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Wood-Luxford v Wood [2012] NZCA 377; [2013] 1 NZLR 31; [2012] NZFLR 841 (21 August 2012)

Last Updated: 26 January 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA739/2011
[2012] NZCA 377
BETWEEN ALYXE JOHN WOOD-LUXFORD
Appellant
AND MARK JOHN WOOD
Respondent
Hearing: 9 August 2012
Court: O'Regan P, Arnold and Randerson JJ
Counsel: G J Allan for Appellant
R A Moodie for Respondent
G P Mason for Logan Wood
Judgment: 21 August 2012 at 11.30 a.m.

JUDGMENT OF THE COURT


A The appeal is dismissed.

  1. The reasonable solicitor and client costs for all parties are to be met by the estate of the late John Williamson Luxford.

___________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The issue in this appeal is the meaning of the term “stepchild” for the purposes of entitlement to bring a claim for provision from the estate of a deceased person under the Family Protection Act 1955 (the FPA).
[2] An entitlement to claim as a stepchild of a deceased person who was married at the time of death requires proof of three matters of fact:[1]
[3] In the present case, the first and third facts are accepted by all parties. It is the second fact which is in issue. In particular, can the appellant (Alyxe) qualify under the FPA as a stepchild when he was not born at the time of his mother’s marriage to the deceased but was en ventre sa mère (in utero) at that time and was subsequently born alive?
[4] In the High Court, Ronald Young J found against the appellant on that issue.[3] In this appeal, the appellant challenges that finding.

Background

[5] We adopt the following statement of the background facts from the judgment of Ronald Young J:[4]

[3] ...Wendy June Luxford married John Luxford [the deceased] on 11 April 1995. Logan Wood was then her only child born on 29 April 1984. Logan came to live with his mother and John Luxford (as his stepson) after their marriage. Alyxe was born to Wendy Luxford on 24 November 1995. It is accepted by all parties that Alyxe was “in utero” when Wendy and John Luxford married and that John was not Alyxe’s father. Logan and Alyxe lived with Mr and Mrs Luxford until 9 April 2000 when Wendy and John Lxuford died in a car crash.

[4] John Luxford’s will left all his estate to Logan. Wendy Luxford left her estate, in part, to Logan (two thirds) but nothing to Alyxe. Thus, Alyxe inherited nothing from either his mother’s or John Luxford’s estate.

[5] Alyxe has issued Family Protection proceedings with respect to his mother and John Luxford’s estate. In turn, Logan has issued proceedings seeking summary judgment against the trustee of John Luxford’s estate requiring that he distribute the estate to Logan.

[6] It is accepted that Alyxe has an entitlement to a share of his mother’s estate. However, Alyxe can only claim a share in John Luxford’s estate if he comes within the definition of a stepchild under the Family Protection Act 1955.

[6] We add that Alyxe suffers from an intellectual impairment and is represented by a litigation guardian. He is now 16 years of age. The estates of both Wendy and John Luxford are substantial. They have net values of $1.8m and $2.2m respectively. Their wills were made on 12 April 1995, the day after they were married, and therefore do not refer to Alyxe.
[7] The appellant sought to introduce fresh evidence to correct a factual error in an affidavit filed on his behalf in the High Court. In the circumstances, we simply record this but decline leave to introduce the further affidavit for the purpose of the appeal since it is not material to the outcome of the appeal.

The statutory provisions

[8] Section 3(1) of the FPA carefully defines those family members who may make a claim for provision out of the estate of a deceased person:

3 Persons entitled to claim under Act

(1) An application for provision out of the estate of any deceased person may be made under this Act by or on behalf of all or any of the following persons:

(a) the spouse or civil union partner of the deceased:

(aa) a de facto partner who was living in a de facto relationship with the deceased at the date of his or her death:

(b) The children of the deceased:

(c) The grandchildren of the deceased living at his death:

(d) The stepchildren of the deceased who were being maintained wholly or partly or were legally entitled to be maintained wholly or partly by the deceased immediately before his death:

(e) the parents of the deceased.

(1A) A parent of the deceased may not make a claim under this Act unless—

(a) the parent was being maintained wholly or partly, or was legally entitled to be maintained wholly or partly, by the deceased immediately before his or her death; or

(b) at the date of the claim, none of the following is living:

(i) the spouse or civil union partner of the deceased:

(ii) a de facto partner of the deceased in whose favour the Court can make an order under this Act:

(iii) a child of the marriage, civil union, or de facto relationship of the deceased.

