Barker v Cann [2025] TASSC 37

(b) The Court assumes that the testatrix was aware of all the relevant circumstances at the date of her death, including reasonably foreseeable eventualities: McKenzie v Topp [2004] VSC 90 at [15] per Nettle J, citing Bosch (above)[3].

(c) The jurisdictional question requires the Court to consider all relevant circumstances and in particular:

• the size and nature of the estate;
• the applicant's financial position;
• the totality of the relationship between the applicant and the testatrix; and
• the relationship between the testatrix and other persons who have legitimate claims upon her bounty;

see Singer v Berghouse [1994] HCA 40, 181 CLR 201 at 210.

(d) The jurisdictional question is strictly one of fact, determined at the date of the testatrix's death, having regard also to reasonably foreseeable circumstances at that time: Coates v National Executors & Agency Co Ltd [1956] HCA 23, 95 CLR 494. The determination involves making value judgments, however, regard is to be had to the circumstances outlined in Singer v Berghouse (above) at 210.

(e) On the jurisdictional question, the Court must connect the general, but value laden, language of the provision to the prevailing community standards which give it practical meaning. The concepts of "moral claim" and "moral duty" are useful guides in that exercise: Vigolo v Bostin [2005] HCA 11, 221 CLR 191 per Gleeson CJ at [25]; Gerlach v Public Trustee [1997] TASSC 160; How v How [2015] TASSC 4.

(f) The concepts of "moral claim" and "moral duty" relate to the obligation of a testatrix to make a wise and just assessment of the interests of parties who might fairly ask to be taken into account. In determining what adequate provision for proper maintenance and support should have been made for them, of "moral claim" and "moral duty" must not supplant the statutory wording of s 3 of the Act: Collicoat v McMillan [1999] 3 VR 803 at 819.

(g) The evaluation of whether provision was adequate is not to be limited to considerations relating to an applicant's financial needs - these are but one aspect of adequate provision: Steinmetz v Shannon [2019] NSWCA 114 at [32]; Muhl v Bailey [2025] TASSC 24 per Pearce J at [37], citing Basten JA in Chan v Chan [2016] NSWCA 222 at [22].

1. If, at the first stage, the Court finds that an applicant was left without adequate provision for his proper maintenance and support, the following principles apply to the second question:

(a) "Adequate" provision is concerned with the quantum of the provision which should be made so that the provision is "proper": Bosch (above) at [476]. "Proper" provision for maintenance and support means proper in all the circumstances of the case, including the standard of living enjoyed by the applicant and those having competing claims, the need for assistance and the extent of the testatrix's ability to meet the claims: McCosker v McCosker [1957] HCA 82, 97 CLR 566 at 571-572.

(b) "Maintenance" may imply mere continuity of a pre-existing state of affairs, and also relates to provision over and above mere sufficiency. "Support" may imply provision beyond bare need: Vigolo (above) at [115].

(c) The enquiry as to whether the applicant has a relevant need of maintenance must not be too narrowly focused: Collins v McGain & Anor [2003] NSWCA 190 at [42].

(d) The question of what order should be made is to be decided by reference to the state of facts existing at the date of the hearing: Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 at 532.

(e) Where the discretion is enlivened, its exercise will be influenced by similar considerations to those applicable to the jurisdictional question: Singer v Berghouse (above) at 210.

1. I turn now to the relevant considerations in the application.

1. On the evidence before me, I find that the estimated current gross value of the testatrix's estate is about $1.96m.[4] The respondent executor of the estate, Mr Cann, provided an updated statement of receipts and payments for the testatrix's estate[5] at the hearing of the application, estimating the values of the principal assets of the estate as follows:
   • Net receipts after payments $529,597.88
   • 52 Havelock Street, Smithton between $350,000 - $400,000
     • 20 Bugg Street, Smithton between $300,000 - $350,000
   • 7 Dallas Court, Smithton (approx) $349,000
   • 5 Upper Havelock Street, Smithton between $450,000 - $500,000.
2. Mr Cann explained how the testatrix distributed her estate as contemplated in her will:
   • Bradley Leigh Cole $947,400.00

1. I will refer to the gifts to Damien and Brendan as being $132,000 for ease of reference in these reasons.
2. Mr Cann explained certain facts relevant to the building up of the estate. He explained that the testatrix received over a million dollars in compensation payments when she was diagnosed with cancer, and she used those proceeds to purchase rental properties in Smithton. Mr Cann also explained that the testatrix's family law property settlement with her former husband involved an asset pool of $2.4m. Mr Cann was not asked what the testatrix received from the property settlement.

