Australia: Inheritance issues caused by undefined parental roles and customary laws

Last Updated: 2 October 2019
Article by Murray Thornhill and Alexandra Turner

A recent decision of the Supreme Court of Queensland involved a fascinating and unique set of facts that made for an inheritance matter complex in both fact and law. It outlines the need for quality estate planning to ensure that not only are the testamentary intentions captured accurately but also that your specific family dynamics are taken into consideration, especially when there are guardianship and customary law factors.

The case

Sheralee MacGowan made an application to the Court for an extension of time to commence an application for provision from the estate of a deceased testator. Ms MacGowan brought her application on the basis that she was the adopted child of the deceased, Kenneth MacGowan ("Ken"). Ms MacGowan's mother had been Ken's housekeeper at his estate in Vanuatu, and she had passed away when Ms MacGowan was a young child. At the time the deceased died in 2012, he had returned to Australia and was living in Queensland. Ms MacGowan had lived in Queensland for a couple of years while she attended high school, but has lived in Vanuatu since 2008.

Ms MacGowan initially brought her application on the basis that she was the deceased's biological child, and there was evidence that the deceased had told friends that he believed that he was her father. However, this was ruled out by DNA testing, resulting in Ms MacGowan instead relying upon an alternative argument that she had been adopted by the deceased. In particular, Ms MacGowan argued that the adoption occurred in accordance with the customary law of Vanuatu prior to her mother's death. Ken, an Australian, had lived in Vanuatu for many years, and Ms MacGowan was born during that period.

The facts considered

When Ken passed away, he left Wills in both Australia and Vanuatu. The Australian Will left his estate in Queensland to his nieces and a charitable foundation, and included a wish (as opposed to a direction) that his property be retained to for ongoing use by friends and family, including Ms MacGowan (described as "...the girl of whom I was formally [sic] guardian until she turned 18..."). The Vanuatu Will left two of three lots of Ken's Vanuatu property to Ms MacGowan, subject to certain conditions.

The Succession Act 1981 (Qld) permits an application for a provision by a "child" of the deceased person. The Succession Act includes within its definition of "child" an "adopted child". An "adopted child" is defined to mean "... a child that is adopted by [the relevant person] ... in accordance with the law of the State of Territory, or country, where the adoption takes place, as in force at the date of the adoption". The Adoption Act 2009 (Qld) provided additional requirements because the purported adoption had occurred in Vanuatu, a non-convention country – the Court needed to decide whether Ken had adopted Ms MacGowan under customary law, whether that adoption gave Ken a right superior to that of any biological parent of Ms MacGowan, and whether Ken was placed generally in the position of parent to Ms MacGowan.

The Court considered expert evidence from legal academics in relation to what elements comprised a valid adoption under the law of Vanuatu, and specifically under the customary law of Tongoa Island, which was where Ms MacGowan's maternal family came from. The nature of customary law – unwritten, differing from community to community and open to interpretation within the relevant community – meant that this expert evidence was crucial. The Court considered the evidence around what a ceremony would look like, whether the law would have permitted a female child to be adopted by a single male adult, whether a non-indigenous person would be permitted to adopt an indigenous child. The Court's findings included that:

  • customary law would not have allowed Ken, as a foreign national, to adopt Ms MacGowan; and
  • adoption under the customary law did not sever ties between the adopted child and her biological parent(s), and so did not meet the requirements under the Adoption Act.

The Court also considered the later dealings between the parties to the 1993 ceremony and found that there was evidence that the ceremony was not perceived by the parties to it to be a final adoption. The biological family retained control of Ms MacGowan, and oversaw Ken's support and care of her, giving the relationship the character of sponsorship or guardianship, rather than parental responsibility. Ken himself referred to the relationship as one of guardianship in relevant documents, such as his Wills, and expressed a view that the promise he made to care for Ms MacGowan was fulfilled once she reached the age of 18.

The outcome

The Court ultimately found that Ms MacGowan was not Ken's daughter, adopted or biological, and hence she was not an eligible applicant for provision under the Succession Act and her application for an extension of time was refused. This meant it was not necessary for the Court to determine whether Ken had adequately provided for Ms MacGowan, although the Court did express the view that Ms MacGowan had a moral claim and would have been likely to receive substantial further provision had she been found to be an eligible applicant.

The Court did not make an adverse costs' order against Ms MacGowan because, although she was ultimately unsuccessful, it was the Court's view that the claim was not frivolous and involved difficult questions of law and fact. Further, the estate was valued in excess of $5 million and there was not the imperative of deterring the frittering away of small estates by unsuccessful claims that appears in other decisions of the Court.

What can we take away from this case?

This case highlights two things:

  • each case under the Succession Act or comparable legislation across Australia is determined in relation to the very specific facts of that case; and
  • eligibility to make a claim for provision from a deceased estate is limited to a narrow class of applicant, indeed narrower than simply those persons who community standards would perceive to have a "moral claim" to provision from the estate.

How can I avoid a dispute in relation to my estate?

Quality estate planning advice is vital to ensure that not only are your testamentary intentions captured accurately but also that your specific family circumstances, customs and dynamics are taken into consideration. This becomes extremely important where you have a concern that there could be a dispute between family or friends after you are gone.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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