Allan v Allan [2001] VSC 242

5. The deceased, during her lifetime was married to Charles Stanley Allan. He died on 20 June 1978. By their marriage they had three sons, the plaintiff, who was born on 12 August 1938, Ronald Leo Allan, who was born on 15 January 1940, and the defendant who was born on 19 July 1944.

8. By her will, the deceased appointed the defendant as the executor of her will and trustee of her estate. By her will, she provided for legacies to be paid in the sum of $2000 to each of her grandchildren, Gregory Allan and Geoffrey Allan, who are the sons of Ronald Leo Allan. He died on 24 January 2000. These legacies have been paid to each of those two persons.

11. The will of the deceased provided for the payment of all her just debts, funeral expenses, testamentary expenses and the like. She devised the residue of her estate to the defendant. By her will, the deceased made no provision for the benefit of the plaintiff. By paragraph 5 of the will of the deceased, it was provided -

"I DECLARE that I have made no provision in this my will for my son, WILLIAM JAMES ALLAN, as I have made substantial provision for his (sic) during my lifetime and I further declare that I have made the above mentioned provision for my two mentioned grandchildren in lieu of provision being made for their father, RONALD LEO ALLAN because of his incapacity."

15. By the inventory of the estate of the deceased filed by the defendant in support of his application to be granted probate of the will of the deceased, it is stated that the deceased left real and personal property valued at $259,028.50. The real estate comprised of three pieces of land which totalled in value $202,500. These three pieces of land were valued at $25,000, $47,500 and $130,000 respectively. Of the deceased's personal estate, the inventory stated that in one part it comprised of a debt owing by the plaintiff and his wife Lorraine in the sum of $4,000 pursuant to a loan agreement made in June 1994.

18. The plaintiff lived for approximately the first 10 years of his life in Wangaratta with his parents who lived in rented accommodation. Thereafter, he lived with his parents at different farm properties which his father farmed as a share farmer. When the plaintiff was approximately 10 years of age his parents moved to Oxley where they lived for approximately two years. At this time, the plaintiff's father worked as a share farmer on a dairy farm. In his affidavit, sworn on 8 February 2000, the plaintiff deposed that he and his brother, Ronald, assisted with the milking before and after school. In about 1950 or 1951, the family moved to Yackandandah, where they owned a small property. That property was sold and the family moved to Oxley where the plaintiff's parents purchased a property. The property purchased by the plaintiff's parents was leased while the plaintiff's father worked as a share farmer on a dairy farm. The plaintiff and Ronald assisted on the farm before and after school and at weekends during this period. When the plaintiff was 15 years old, he left school and became a plasterer in Wangaratta.

21. In about 1956, when the plaintiff was 18 years of age, the share farming arrangement that the plaintiff's father had ended and the deceased and the plaintiff's father moved to Oxley where they lived. At this time the plaintiff's father purchased a truck and operated a business as a general carrier. He continued with this business until about two years before his death. At this time Ronald had commenced work as a salesman and the defendant, who was then aged 12 years, attended school at Wangaratta.

24. In 1961 the plaintiff married his present wife, Lorraine. Soon after their marriage they moved into a rented house in Laceby. The plaintiff at this time worked as a farm labourer. After the plaintiff's parents moved to Oxley they purchased a number of pieces of land at Oxley. They used this land to graze cattle and grow lucerne. One of the pieces of land comprised in total five acres, of which one lot was three acres and the other, two acres.

27. In his affidavit sworn 8 February 2000 the plaintiff deposed that shortly after his marriage he spoke to his parents about the possibility of purchasing a house, transporting it to, and having it erected on, the two acre lot, and "fixing" it up so that he and his wife could live in it. He deposed that at this time his parents said to him that both pieces of this land, the two acre lot and the three acre lot, were to be given to him. He deposed that they used words at the time that the land was to be "yours" and that they said that the land was to be his in recognition of all the assistance that he had given to his parents in helping them with their farming interests. With the agreement of his parents, the plaintiff moved a house on to this land and after it was "fixed up" in 1962, the plaintiff and his wife commenced to live in the house, which they did thereafter for some 18 months. At this time the plaintiff was working as a bricklayer in Wangaratta.

30. The plaintiff's brother, Ronald, when about 20 years of age, joined the police force and moved to Melbourne. After the defendant left school he obtained work as a truck driver in Wangaratta.

33. In 1963 the plaintiff and his wife moved to Katamatite where they lived until 1965. After the plaintiff and his wife left Oxley, with the plaintiff's agreement, his parents rented the house retaining the proceeds for their benefit.

36. In 1965 the plaintiff and his wife moved to Everton where they purchased the Everton Upper Post Office. At this time the plaintiff and his wife were engaged in farming, operating the post office and conducting the mail run. While living at Everton Upper, until 1969, the plaintiff also drove a truck for his father in the carrying business conducted by him. The plaintiff received a percentage of the earnings generated by use of the truck. In 1969 the plaintiff moved a house, "the Everton Railway House", and had it erected on the three acre lot of the two lots comprising five acres, being the land previously referred to. The plaintiff deposed in his affidavit that before doing this he discussed it with his parents, that they were happy with the arrangement and they again said the land is "yours". During the period 1969 to 1978 the plaintiff, his wife and family lived in the "Everton Railway House". By 1969 the house which had been placed on the two acre block had become run down and it was in a derelict state. During this period the plaintiff assisted his parents with general farming work. He was not paid any remuneration for this work.

39. After the death of the plaintiff's father the deceased continued to live in the family home at Oxley. In about 1980 the deceased was diagnosed to be suffering from cancer. After the deceased had undergone initial treatment, at the invitation of the plaintiff and his wife, the deceased commenced to live with them in the "Everton Railway House", where she lived until about December 1981. During this period the plaintiff and his wife decided to purchase a larger home a short distance from the Oxley township and known by them as "Tysons". They decided on this course as the home in which they were living was too small and the deceased had been obliged to share a bedroom with the daughter of the plaintiff and his wife.

42. The plaintiff deposed in his affidavit that he and his wife discussed this matter with the deceased and she seemed pleased with the proposed purchase. The plaintiff has deposed in his affidavit that, as the five acre block had not been transferred to him, he asked the deceased whether she would agree to mortgage the same as security for a loan of $40,000, which the plaintiff needed to raise in order to purchase the "Tysons" property. He deposed that she agreed to this and a mortgage was prepared and executed by her.

45. The five acre block was sold in 1981 for $32,500. The mortgage was discharged and the proceeds of the sale went towards the purchase of "Tysons". The plaintiff asked the deceased to assist him with the shortfall. He deposed that the deceased suggested that she would sell two blocks of land owned by her, and give the proceeds of $8,000 for the sale of each block of land to him and the defendant. This is what occurred and the plaintiff and the defendant each received $8,000 from the sale by the deceased of two blocks of land owned by her in Oxley. No similar gift was made to Ronald. In early 1970 Ronald had retired from the police force after suffering severe trauma in an accident. After retirement, he became an alcoholic and his affairs were placed in the hands of the State Trustee.

48. In a will of the deceased made on 6 March 1981 and exhibited to the affidavit of the plaintiff sworn on 8 February 2000, she devised to the plaintiff absolutely the "real estate" known as "Tysons". The plaintiff was not aware of the contents of this will before the death of the deceased. The plaintiff deposed that on reading this will he was upset to discover that the deceased must have thought that she had an interest in the land known as "Tysons". He deposed that he believed that his mother understood the arrangement when she entered into the mortgage over the five acre piece of land.

51. In December 1981 the deceased went to live with the defendant. After leaving the home of the plaintiff the deceased continued to have a close relationship with the plaintiff and his family, she celebrated Christmas Day with the plaintiff and his family and attended other family functions of the plaintiff and his immediate family.

54. After living with the defendant for about a year or so the deceased moved into a house in Broadribb Court, Wangaratta, where she continued to live until shortly before her death, when she was admitted to the Wangaratta Hospital. The plaintiff and his wife and family kept contact with the deceased and the plaintiff's wife assisted her with shopping and household chores.