The totality of the relationship between the applicants and the testatrix

1. The applicants submit that notwithstanding their gifts in the will and the present level of their financial resources, each has been left without adequate provision for their proper maintenance and support. The applicants submitted, in essence that the testatrix had a moral duty to make further provision for them, having regard to her ability to do so because of the size of her estate, and considering all of the circumstances of the case, including the following, which are explored more fully below:
   • each applicant has young dependent children (Damien has three; Brendan has two);
   • Damen's wife, Amber Barker, works as a cleaner and cares for her children;
   • Brendan's wife is engaged in caring for their two young children;
   • each applicant owns a house but has a substantial mortgage;
   • each applicant has assets - but some of them are of a depreciating nature;
   • each applicant carries significant debt to various financial institutions which is secured against their mortgaged properties;
   • neither applicant has formal educational qualifications; and
   • the residual gifts to the applicants represent only a small percentage of the estate.
2. The applicants' counsel submitted that the relationship between the testatrix and her sons involved strong familial bonds between a mother and her children from their birth until her death. The respondent did not submit otherwise, and I make that finding. Despite that finding, the relationship between the testatrix and the applicants was not without difficulty. The testatrix's 2019 divorce from the applicants' father was extremely bitter and the relationship between the testatrix and the applicants suffered. There was significant friction within the relationships during and following the divorce. Damien deposed that 2020 and 2021 were particularly difficult times and his affidavits contain illustrative examples. The text messages annexed to Damien Barker's affidavit at annexure DB10 indicate that for about four years prior to 1 March 2023, he and his mother did not see or speak to each other in person.
3. Brendan deposed that his relationship with his mother also experienced a period of difficulty after the divorce. Mr Cole also gave examples which are consistent with the evidence of Damien and Brendan as to the nature of the relationship between the applicants and the testatrix. Each of the affidavits of the applicants and Mr Cole provide an account from their own perspective of the relationships between the applicants and the testatrix, particularly as to the period between 2019 and shortly before the date upon which the testatrix made her last will on 13 August 2022.
4. The post-divorce improvement in the relationships between the testatrix and both applicants closer to the date of her death on 9 July 2023, is relevant context to the provision made by the testatrix for the applicants by the 23 August 2022 will.
5. The applicants' counsel submits that the provision in the will amounts to only about 7.3% or 1/14th of the estate. In light of the estimated value of the estate and the financial positions of the applicants, I am content to proceed on that basis. However, I reject the applicants' submission that, having regard to the size of the estate, the "small percentage... in and of itself" shows that the provision was inadequate. No authority for such an approach was cited and to adopt it would be contrary to the statute and the principles which the Court must apply.
6. Damien's affidavits each contained a paragraph in the following terms[6]:

"31 What I want and indeed what my brother Brendan wants from this is:

• Mum to still be here with us. We would give up anything for her to be back with us.
• To make sure that there is a fair share to her children so that we have something to pass on to our children - her grandchildren."

1. At par [34] of his affidavit sworn on 16 February 2025, Damien stated:

"34 Before we knew about the Will, we were, myself and Brendan, very keen to know that Aaron would be looked after and we were thinking about our children, but when we discovered the Will and that so much was left to Bradley, we considered this was not what Mum really wanted or should have done. Brad has not looked after the houses. These were her pride and joy and Mum loved doing this and would not be happy with what has happened. The contractors used the Airbnb's a lot because of where they were located in Smithton."

1. Damien was aged 33 at the date of the hearing. His wife Amber was aged 38. Damien and Amber have two children aged about seven and four, and Damien has a daughter from a previous relationship, aged 12 who lives with her mother but stays with him two to three times per month.

