ZEEMAN J The applicants, who claim to be the step-children of Noel Ronald Wade, deceased ("the deceased"), have made application for an order that provision be made for their proper maintenance and support out of the estate of the deceased pursuant to the Testator's Family Maintenance Act 1912 ("the Act"), s3A. The question arises whether the applicants are step-children of the deceased within the meaning attributed to the word "step-child" by the definition contained in the Act, s2(1). Unless they are, the Court has no jurisdiction to make the order which they seek.

2. The parties have stated a special case by which they ask the Court to determine as a question of law, on the basis of the facts stated therein, whether the applicants are step-children of the deceased within the meaning of the Act. It is agreed that if I answer this question in the negative, the application is to be dismissed. If I answer it in the affirmative, the application is to be heard on its merits.

3. The facts as they appear from the special case are as follows. Each of the applicants is the legitimate child of the marriage of Irene Victoria Connors and Christopher John Connors. Vivian Connors was born on 24 May 1932, Sheila Connors on 3 December 1934 and Patrick Connors on 10 April 1938. Christopher John Connors died in or before 1943. Subsequent to his death, Irene Victoria Connors married the deceased in 1943. There was one child of that marriage, Laurie Wade, who is still living. Irene Victoria Connors died in 1982. The deceased died in 1994.

4. The applicants do not seek to argue that Basterfield v Gaye [1994] TASSC 120; (1994) 3 Tas R 293 was wrongly decided. In that case, Underwood J held that an applicant in the same position as the present applicants, except that her parents had never married and that there had been no issue of the marriage between the testatrix and the applicant's natural father, was not a "step-child" within the meaning of the definition of that word contained in the Act, s2(1). It is the applicants' contention that the fact there was a child of the marriage of the testator and their mother who survived the testator should lead to a conclusion different to that reached in Basterfield v Gaye (supra).

5. In Basterfield v Gaye (supra), Underwood J followed the decision of the Full Court of the Supreme Court of Queensland in Re Burt (1988) 1 Qd R 23. The definition of "step-child" which then appeared in the equivalent Queensland legislation, and which the court was required to construe, is indistinguishable from the definition which appears in the Act, s2(1). The applicants' submission that the existence of a child of the marriage of the testator and their mother who survived the testator has the result that they come within the definition of "step-children" relies on observations made by two of the members of the court in Burt. McPherson J, at 27, and Thomas J, at 33, left open the question whether the status of step-child can survive the death of the natural parent in circumstances such as the present.

6. It is important to understand how that question came to be left open. The reason is to be found in the reliance by McPherson and Thomas JJ on the decision in Brotherhood of Locomotive Firemen and Enginemen v Hogan 5 Fed Supp 598 (1934). McPherson J made a reference to that case in the following passage at 26 - 27:

"Apart from these considerations of strict statutory

interpretation, there is also the natural meaning of the word

'step-child'. The New Webster Encyclopaedic Dictionary (1980

ed) gives as the meaning of the word 'The child of a husband or

wife by a former husband or wife'. That may be said to support

the contention of the respondents on this appeal; but it differs

from an earlier definition in Webster's New International

Dictionary, which was: 'A child of one's wife or husband by a

former marriage'. See Brotherhood of Locomotive Firemen and

Enginemen v Hogan 5 Fed Supp 598 (1934), at 600. The almost

precise correspondence with the definition of 'step-child'

adopted by the Queensland amendment in 1943 tends to suggest

that the draftsman of that amendment used the earlier Webster as

his source. In Hogan's case, which was recently referred to by

Deane J in Re Cook [1985] HCA 47; (1985) 59 ALJR 669, 674, Nordbye J undertook

an extensive survey of decisions on the meaning of the word

'step-child' in various American insurance policies and in

statutes in which relationship by 'affinity' is a criterion.

His Honour appears to have accepted, as correctly reflecting the

effect of the majority of those decisions, the proposition then

stated in 2 Corpus Juris 379 that 'death of the spouse

terminates the relationship by affinity ...' The basis of the

underlying reasoning is that a step- relationship is one created

by marriage, which therefore comes to an end when the marriage

that brought into existence is terminated by the death or a

fortiori by divorce. A possible exception is said to exist

where there are also surviving children of the remarriage that

created the relationship. The underlying rationale of that

exception is the existence of consanguinity between the children

of the two marriages, who of course are relations by the

half-blood: cf 5 Fed Supp 598, 604-605. No question of that

exceptional kind falls to be considered in this case."

"... To the suggestion that the step-relationship ceases on the

death of the natural parent, Douglas J stated, in Re Trackson,

'neither the Statute, commonsense, nor ordinary English usage

contemplates this'. With respect, that is a questionable

proposition, as a number of decisions in the United States

indicate (McGaughey v Grand Lodge AOUW of State of Minnesota

(1912) 180 NW 1001; Brotherhood of Locomotive Firemen and

Enginemen v Hogan (1934) 5 Fed Supp 598, 604-605). The latter

case contains a wide ranging discussion of the nature of the

affinity which supports the relationship of step-child and

step- parent. It is well established at least in the United

States that once there has been a divorce between the natural

parent and the step-parent, the status of step-child terminates.