57. In 1994 the deceased offered the plaintiff a loan of $4,000. The plaintiff has deposed that she informed him that she had made a loan to the defendant for a similar amount. He has deposed that the deceased said, in substance, that it was to be an interest only loan, and that she did not expect the principle to be repaid. However, at the suggestion of the plaintiff, he had a solicitor draw up a loan agreement which recorded that the deceased had made a loan of this amount to the plaintiff and his wife. It is this loan agreement that is referred to by the defendant in the inventory of the estate of the deceased. The plaintiff, after receiving this amount from the deceased, made the interest payments due to the deceased.

60. During the lifetime of the plaintiff's father the plaintiff assisted him in running his various farming properties without remuneration. From the time of his father's death until the death of the deceased the plaintiff managed and administered the farm lands of the plaintiff. This he did without remuneration. The land in total comprised some 17 acres on which was run some eight to ten head of cattle. Hay was also cut from the land. The plaintiff continued to manage and attend to those properties following the death of the deceased.

63. The plaintiff and his wife live in a house which they own in Smith Street, Oxley. The plaintiff has valued that house at about $132,000. They own two cars of very small value. In his initial affidavit the plaintiff deposed that he had been employed as a Commission Stock Agent. In 1998-1999 he earned some $6,751. The plaintiff's wife in the past has been employed part-time. In his affidavit sworn on 8 July 2000 the plaintiff deposed that the year 1998-1999 his wife earned some $6,751. This may be an error as it is the same amount as his earnings in that year. The earnings of the plaintiff's wife while in employment have been moderate in amounts.

66. In the plaintiff's affidavit he deposed that his relationship with his brother, the defendant, "has never been close."

69. The degree of enmity of the defendant towards his brother, the plaintiff, is strikingly apparent from the affidavit of the defendant, sworn on 31 March 2000. In paragraph 4 of the affidavit the defendant deposed "Bill has always been a selfish and self-centred man." Again in paragraph 5 the defendant has deposed, "I oppose Bill's application for provision. He lied to and financially cheated Dad during Dad's lifetime. He bullied, lied and financially cheated Mum after Dad's death, up to Mum's own death." Again the defendant has deposed, "Bill mostly made 'substantial' provision for himself by deceiving and defrauding Mum and Dad during their lifetimes".

72. As to the five acre block of land at Oxley and referred to in the plaintiff's affidavit, the defendant deposed that, "Dad always said that those five acres would be Bill's after Mum and Dad passed away. Mum always said the same thing..." The defendant deposed that from the time that the plaintiff commenced to work for wages he did not help with the family farming activity and that while living at home he played football and tennis on a Saturday and on most Sundays went out to social gatherings.

75. The defendant deposed in his affidavit, sworn on 31 March 2000, that after the plaintiff and his wife had purchased the Everton Upper property with the financial assistance of the grandfather of the plaintiff's wife, Lorraine, they sold the property and wished to purchase a property at Snow Road, Oxley and that their father paid $6,000 deposit on the purchase. He deposed that a dispute occurred between the plaintiff and their father, that their father expected the deposit to be repaid from the proceeds of his sale of the Everton Upper property but this did not occur, that their father did not permit the plaintiff to move the "Everton Railway House" on to the Snow Road property but allowed the house to be moved on to the five acre block in Oxley. The defendant deposed that the plaintiff borrowed money on security of the Snow Road property, which money the deceased had to pay for the transaction to be completed. The defendant deposed that the deceased had maintained until the day she died that the plaintiff had not repaid these monies.

78. Again the defendant deposed that the plaintiff sold a truck without his father's consent and that the deceased had told him that her father called the plaintiff a thief and a liar and warned him off their farm, however, as their father and the plaintiff had to work together they patched up their relationship. In paragraph 13 of his affidavit the defendant has sworn, "after Dad's death in 1978, Bill was left with only Mum to prey on" and that he chose to do this while she was recuperating from surgery in 1980. The defendant deposed that the sale of the five acre lot of land was meant to facilitate the purchase of the "Tysons" property and that the deceased was to move in with the plaintiff and his family and, further, that the deceased had been given the impression that she would have an ownership in the "Tysons" property. He deposed that the five acre block was sold for $35,000 and the plaintiff kept the proceeds of the sale. The defendant deposed that the current value of that land would be approximately $140,000. As to the loan of $4,000, the defendant deposed that the plaintiff "pestered and persecuted" the deceased into making the loan. Further, the defendant deposed that before the deceased came to live with him and his family in 1981 the plaintiff telephoned him saying "get out here and get your mother. She is not staying here any longer". He deposed that after receiving this call, he went and collected his mother and she commenced initially to live with them. The defendant has sworn that he went with his mother to solicitors where she was shown the mortgage for $40,000 over the five acre lot of land and that the deceased said she could not remember signing it.

81. The defendant also deposed that in 1992, as deposed to in the plaintiff's affidavit, the deceased and a neighbouring farmer agreed to realign a common boundary. He deposed that he later observed an article in a newspaper stating that the plaintiff was the owner of the land which was in fact owned by the deceased and that the article mentioned a substantial 20 lot subdivision. The defendant deposed that he communicated with the deceased about this, and she said that she knew nothing about the suggestion. The defendant has deposed that he communicated with the shire president and the surveyor, putting a stop to the subdivision of this land by the plaintiff.

84. In his affidavit the defendant further dealt with matters relevant to the relationship of the plaintiff with his father and the deceased. He conceded that he also received a benefit of $8,000 from the sale by the deceased of a block of land owned by her. He also deposed that his daughter received a loan of $4,000 from the deceased, in respect of which interest only was to be paid to the deceased. The defendant further deposed that the assistance given by the plaintiff on the farming properties of the deceased has been only minimal. He has also disputed that the relationship of the plaintiff with his mother, the deceased, was always friendly. The defendant deposed that the deceased did attend family functions of the plaintiff adding, "she did so grudgingly." He has sworn that the deceased did not attend the celebration of the plaintiff's birthday when he turned 60 years of age.

87. The defendant further deposed that he and his wife purchased the house at Broadribb Court and that they offered it to the deceased so that she could have a place of her own, "close to them." The defendant has disputed the time spent by the plaintiff administering and running the farm properties of the deceased before her death.

90. The affidavit of the defendant and the allegations made in it against the plaintiff demonstrate the bitterness that the defendant has towards the plaintiff. The preparedness of the defendant to engage in such a vitriolic attack on his brother, the plaintiff, demonstrates that which is not uncommon when the issue of the disposition of a deceased parent's estate are in conflict in proceedings such as these. To this I shall later return. In the plaintiff's affidavit, sworn on 2 May 2000, in reply to the defendant's affidavit, he has deposed that he did not seek to use the process of this application to attack the defendant personally. He deposed that except for the misunderstanding about the "Tysons" property and also the subdivision of land referred to in the defendant's affidavit which has been referred to as the "lucerne paddock", he maintained a friendly relationship with his mother and regularly kept in touch with her during his life. He deposed that the deceased relied on him to assist her in day to day matters, including the management and administration of her small farming properties.

93. The plaintiff denied that he lied or financially cheated either of his parents and denied that he bullied his mother.

96. The plaintiff deposed that he honestly believed that his mother understood that the five acre block was his, and that although not registered in his name, that he would obtain the proceeds of the sale of the same. He deposed that he thought that his mother, the deceased, understood that the mortgage over that property was in her name and that the proceeds of the sale of the property would be used to pay off the "Tysons" property where she would live with his family during the remainder of her life. He deposed that he accepts with hindsight, that he now appreciates that his mother did not understand why the mortgage over the five acre lot land was in her name. He has sworn that he and his wife made all payments due under the mortgage while it existed and paid the administrative and legal costs relevant to the same.

