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Successful declaration of paternity effects distribution on intestacy

Wills and Estates: 05 June 2019

State Trustees Limited v Valentin Jaklar & Ors: IMO the estate of Franc Jeklar, deceased [2019] VSC 267

Judgment: 5 May 2019
Judge: Daly AsJ

The Deceased, a 90-year-old man who had never married and had no children, died leaving an Estate worth approximately $2million without a Will. State Trustees Limited (STL) were granted Letters of Administration and were required to administer his Estate in accordance with the rules of Intestacy.

Upon Intestacy where there is no partner, briefly stated the Estate will be distributed as follows:

grandchildren (where their parent predeceased the deceased)
nieces and nephews (where their parent predeceased the deceased)
aunts and uncles
cousins (where their parent predeceased the deceased)

STL had identified two maternal cousins who would take under the rules of Intestacy.

However, the four Defendants in this proceeding claimed to be the Deceased's half-siblings and therefore they would be entitled to take under the rules of Intestacy (the Act makes no distinction between full and half-siblings).
STL sought directions from the Court as to how the Estate should be distributed.

The Deceased was born in Slovenia and his Mother had passed away when he was 13 months old. No Father was recorded on his birth certificate. The Defendants, who all lived in Slovenia, claimed that their deceased Father was also the Deceased's Father.

As the Deceased's birth certificate did not identify his Father, and DNA testing was no longer available, the Court was required to make a determination of paternity pursuant to the Status of Children Act 1974. There are two ways paternity can be recognised (or established) in relation to the laws of succession:

  1. if the Mother and Father were married at the time of the child's conception (this was not the case here); or
  2. paternity has been admitted by or established against the Father in his lifetime and, if the father is a beneficiary of the child, paternity has been so admitted or established while the child was living (this is the category that applied in this case).
    The Defendants sought a declaration that their Father was in fact that the Deceased's Father. The Court was required to determine, on the balance of probabilities, whether the Deceased was in fact the Father's son. Noting that this question should be approached with the knowledge that it is a grave and serious issue. Whilst in this case the consequence of any declaration was mainly financial, in others it would quite clearly also be personal and social.

The Deceased had lived with the Father, his wife (whom he married after the Deceased's Mother's death) and the Defendants as part of the family and worked with the Father before moving to Australia. He was known in the community as the Father's son. The Deceased kept in touch with some of the family after he emigrated to Australia.

After consideration of a great deal of documentation (including parish records, school reports, the Father's Will, amended birth certificates and correspondence), the Court found that the cumulative effect of the evidence was sufficient to support a declaration of paternity.

The Deceased's Estate was distributed to his half-siblings pursuant to the rules of Intestacy.

This case shows that DNA evidence is not the only way to prove a blood relationship between a Father and child.

Family relationships can have a serious effect on how one's Estate is distributed if they do not have a valid Will in place.

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