1. It appeared to me that the way the applicants ran their respective cases was that the evidence before the Court, in respect of the financial positions of the parties, should be taken as being the state of affairs at the date of the testatrix's death unless otherwise stated.

1. The estimated financial position of Damien Barker and his wife Amber Barker is as follows:

Assets Liabilities

$450,000 (est) 96 Massey Street, Smithton - residence $203,000 mortgage Massey Street

$165,000 Quarry lease on Crown Land finance included in mortgage, above

$90,000 Excavator Kobelco $58,000 finance loan

$60,000 Excavator CAT $51,324 finance loan - Bennetto

$14,000 cattle x 14 head

1. On the basis of the figures, above, the value of Damien Barker's assets exceed his liabilities by $588,676. However, as can be appreciated from the nature of his assets, Damien's asset base is partially comprised of depreciating assets such as machinery and motor vehicles. Many of Damien's assets are however, revenue generating. Under the will, Damien would receive about $132,000.
2. Damien left school after completing grade 10 and worked as a glazier for about 13 years. He now works in his father's earth moving business driving trucks, operating heavy machinery (excavators, bulldozers, loaders, skid steers), together with handling the daily organisation of the business alongside his father and his brother Brendan.
3. During the 2023-2024 financial year Damien earned $80,282 (an increase from $75,000 in 2023) and Amber earned $42,681 as a cleaner at Seaview Stanley. Amber Barker's superannuation balance is $91,475.
4. At the date of the testatrix's death, Damien and Amber were contemplating buying the Crown Lease on which the quarry is situated, together with the excavator, both of which they now own. Damien operates the business relating to the operation of the quarry (which is next door to his father's quarry) and the hire of the excavator, but the quarry is used only on an "as-needs" basis as determined by his father.
5. Damien is a fit and healthy person. He is a keen footballer who (at the date of the hearing) was two games shy of reaching his 200-game milestone with the Circular Head Saints.

1. The estimated financial position of Brendan Barker and Tahlia Barker is as follows:

Assets Liabilities

$500,000 (est) house Arthur River TAS - joint owned $532,000 mortgage Arthur River

House (purchased September 2024)

$90,000 Kubota steer loader 97HP(est) $70,000 finance loan debt

$37,225 Himac grader blade (purchase price 2022) $17,000 finance loan debt

$238,700 Caterpillar skid steer track loader (purchase price) $190,000 finance loan debt

$95,000 Cars 2x Toyotas $41,047 finance loan debt

$25,000 Honda side by side $20,000 BT Trust overdraft (est)

$16,500 trailer

$86,627 Superannuation - Brendan Barker

Assets total: $1,089,052 Liabilities total: $870,047

Net total: $219,005

Brendan Barker's gross income for the financial year 2024 was $108,000.

1. On the basis of the figures, above, the value of Brendan Barker's assets ($1,089,052) exceed his liabilities ($870,047) by $219,005. Brendan's asset base is also comprised of depreciating assets such as machinery and motor vehicles, some of which also generate revenue. Brendan is prima facie many years away from being able to access his superannuation. Under the will, Brendan would receive about $132,000.
2. Brendan Barker was aged 32 at the date of the hearing, born 31 January 1993. He left high school at the start of grade 9 in 2007, aged 14. Since then, he has been continuously employed. In 2013, when he was aged 20, Brendan commenced working for his father's civil construction business. His present employment in that business involves working in a general capacity "a bit like a leading hand". He is licensed to drive heavy combination vehicles and to operate earthmoving equipment such as the Caterpillar skid steer and a DC6 bulldozer. Brendan coordinates the work of his father's business and he manages seven employees. Brendan is a fit and skilled person. As I understood his evidence, his gross annual income is presently $108,000, an increase from $90,179 earned in 2023.
3. Brendan and his wife have two sources of income. The first is Brendan's income from his employment in his father's business. The second is through the BT Barker Family Trust, established in 2023 with Brendan and Tahlia as trustees, which operates a business of the dry hire of heavy equipment to his father's business (the Kubota steer loader, the Caterpillar skid steer and the Himac grader blade hired without an operator). The trust has an overdraft of about $20,000. Tahlia is not in any other paid employment but she earned $33,734 through the BT Trust in the 2023-24 financial year.
4. Since early 2022, Brendan and his family have lived in a house owned by his father's company, as part of his remuneration package. Before then, they owned their own home but they struggled financially and sold the house. Proceeds of that sale were $225,615, of which $39,321.19 paid off some debts, $40,000 was paid to help his father's business, the balance was used on a holiday, their wedding, a car, a trailer, the skid steer deposit and a Honda SXS1000 all-terrain vehicle. Brendan and Tahlia gave detailed information about their monthly income and expenses, both within and outside the trust, showing a modest surplus. Brendan's superannuation account balance is about $86,672. Brendan said that Tahlia's superannuation balance was "zero" because she has worked providing private daycare for children. Tahlia has not worked since she was pregnant with their eldest child.
5. Brendan and his wife purchased their house at Arthur River in September 2024, after the testatrix's death. Brendan and his family stay there most weekends. They borrowed $532,000, $120,000 of which was secured by a personal guarantee by Tahlia's grandmother.
6. Brendan agreed that the financial position of him and his wife continued to improve between the date he swore his first affidavit on 14 June 2024 and his second affidavit on 15 February 2025, save for some mechanical problems with the Kubota skid steer owned by his Trust which is for sale but without any interest from the market.[7]