[9] A stepchild is defined by s 2(1):

2 Interpretation

(1) In this Act, unless the context otherwise requires,—

...

stepchild, in relation to any deceased person, means any person—

(a) who is not a child of the deceased, but is a child of—

(i) the deceased's spouse or civil union partner; or

(ii) a de facto partner who was living in a de facto relationship with the deceased at the date of his or her death and in whose favour the Court can make an order under this Act; and

(b) who was living at the date on which the deceased—

(i) married that spouse; or

(ii) entered into the civil union with that civil union partner; or

(iii) became a party to that de facto relationship.

[10] Also relevant for present purposes is the definition of a child of a marriage, civil union or de facto relationship in s 2(1) of the FPA:

child of a marriage, civil union, or de facto relationship includes a child whose parents marry each other, or who enter into a civil union or de facto relationship with each other, after the child's birth.

The High Court judgment

[11] No attempt was made in the High Court or before us to argue that the ordinary meaning of the term “living” (at the date of the deceased’s marriage) included a child who was en ventre sa mère at that time. Mr Allan accepted on behalf of Alyxe that the natural and ordinary meaning of the term was that the child had been born and was living at the date of his mother’s marriage to the deceased. His principal argument was that the term “living” should be interpreted consistently with a line of authority in the United Kingdom in which, in certain circumstances, the courts have been prepared to adopt a legal fiction to include children en ventre sa mère for the purposes of succession under testamentary dispositions.
[12] The leading authority is the decision of the House of Lords in Elliott v Joicey.[5] The Judge discussed that decision in detail but rejected the proposition that this line of authority could assist in the interpretation of the FPA. He considered that the context of the English authorities was significantly different from the issue of entitlement to claim under the FPA.
[13] Applying s 5 of the Interpretation Act 1999, the Judge found there was nothing in the purpose or text of the FPA to suggest Parliament intended anything other than the literal meaning of “living”. Analysing the provisions of the FPA, he noted that Parliament did not intend that all stepchildren would be included within the definition of stepchild and thereby be able to claim under the FPA.
[14] The Judge considered his conclusion was supported by the decision of this Court in Keelan v Peach[6] which we discuss further below. Parliament had paid particular attention to the drafting of the categories of persons entitled to claim under the FPA. It had seen fit to exclude other categories of persons who might ordinarily be considered stepchildren of a deceased. It would have been a simple matter to have referred to children en ventre sa mère if that had been intended. In consequence, Alyxe could not be regarded as a stepchild of the deceased for the purpose of the FPA.

The case for the appellant

[15] Mr Allan submitted that the High Court Judge was wrong to conclude that the fiction discussed in Elliott v Joicey did not assist in the interpretation of “stepchild” under the FPA. The ordinary or natural meaning of the words could be departed from where the fictional construction would secure to the child a benefit to which he or she would have been entitled if actually born at the relevant date. Here, the benefit secured to a claimant in Alyxe’s position was the right to bring a claim under the FPA. In this context, it did not matter that the ultimate benefit was contingent upon the Court exercising its discretion to make an award in favour of the claimant. The common law position should be applied unless the statute precluded that course or it was inconsistent with the relevant common law doctrine.
[16] Recognising that s 5(1) of the Interpretation Act requires the meaning of an enactment to be ascertained from its text and in the light of its purpose, Mr Allan submitted that the FPA has a remedial purpose, namely to enable family members to whom a deceased had not made adequate provision for their proper maintenance and support to seek provision (or further provision) from the estate.
[17] Stepchildren were added to the class of family members entitled to make such a claim in 1955 when the FPA was consolidated. The remedial purpose would not be fulfilled if persons in Alyxe’s position were not treated as stepchildren for the purposes of claiming under the FPA. The exclusion of a child of one spouse to the marriage who had been conceived but not born at the date of marriage would be an arbitrary distinction which could not have been intended by the legislature. It would, he submitted, leave people such as Alyxe in a legal vacuum. If Parliament had intended such an arbitrary distinction, it would have used the word “born” rather than “living”. There was nothing in the purpose or text of the FPA to suggest that the common law fiction in the English succession cases should not be applied in the context of this legislation.
[18] Finally, Mr Allan submitted that Keelan v Peach could be distinguished. In that case, a submission that whangai children were entitled to bring a claim under the FPA was rejected at least partly on the ground that to add whangai children would be to create new content, which this Court found inappropriate. In contrast, the appellant’s case was that children such as Alyxe who were en ventre sa mère at the time of their parent’s marriage to another were already included within the current definition of stepchild. No new content or category was being added.

