Re Monkton [1995] QCA 321 (25 July 1995)

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.