It is less clear whether the status terminates upon the death of

the natural parent when the marriage is still subsisting at the

time of his death. The Corpus Juris Secundum states that:

'Death of the spouse terminates the relationship by affinity;

if, however, the marriage has resulted in issue who are still

living, relationship by affinity continues'. (2A p 514)

The reason for continuing the relationship in that event is said

to be that the step-child would have half-sisters or

half-brothers as the result of the marriage. The relationship

between step- parent and step-child is discussed by Deane J in

his dissenting judgment in Re Cook, Ex Parte C (1985) 59 ALJR

669, 647. The direct connection between the relationship of

step-parent and step-child and the marriage from which it arises

is there recognised, as is the assistance of the American cases

on this topic. The importance of the subsistence of the

marriage is also identified in Brotherhood of Locomotive Firemen

and Enginemen v Hogan (at 604) with the observation:

'The wife in this case was the cause of the affinity which

existed between Kennedy and her children. When the cause

ceases, it should logically follow that the result ceases. No

sound reason for any other view occurs to the Court.'

This reasoning closely resembles that of Finlay J in Mander v

O'Toole."

8. As might be expected, their Honours primarily directed their attention to the statutory definition of "step-child". They then looked at the natural meaning of that word to provide confirmation of their view as to the effect of the statutory definition. It was in the latter context that reference was made to Brotherhood of Locomotive Firemen and Enginemen v Hogan (supra). That case concerned the construction of an insurance policy which provided that the beneficiaries under the policy should include children and that the term "children" should include "step-children". The court was required to construe the meaning of the word "step-child", which was not defined by the policy. The court determined the question on the basis of affinity, citing with approval the passage in the Corpus Juris Secundum reproduced by Thomas J in the passage from his judgment which I have reproduced. Of course there is a competing view that the natural meaning of "step-child" is that it is a status which only subsists whilst the relationship which gives rise to it, ie, the marriage of a natural parent to the person who thereby becomes a step-parent, subsists (see Mander v O'Toole (1948) NZLR 908 at 912).

9. Whatever may be the natural meaning of the word "step-child", the question before me must be determined by reference to the definition contained in the Act. Relevantly, the definition is as follows:

"'step-child' means

(a) in relation to a male deceased person, a child of that

person's wife by a former marriage; or"

10. The key to the definition is the expression "that person's wife". It seems to me that it has three possible meanings:

(a) the wife to whom the deceased was still married at the time

of his death;

(b) the person who was last the wife of the deceased but who no

longer was his wife at the time of his death; or

(c) any person who at any time has been the wife of the

deceased.

11. The respondent contends that the first of those possible constructions is the correct construction. The applicants contend that the choice is not between those possible constructions but that the correct construction is the first of them, with the qualification that the expression also includes a person who has been the wife of the deceased and is the mother of a child of the testator living at the time of his death. The applicants did not contend for the second or third possible constructions. They are inconsistent with Basterfield v Gaye (supra).

12. The difficulty which stands in the way of accepting the applicants' submission is that it relies upon affinity between the deceased and the child, whereas the statutory definition does not rely on affinity in a general sense but requires that the inquiry be directed to whether the applicants' mother answers to the description of being the wife of the deceased. It is difficult to see how a different meaning can be given to the expression "that person's wife" in its application to a person not living at the time of the death of the deceased depending on whether or not there is living a child of that person and the deceased. I have concluded that the expression "that person's wife" means a person who was the wife of the deceased at the time of his death.

13. That view is consistent with the Queensland cases, decided subsequent to Re Burt (supra), where applicants unsuccessfully sought to apply that provision be made for them pursuant to legislation equivalent to the Act on the basis that they were step-children in circumstances where the natural parent had predeceased the testator. In those cases (Re Oakley (1986) 2 Qd R 269; Re Marstella (1989) 1 Qd R 638) the applicants sought to distinguish Burt on the basis that the testator had not remarried after the termination of the marriage to the natural parent. The facts of neither case were on all fours with the present case. The statutory definition under consideration was somewhat different from that considered in Burt. Nevertheless, the principles expressed in those cases, if adopted, do not admit to upholding the applicants' submissions.

"... Mr Robin submitted, I think correctly, that the definition

of spouse contemplates a living person, that is to say a spouse

of a subsisting marriage of the testator or testatrix at the

time of that person's death. If that is so, then the definition

of step- child will include only a child of the testatrix spouse

who was living at that time, and the same result as that reached

in Re Burt is inevitable. Indeed I do not discern any different

legislative intent in the present definition of step-child from

that in the earlier definition. I do not see any reason to

extend the category beyond step-children who retain that status

at the time of the death of the testator or testatrix. For the

reasons of the majority in Re Burt that status is lost upon the

death of the natural parent."

15. That passage was specifically approved in Re Marstella (supra) by Shepherdson J, at 646, with whom McPherson J agreed. In Zeith v Public Trustee of Queensland, unreported 25 July 1995, the Queensland Court of Appeal was invited to reconsider Re Marstella. It declined to do so. A subsequent application for special leave to appeal to the High Court was refused (Zeith v Public Trustee of Queensland (1996) 4 Leg Rep SL 3). In indicating that the court, by a majority, refused special leave, Toohey J said, at 4:

"The decision of the Court of Appeal is that on the death of the

natural parent the relationship no longer exists, accords with

recent decisions of that Court and, furthermore, as a matter of

construction is a conclusion which is reasonably open."

16. Those decisions confirm my view that the expression "that person's wife" appearing in the definition of "step-child" in s2(1) of the Act means a person who was the wife of the deceased at the time of his death. As the applicants' mother died some twelve years before the deceased's death she does not come within that expression. It follows that the applicants are not the step-children of the deceased. The question posed by the special case will be answered accordingly. The originating application, whereby the applicants seek an order for provision out of the estate of the deceased, will be dismissed.