The relationship between the testatrix and Mr Cole

1. Mr Cole and the testatrix were in a de facto relationship for about four years between about 2019 until her death on 19 July 2023. They became engaged in 2021 but did not marry. They had known each other "for years" and Mr Cole got to know the testatrix again after she had separated from her former husband. Aaron Barker deposed that, after his mother commenced her relationship with Mr Cole, "she was starting to be happy for the first time in a very long time".
2. In August 2020 the testatrix and Mr Cole jointly purchased a property at 35 Mauds Road, Scotchtown for $510,000. Mr Cole said that they borrowed approximately $460,000 to complete the purchase. Mr Cole said that the mortgage payments came out of the testatrix's account and he paid for their living expenses which worked out to be approximately even. Mr Cole survived to the sole ownership of that property upon the death of the testatrix.
3. Mr Cole said that he and the testatrix worked jointly on the testatrix's Airbnb properties, a portfolio of properties which included 52 Havelock Street, Smithton and 5 Upper Havelock Street, Smithton. Mr Cole and the testatrix renovated 5 Upper Havelock Street by removing and replacing carpets, knocking down a number of internal walls and a fireplace, and replacing the kitchen. Mr Cole said he contributed about $25,000 to that project. Mr Cole and the testatrix worked together maintaining and operating the accommodation business in relation to those two Airbnb properties. It is to be noted that during the period of the relationship, the testatrix also owned properties at 7 Dallas Court, Smithton and 4 Grant Street, Smithton, which she directed be sold upon her death. The proceeds of sale of 4 Grant Street form part of the residue of the estate. At the date of the hearing, 7 Dallas Court was on the market.
4. Mr Cole works as a leading hand at McCain's Foods and earns approximately $100,000 per annum and said that his superannuation account balance is approximately $130,000.
5. Mr Cole's affidavit set out his assets and liabilities. He also gave evidence at the hearing and was cross-examined by counsel for the applicants. The applicants' counsel submitted that because Mr Cole did not give detailed evidence of his financial circumstances, or clear evidence of need, the Court should assume that he is without any significant financial need, citing Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 at 535. I accept that submission. Mr Cole's evidence of his financial position is as follows:[8]

