who had been cut out of their parent's wills...

57 As a result of the Government accepting the overtures of the opposition, the dependency restrictions applying to the categories of adult children, step children and persons treated as natural children for a substantial period were lifted. The restrictions on any family provision order applicable to these classes of eligible persons were left to those in s 91(2)(c) and (d) of the Act, being the presence of a moral duty by the deceased and the traditional test that under the will or intestacy the deceased failed to make adequate provision for the proper maintenance and support of the eligible person.

58 Thus, although the 2014 amendments brought back restrictions they were not as severe as they might have been. The Parliamentary debates show a concern not to exclude independent adult children, stepchildren and persons treated as children from contesting the deceased's will. As Mr Pakula went on to say in relation to these classes of eligible applicants, including persons treated as children of the deceased:[58]

Not in every case would it have meant, and nor does it mean now, that those children who were cut out of their parents wills would have succeeded in those cases, but the opposition thought the notion that they would be left without a right to contest the will was inappropriate.

59 Mr Pakula noted that the changes to the Bill aimed to prevent those persons with no valid claims, appropriate relationships or real closeness to the deceased from being able to contest wills and eat up the value of the estate, leaving the intended beneficiaries without the bequest they were entitled to. However, he added that conversely, it is important to recognise that there are circumstances where people are left out of wills, particularly the children of the deceased, in a way that causes substantial injustice. This is not deserved where children have been faithful, good family members, but left out because of some other person's nefarious influence or otherwise. These people ought to have a right to contest the deceased's will.[59]

60 From these thoughts and statements an intention is evident, and one that is relevant because of the amendments to the Bill advanced by the opposition, that persons who were equated with children of the deceased, being those treated as the deceased's children, were allowed through the eligibility gateway and their right to contest the will or intestacy was preserved.

61 Having regard to the ordinary meaning of the words of s 90(g) of the Act, these extrinsic materials provide some support for the plaintiffs' construction having a real, as opposed to fanciful, prospect of success at trial. There is a real prospect of the plaintiff successfully arguing that the drafting of s 90(g) of the Act was intended to recognise that persons who believe they are a child of the deceased, and who are treated as a deceased's natural child, even though they are, or it turns out that they are, the natural child of the deceased, should be eligible to claim for provision under Part IV of the Act. Further, because of the interaction between s 53 of the Adoption Act and the distinction in s 90(b), (and presumably s 90(f)) the issue of the plaintiffs' eligibility in this proceeding is of such a nature that only a full hearing is appropriate.

62 For the above reasons, I conclude that there is a real prospect that the plaintiffs are eligible persons within the meaning of paragraph 90(g) of the Act and as such, the defendant's summary judgment application should be dismissed. Unless there is some reason to the contrary, the usual order that costs follow the event should be made.

63 The parties should contact my Associate as to the making of final orders.

[1] Exhibit KI-5 to the affidavit of Kieren Innes-Irons filed 20 July 2016 as amended by his affidavit affirmed 13 September 2016 ('Kieren's Affidavit'). There is, however, some dispute about the value of the estate: see Kieren's Affidavit, [57]-[59].

[2] I will call that definition 's 90(g)'.

[3] The phrase 'natural children' is used throughout this judgment because it is the language of s 90 of the Act. The modern equivalent is 'biological' or 'birth' children.

[4] Section 90(b), (c) or (f) of the Act.

[5] Also known as Jane Campbell Forrest.

[6] The adoption papers for Emelia are in evidence: see Exhibit EH-C-2 to the affidavit of Emelia Harding Collis sworn 15 July 2016 ('Emelia's Affidavit'). The adoption papers for Kieren have not been found. Both parties indicated that they were content to proceed on the basis that the plaintiffs were both adopted at the same time by Ken and Nevis.

[8] Affidavit of Roger Cranfield Forrest sworn 3 December 2015; Exhibit EH-C-6 to Emelia's affidavit.

[9] A copy of the Will is Exhibit EH-C-3 to Emelia's Affidavit.

[10] Justice Legislation Amendment (Succession and Surrogacy) Act 2014, s 2(1).

[11] Victorian Government Gazette S400, 29 October 2014, p 2.

[15] Bosch v Perpetual Trustee Company [1938] AC 463, 478.

[16] McKenzie v Topp [2004] VSC 90 [58]; Poole v Barrow [2014] VSC 576.

[17] Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales [1962] HCA 19; (1962) 107 CLR 9, 19; Downing v Downing [2003] VSC 28 citing Worladge v Doddridge [1957] HCA 45; (1957) 97 CLR 1, 20.

[19] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 [29] per Warren CJ and Nettle JA (Neave JA agreeing).

[20] Ibid [25] (per Warren CJ and Nettle JA, Neave JA agreeing).

[23] [2016] VSCA 4 [45].

[26] Defendant's written submissions dated 21 June 2016 ('Defendant's Submissions').

[27] GE v KM [1995] VicRp 31; (1995) 1 VR 471, 476.

[28] Not referred to in s 90(b) or (c) of the Act.

[29] Defendant's Submissions [6], [7] and [13].

[31] Filed 20 July 2016 ('Plaintiffs' Submissions').

[32] Kieren's Affidavit and Emelia's Affidavit.

[33] Plaintiffs' Submissions, [3.5] -[3.7] and [3.17]; Emelia's Affidavit [60]; Kieren's Affidavit [65].

[34] Emelia's Affidavit [21]- [23].

[35] Emelia's Affidavit [60]; Kieren's Affidavit [65].

[37] Plaintiffs' Submissions [5] and [9].

[38] Victoria, Parliamentary Debates, Legislative Assembly, 15 October 2014, 3655-3656 (Mrs Powell); The Plaintiff handed up a folder that contained its outline of submissions and authorities. Tab 2 of this folder was labelled the Second Reading Speech of the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014, however this was actually an extract from the Parliamentary debates (an address by Ms Hutchins) following the second reading speech. This was incorrectly referred to by the plaintiff as the second reading speech in their written submissions and in Court.

[41] [2016] VSC 563 [27]-[41].

[42] Pierce and Geddes, Statutory Interpretation in Australia, 6th Ed [4.28]; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 575.

[43] Houssein v Under Secretary of Industrial Relations and Technology (NSW)[1982] HCA 2; (1982) 148 CLR 88, 94; Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, 348 [22].

[44] Colquhoun v Brooks (1888) 21 QBD 52, 65; Houssein v Under Secretary of Industrial Relations and Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88, 94.

[45] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 575.

[46] Wentworth v NSW Bar Association [1992] HCA 24; (1992) 176 CLR 239, 250.

[47] The Macquarie Dictionary, Sixth Edition, 2013.

[48] [2016] VSC 563.

[50] Ibid (referring to the VLRC Report entitled 'Succession Laws' at [6.8], p 99).

[51] [2016] VSC 563.

[52] Tabled at the time of introduction of the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014 into the Legislative Council.

[54] Explanatory Memorandum, Justice Legislation Amendment (Succession and Surrogacy) Bill 2014 (Vic).

[55] Victoria, Parliamentary Debates, Legislative Assembly, 18 September 2014, 3442-3445 (Robert Clark, Attorney-General)('Second Reading Speech').

[57] Victoria, Parliamentary Debates, Legislative Assembly, 15 October 2014, 3651-3652 (Martin Pakula).