‘Daughter’ loses claim on $5m estate
A POOR young Vanuatu woman who was raised by a Queensland man she called "Dad'' will not receive anything from his $5 million dollar estate, after a court decision.
Chief Justice Catherine Holmes found Ken MacGowan was not Sheralee Seule MacGowan's father under Vanuatu customary adoption, although he had acted as her guardian.
Under his Vanuatu will, Ms MacGowan was left two small plots of land on his 185-hectare Vanuatu estate, Bellevue, where she once lived with him in a plantation house.
Sheralee MacGowan, 26, and her three young children now live there in a single room with a dirt floor and no water, electricity or sewerage.
Mr MacGowan's two Queensland nieces have inherited half his modest Queensland estate and the rest of his Vanuatu estate, totalling more than $5 million.
The Chief Justice said Ms MacGowan had no legal claim on Ken MacGowan's estate, although she did have a moral claim.
"She and Mr MacGowan had a strong relationship of affection in which she regarded him very much in the role of a father and he in many ways treated her as a daughter,'' Chief Justice Holmes said.
She said if Ms MacGowan had been found to have been eligible for a share of his estate, substantial further provision ought to have been made for her.
The Supreme Court heard after Sheralee was born in 1993, Mr MacGowan took part in a ceremony in which he gave her extended family a bullock.
Chief Justice Holmes found it was in exchange for the family agreeing to him taking baby Sheralee, whose mother was his housekeeper, to his home, and him promising to care for her.
In her Supreme Court application, Ms MacGowan's lawyer had argued that the ceremony represented his customary adoption of Sheralee.
The court heard evidence that Mr MacGowan, who had had a sexual relationship with Sheralee's mother, Rachel Seule, had given the baby girl the name Sheralee.
After Rachel Seule became terminally ill, Mr MacGowan promised her he would continue to care for Sheralee.
After Ms Seule died in 1999, when Sheralee was six, Mr MacGowan cared for the girl and later brought her to Queensland, where she was educated for two years.
The judge heard evidence from experts about Vanuatu customary law and customary adoption according to Tongoa Island, where Rachel Seule was born.
Justice Holmes accepted that customary adoption required a ceremony involving an exchange of food and an intention expressed by those involved.
She accepted the opinion of one expert, called by the executor, and found that customary law would not have allowed Mr MacGowan, as a foreign national, to adopt Sheralee.
Justice Holmes said documentary evidence showed that neither Mr MacGowan nor Sheralee's family ever mentioned customary adoption.
"I find that the 1993 ceremony was not perceived by the parties to it, Mr MacGowan and the members of the Seule family, as a customary adoption,'' Chief Justice Holmes said.
She found Ms Seule had not surrendered her parental status and Mr MacGowan's acceptance of responsibility for Sheralee's care fell way short of an intention to adopt.
"The agreement was one of guardianship only until (Sheralee) turned 18, not of taking the position of a parent, with the permanency that entails,'' Justice Holmes said.
"Mr MacGowan regarded his duties to (Sheralee) as discharged once her minority ended.
"There clearly was great affection between Mr MacGowan and the applicant and he regarded her in many respects as a daughter, but the overwhelming evidence is that he did not intend to, and did not, adopt her as his child.''
Sheralee MacGowan therefore was not eligible for provision from his estate, the Chief Justice said.
Noting that Mr MacGowan had asked his two nieces to consider Sheralee's future well-being, she did not order Ms MacGowan to pay any costs of the court case.