The position of the other parties

[19] Counsel for the respondent abides the decision of the Court. Mr Mason for Logan Wood supported the judgment in the High Court for the reasons the Judge gave.

Discussion

[20] We have not been referred to any relevant authority other than the decision of the Family Court in Edwards v Brown.[7] In that case, Judge Mather decided that the term “grandchildren living at the date of death of the deceased” included a child en ventre sa mère. The Judge relied on the English line of authority in succession cases, which we shortly discuss, and a decision of the Supreme Court of Tasmania[8] in which it was held that an in vitro child resulting from a fertilised ovum implanted in the mother after the father’s death and subsequently born alive was to be treated as a child living at the date of the deceased’s death for the purposes of the Administration and Probate Act 1935 (Tas). The Tasmanian case cited a New South Wales decision where Powell J found that a child of the deceased who was en ventre sa mère at the date of death was entitled to claim under the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW). [9]
[21] For the reasons we discuss below, we consider Judge Mather’s reliance on the English authorities was misplaced. We note too that all counsel in the Family Court case accepted the English cases favoured the interpretation advanced on the grandchild’s behalf. Nor did the Family Court have the benefit of this Court’s later decision in Keelan v Peach emphasising the restrictive eligibility provisions of the FPA. The Tasmanian and New South Wales decisions also relied on the English line of cases and did not, of course, address the particular conditions relating to stepchildren in our legislation.
[22] We propose to analyse the issue under three headings. First, the relevance of the Elliott v Joicey line of authorities; secondly, the text and purpose of the FPA; and thirdly, a comparison with other statutory provisions in New Zealand, Australia and the United Kingdom.

Elliott v Joicey

[23] The House of Lords in Elliott v Joicey was concerned with the execution by a testatrix of a power of appointment in respect of trust funds under her father’s will. She appointed the funds in favour of all her children surviving her in equal shares, directing that each child’s share should be retained by the trustees of her father’s will, upon trust, during 21 years from her death to pay the income of such share to such child. If any such child should die within the 21 year period, the trustees were to hold such share and the income therefrom on the following trusts:

In the event of such child of mine leaving any issue him or her surviving in trust for such child of mine absolutely but in the event of such child of mine not leaving any issue him or her surviving then such share and the income thereof shall go and accrue by way of addition to the share or shares in the appointed funds of my other child or children who shall survive me

[24] Upon her death, the testatrix was survived by three sons, one of whom later married and died intestate not long thereafter without having exercised the power of appointment under the will. Seven months after his death, a child was born. The deceased’s son was the father of that child.
[25] The issue before the Court was whether the son left “issue him surviving” within the meaning of the will. It was argued that the child born after his father’s death should be treated as falling within that phrase because he was en ventre sa mère at the date of his father’s death. The House of Lords rejected that contention and found that, in the events which had occurred, the share of the deceased’s son accrued by way of addition to one of the other sons of the testatrix.
[26] The leading speech in the House of Lords was given by Lord Russell, who extensively analysed the previous authorities including the most recent decision of the House at that time in Villar v Gilbey.[10] Lord Russell summarised the law in the following passage:[11]

The law as settled by Villar v Gilbey may (but subject to any special context in the document to be construed) be summed up thus: First, words referring to children or issue “born” before, or “living” at, or (as I think we must add) “surviving”, a particular point of time or event, will not in their ordinary or natural meaning include a child en ventre sa mère at the relevant date. Secondly, the ordinary or natural meaning of the words may be departed from, and a fictional construction applied to them so as to include therein a child en ventre sa mère at the relevant date and subsequently born alive if, but only if, that fictional construction will secure to the child a benefit to which it would have been entitled if it had been actually born at the relevant date. Thirdly, the only reason and the only justification for applying such a fictional construction is that where a person makes a gift to a class of children or issue described as “born” before or “living” at or “surviving” a particular point of time or event, a child en ventre sa mère must necessarily be within the reason and motive of the gift. Fourthly, that being the only reason and the only justification for applying the fictional construction, it follows that, if the person who uses the words under consideration confers no gift on the children or issue described as above mentioned, but confers the gift on someone else, it is impossible (except in the light of subsequent events) to affirm either that the fictional construction will secure to the child en ventre sa mère a benefit to which if born it would be entitled, or that the child en ventre sa mère must necessarily be within the reason and motive of the gift made. In these circumstances the words used must bear their ordinary or natural meaning.

