[1973] VR 733
RE RUTLEDGE DECEASED
SUPREME COURT OF VICTORIA FULL COURT
SMITH, PAPE AND ANDERSON, JJ
23, 24, 26 March, 30 April 1973
[1973] VR 733
Wills — Construction — Contingent bequest to children of adopted daughter — Children adopted by such daughter — Children adopted after making of
testamentary disposition — Whether adopted children take as "children" under
will — Adopted children not entitled under adoption legislation operating at
date of death of testator — Whether subsequent amending legislation enables
adopted children to take under will — Effect of amending legislation on
accrued rights — Contingent as well as vested interests constituting accrued
rights — Adoption of Children (Amendment) Act 1953 (No. 5666) — Adoption of
Children Act 1958 (No. 6192), s8(1), s(6) — Adoption of Children (Property)
Act 1962 (No. 6971).
.
S7(1) of the Adoption of Children Act 1928 as amended by the Adoption of
Children (Amendment) Act 1953 ("the 1953 Act") enacted that upon the making of
an adoption order the adopted child should, inter alia, as regards all legal
and equitable liabilities, rights, benefits, privileges and consequences of
the natural relation of parent and child be deemed to be a child born to the
adopter or adopters in lawful wedlock provided that nothing in the section
should affect the devolution of any property on the intestacy of a person who
died, or any disposition of property by instrument inter vivos, or will or
codicil made, before the date of the adoption order. The Adoption of Children
(Property) Act 1962 ("the 1962 Act") enacted that, for the proviso to s8(1) of
the consolidating Act (formerly s7(1) of the 1953 Act), there should be
substituted a proviso that nothing in the section should affect the devolution
of any property on the intestacy of a person who died before the date of the
adoption order and that a person who before the commencement of the 1962 Act
made by instrument inter vivos any disposition of property which had not at
the said commencement taken effect in possession might amend or vary such
instrument to exclude children adopted after the making of the instrument from
participation in any right, benefit or privilege thereunder.
By his will and codicil (made respectively on 6 July 1949 and 30 August 1954)
R directed his trustee to hold four-fifths of his residuary estate upon trust
to pay the income thereof to his wife during her life and thereafter to his
adopted daughter MC during her life and after her death "upon trust as to both
capital and income for such of the children of such adopted daughter living at
her death and such of the issue then living of any child or children of such
adopted daughter dying in her lifetime" as should satisfy certain
contingencies and in the event of there not being any child or remoter issue
of the said adopted daughter who should attain a vested interest then the
four-fifths share should be held upon trust for the testator's daughter PW if
she should be living at the time of such failure in vesting or, if she should
previously have died, for her children upon certain contingencies. MC married
in 1949 and survived R's widow. At the date of the hearing MC was alive and
had no child born of her marriage but had adopted one child AC on 1 May 1956
and another child BC on 4 March 1958.
Upon appeal from the decision of McInerney, J, upon an originating summons,
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[1973] VR 733
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