99. The plaintiff further deposed that as to the purchase of the Snow Road property, when he decided to purchase it he had hoped to have proceeds from the sale of the Everton Upper property in hand and he asked his father whether he would loan him $6,000 deposit on the property, which he said his father agreed to. He deposed that when the Everton Upper property was sold, he and wife realised that they could not afford to purchase the Snow Road property as they had originally planned and that his father and the deceased agreed that they would take over the loan and arranged for their names to be added to the title. The plaintiff has deposed that although there were a "few words" between him and his father, the purchase was taken over by his parents, he made no contribution to the purchase, and when later this property was sold he received no proceeds from that sale. The plaintiff has denied that his father warned him off the property and told him to stay away. The plaintiff has denied that he bullied the deceased into selling the five acre lot. He denied that the property would be worth $140,000 on today's values, estimating that the land value of the same would be some $45,000 to $50,000. The plaintiff denied that he pestered the deceased to provide him a loan of $4,000.

102. The plaintiff has further denied that he had demanded the defendant to come and take the deceased as alleged by the defendant. As to the matter of the mortgage over the five acre lot, the plaintiff deposed that it was paid out by the end of the 1980-1981 financial year.

105. As to the realignment of the boundary of the land, the "lucerne paddock", owned by the deceased with that of the neighbour, the plaintiff has deposed that he did not think it unreasonable, as it was his mother's land, that she should incur the costs of this realignment, however, on setting the matter in train, the deceased complained about the cost of such an arrangement. He has sworn that finally to appease his mother he paid some of these costs. He denied that he bullied his mother into signing the cheque, as alleged by the defendant. In his affidavit the plaintiff has dealt with other matters contesting allegations made by the defendant in his affidavit. The plaintiff had deposed that his mother did not attend his 60th birthday because there was no party, for at or about the time that he turned 60 years of age one of his closest friends had died and the funeral had taken place on the day of his birthday. Further, the plaintiff in his affidavit dealt with the matter of the purchase of the home occupied by the deceased at Broadribb Court, deposing that he believed that the home had been purchased by the deceased but put into the name of the defendant so as to not affect her pension entitlement. This was further dealt with in evidence. The plaintiff further deposed in this affidavit as to the nature of the work performed by him in maintaining and administering the small farming lots held by his mother, the deceased, during her lifetime and after the death of his father.

108. In a further affidavit sworn by the plaintiff on 13 September 2000 he dealt further with the matter of the realignment of the boundary of the land owned by the deceased, the "lucerne" paddock, and that of the neighbour, Terry McDonald. He deposed that McDonald spoke to him about the realignment of the boundary, that it seemed reasonable and advantageous to his mother and she was happy for it to proceed. As to the plan of subdivision being prepared with respect to this land owned by the deceased, the plaintiff deposed that although being certain that the deceased would not contemplate subdividing her land and that he had no expectation that that would occur during her lifetime, he thought the idea of having a plan of subdivision drawn while a similar plan was being prepared for the land owned by McDonald, seemed sensible to him at the time. He deposed that such a proposal would enhance the value of the land owned by the deceased and he thought it appropriate that she pay the surveyor's fee but following the dispute over this, he accepted that he should be responsible for part of the surveyor's fee which he paid. In that affidavit, the plaintiff further deals with the purchase of the Snow Road property. He deposed that after the land had been purchased at auction, he and his wife recognised they could not afford to proceed with the purchase and that thereafter the deceased and his father completed the purchase and held it themselves for several years grazing stock on the land until it was sold in 1973. He deposed that he did not receive any part of the purchase price from that sale. The plaintiff further deposed that after the deceased ceased living with he and his wife, there was no need for the larger Tyson Road house and that in about 1983 it was sold and they purchased their present home. He deposed that he visited his mother at least once a month during the period 1982 until mid 1990 and that during the last years of her life he saw her weekly and when in hospital saw her just about every day.

111. In that affidavit the plaintiff further deposed that he had ceased his employment as a commission stock agent and that in about April or May 2000 he obtained a position as a storeman with the TAFE college at Wangaratta. He deposed that he was earning $438 net per week. He deposed that he had a contract to continue performing that work until December 2001, stating further that he understood that it was unlikely that he would have his contract extended. He deposed that he considered that it would be unlikely that he would obtain employment for the 18 months remaining until he turned 65 years of age. As a further illustration of the defendant's attitude towards him the plaintiff referred to and exhibited to his affidavit a letter dated 12 July 2000 from the defendant's solicitors to the plaintiff's solicitor formally demanding repayment of the loan of $4,000.

114. In an affidavit sworn on 8 May 2001 the plaintiff set out details of renovations needed and costs to be met by he and his wife on the home in which they presently live. He deposed that he and his wife were planning to add a family room and an extra bedroom to their home in order to accommodate their children when they visited, but their savings which they intended to spend on such work had been used to meet legal expenses related to these proceedings. The plaintiff deposed that he earned $553 gross per week from his work with the TAFE college at Wangaratta and that he did a small amount of work as a commission agent for a stock agent earning on average about $60 per week. These sources of income, he deposed, returned him a net income of $485 per week after tax. He deposed that the basic household expenses incurred by his wife and himself were approximately $344 per week and that, further, his wife's employment had terminated last Christmas following her need to undergo medical treatment for a condition from which she was then suffering.

117. On the trial of the proceedings Maxwell Vincent was called as a witness. In an affidavit sworn by him on the 19 April 2001 he deposed that he had known the plaintiff and his wife for approximately 14 years. He deposed that over the last 14 years he had seen the plaintiff working on the two properties at Oxley owned by the deceased and that, to his observation, the plaintiff frequently and regularly attended those properties, checking on cattle, water and the fences and attending to other work on the properties. In cross examination he further confirmed that the plaintiff worked on the properties of the deceased, being the home property and the "lucerne paddock". He said that the plaintiff paid him cash for the provision of water to the "lucerne paddock". His evidence corroborated that of the plaintiff, that he maintained and attended to the two farming allotments owned by the deceased in Oxley during the life of the deceased. I accept the evidence of this witness.

120. Another witness, Robert Atkinson, who on 2 May 2001 swore an affidavit filed in the proceedings which further corroborated the evidence of the plaintiff that he worked on and maintained the two properties of the deceased in Oxley. His evidence as contained in his affidavit included that on two occasions he had purchased from the plaintiff hay and fence posts which came from the deceased's home block. He deposed that on asking the plaintiff to whom the cheque was to be payable, the plaintiff had said that it was to be payable to his mother. He gave evidence that he had purchased from the plaintiff the property which he identified as "Glendalough", which I am satisfied is the same as that referred to by the plaintiff in his affidavit as "Tysons". He gave evidence that he purchased that property approximately 20 years ago and that the purchase price was about $140,000. He also corroborated the evidence of the plaintiff that he worked on and maintained the house block property and the "lucerne paddock" property. His evidence was to the effect that the plaintiff regularly and frequently attended the properties of the deceased overseeing the same and working on them. I accept his evidence.

123. Beverley Fischer, the sister-in-law of the plaintiff, swore an affidavit on 19 April 2001 which was relied on by the plaintiff in the proceeding. Counsel for the plaintiff conceded that paragraph 10 could not be relied on. I ruled that paragraph 11 could not be relied on in the proceeding. In her affidavit she deposed as to the attendance of the deceased at family functions held by the plaintiff and his wife, at which the deceased appeared to be enjoying herself. She deposed that the deceased always appeared happy and relaxed and especially delighted in the company of her grandchildren. She deposed that the plaintiff was attentive to his mother on these occasions and that the deceased appeared to be relaxed in his company and chatted with the plaintiff. She gave evidence on the trial. She said that she never saw any sign of ill will between the plaintiff and the deceased. In evidence she said that the plaintiff was a good worker and that she was aware that he had engaged in leisurely two day riding trips to the hills. As to the home occupied by the plaintiff, she said it was an average family home, not spectacular. I accept the evidence of this witness.