This seems to me to be the inevitable result of the adoption and approval by your Lordships’ House of Trower v Butts and Blasson v Blasson, of their acceptance of Lord Westbury’s statement of the rule, and of its limitation – namely, “only for the purpose of enabling the unborn child to take a benefit which, if born, it would be entitled to” and of their refusal to do violence to language unless constrained by authority so to do.

[27] Lord Tomlin concurred in all respects,[12] adding that he did not think the enrichment of the parent’s estate was a benefit to the child within the meaning of the rule. Lord Tomlin’s view was that the rule contemplated a benefit taken by the child under the instrument as a result of the application of the rule. To do otherwise would be to make it a rule of great uncertainty.[13]
[28] Lord Macmillan considered that the law applicable to the interpretation of the will in question was the law of Scotland. However, this was of no moment because the law of England on the issue was, to all intents and purposes, the same as the law of Scotland.[14] Like Lord Tomlin, Lord Macmillan emphasised that the fiction only came into operation when it was for the direct benefit of the posthumous child. That was to be judged at the relevant date which, in the case before the House, was at the date of death of the testatrix.
[29] In the instant case, Lord Macmillan concluded that if the fiction were applied, the result would not be to benefit the posthumous child but to benefit the estate of its deceased father.[15]
[30] In our view, the key points to emerge from Elliott v Joicey are:
[31] These principles continue to apply in England, as confirmed by the most recent edition of Halsbury’s Laws of England[16] where the rule in Elliott v Joicey is described as a rule of construction giving effect to a presumed intention; it is subject to the construction being for the benefit of the unborn person; and has the further proviso that there is no context in the will negativing the presumed intention.
[32] We agree with Ronald Young J that the context in which the term “living” is used in the definition of stepchild for the purposes of the FPA is so far removed from the fictional construction rule discussed in Elliott v Joicey that it cannot have any material bearing upon the construction of that term in the relevant legislation. The rule in Elliott v Joicey has evolved in the context of the construction of testamentary instruments in the law of succession in England and Scotland. It is a limited and heavily constrained doctrine which creates, in effect, a fiction to arrive at a result not contemplated by the ordinary and natural meaning of phrases such as “living” or “surviving”.
[33] The use of the term “living” in the context of the FPA is quite different. The FPA has only a tangential bearing on the law of succession. It is not concerned with the construction of testamentary instruments. Rather, the FPA enables prescribed classes of family members to apply to the court for a discretionary order for provision from an estate or upon an intestacy. In that respect, it is concerned with a challenge to the dispositions made under the will of the deceased or to the statutory dispositions applicable on an intestacy under the Administration Act 1969. The use of the expression “living” in the context of the definition of stepchild under the FPA is concerned solely with the determination of a claimant’s eligibility to seek relief under the legislation.
[34] Much ink has been spilt on the role of the common law in interpreting legislation. The issue commonly arises where legislation is enacted on a topic which is intended, in whole or in part, to replace the common law rules on that topic. In some cases, the meaning of undefined terms in legislation may be illuminated by consideration of the common law meaning of the term in question. In others, the courts have said little or no attention should be given to the pre-existing common law.[17]
[35] We accept, as noted in Bennion on Statutory Interpretation, that where Parliament has continued to use words of which the meaning has been settled by decisions of the court, it is to be presumed that Parliament intends the words to continue to have that meaning.[18] But the so-called maxims of interpretation of this kind always give way to contrary indicators and context is everything. Here, for the reasons already given, we are satisfied that the context in which the fiction enunciated in Elliott v Joicey was developed is so different from that of the issue in this appeal, that Parliament cannot have had that rule in mind when, in 1955, the FPA was consolidated and the definition of stepchild was enacted. Indeed, as we later demonstrate, when Parliament wishes to include children or other issue en ventre sa mère it has done so in express terms.
[36] In the end, the real question is the meaning to be gathered from the text of the FPA in the light of its purpose. We now turn to that issue.

