The Secret Daughter

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When someone dies without leaving a Will, they are said to have died “intestate” and their assets are distributed in Queensland pursuant to the rules of intestacy set out in the Succession Act 1981 (Qld).

Case Study

In a recent case, a lady named Phyllis died intestate, leaving an estate worth approximately $1.2 million. She had no spouse or children. As an added difficulty, there was a lack of definitive evidence as to Phyllis’ true identity at birth. She had inherited most of her assets from Aaron Hoskin, who appeared to be her father, however, the Queensland Births, Deaths and Marriages records did not prove that assumption.

It was necessary for the Court to determine Phyllis’ most likely identity, taking into account the following evidence:

  • Phyllis was raised as part of Aaron and Margaret Hoskin’s household and was widely known as their daughter;
  • Phyllis did not have a birth certificate, whereas all of Aaron and Margaret’s other 6 children did, including a child who died shortly after birth;
  • There was no evidence of Phyllis having been adopted by Aaron and Margaret, although there was evidence from other family members that she was;
  • Phyllis’ army records recorded Margaret as her mother and next-of-kin;
  • Phyllis’ death certificate recorded her father’s surname as Hoskin but her mother’s name as Mary;
  • Aaron and Margaret’s death certificates did not name Phyllis as one of their children, whereas all their other children, living and dead, were named;
  • Aaron Hoskin had left 20% of his estate to “my daughter Mary Phyllis Hoskin”.

This evidence established the following three possibilities:

  1. That Phyllis was the natural child of Aaron and Margaret but for some unknown reason her birth was not registered;
  2. That Phyllis was born to Johanna King, as suggested by a birth certificate located in the name of ‘Phillis King’ on Phyllis’ likely birth date;
  3. That Phyllis’ biological parents were unidentifiable but that she was raised as Aaron and Margaret’s child.

Given the complexities of the case, the Public Trustee applied to the Court for advice as to whether Phyllis’ estate should be distributed to:

  1. The first respondents, being the only known living relatives of the Hoskin family eligible to take pursuant to an intestacy;
  2. The second respondent, being the only known relative of the King family eligible to take pursuant to an intestacy; or
  3. The Crown bona vacantia, that is – the State Government, on the basis that there were no identifiable living relatives eligible to take pursuant to intestacy (“bona vacantia” is Latin for “ownerless goods”).

After considering the available evidence, the Court found that it was more probable than not that Phyllis was the natural child of Aaron but not of Margaret. Therefore, the Public Trustee was directed to distribute Phyllis’ estate to the first respondents.

Conclusion

While the above case example is an unusual situation, it is illustrative of the importance of having a valid Will. If you do not have a Will or if your Will needs to be updated, please contact us to make an appointment for the preparation of a new Will.

For more information

The Public Trustee of Queensland as Administrator of the Estate of Phyllis Mary Hoskin, deceased v Hoskin [2016] QSC 31

Succession Act 1981 (Qld)

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