126. The plaintiff's wife gave evidence on the trial. She said that she was unemployed. An affidavit sworn by her on 13 September 2000 was relied on. In her affidavit she deposed that, on the whole, the relationship between the plaintiff and herself and his parents was very good. In her affidavit she also dealt with the occasion in 1981 when the deceased stopped living with them. She deposed that it was puzzling at the time, as they had extended themselves to purchase a larger property in order to accommodate her in the expectation that she would continue to live with them. She said that after leaving the deceased did not join them for Christmas dinner that year and that the relationship was cool for a period of time. She deposed that after the deceased moved into her house in Broadribb Court she assisted the deceased in household chores. She further deposed that for a few months at the end of 1992, early 1993, when there was "fuss" over the subdivision, the relationship between them was cool for a period of time, however, in 1993 the relationship was restored and she regularly saw the deceased and assisted her. Further, the plaintiff's wife corroborated that the deceased came to their home on Christmas day, deposing that from her observation the deceased was very fond of the plaintiff. In evidence she said that she was presently unemployed. She said that she had terminated her employment some time ago when she was waiting to undergo surgery to her nose and throat. She is 56 years of age and gave evidence that she did not think that work was available for her in the district. In cross examination she said that at present she was caring for her elderly parents and that she had not thought of finding work in the future. She added that she did not think there was a possibility of work for her in the area.

129. As to the employment of the plaintiff, she said that he had part-time work with a stock agent and a full-time job. She said that in the past when the plaintiff was working as a stock agent, if the cattle markets were quiet and there were not many cattle sales, their income would be down. When cross examined as to the health of the plaintiff, she said, "it's not too bad." When asked in cross examination as to the value of their house she said it would probably be worth about $132,000, maybe, $135,000. She gave evidence in cross examination that the plaintiff had collected his superannuation from the stock agent, for whom he worked, in the sum of $7,000. She said that the plaintiff had no more superannuation entitlements. She gave evidence that she and her husband had used up their savings on the present proceedings.

132. In further cross examination the plaintiff's wife agreed that some 40 years ago the plaintiff played tennis on a Saturday afternoon. As to the purchase of the Snow Road property, she gave evidence that it was originally purchased in the name of the plaintiff and that she and the plaintiff were intending to sell their small farm property at Everton Upper. She agreed that the plaintiff's father had paid the deposit on the Snow Road property and there was concern about the plaintiff's financial difficulties if he continued to go through with the completion of the purchase. She said that they signed the property over to plaintiff's parents. She gave evidence that when they bought the "Everton Railway House" they thought that they had no interest in the Snow Road property at all. As to the sale of the five acre property, she said that they had valued it at about $35,000 but they received $32,000 from it when it was sold. She said that as to "Tysons" property, it was put in the name of the plaintiff and when asked whether she believed that her mother-in-law was aware of that, she replied, "yes". She said that as to the purchase of the "Tysons" property, they obtained a bridging loan stating that it had to be in the deceased's name because she was the owner of the five acre property. She said that the mortgage over the five acre property was for the purpose of securing the bridging loan for the purchase of "Tysons" property and that the deceased had the mortgage in her name, as she owned the five acre property.

135. As to the loan of $4,000 from the deceased to the plaintiff and her, she gave evidence that the deceased had said she did not want the money, and that she just wanted to collect interest on it. She said that they ceased to pay interest after the death of the deceased. She said that it was the plaintiff who said that they would have the loan agreement drawn up by the solicitors. She agreed that under the terms of the loan it was repayable seven days after receipt of demand in writing. She said that she was present when the deceased said she did not want the money but only wanted to collect the interest on it.

138. Mrs Allan gave evidence that after the "Tysons" property was sold they moved to Millawa where they purchased a property for some $69,000 and where they lived until 1988. She said that that property was sold, she thought for $120,000, and that they then purchased the property in which they reside. She agreed that over the years the money that they received from the sale of the five acre block, together with the $8,000 received from the deceased, considerably advanced the plaintiff's position in order to purchase the house in which they presently live. I accept the evidence of this witness, she was a frank witness and dealt with the matters directly that were put to her.

141. The plaintiff gave evidence and verified the affidavits sworn by him, and filed in the proceedings. In evidence he identified the Snow Road property as being approximately three kilometres west of Oxley. He said that he had no dealings in relation to the sale of that property to the purchaser Mr Hicks. As to the sale of the five acre property, he said that it was sold for $32,000 odd and that that money was applied to reduce the bridging loan obtained to purchase the "Tysons" property and that the sum of $8,000 given to him by the deceased discharged the balance of the bridging loan. He gave evidence that the "Tysons" property was purchased for $99,000. He gave evidence detailing work that he performed for his father. He said that when he was 15 years of age, when working as a plasterer in Wangaratta, before riding his bicycle to Wangaratta he would assist with the milking and after returning home in the evening he would again assist with the milking.

144. As to the purchase of the Snow Road property, he gave evidence that he and his wife had wanted to sell the Everton Upper property, that the Snow Road property came up for sale, that they spoke to his parents who agreed it would be a good idea if they could buy it. He said that he attended the auction with his father, that the property was purchased for about $12,000 and that his father paid the deposit. The plaintiff gave evidence that they had difficulty selling the post office business; that they eventually sold it and that his parents took over the Snow Road property. He gave evidence that his parents ran their stock on this property, that they cut hay on it and ran it as their farm and that he did not have anything to do with the property. He gave evidence that he did not get anything out of the property. He said that he was not involved in the negotiations for the sale of that property. He gave evidence that the "Tysons" Road property was financed through the sale of the five acre block, and a loan from the bank for the balance. He said that after the property was sold that they thereafter purchased the Millawa property. In cross examination as to what his parents had said to him, relative to the five acre block, the plaintiff said that they thought that they would inherit the land. This was a reference, as I understand his evidence, to he and his wife.

147. As to the purchase of the Snow Road property, the plaintiff agreed that his name only was on the purchase. He said his father paid the deposit because they did not have the money and that it was their intention that if they sold the Everton Upper property they were going to put that money into that purchase, but that they did not do that because they never had enough money to do it. He said that his parents decided that they would take over the land and that they had run it for 12 months or thereabout. As to the sale of the "Tysons" property, the plaintiff said that they had the property for some three years and that it had increased in value during that period. As to the plan of subdivision for the "lucerne paddock", he agreed that he had signed the application.

150. As to the work done by the plaintiff on his mother's farming blocks, in cross examination the plaintiff said that he had never charged the deceased for cutting or carting hay. He said that he might have got a cheque from her to give to someone else for carting hay. In further cross examination the plaintiff said that the home on the house block had been rented out and said that he would dispute that the rental money went to the deceased.

153. The plaintiff also relied on an affidavit sworn by Michael Hicks on 8 December 2000. Counsel for the defendant informed the Court that he did not want to cross examine Hicks on his affidavit. In that part of the affidavit received in evidence, Hicks deposed that in about 1974 he had purchased the Snow Road property from Stanley Allan (the father of the plaintiff and the defendant) for approximately $17,000 and that all negotiations were carried out between his solicitor and the solicitor who acted for Stanley Allan. He deposed that by agreement Stanley Allan left approximately $3,000 to $3,500 in the transaction and that he paid interest on this money, all payments being made to Stanley Allan and his wife, the deceased. He deposed that after Stanley Allan's death he continued to make the interest payments to the deceased and that, to the best of his knowledge and belief, he paid out the loan in around 1992. He deposed that all his dealings were with Stanley Allan and that he had no contact with the plaintiff concerning that matter and that he did not know the plaintiff at the time of the sale and did not meet him for some time after that event.

156. In addition to the affidavit sworn by the defendant, and previously referred to, he swore a further affidavit on 25 May 2000 deposing that the Real Estate referred to in the inventory had been transferred into his name as executor but not transferred to himself as a beneficiary, pending the resolution of the litigation. Further to that affidavit, the defendant exhibited a document being the "cash account" of the deceased's estate. A further affidavit was sworn by the defendant on 2 May 2001 to which was exhibited a "cash statement to 31 March 2001". In evidence the defendant said that his previous occupation had been that of a truck driver and also a part-time taxi driver but that he was presently not employed. He said that he was employed as truck driver at the time of his mother's death, but that on the day she died he stopped work and after that he did not go back to work as a truck driver. He gave evidence that he had worked as a part-time taxi driver after that time, but when his licence came due last year his doctor refused to give him a licence because of the medication he was taking for a psychiatric illness. He gave evidence that he had been receiving WorkCover payments. He said that his WorkCover payments were paid to him for a post traumatic stress disorder, for which he was receiving treatment from a psychologist in Wangaratta. The defendant said that he had witnessed a very horrific accident in July 1997, that he continued working until May 1999 and then he left work. He said that he had not received WorkCover payments before ceasing work. He also said that he had suffered a fracture of the right scaphoid in about February 2000.