Less ANZ Bank Mortgage Loan $432,000.00 $198,000.00

44 Scotchtown Road, Smithton (estimate) $250,000.00

1. On the basis of Mr Cole's disclosures above, the value of his assets ($1,098,242) exceeds his liabilities ($532,000) by $566,242. Under the will, Mr Cole would receive gifts valued at about $947,400. Counsel for the applicants submitted that Mr Cole did not give detailed evidence of his financial circumstances. During cross-examination, counsel for the applicants asked Mr Cole about his failure to comply with the applicants' request to produce documents relating to his expenditure on the properties at 52 Havelock Street and 5 Upper Havelock Street, his most recent ATO notice of assessment of personal income tax, and documents relating to his mortgage on the Mauds Road property. Mr Cole explained that his refusal to comply with those requests was because he "was told it wasn't relevant". At the hearing, the applicants did not renew the call for those documents.
2. The applicants' counsel submitted that the Court should reject Mr Cole's evidence that he has only "modest superannuation of about $130,000" because that figure "does not make sense" given his evidence that he has worked continuously for the 33 years since the compulsory superannuation scheme was introduced in 1992. I note that it was not put to Mr Cole that the applicants' request for documents included any superannuation documents. Because the Court was left to speculate about the issue, there is no proper basis to reject Mr Cole's evidence on his superannuation balance and I am unable to reasonably do so. However, because Mr Cole is not a person with significant financial need, nothing seems to turn on whether this evidence is accepted or rejected.
3. The applicants referred to the relationship between the testatrix and Mr Cole as "short". I take into account the probable length of the relationship, but it would appear that its quality must also be given weight in these circumstances having regard to the evidence of Aaron Barker and Mr Cole in relation to that subject. They had been together since 2019 and engaged to be married since 2021. It was a mutually beneficial and happy relationship. There was no credible suggestion to the contrary. Mr Cole had a good relationship with Aaron Barker during the life of the testatrix, which has survived her death.

1. On the evidence before me, I find that each applicant is able to maintain and support himself and his dependents. I also find that each applicant is established in a stable marriage and stable in his employment. Neither applicant gave evidence that they struggle to adequately provide for their dependents from their available resources. The applicants did not claim that they contributed to building up the testatrix's estate. Nor was either of them in any way dependent upon the testatrix at the date of her death. Neither applicant gave evidence that he had any expectation that he would receive a share of the testatrix's estate or that he acted upon any such expectation. Neither applicant gave evidence of any problems associated with poor health, nor that he has any reasonable apprehension of such problems. Each applicant has been in full time employment since leaving school and both applicants are skilled and capable men.
2. The applicants bear the onus of establishing an identifiable justification for intervention by the Court, under the Act. In Re Sinnott [1948] VicLawRp 4; [1948] VLR 279 at 280 Fullagar J stated:[9]

"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 testator 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."

1. In O'Connor v Tasmanian Trustees Limited [1995] TASSC 100, at [23], Crawford J (as he then was) elaborated on the approach of the Court identified in Re Sinnott:

"23 The age of an applicant is material and if a child is mature, able-bodied and capable of self support the need of maintenance or support may not arise. According to Fullagar J in Re Sinnott [1948] VicLawRp 48; (1948) VLR 279 at 280 an 'adult son' (the principle in many cases will equally apply to an adult daughter) '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'. 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 in other ways. In other cases there may be a special need such as an inability to obtain employment or earn an adequate income, or the applicant may have a number of dependants who rely on him or her for support which cannot adequately be provided from available resources. All the circumstances must be taken into account, 'that is ... all the facts that existed at the date of the death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts'. Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1978-1979) 143 CLR 134 per Gibbs J at 148."

1. In Vigolo v Bostin at [27] Gleeson CJ set out the passage from Re Sinnott at 280 (above), observing Fullagar J's further statement, at 281:

"The discretion given by the Act is obviously intended to be very wide. The size of the estate is always important, and there will commonly be needs and claims other than those of the applicant to be considered. But it is always, I think, primarily a matter of estimating need and moral claim. Often need and moral claim will co-exist. ...

In the case of an adult son, who has received an education and is well able to earn his living, the father's moral obligation can probably in most cases be regarded as discharged, and a wise and just testator may well feel himself at liberty (to use the words of Sir John Salmond) 'to do what he likes with his own'."

1. These passages may be usefully applied to the facts in this case. Given each applicants age and circumstances, on the facts before the Court, none of the bases identified by Crawford J in O'Connor, as to justify intervention, have been established. The applicants have not demonstrated the "need" in the broad sense which is identified in the passages discussed, above. Before exercising jurisdiction under the Act, s 3, each applicant must establish an existing or reasonably foreseeable need such that the provision made for him in the will leaves him without adequate provision for his proper maintenance and support. The applicants have not discharged their respective burden of doing so.