The text and purpose of the FPA

[37] There can be no doubt that the FPA was intended to be remedial and was regarded as a ground-breaking measure when first enacted in 1900 as the Testator’s Family Maintenance Act of that year. The history of subsequent amendments was canvassed in detail by this Court in Keelan v Peach.[19]
[38] By 1955, it was considered desirable to consolidate the legislation. In moving that the Bill be committed, the Hon Mr Marshall, then Attorney-General, discussed the introduction of new classes of persons who would become eligible to seek provision under the legislation. The new classes comprised stepchildren, parents and grandparents, subject to particular conditions and restrictions. In relation to stepchildren, Mr Marshall said:[20]

In substance, the new classes comprise stepchildren who were being maintained by the testator at the time of his death, ...

[39] The Minister went on to say that he considered the addition of the new classes was fair and reasonable. However, he did not mention the definition of stepchild. Rather, he focused on the language now included in s 3 of the FPA relating to the maintenance of the stepchildren at the date of death of the deceased. This material is not therefore of much assistance in deciding the present issue, which focuses on the status of the claimant at the time of the deceased’s marriage to the claimant’s mother.
[40] We accept that Parliament intended the inclusion of stepchildren to be a remedial measure, but the real focus of the interpretation exercise in this case must, we think, be directly upon the text of the legislation.
[41] In Keelan v Peach this Court observed that Parliament has exercised particular control over the course of a century in adapting the list of those eligible to apply under the FPA. This was regarded as a central aspect of the scheme of the Act. The detailed amendments made to the list over a lengthy period “virtually compels the conclusion that there is no room for a Court to read new content into any of the items in the list”.[21]
[42] Later the Court added:[22]

... Parliament from the outset has defined and redefined with precision the list of those who are eligible to claim while leaving the Court with broad power to make provision for them. The fact that in exercise of that power the Court recognises moral duties does not mean that it can by reference to such considerations rewrite the list.

[43] In the circumstances, the Court was not prepared to extend the list of eligible persons to include whangai children.
[44] An analysis of the text of the FPA points against the extended definition of stepchild postulated on Alyxe’s behalf. It also confirms the conclusion reached in Keelan v Peach that Parliament has carefully prescribed the categories of persons who may seek provision under the legislation. Parliament has also differentiated between closer family members (spouse, civil union partner, children and grandchildren) and other eligible claimants (de facto partners, grandchildren, stepchildren and parents). Under s 3 of the FPA, the former group need not be living with the deceased at the date of death and need not be wholly or partially maintained by the deceased at that date.[23] In contrast, a de facto partner must be living in a de facto relationship with the deceased at the date of death;[24] stepchildren must be wholly or partly maintained by the deceased immediately before the date of death (or be legally entitled to be so maintained);[25] and parents may only claim if either they were being wholly or partly maintained by the deceased immediately before the date of death (or were legally entitled to be so maintained) or other identified potential claimants are no longer living.[26]
[45] As earlier noted, the definition of stepchild requires that he or she must be living at the date on which the deceased marries (or enters a civil union or de facto relationship). But Parliament has placed no such restriction on the eligibility to bring a claim under the FPA on a child of the deceased or upon “a child of the marriage, civil union or de facto relationship” as that expression is used in s 3(1A)(b)(iii) of the FPA. A child meeting that description includes a child whose parents marry each other (or enter a civil union or de facto relationship) with each other after the child’s birth.[27] This distinction again demonstrates that Parliament has seen fit to adopt a more restrictive approach to the eligibility for stepchildren to bring a claim under the FPA than it has towards children.
[46] Another significant point mentioned by Ronald Young J is that a child of one spouse in a marriage who is conceived and born after the date of marriage does not qualify as a stepchild under the FPA. We agree with the Judge that Parliament did not intend all children who might, in ordinary language be regarded as a stepchild, to be eligible to claim under the FPA.
[47] Our analysis of the purpose and text of the FPA leads us to conclude that the Judge correctly determined that the definition of stepchild does not include a child of one party to a marriage who is en ventre sa mère at the date of marriage. That conclusion is supported by an examination of other legislation in New Zealand and elsewhere, to which we now turn.