159. The defendant said that he and his wife lived in a home registered in their name, which was worth between $59,000 and $60,000. He said it was mortgaged to the Bank of Melbourne, but could not say what was owing under the mortgage saying that his "wife does all that". The defendant said that he also suffered from a bilateral carpel tunnel syndrome. As to the future, he said that if he was to return to work he would have to be retrained. Through the defendant there was tendered a bank statement of the parties' father which recorded a debit entry made on 14 March 1968 for $400, against which there was writing which the defendant said he believed it to be that of his father indicating that the parties' father had loaned to the plaintiff some 23 years ago, $400 to purchase a tractor. There was also tendered a bank statement from the Bank of Melbourne in the name of the defendant and his wife, recording a debit balance of $60,307.73. The defendant said that was the amount owing on the loan on the home in which he and his wife lived. As to the house in Broadribb Court, which had previously been occupied by the deceased, the defendant said that he did not include that in his assets because it belonged to his son. When asked how that came about, the defendant said that his son wanted to buy a house and that it was transferred to him on the basis that he would take over the mortgage. When further cross-examined about the acquisition and transfer of the Broadribb Court property, the defendant said that it was best to ask his wife about that because she did "all the financials". The defendant agreed that in total he had received from his mother's estate some $41,000, which he said that he had borrowed against the estate. He said he guessed that that money could not be retrieved. When further cross examined about the transfer of the Broadribb Court house, he said he had no idea of its value, he did not remember how much he purchased it for, and that he did not remember how much his son had paid to discharge the loan over it. When asked again why there was a mortgage of some $60,000 over the property in which he and his wife lived, he said he really did not know.

162. In further cross examination, the defendant conceded that he had not worked since the death of the deceased and that he knew, at the time of her death, that apart from a small legacy to Ronald's sons, he was the sole beneficiary of her estate. As to the loan of $4,000 made by the deceased to his daughter, he said that he negotiated the loan with his mother for his daughter and that the deceased was happy just collecting interest on it. He said that although one could call it a loan, it was converted into a gift on his mother's death pursuant to a verbal agreement he had with the deceased.

165. The defendant's wife, Shirley May Allan, swore an affidavit on 10 April 2001 which was relied on by the defendant. In her affidavit she deposed that she confirmed that deposed to by the defendant in his affidavit sworn 31 March 2000, that the deceased hated visiting the plaintiff and his wife and that the deceased regarded her attendance at Christmas dinner as a duty. She also confirmed that the deceased did not attend the plaintiff's birthday when he turned 60. She also deposed that the deceased was happy making the loan to her daughter, Vicki, but that sometimes Vicki was late with her repayments but deposing that Vicki paid every cent of interest. Shirley Allan also deposed that the house occupied by the deceased in Broadribb Court had been bought by herself and the defendant. Shirley Allan deposed further as to the assistance that she had given to the deceased.

168. As to the financial circumstances of herself and the defendant, Shirley Allan in evidence said that they owed approximately $59,500 on a mortgage on the house in which they lived and that they owed $8,500 "to credit cards". As to the income of herself and the defendant, she said that she had no income, that she did not work and the defendant received $542 net per week, which I understand to be payments received by him in the nature of WorkCover payments. She further gave evidence as to the purchase of Broadribb Court, saying that it was purchased for the $19,500 from the Housing Commission at a bankrupt sale, notwithstanding the property was worth $40,000. She gave evidence that she was aged 55, that she suffered high blood pressure, that she was a diabetic and an asthmatic and that she also suffered neuropathy in her feet. In cross examination, she said that when the house at Broadribb Court was purchased she and the defendant did not intend the deceased to live there but it was purchased as an investment. She gave evidence that the property was now owned by her son, that he did not pay anything to her or the defendant for it and that she did not know whether he had discharged any debt over the house, saying that the arrangement was done solely between the defendant and their son. In cross examination, Shirley Allan said there was no bank account established for the estate and when money was received, which was in cash, it went into their own account and that that had been happening for some two years. She said that to ascertain which monies received by her and the defendant were the monies of the estate and which monies were hers and the defendants, it was a matter of sorting out their bank statements. She agreed that the value of Broadribb Court had appreciated on their purchase price to some $70,000, that their son had received the benefit of that house. She said that as far as she was aware her son had not paid anything by way of satisfying or discharging any loan or any loan that she and the defendant had taken out to purchase the property.

171. There was tendered on behalf of the defendant a medical report of Dr Grant dated 24 April 2001, in which it was reported that the defendant suffered hypertension, a post traumatic stress disorder, a fractured right scaphoid bone requiring a bone graft and also bi-lateral carpel tunnel syndrome. The Doctor further reported that the defendant was unfit for work, that he would not be able to resume his previous employment and he would need to be retrained to find a suitable job.

174. There was also relied on by the defendant an affidavit of Peter Morris, a qualified valuer, to which was exhibited a valuation at the time of the death of the deceased of the two sections of the five acre property, previously referred to. The valuer valued the two acre and three acre allotments separately, giving a total value of the same as $66,000. There was also relied on by the defendant an affidavit sworn by Anne Rea, a hairdresser who had attended to the deceased's hair for some 18 years. She swore that the deceased had told her on many occasions that the plaintiff had a great deal of money "off" her which he had never paid back and that the plaintiff was getting no money under her will because he had already had his share.

177. Pursuant to s. 91(1) and (3) of the Administration and Probate Act 1958, and as relevant to these proceedings (as amended), it is provided -

"(1) Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of the deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision." ... (3) The Court must not make an order under sub section (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person affected by -

(a) His or her will.....

(b) ......

(c) ......

does not make adequate provision for the proper maintenance and support of the person."

It is further provided by s. 91(4) of that Act -

(a) whether or not the deceased had responsibility to make provision for a person and

(b) whether or not the distribution of the estate of that person as affected by -

(i) the deceased's will; or

(ii) ...

(iii) ...

makes adequate provision for the proper maintenance and support of the person; and

(c) the amount of provision (if any) which the Court may order for that person; and

(d) any other matter related to an application for an order under sub-section. (1) -

must have regard to - "

There is then set out sub-paragraphs (e) to (p) the matters which the Court must have regard to.

188. Accordingly it is to be seen that by the provisions of s. 91 of the Act, the Court in determining whether the deceased had a responsibility to make provision for the plaintiff and whether or not the distribution of her estate as affected by her will made adequate provision for the proper maintenance and support of the plaintiff and the amount of provision (if any) which the Court may order for the plaintiff, the Court must have regard to the 11 matters set out in sub-section (4)(e) to (p) of that section.

191. By Part 7 of the Wills Act 1997, which came into operation on 20 July 1998, by s. 55 thereof, s. 91 of the Administration and Probate Act, to which I have referred, was inserted in the Act in substitution for that which was previously s. 91 of the Act. Further, by s. 56 of the Wills Act 1997, s. 94 of the Administration and Probate Act 1958 was amended to include that which is now sub-section (c). By that amendment, the Court on such an application as the present may -

"(c) accept any evidence of the deceased's persons reason for making the dispositions in his or her will (if any) and for not making proper provision for the applicant whether or not the evidence is in writing."

By s. 58 of the Miscellaneous Acts (Omnibus No. M1) Act 1998, it was provided that for s. 60 of the Wills Act 1997 that there be substituted Part IV A which contain therein as is relevant to these proceedings, s. 99 AA which provided that -

"Despite the amendment of this Act by Part 7 of the Wills Act 1997 Part IV of this Act, as in force immediately before the commencement of Part 7 of the Wills Act 1997 continues to apply to the estate of a person who died before that commencement."

Accordingly, the provisions of s. 91 of the Administration and Probate Act 1958 to which I have referred and also the amendment to s. 94 of the Act, again to which I have referred, are applicable to this application, as the deceased died on 7 May 1999.