1. The finding made above does not end the matter, because the applicants submit that there is a further basis upon which the Court should conclude that they have been left without adequate provision for their proper maintenance and support: that the testatrix's gifts to them out of her "large estate", do not provide them with a sufficient buffer against unknown future contingencies.
2. The applicants submit that the size of the gift to each of them, estimated at about $132,000, is so small that the Court should conclude that it is inadequate. In the applicants' "summary reply submissions" filed 12 March at par 6, it was submitted as follows:

"This amount would be useful in part reduction of debt for each Applicant, however debt (sic) of each would not be fully paid off and as an amount for provision for their future needs over the course of their long remaining lives and those of the dependents reliant on them, it is quite inadequate.

This amount buys approximately 1/3 of a modest house in Smithton, even less in Hobart or Launceston, for example. It would buy about two very good used cars. It is a sum which would be fairly rapidly depleted if applied to payment towards living expenses and the expenses associated with raising young dependent children to at least say 18 years of age for each child, but noting demands for support of offspring often go on for far longer than that.

It is a very small buffer against future contingencies in an expected long life to say 81 years for each Applicant being 33 and 32 years old respectively (average male life expectancy is 81.1 years in Australia: ABS for period 2021 - 2023), and the risk of adverse events / vicissitudes of life being things that may happen but are not currently known with precision, such as ill health or accident / injury of the Applicants, loss of work, loss or depletion of income however caused, a falling out with and cessation of the employment / business relationship with their father at the quarry, bad luck, divorce, and other potential multitude of adverse events causing financial strain and difficulty in life, however caused."

1. As is evident from the applicants' submissions, they acknowledge that the testatrix has in fact provided them with a legacy which may be characterised as a "buffer against future contingencies"; but one which is too small, having regard to the risks of the kind which they identify in the submission quoted, above.
2. No evidence was adduced relating to the life expectancy of either applicant. The applicants' evidence and submissions certainly adverted to their present obligations and circumstances of the kind referred to in the submission quoted above. Undoubtedly, a further amount from the estate would be very useful for the reduction of debt for each applicant, and to assist with future living, childcare or business expenses. The evidence relating to the degree of future need of each applicant did not provide detailed estimates of the reasonably anticipated future expenses involved in the future care for children and what impact that might have on the current or anticipated financial position of either applicant. However, the jurisdiction under the Act is predicated on the adequacy - not simply the utility - of the provision made under the will, having regard to all the circumstances. I have taken into account the possibilities of the kind identified as vicissitudes by the applicants in their written submissions.

"My intention of what to do with any inheritance that I received from my mother's estate is to pay off the home mortgage and then to pay off the loan on our Kobelco excavator. This would definitely make our life easier."

