In the Matter of Cuckow

[1999] QSC 175

IN THE SUPREME COURT

OF QUEENSLAND

No. 5500 of 1999
Brisbane

Before Justice Byrne

[In the matter of Cuckow]

IN THE MATTER of an application under O.74 of the Rules of the Supreme Court of Queensland

- and -

IN THE MATTER of the Estate of CHARLES ERNEST CUCKOW

- and -

IN THE MATTER of an application by MARK ANDREW MASEE and RUTH DIANA MAY and CATHERINE ANN TAYLOR

REASONS FOR JUDGMENT - BYRNE J

Judgment delivered 29 July 1999

CATCHWORDS: WILLS - gift of residue to “grandchildren” - effect of s. 28(1) Adoption of Children Act 1964.

ADOPTION - SUCCESSION - impact on gift to “grandchildren” of their adoption between will and testator’s death.

Counsel:Mr D C Andrews for the applicants

Mr K J Lynch for the respondent

Solicitors:Carne and Herd solicitors as town agents for Collas Morro Ross solicitors for the applicants

Official Solicitor to the Public Trustee for the respondent

Hearing Date:               7 July 1999
IN THE SUPREME COURT

OF QUEENSLAND

No. 5500 of 1999
Brisbane

Before Justice Byrne

[In the matter of Cuckow]

IN THE MATTER of an application under O.74 of the Rules of the Supreme Court of Queensland

- and -

IN THE MATTER of the Estate of CHARLES ERNEST CUCKOW

- and -

IN THE MATTER of an application by MARK ANDREW MASEE and RUTH DIANA MAY and CATHERINE ANN TAYLOR

REASONS FOR JUDGMENT - BYRNE J

Judgment delivered 29 July 1999

1. Though in form an application pursuant to RSC O 74 to compel a distribution of the estate of the late Charles Cuckow, the decisive question is whether the applicants, three siblings, are beneficiaries under the will, which relevantly provided:

   “I give ... my carpentry tools .. to my ... grandson Mark Andrew Cuckow ... and subject thereto I give ... the whole of my estate ... unto my trustee ... to hold the net proceeds .. upon trust until my youngest living grandchild shall attain the age of twenty-one years ... for the maintenance education benefit advancement or support in life of such of my grandchildren as shall for the time being be living and under the age of twenty-one years ... and upon my youngest living grandchild attaining the age of twenty-one years ... for such of them my grandchildren as shall be living at my death ... in equal shares as tenants in common.”

2. The testator made his will in August 1974. He then had three grandchildren - the applicants. He died in 1987. The applicants all survived him and attained age 21. Yet distribution of the residue to them is resisted on the basis that they are irrebuttably presumed[1] by statute not to have been the testator’s grandchildren by the time he died, so that none of them can take under the class gift to “my grandchildren”. This curiosity is said to be the consequence of the applicants’ adoption[2] in 1976.

   [1]cf Re Walker (dec’d), Clark v Walker [1973] 1 NZLR 449, 452.

   [2]The applicants were adopted by their step-father, after the death in May 1974 of their mother, who had remarried after the death of the applicants’ father. The adoption took place in Victoria, but that is immaterial: see s.37 of the Adoption of Children Act 1964.

3. Section 28(1) of the Adoption of Children Act 1964 relevantly provides that:

   “.. upon the making of an adoption order-

   ...

   (b)the adopted child ceases to be a child of any person who was a parent ... of the child before the making of the adoption order, and any such person ceases to be a parent of the child; and

   (c)the relationship to one another of all persons ... shall be determined on the basis of the foregoing ...”

   By s. 29(1) of the Act, “The provisions of section 28(1) have effect in relation to dispositions of property ... by will ...”.

4. Section 28(1) does not deprive testators of the right to dispose of their property as they choose; and so by suitable expressions of intention in the will, effective gifts may be made to biological descendants who are adopted out of a testator’s family. Accordingly, had the late Mr Cuckow’s residuary bequest been, for example, “to such of my grandchildren A, B and C (naming them) who shall be living at my death”, or “to my grandchildren, including A, B and C”, and the designated descendants been adopted between the making of the will and the testator’s death, the beneficiaries would have taken. In that event, though by s.28(1) those named would have been misdescribed as “grandchildren”, their identification as intended recipients of the bequest would have been apparent from the face of the will. The difficulty here derives from the consideration that the applicants are not mentioned by name in the gift of residue but instead by description; and because the adoptions supervened, s.28(1) compels the conclusion that, in law, they cannot be regarded as answering that description when the testator died.

5. Where a will stipulates for a class gift (as e.g. to “grandchildren”), unanticipated disinheritance is commonly a consequence of the operation of adoption statutes, although the cases[3] do disclose some diversity in approach to the interpretation of gifts affected by such legislation. It is not necessary to canvass these controversial materials.[4] For the critical issue is not so much the applicants’ status at the testator’s death, nor the effect of other wills, as whether this will expresses[5] an intention to pass the residuary estate to the applicants. And the will contains a distinct indication of such a donative intent.

   [3]See in New Zealand, Re Walker; in Canada, Canada Trust Co v Bowie (1992) 46 ETR 51; and in the United States, Estate Best 485 NE 2d 1010 (NY 1985), Jan E Rein, “Relatives by Blood, Adoption, and Association: Who Should Get What and Why”, (1984) 37 Vanderbilt Law Review 711, 742-749, and Christopher H. Hall, “Adoption as Precluding Testamentary Gift under Natural Relative’s Will”, 71 ALR 4th 374.

   [4]The increasing incidence of divorce has sometimes prompted legislative initiatives constraining the impact of provisions like s.28(1) where, as here, the adoption is by a step-parent: see our s.28(1A); and for the American step-parent adoption exceptions and their rationale, “Intestate Succession Rights for Adopted Children: Should the Stepparent Exception be Extended?”, (1992) 77 Cornell Law Review 1188;  Restatement of the Law Third, Property (Wills and Other Donative Transfers) § 2.5 at p.124-127, 144-145 (1999).

   [5]cf Perrin v Morgan [1943] AC 399, 406, 420; Watson v Ralph (1982) 148 CLR 646, 654, 656.

6. There is a specific bequest of the testator’s carpentry tools to “my ... grandson Mark Andrew Cuckow”. “Grandson” was an apt description of the relationship of that applicant to the testator when the will was made. Mark Cuckow was the only son of the testator’s only child, Peter, who had died six years earlier. When later in the will the testator mentions  his “grandchildren” as the residuary legatees, the reference must comprehend the person earlier described as his “grandson”. So Mark Cuckow is sufficiently identified as an intended beneficiary of the residuary gift to “grandchildren”. What of his sisters?

7. The use of the plural “grandchildren” to delimit the range of beneficiaries shows that persons other than Mark Cuckow were intended to take. Those others must have included Mark’s sisters. They were the only other descendants of the testator’s only child.[6]

   [6]These surrounding circumstances may be considered in interpreting the will: cf Brennan v Permanent Trustee Company of New South Wales (1945) 73 CLR 404, 414-415; Theobald, On Wills, 15th ed (1993), pp. 224-225.

8. The bequest to “grandchildren” was a class gift and, characteristically, the eligible members of the class fell to be determined when the will took effect - on death. Section 28(1) deems the applicants not to have been “grandchildren” then; but in view of the meaning of this particular will, the statute does not disinherit them. On the whole of this will, construed in the light of its pertinent surrounding circumstances, the testator has expressed an intention that all those who were his grandchildren when it was made, and survived him, should take. So each applicant is entitled to participate in the residue.