198. In Richard v Axa Trustees Ltd[1], Eames J at para. 7 in his judgment, referring to s. 91 of the Administration and Probate Act as amended by the Wills Act 1997, said -

"It was submitted by Counsel for the defendant, and I accept, that notwithstanding the fact that substantial amendments to the legislation were then made, the overall effect of the changes in the legislation were to codify that which had been well established as the relevant principles at Common Law but to expand the category of persons for whom applications for family provision might be made."

202. With respect to his Honour, while the amendments made to s.91 of the Act considerably expands the category of persons who may make application under s. 91 of the Act and there is also provided a code of matters which the Court must have regard to when determining the issues, on such an application as this, whether the deceased had a responsibility to make provision for the applicant, whether the distribution of the deceased's estate as affected by his or her will made adequate provision for the proper maintenance and support of the applicant and the amount of provision, if any, which the Court should order for the applicant, there has been in one particular respect, as is relevant to these proceedings, a significant change made to the Common Law by the amendments to that section.

205. In Pontifical Society For The Propagation Of The Faith v Scales[2], the Court considered an appeal from an order of the Supreme Court of Queensland on an application under the relevant Testators Family Maintenance legislation which order made provision for a son of the deceased whose will had made no provision for him. By majority the appeal was allowed, it being held that it was not a case in which an order in favour of the son should be made. In the course of his judgment (with which McTiernan J. agreed) Dixon C.J.. at p.19 said -

"It has often been pointed out that very important words in the Statute are 'adequate provision for the proper maintenance and support' and that each of these words must be given value. 'Adequate' and 'proper' in particular must be considered as words which must always be relative. The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support' although they must be treated as elastic, can not be pressed beyond their meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should rewrite the will of the testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decision expressed in his will have only a prima facie affect, the real despotise power being vested in the Court."

While the principles enunciated by Dixon C.J. have in general application to a proceeding such as the present, being an application under s. 91 of the Act as amended, and notwithstanding that the matter of the appeal was whether provision should be made for the son of the deceased, nevertheless it is to be seen that Dixon C.J. had regard to the sex of the applicant for whom no provision had been made by the will of the deceased. At p. 19-20 in his judgment Dixon C.J. further said:

"In the present case the application for a provision for maintenance and support is by an adult son. In In re Sinnott [1948] VicLawRp 48; (1948) VLR 279 in the course of what is perhaps the soundest and most illuminating of all the discussions of the statutory provisions, Fullagar J. remarked:

'No special principle is to be applied in the case of an adult son. But the approach of the court must be different. In the case of a widow or an infant child, the court is dealing with one who is prima facie dependent on the estate and prima facie has a claim to be maintained and supported. But an adult son is, I think, prima facie able to 'maintain and support' himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act'."

212. In Hughes v National Trustees Executors and Agency Co of Australia[3], Gibbs J, after referring to that which he described as "the classical statement" in Bosch v Perpetual Trustee Co[4] and also the passage from the judgment of Salmond J. in In re Allan deceased; Allan v Manchester[5] at p. 147 said -

"It is well settled that these general principles apply to the case of an adult son as well to other cases. The age of the applicant is however material and if a son is mature, able bodied and capable of supporting himself, he may in those circumstances be in no need of maintenance or support."

After referring to that said by Fullagar J. in In re Sinnott as cited by Dixon C.J. in Scales and making reference to a number of other authorities Gibbs J. continued -

"In some cases a special claim may be found to exist because the applicant has contributed to building up the testator's estate or has helped him in other ways. In other cases, a son who has done nothing for his parents may have a special need. This may be because he suffers from some physical or mental infirmity, but it is not necessary for an adult son to show that his earning powers have been impaired by some disability before he can establish a special need for maintenance or support. He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependants who rely on him for support which he cannot adequately provide from his own resources. There are no rigid rules; the question is whether adequate provision has been for the proper maintenance and support of the adult son must depend on all the circumstances - that is, on all the facts that existed at the date of the death of the deceased, whether the testator knew of them or not, and all the eventualities that might, at that, that reasonably have been foreseen by the testator who knew the facts."

218. In Collicoat v Mcmillan[6], Ormiston J, in his judgment delivered 30 October 1995, said at p. 820:

"It might be said that the principles applicable to the exercise of the statutory jurisdiction should be the same whether the applicant is a widow or widower, son or daughter and whether child or adult. Doubtless principles are the same but, as has been said before, the approach of the Court will differ according to the relationship that he or she has with the testator:.... This is because what a testator should have perceived as proper and adequate for a person in one category in the prescribed class will differ from that for a person in another category. A testator's approach must differ in considering the potential claim of a wife (where she has little property of her own) and when considering the claim of a successful son whose children have all left home. The approach of the courts, endorsed in Hughes case (see esp. at 147-8 per Gibb CJ, in whose judgment Mason and Acorn J. concurred), is that in ordinary circumstances, a testator is not under an obligation to make provision for an able bodied and successful adult son because that son is, almost invariably, 'in no need of maintenance or support' of the requisite kind: see Gibbs J in Hughes case at 147. However, if, as is not uncommon these days a son has reached adulthood without establishing himself in life and without adequate or certain prospects of doing so, the position will be different, and, subject to competing claims he may well show that the testator was under a duty to make appropriate provision for him, as in fact I held in Andersons' [Anderson v Trebonas [1990] VicRp 47; [1990] V.R. 527] case. Again if a son has reached late to middle age or beyond, then, not withstanding that he has met with reasonable prosperity during the most of his working life, he may well be able to show, especially in recent years, that his prospects of gaining employment (or improving his financial position where he is earning but a bare sufficiency), are such that the testator fairly should have contemplated that he would be likely to be in needy circumstances for much of the rest of his life. In such a case, a moral obligation to make further provision will likewise have rested on the testator. Not only may an applicant in the latter circumstances be able to show that he has over the years contributed to building up other testator's estate or given other assistance worthy of recognition (a 'special claim'), but he may, alternatively or in addition, be able to establish a 'special need for maintenance and support' in that: 'he may have suffered a financial disaster; he may be unable to obtain employment...' etc: Hughes' case at 147."

222. In the provisions of s. 91(4) of the Act no distinction is made between an applicant who is a son or daughter or who is male or female. The fact that the applicant is an adult male does not put him in a special class, nor in my view should such an applicant be considered "prima facie able to maintain and support himself". Nor should an applicant who is an adult male, need to establish that he has a "special claim" before the Court, in exercise of its discretion, may order that provision be made from the estate of a deceased for such applicant. The Court on such an application as this is required, when dealing with the issues as identified in s. 91(4)(a)-(d), to have regard to the matters set out in sub-sections (e) to (p) which include -

"(e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, when relevant, the length of the relationship."

However, the Court is not required beyond that to have regard to the sex of the applicant or to distinguish between a child of a deceased who is an applicant by reason of the gender of that child.

229. When determining whether the will of the deceased "does not make adequate provision for the proper maintenance and support" of the applicant, as stated by Dickson C.J. in Pontifical Society For The Propagation Of The Faith v Scales at p.19 as previously referred to, "adequate" and "proper" ... "must be considered as words which must always be relative". Further, now, by reason of s. 91 (4)(e) to (p) of the Act, in determining whether the will "does not make adequate provision for the proper maintenance and support" of an applicant and "the amount of the provision (if any) which the Court may order" for the applicant the Court must have regard to such matters as "the financial resources (including earning capacity) and financial needs of the applicant", "the age of the applicant", "any physical, mental or intellectual disability of an applicant" and other relevant matters. In my respectful opinion, that which Ormiston J. said in Collicoat at pp. 820-21 to which I have referred demonstrates that in making decisions as must be made when an application is made pursuant to Part IV of the Act and before provision from the estate of a deceased may be made by the Court regard must be had to circumstances existing ordinarily in today's society. That this is so is now to be seen from the existing provisions of s. 91 of the Act.

