Intestacy, Siblings & Statutory Interpretation

In Australia, on intestacy some jurisdictions do not distinguish between the entitlements of full siblings and half-siblings; s 101 of the Succession Act 2006(NSW) defines brother or sister, similarly,  s 12B of the Administration Act 1903 (WA) provides that relationships of the full blood and the half-blood are treated equally.

From 1 November 2017,  the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 (Vic) (‘the 2017 amendments’) applies to those who die leaving intestate estates in Victoria.

Before the 2017 amendments, s  52(f)(vii) of the Administration and Probate Act 1958 (Vic) (the “Act”) reflected the common law position that on the distribution of an intestate estate, there shall be no difference between full siblings and half siblings. However, the 2017 amendments repealed  s 52 of the Act , did not include a replacement for s 52(1)(f)(vii), nor did it define ‘sibling’.

Background

Lynndall McKinnon died intestate in December 2018 her husband, Kenneth, daughter, Kerrie, and her parents, Leroy Clarence  and Gladys  Shears, all predeceased her.  Kerrie did not have any children.   

Lynndall was survived by children of Leroy and Gladys Dorothy Shears; Carmen Giddens (‘the plaintiff’), Gregory  and Raymond Shears, her brother John  Shears, predeceased Lynndall leaving no children.

Lynndall is also survived by children of her mother Gladys and Robert Turner; Dianne Perkins, Wendy  Zanin, Robyn  Medew and Debbie Turner. Donna Lee Turner, predeceased Lynndall leaving no children.

At the date of her death, Lynndall did not have a domestic partner.

Carmen Giddens was granted letters of administration of Lynndall’s estate on  25 June 2019, seeking clarification from the Court how the estate is to be distributed under s 70ZI(1) of the Administration and Probate Act 1958.

The Decision

The Court expressed that the meaning of the Act is to be derived from its text, context and purpose. Additionally, s 35 of the Interpretation of Legislation Act 1984 (Vic) provides that, an interpretation of a provision of an Act, promoting the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object.  

In respect of the laws of intestacy, a review of Victorian succession laws by the Victorian Law Reform Commission was tasked by the Attorney-General  to review and report on whether the statutory scheme for distribution of property on intestacy was operating effectively to achieve just and equitable outcomes.

 Additionally the Court found no reference in the second reading speech and explanatory memorandum  or definition of the meaning of sibling, of an intention by Parliament to create a distinction  between siblings including narrowing the previous scheme to exclude half siblings from receiving any distribution. 

In Answering the questions raised by Carmen the Court ordered that the estate be distributed equally between surviving siblings and half siblings.

 

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