1. The gift to Damien would reduce the debts which he identified from $261,000 to $129,000. The gift also represents a substantial increase in his current net financial position from $588,676 to an estimated $720,676.
2. Brendan Barker stated that from whatever he receives from the estate, he would use it to pay off the loan relating to the Arthur River property so that Tahlia's grandmother's guarantee can be removed, and he would reduce his borrowings from whatever else was left.[11] To the extent that it is relevant, the testatrix could not have known of, nor reasonably foreseen, Brendan's purchase of the Arthur River property because that did not occur until after her death. In any event, the testatrix's $132,000 gift to Brendan represents a significant improvement to his net financial position of $219,005, increasing it to an estimated $351,005.
3. It is uncontroversial that, all else being equal, a large estate will more likely support a claim for provision than a small estate. In their "further addendum to summary reply submissions" filed on 14 March 2025, the applicants submit that because the estate is large, the Court should adopt a more liberal assessment of the content of the testatrix's moral obligation to them. It is important to remember that the applicants accept that each gift operates as a buffer, but they contend that it is too small "as an amount for provision for their future needs".
4. The applicants submit that if further provision was made for them, there will be no real prejudice to the beneficiary, Mr Cole, because he will still remain well provided for, given the quantum of the gifts to him under the will. I accept that submission.
5. In support of the submission that there should be further provision on the basis of a buffer for contingencies, the applicants cited Gray v Mather [2016] NSWSC 699, [90(f)] where Hallen J observed that it is useful to keep in mind the relevant consideration that an adult child's lack of reserves to meet demands, particularly of ill health, may become more likely with advancing years. As I understood the evidence of the applicants, they did not put their case on this particular basis. Even so, dealing with each of the cases which are cited as having formed the context for those observations by Hallen J, I note that MacGregor v MacGregor [2003] WASC 169 at [179]- [182] dealt with applicants who were "struggling" financially. Crossman v Riedel [2004] ACTSC 127 at [49] dealt with elderly applicants who lacked reserves to meet the demands of ill health which were becoming more likely with their advancing years (they were 70 and 73). Marks v Marks [2003] WASCA 297 at [43] involved an application by adult daughters (aged 47 and 43) who were not financially secure - the Court acknowledged that it is relevant to take into account the need for financial security and a fund to protect against the ordinary vicissitudes of life but dismissed their application. Christie v Manera [2006] WASC 287 dealt with applicants who were at or nearing retirement age and who faced financial uncertainty in retirement due to an inadequate capital base. Butcher v Craig [2009] WASC 164 dealt with an application for further provision by a 67 year old beneficiary of the will who was in modest financial circumstances and imperfect health but failed in his claim for further provision from his mother's $1.2m estate.
6. Dal Pont, in Law of Succession 3rd Ed, at 19.6, suggests that the "more liberal" approach to the assessment of the testatrix's moral obligation is engaged not only by the size of the estate but by factors which reflect, for example, the lifestyle enjoyed by an applicant due to their association with the deceased, their "station in life" and the expectations to which that has given rise, including how they might reasonably expect to live in the future. The applicants do not point to a lifestyle they enjoyed due to their association with the deceased, nor of any expectations to which that gave rise.
7. The flaw in this aspect of the applicants' case is that they have not established that they have needs which they cannot meet from their existing resources. Even if that is wrong, the applicants accept that the gifts of $132,000 go some way to meet the objectives of a "buffer against unknown future contingencies". Their complaint is that the amount of the gift is too small to meet the objectives of unknown future contingencies.
8. It is impossible to avoid a superficial comparison of the size of the testatrix's gifts to her spouse, Mr Cole, estimated at $947,000, with the estimated $132,000 value of the gifts to the applicants. The applicants' counsel observed that amounted to about 52% of the estate. However, where the testatrix has chosen to dispose of her estate according to her inclination, her very generous treatment of Mr Cole - a spouse who had no need of her bounty - must not be used to determine the provision to be made for a child whose need has not been sufficiently recognised: see Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 at 134-135. The Act does not confer jurisdiction on the Court to be exercised for the purpose of making what may appear to the Court to be a fair distribution of the testatrix's estate among her children and other members of her family: see Pontifical Society v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19. In Blore v Lang at 134-135, Fullagar and Menzies JJ observed:[12]

"The measure to be applied is not what has been given to the one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case. The purpose of the Act is to remedy, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of what may appear to the court to be a fair distribution of a deceased person's estate among the members of his family."

Evidence as to the deceased's reasons for dispositions

1. The Act, s 8A, enables the Court to have regard to the deceased person's reasons, so far as they are ascertainable, for making the dispositions made by her will, or for not making any further provision for any person, and the Court may accept such evidence for those reasons as it considers sufficient, when that evidence would otherwise be admissible in a court of law or not. The Act, s 8A, also provides that nothing in that section shall be construed as restricting the evidence that is admissible, or the matters that may be taken into account, on the hearing of an application under s 3(1).
2. Counsel for the respondent submitted that the provision made by the testatrix was based upon sound reasons, considering what she should do as a wise and just testatrix in all of the circumstances of the case. The will was executed on 23 August 2022, which pre-dates the earliest date of any of the text messages in annexure DB10 to Damien's affidavit sworn 16 February 2025. I take those exchanges into account in assessing the intention of the testator in relation to the testatrix's provision for Damien. The fact that the testatrix made equal provision for Brendan and Damien speaks for itself.
3. Counsel for the respondent put the following propositions, which are accepted:

(a) Generally, the community does not expect a parent to look after a child for the rest of the child's life: Chapman v Ingold [2015] NSWSC 1604 at [115].