232. It is to be further observed that the amendments made to Part IV of the Administration and Probate Act by the Wills Act 1997 repealed that which was previously s. 95 and s. 96(1) of the Administration and Probate Act 1958. However, by virtue of the provision of s. 91 of the Act that which the Court must have regard to in determining the questions necessary to be determined before the Court, in the exercise of its discretion, may make an order for the provision for an applicant out of the estate of the deceased, include:

"(g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject; (h) the financial resources (including earning, capacity and the financial needs of the applicant); (l) any benefits previously given by the deceased person to any applicant or to any beneficiary and; (o) the character and conduct of the applicant or any other person".

236. Regretfully in such proceedings as the present where two members of a family are on each side of the record in the proceedings and where the evidence and account of events differs between them, it is necessary for the Court to determine whose account should be accepted and whose should be rejected on various matters, the subject of evidence. That that is regretful is particularly so when it is to be seen that one side is clearly hostile towards the other. Findings of a court in such circumstances are likely to broaden the chasm as shown to exist between the two antagonists who are closely related to each other by common parentage. In my view, it is incumbent on a court in determining questions of fact and credibility in such a proceeding as the present, to make such findings as are necessary and to be moderate in the use of language so as to be careful that the judgment of the court is not used by one side against the other or does not further inflame the hostility existing between the parties.

239. From the affidavit sworn by the defendant on 31 March 2000 and filed in these proceedings, it is to be seen that the defendant was hostile towards his brother, the plaintiff in these proceedings. Not only was that to be observed from that affidavit but it was also apparent from that which I observed during the course of the trial as to the defendant's apparent demeanour and attitude towards the plaintiff in Court, including in particular, while the plaintiff was giving evidence. The defendant alleged that the plaintiff had lied and financially cheated their father during his lifetime and that he had bullied, lied and financially cheated their mother up to the date of her death. Further the defendant alleged that the plaintiff made substantial provision for himself by deceiving and defrauding his parents during their lifetime.

242. The evidence of the defendant and his wife was motivated by hostility, to such an extent that in my view there was exhibited that the defendant and his wife had a hatred towards the plaintiff and his wife. The application of the plaintiff challenged that which the defendant and his wife saw to be the entitlement of the defendant on the death of the deceased, an entitlement that the defendant was aware of before her death and an entitlement that he anticipated to receive to the exclusion of the plaintiff upon her death.

245. I observed the plaintiff and his wife during the proceedings and particularly when they gave evidence. Each of them sought to give evidence of events as best as they could recall. They impressed me as honest witnesses and people who were trying to tell the truth as best as they could recall it. I generally accept the evidence of the plaintiff and his wife and where it differs from the evidence of the defendant and his wife, I prefer the evidence of the plaintiff and his wife. Having viewed the defendant during the course of the trial and having regard to the evidence given on the trial, I do not accept the allegations of the defendant that the plaintiff bullied, lied and financially cheated their parents during the life of their father and that he so acted thereafter towards his mother after their father died and during the remainder of her lifetime. I do not accept that the plaintiff made provision for himself from the estate of their father and/or their mother by deceiving and defrauding his father and mother. Although, it has slight bearing on the application of the plaintiff to have provision made for him from the estate of his mother, I accept that the plaintiff as a boy and young man assisted his father and family in the conduct of farms, managed and conducted by his father. I accept the plaintiff's account of the work that he did in the cartage business conducted by his father. It was only to be expected that as the plaintiff grew up and matured, and he sought to establish himself and go his own way supporting himself, his wife and family, there may be differences between him and his father. I accept that after the death of his father, the plaintiff took on the role and managed, oversaw and conducted the small farming properties in Oxley that were his mothers. By doing this, the plaintiff managed to keep those properties intact for the benefit of his mother. I am satisfied that he did this honestly and ensured that the returns went to his mother. As to the purchase by the plaintiff of the Snow Road property, I accept the account of the plaintiff as to this matter and what occurred thereafter relating to this property. At the time that the plaintiff and his father attended the sale of this property, it was their intention that the property be purchased by the plaintiff if they should be successful at the sale. At this time, it was their expectation that by the sale of the property of the plaintiff at Everton Upper, the plaintiff and his wife would have sufficient funds to complete the purchase of the Snow Road property. However, this "hope" did not eventuate and the plaintiff's father and mother, the deceased, took over the purchase, conduct and management of the Snow Road property. It was eventually sold by the plaintiff's father and the proceeds of such sale were returned to him. I am satisfied that on the completion of the sale by the plaintiff's father of this property, there was no monies owing by the plaintiff to his father concerning the purchase of this property. That there may have been some acrimony between the plaintiff and his father concerning the plaintiff's wishes and or endeavour to purchase this property appears to have been short lived. I am satisfied that in seeking to purchase this property, the plaintiff was not seeking to cheat or defraud his parents or act dishonestly towards them.

248. As to the five acre property in Oxley, I am satisfied that the plaintiff's parents made it clear to the plaintiff and others, including the defendant, that this property was to become the property of the plaintiff. It was recognised by the deceased and her husband that this was to be so, in recognition of the work that had been performed by the plaintiff as a boy and young man for the family in the conduct of farms and businesses managed and conducted by the plaintiff's father. When the plaintiff moved the Everton Railway House onto this property, during the lifetime of his father, there was apparently some dispute between the plaintiff and his father as to whether cladding should be affixed to the outside of the house. A dispute of such nature may very well occur between a father and son while each having their views as to what may be the best method to adopt as to improve the appearance of a house. Although this may have been the case, it is of very little moment in my view in these proceedings. After the death of the father, the deceased initially came to live with the plaintiff and his family in the Everton Railway House on the five acre property. This caused some overcrowding in the house and the deceased was obliged to share a bedroom with a daughter of the plaintiff and his wife, which was no doubt considered to be not particularly desirable. It was in such circumstances that the plaintiff sought to buy and proceeded to buy the property known as "Tysons". I accept the plaintiff's account as to what occurred relating to the purchase of this property. The five acre property was registered in the name of the deceased, although it being recognised by the plaintiff's father and the deceased that the property was or would become the property of the plaintiff. It was in such circumstances that the plaintiff requested the deceased to provide the five acre property as security for the bridging finance that he had arranged for the purchase of the "Tysons" property. It is not uncommon for a parent to give to a child, during the lifetime of the parent, financial assistance in respect of a property which is to become that of the child after the death of the parent. It appears, however and this is accepted by the plaintiff that this arrangement caused confusion to the deceased as to the role that she was playing in providing the five acre property as security or monies needed by the plaintiff to purchase "Tysons" and her role in the purchase of "Tysons". I am satisfied that such confusion had by the deceased as to this matter was not brought about by the plaintiff, deceiving or seeking to deceive or cheat the deceased. I am satisfied that in this matter the plaintiff did not act fraudulently towards his mother. Although the confusion in the mind of the deceased caused her to cease living with the plaintiff and to commence living in the household of the defendant and although this caused some upset in the relationship between the plaintiff and the deceased, I am satisfied that this was a short term interruption in the relationship between the plaintiff and the deceased which was otherwise a sound and good relationship. When the five acre property was sold, the plaintiff received the benefit of $32,500 as provided by the deceased to him. Thereafter, in consequence of a sale by the deceased of property owned by her, each of the plaintiff and the defendant received the benefit of $8,000 being provided to them by the deceased.

251. In these proceedings it must be taken into account that during the lifetime of the deceased, she provided a benefit to the plaintiff in the sum of $40,000. It also must be taken into account that the defendant himself received a benefit from his mother in the sum of $8,000 during her lifetime. I do not accept and reject the allegation of the defendant that the plaintiff "preyed on" his mother, the deceased. Probably the fact that the deceased provided the five acre property as security for the bridging finance obtained by the plaintiff in order to purchase "Tysons" and the provision by the deceased of the proceeds of the sale of the property to the plaintiff was a cause, if not the cause of a jealous and hostile view in which the defendant had regard to the plaintiff. At this time the plaintiff's capacity to work was that of a farmer, a commission agent with a stock and station agent and a man who otherwise was able to engage in work of a hard physical nature.

