Yuille v Gorring[2004] QDC 411

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant in this application (respondent in the original application) seeks orders that the originating application be dismissed together with costs of the application.

2. [2]
   The originating application is one under Part 4 of the Succession Act 1981 (“the Act”) whereby Paul Raymond Gorring and Leighton Neville Gorring (“Gorrings”) seek orders against Jeffrey Leigh Yuille (“Yuille”) that adequate provision has not been made for their proper maintenance and support in the will of Leighton Eldred Trustcott Yuille (“the deceased”) of whom it is claimed that the Gorrings are the stepchildren.

3. [3]
   The basis of Yuille’s current application to the Court is that the Gorrings have no standing to bring the originating application as they do not qualify to be applicants under Part 4 of the Act in that their step-relationship with the deceased was severed on 23 March 1990, being their mother’s date of death.

4. [4]
   Section 40 of the Act defines child as meaning “… in relation to a deceased person any child, stepchild or adopted child of that person”.

5. [5]
   Section 40A was introduced by s 79 of the Justice and Other Legislation (Miscellaneous Provisions) Act 1997 which commenced operation on 20 June 1997.

6. [6]
   Section 40A describes the meaning of stepchild as follows:

7. [7]
   Prior to that amendment s 40 of the Act described the meaning of “stepchild” as:

“… ‘stepchild’ means in relation to a deceased person a child of that person’s spouse who is not a child of the deceased person”.

8. [8]
   As was stated by the Court of Appeal in re John^[1]:

“With respect to that definition and to the former definition of stepchild in the preceding Succession Act 1867-1977 it has been held in a number of decisions in the Full Court and in the Court of Appeal that the relationship of stepchild and stepparent does not subsist after the termination of the marriage which created it (Re Burt [1988] 1 Qd R 23; Re Marstella [1989] 1 Qd R 638; Re Monckton [1996] 2 Qd R 174).  In short the death of the natural parent or the divorce of the natural parent from the stepparent will be regarded as precluding an application from satisfying the definition of stepchild in the legislation.”

9. [9]
   Yuille contends that the law to be applied in deciding Gorrings originating application is that which applied at the time of Gorrings mother’s death (23 March 1990) not the deceased’s (Leighton Eldred Truscott Yuille) death (19 June 2003) and consequently Gorrings do not qualify as applicants with standing in their originating application.

10. [10]
    Yuille further submits that if Gorrings fail under this law they are also ineligible under the definition of “dependant” as there is no material before the Court to establish that they were being supported or maintained by the deceased at the time of the deceased’s death.

11. [11]
    Gorrings submit that Yuille’s application should be dismissed and rely upon the amending legislation in 1997 which it is submitted gives them standing to pursue the originating application in that they do qualify as “stepchildren” of the deceased under the revised definition of “stepchild” for the purposes of the originating application.

12. [12]
    Gorrings further contend in effect, that if they qualify as stepchildren of the deceased they are entitled to pursue the application whether or not they were maintained or dependent upon the deceased as that issue is one for determination on the hearing of the original application.

13. [13]
    A relevant chronology of events is as follows:-

14. [14]
    I have been referred to several authorities set out above, in particular re John which essentially discusses the retrospectivity or otherwise of the s 40A amendment in a matter where the applicant’s mother predeceased the stepfather by some years (as is the case in the current application) and where the putative stepfather subsequently died on 19 April 1997 two months before (my underlining) the introduction of s 40A of the Act.

15. [15]
    The Court of Appeal held in that case that the applicant was not a “stepchild” within the meaning of s 40 of the Act and s 40A had “only a prospective operation”^[2].

16. [16]
    I do not see how this authority is of assistance to Yuille as in the application under consideration the deceased person died six (6) years (less one day) after s 40A was introduced into the Act.

17. [17]
    It seems to me that as at 19 June 2003 Gorrings qualified as stepchildren of the deceased as they were the children of a spouse of the deceased person whose marriage to the parent (Stella Getrude Yuille, formerly Gorring) subsisted when the parent died.

18. [18]
    It follows therefore that Gorrings are eligible to bring their application as they now fall within the definition of “stepchild” set out in s 40A of the Act.

19. [19]
    While it is not strictly relevant for present purposes I note that Gorrings were referred to by the deceased person as his “step-sons” in his last will of the 24 January 2002 so that it would appear that he so regarded them as such at that time.

20. [20]
    I therefore dismiss Yuille’s application and I order that Yuille pay Gorrings their costs of and incidental to the application on the standard basis to be agreed or assessed in accordance with the Rules.