Other statutory provisions in New Zealand, Australia and the United Kingdom

[48] The term “stepchild” is used quite frequently in other New Zealand statutes, notably when defining expressions such as “relative” or “immediate family”.[28] Parliament has not deemed it necessary in these other contexts to define “stepchild” or to place any restriction on the time at which that status must be established.
[49] We also note that Parliament has not taken any steps to amend the definition of “stepchild” under the FPA despite the adoption of expanded definitions of “child” in other family legislation. For example, s 2 of the Family Proceedings Act 1980 includes a child who was a member of the family of the husband and wife (or the parties to a civil union or de facto relationship) at the time the marriage or other relationship ended, whether or not the child was the natural child of either spouse or partner.
[50] Similarly, under the Child Support Act 1991, a parent may become liable for child support where the parent has been declared to be a step-parent by the Family Court under s 99 of that Act.[29] Where an application is made under s 99, the Court is obliged to have regard to specified circumstances, focusing on the extent to which the person concerned has assumed responsibility for the maintenance of the child, irrespective of when that might have occurred.
[51] We conclude that Parliament has made a deliberate policy choice in other family-related legislation to widen the responsibility of parents for maintenance and child support to include responsibility for stepchildren, whether they were born before or after the marriage or other relationship commenced. This parallels other developments, such as the passage of the Status of Children Act 1969, which established the general proposition that children have the same status, in particular in relation to their parents, whether their parents were married at the time of the birth, subsequently or not at all. Yet despite these developments, Parliament has not seen fit to address the existing definition of stepchildren, which has remained unchanged since the legislation was consolidated in 1955.
[52] We consider it is also significant that the expression en ventre sa mère has not been included in other family-related legislation. But for other specified purposes, Parliament has used that expression when it has considered it necessary to do so. There are two prime examples. The first is in the Perpetuities Act 1964, where the term “in being” is defined to mean “living or en ventre sa mère”.[30] The distinction between “living” and “en ventre sa mère” reinforces the view, accepted by all parties in this case, that the ordinary meaning of the former does not include the latter.
[53] The second significant reference to children not yet born in New Zealand legislation is in the Administration Act. Section 78 of that Act provides for the distribution of the assets of a person who dies intestate among defined family members including the children or issue of the intestate living at the date of his or her death.
[54] By s 2(1) of the Administration Act:

References to a child or issue living at the death of any person include a child or issue who is conceived but not born at the death but who is subsequently born alive.

[55] These references support the proposition that for the purpose of succession in intestate estates and in relation to perpetuity periods, the legislature has considered it necessary to provide explicitly for children en ventre sa mère. As Ronald Young J said, if the legislature had intended to include children en ventre sa mère in the definition of “stepchild” for FPA purposes, it could (and in our view likely would) have done so.
[56] Finally, we have reviewed equivalent legislation in Australia and the United Kingdom. All Australian states and territories have legislation of a comparable nature to the FPA. All but the legislation in New South Wales, Victoria and South Australia expressly provide that a stepchild may claim against a deceased person’s estate.[31] Of those states and territories in which stepchildren are eligible as claimants, only Queensland and Tasmania define stepchild. In the Queensland legislation, a stepchild is defined as a person who is the child of a spouse of the deceased whose relationship as such has not ceased through divorce of the deceased and the stepchild’s parent.[32] In the Tasmanian legislation, a stepchild is defined as a child of the deceased’s spouse by a former marriage or significant relationship.[33]
[57] Of those states and territories where a stepchild is eligible to claim, none currently requires a stepchild to be living at the commencement of the marriage or other relationship in order to be eligible to bring a claim. Rather, the focus is on the status of the child at the time of death of the deceased.[34]
[58] Some Australian states and territories refer to children or grandchildren who are en ventre sa mère at the date of death of the deceased (or words to similar effect). Queensland is the only state to include the en ventre sa mère concept in relation to stepchildren (but as at the date of death of the deceased, not as at the date of marriage).
[59] Mr Mason referred us to the Inheritance (Provision for Family and Dependants) Act 1975 (UK). This does not refer to stepchildren as such but enables a claim to be made by “any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage”.[35] The United Kingdom Act refers explicitly to a “child” as including “an illegitimate child and a child en ventre sa mère at the death of the deceased”.
[60] Our conclusion is that neither the Australian nor the United Kingdom equivalent legislation supports the proposition advanced in this appeal that a stepchild who is en ventre sa mère at the date of the marriage of one of his or her parents is eligible to claim under the FPA. Just as in our own legislation, where children en ventre sa mère are intended to be included, the statutes in Australia and the United Kingdom do so explicitly and by reference to the date of death of the deceased. No equivalent legislation to which we have been referred has a requirement that a stepchild be “living” at the date of marriage or commencement of other qualifying relationships.[36]