254. Through the plaintiff's application to work and probably that of his wife and the frugal manner in which they lived, they were able through the acquisition of "Tysons" and the sale of that property thereafter, to eventually own and now continue to own their own home which is unencumbered. Although each of them owned cars, the value of each of them is very small indeed.

257. As to the "lucerne paddock", I am satisfied that the deceased agreed with the plaintiff that she should join with their neighbour to realign their common boundary to the advantage of each of the deceased and her neighbour. The deceased's involvement in this matter was managed by the plaintiff for the deceased. During the surveying of the boundary and thereafter, the neighbour had his property surveyed as would be necessary if the property was thereafter subdivided. I accept that the plaintiff also arranged to have the deceased's property, the "lucerne paddock", similarly surveyed as would be necessary if the property was sought thereafter to be subdivided. The plaintiff signed documents in order for this to occur. The fact that the plaintiff did this has been sought by the defendant to be turned against the plaintiff as an example of him seeking to or cheating the deceased. I do not accept that this was the case or that such an intent motivated the plaintiff. I do not accept that the plaintiff did this for the purpose of depriving his mother of the property or deceiving her in some manner but rather I accept that he did this to seek to enhance in the future the value of this land. Again, this matter may have caused the relationship of the deceased with the plaintiff to be strained for a period. However, I am satisfied that such did not cause a long lasting interference in their relationship. The plaintiff continued to maintain and manage the deceased's land at Oxley during her lifetime and to cut hay and otherwise conduct the properties for the benefit of the deceased which he did without remuneration.

260. I accept the evidence of the plaintiff and his wife and that with the exception of some periods of upset concerning the mortgage executed by the deceased over the five acre property and the surveying done at the behest of the plaintiff with respect to the "lucerne paddock", the plaintiff maintained a close relationship with the deceased and she gained pleasure from his company and that of his family.

263. I accept that the plaintiff did not celebrate his 60th birthday for the reasons given by the plaintiff and his wife. The defendant and his wife in their endeavour to harm the plaintiff in this application sought to show that the relationship between the plaintiff and his mother was not a close relationship. Each alleged that the deceased had not partaken in the celebration of the plaintiff's 60th birthday. This did not occur as the plaintiff did not celebrate his 60th birthday for the reason given by him in evidence.

266. The plaintiff is a man of almost 63 years of age. He lives with and supports his wife in their home. The small savings that they had gathered together with the intent of having some modest alterations made to the home have been lost now as it has been necessary for them to expend those monies on costs in these proceedings. In the past the plaintiff has earned a small or moderate income. He is presently employed on a contract with the TAFE college at Wangaratta, which contract is due to expire at the end of this year. There can be no assurance that the plaintiff will be re-employed or a fresh contract will be offered to him. Otherwise, the capacity, that the plaintiff now has and had at the death of the deceased, to engage in employment is that of a part-time commission agent with a stock and station agent and perhaps engaging in some form of physical work. However, the plaintiff as a man now aged 63, has limitations in his capacity to engage in physical work as one would expect of a man who in the past has been engaged during his lifetime, principally in the performance of physical work. If the plaintiff is unable to gain further employment at the end of this year, the likelihood is that he will be in receipt of some form of social service payment and it is likely, in my view, that on attaining 65 years of age, his income will be that derived by him from some form of social service benefit.

269. The plaintiff's wife ceased work when it was necessary for her to undergo an operation. Although she now assists her aged parents, it is improbable, in my view, that if she sought employment in the future, in or about the area where she lives, it would be unlikely that she would obtain employment.

272. The estate of the deceased is valued, as appears from the inventory of assets, completed and filed by the defendant, in the sum of $259,028.50. The defendant claims that part of such assets comprises a sum of $4,000 owed by the plaintiff to the estate of the deceased. It is through the honesty of the plaintiff that when his mother, the deceased, provided the sum of $4,000 saying that she only wished to receive interest payments on the same, that he had a written loan agreement drawn and executed evidencing that he and his wife had borrowed that sum from the deceased. I accept that the deceased saw this money as providing a gift to the plaintiff, however, she wished to receive a payment of interest on the sum. The deceased also provided a similar amount of money for the provision of the defendant's daughter, Vicki, on which she paid interest. That sum as provided by the deceased to Vicki does not appear as an asset of the estate of the deceased in the inventory provided and completed by the defendant. He said that he had forgiven that debt. No doubt it was through the defendant's hostility towards the plaintiff that he chose to treat that advancement to the plaintiff differently than that in which he treated the same to his daughter.

275. It is difficult to reach any conclusion as to why the defendant, while owing a large sum secured by a mortgage over his home gave to or transferred to his son the home in which the deceased lived at Broadribb Court Wangaratta. This property had been purchased on very favourable terms by the defendant there being paid a purchase price well below the actual value of the house. Notwithstanding the apparent very poor financial circumstances of the defendant, he was prepared to transfer this property to his son. Why he did this I cannot determine. What were the financial arrangements between the defendant and his son as to this transfer, I am unable to determine. However, the effect of the transfer reduced the capacity of the defendant to meet financial commitments which continued to be secured over the matrimonial home occupied by him and his wife. Although the defendant has received monies from the estate of the deceased since the death of the deceased, it does not appear that such monies have been used to improve the financial circumstances of the defendant as one would have expected.

278. At the present and from the day of the death of the deceased, the defendant has suffered from the various medical conditions as described in the medical report of Dr Grant. From that report it appears that the defendant is unable to resume his former employment as a truck or taxi driver and that for him to become re-employed in the future it will be necessary for him to be retrained. Having seen and heard the defendant during the course of this trial, it is unlikely, in my view, that the defendant would take well to any endeavour to have him retrained so as to be employable. It is likely in the future that the defendant will continue to be in receipt of either WorkCover payments or some form of social service payment.

281. The deceased in her will expressed reason why she had not made provision for the plaintiff in her will from her estate. It is necessary for me to have regard to the provision made by the deceased for the plaintiff during her lifetime when considering the issues that must be determined in these proceedings and I take that matter into account.

284. I am satisfied that when one has regard to the estate of the deceased and the matters that I have considered and taken into account, including the provision made by the deceased for the benefit of the plaintiff during her lifetime, the deceased had a responsibility to make provision for the plaintiff by her will from her estate. I am satisfied and I am of the opinion that notwithstanding the provision made by the deceased for the benefit of the plaintiff during her lifetime, when one has regard to the other matters considered and determined by me, the will of the deceased does not make adequate provision for the proper maintenance and support of the plaintiff. This is so notwithstanding that by her will, the deceased expressed reason why she did not make provision for the plaintiff. I am satisfied that there was no conduct on behalf of the plaintiff towards the deceased, which would properly cause the deceased to not have a responsibility to make provision from her estate for the benefit of the plaintiff or which would cause me to conclude other than that by her will the deceased did not make adequate provision for the proper maintenance and support of the plaintiff. Having regard to the financial circumstances of the defendant and his state of health and the small capacity which he demonstrates to be engaged in gainful employment, I am satisfied that the deceased also had a responsibility to make provision for the benefit of the defendant from her estate. That she had this responsibility was not of such magnitude to expunge the responsibility that she had to make provision for the plaintiff from her estate.

287. Having taken into account the matters as expressed in this judgment, the conclusion that I have reached is that provision should be made from the estate of the deceased for the benefit of the plaintiff by the defendant paying as executor of the will of the deceased and as trustee of her estate from the estate of the deceased to the plaintiff the sum of $75,000. From that amount the plaintiff will be able to discharge his debt of $4,000 to the estate.

290. For these reasons I propose to order that provision be made for the plaintiff from the estate of the deceased by the defendant as executor of the will of the deceased and trustee of her estate, paying to the plaintiff from the estate of the deceased the sum of $75,000.

[1] [2000] VSC 341.

[2] [1962] HCA 19; (1962) 107 CLR 9.

[3] [1979] HCA 2; (1979) 143 CLR 134 at 147.

[4] [1938] at A.C. 463, at pp 478 - 479.

[5] [1992] N.Z.L.R. 281 at pp 220 - 221.

[6] [1999] 3 VR 803.