Conclusion

[61] We conclude that the appellant is not eligible to bring a claim against the respondent estate under the FPA. But he is not left in a legal vacuum as counsel submitted on his behalf. There is no impediment to his ability to seek further provision from his late mother’s estate. All parties agree that the appellant has a strong claim against that estate. An important factor in his claim will be his inability to claim against the respondent estate, in which his brother is the sole beneficiary.
[62] This appeal has highlighted some anomalies and inconsistencies in the eligibility of some family members to bring claims under the FPA. In particular, the position of stepchildren may warrant the attention of Parliament.

Result

[63] The appeal is dismissed.
[64] The reasonable solicitor and client costs for all parties are to be met by the estate of the late John Williamson Luxford.





















Solicitors:
McIntosh & Signal, Feilding for Appellant
Moodie & Co, Feilding for Respondent
Powell Lyall, Palmerston North for Logan Wood

[1] Family Protection Act 1955, ss 2 and 3.

[2] Similar provisions apply in the case of a civil union partner or a de facto partner linked to the date of commencement of those relationships.

[3] Wood-Luxford v Wood HC Wellington CIV-2011-454-315, 14 October 2011.
[4] At [3]–[6] (footnotes omitted).
[5] Elliott v Joicey [1935] UKHL 3; [1935] AC 209 (HL).
[6] Keelan v Peach [2002] NZCA 296; [2003] 1 NZLR 589 (CA).
[7] Edwards v Brown [1999] NZFLR 279 (FC).
[8] Re Estate of the Late K (1996) 5 Tas R 365 (TASSC).
[9] V v G [1980] 2 NSWLR 366 (NSWSC).
[10] Villar v Gilbey [1907] AC 139 (HL).
[11] At 233–234 (footnotes omitted).
[12] At 213.
[13] At 215.
[14] At 240.
[15] At 240–241.
[16] Halsbury’s Laws of England (5th ed, Lexis Nexis, London, 2010) vol 102 at [363].

[17] See generally JF Burrows and RI Carter Statute Law in New Zealand (4th ed, Lexis Nexis, Wellington, 2009) at ch 16.

[18] Francis Bennion Bennion on Statutory Interpretation (5th ed, Lexis Nexis, London, 2008) at 601.
[19] Keelan v Peach, above n 4, at [15]–[18].

[20] (25 October 1955) 307 NZPD 3292.
[21] At [27].
[22] At [39].
[23] Family Protection Act, s 3(1)(a), (b).
[24] Family Protection Act, s 3(1)(aa).
[25] Family Protection Act, s 3(1)(d).
[26] Family Protection Act, s 3(1A)(a) and (b).
[27] Family Protection Act, s 2(1).

[28] See Reserve Bank of New Zealand Act 1989, s 157B; Social Security Act 1964, s 27C; Sentencing Act 2002, s 4; Coroners Act 2006, s 9; Child Support Act 1991, s 4.
[29] See definition of “parent” of the child: Child Support Act, s 7(1)(h).
[30] Perpetuities Act 1964, s 2.

[31] The equivalent legislation in New South Wales, Victoria and South Australia contains somewhat broader provisions which do not assist with the issue in this appeal.
[32] Succession Act 1981 (Queensland), ss 5, 5A, 40 and 40A.
[33] Testator’s Family Maintenance Act 1912 (Tas), s 2.

[34] An amendment in 2011 to Western Australia’s Inheritance (Family and Dependants Provision) Act 1972 substantially adopts the New Zealand definition and criteria for a claim by a stepchild. This amendment is not yet in force.
[35] Inheritance (Provision for Family and Dependants) Act 1975 (UK), s 1(1)(d).
[36] But see n 33 above.

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