(b) Mr Cole's relationship with the testatrix was a loving one, involving joint contribution to the operation of the testatrix's Airbnb business and he helped the testatrix build up her estate.

(c) The applicants' submissions suggest that the Court should take an approach equivalent to fairness, rather than what was adequate and proper provision: Steinmetz v Shannon [2019] NSWCA 114; [2019] 99 NSWLR 687 at [95] per Brereton JA. There, Brereton JA stated:

"It may readily be accepted that the legislation does not authorise a redistribution of an estate according to indeterminate and unreliable concepts such as 'fairness or equality', and that it authorises interference only to the extent of making adequate provision for proper maintenance, education and advancement in life."

(d) The facts permit the Court to conclude that the testatrix saw that each of the applicants was making his way well in the world. Further, that she had one son, Aaron, who was not doing as well as the applicants were, together with her spouse who was not anywhere near as young as the applicants.

(e) The testatrix had a duty to Mr Cole as his spouse: see Lord v Lord [2003] TASSC 99, at [9], Cox CJ referring to Golosky v Golosky [1993] NSWCA 111, page 10 at line 25.

1. As with the court's approach in Steinmetz above, the legislation recognises the testatrix's conditional freedom to leave her property by her will as she wishes. That freedom is subject to the exception that a person must fulfill their moral duty to make proper and adequate provision for those whom the community would expect such provision to be made. It is impermissible to ask why the testatrix did not make more equal provision between persons naturally. In contemplation, the focus must be on whether the testatrix failed in their moral duty to those who had claim on her bounty.
2. It is common ground that the testatrix had a moral duty to provide for the applicants, her youngest son Aaron, and also her spouse, Mr Cole, and she did so. If the basis for the determination of an application under the Act was moral duty alone, undoubtedly the outcome of this case would be different. The testatrix had the capacity to be more generous to the applicant adult sons and less generous to her spouse. However, the concept of the testatrix's moral duty must not be allowed to supplant the requirement that the applicants satisfy the Court of their relative need as discussed, above.
3. The broad statutory inquiry into what is adequate provision for proper maintenance and support is encompassing and future-focused, but the evidence of present and future need in this case does not permit the jurisdictional question to be answered in favour of the applicants. An applicant who is relatively financially secure and who has received a valuable testamentary gift faces a higher hurdle than equivalent applicants in more straitened financial circumstances.[13] A large estate is no licence to accommodate an applicant's wish. The Court must, as far as possible, give effect to the testatrix's testamentary directions. If the relevant need is not established, the Court lacks jurisdiction to make the order, no matter how large the estate.
4. The Act does not permit the Court to effect a redistribution of an estate in order to satisfy notions of familial generosity. This is the case even if an applicant has few resources and the competing claim is by a person who is relatively well off.[14] The applicants were required to establish a breach of duty or moral obligation on the part of the testatrix, which constitutes a departure from the standards which a wise and just testatrix would have applied. They must show an abuse of the freedom of testation, measured against prevailing community standards. In my view, the applicants have not discharged their onus on this regard.

1. For the foregoing reasons, on the jurisdictional question, I am not satisfied that either applicant was left without adequate provision for his proper maintenance and support. Amanda Barker, as a wise and just testatrix, was entitled to conclude that on the basis of the applicants' personal and financial circumstances and resources, and because of the legacies she provided to them under her will, their proper maintenance and support was already adequately provided for. For the Court to make further provision from the testatrix's estate on the bases submitted by the applicants would constitute an impermissible restriction on her freedom of testamentary disposition. The application in respect of each applicant is dismissed.
2. I invite the parties to discuss what order should be made providing for the costs of the application. If that question cannot be agreed, there is liberty to apply to have the question determined at short notice.

[1] Singer v Berghouse [1994] HCA 40, 181 CLR 201 at 208; White v Barron [1980] HCA 14, 144 CLR 431; Gerlach v Public Trustee unreported 153/1997 at 4.

[2] See more generally Karimalis v Kapodistrias [2022] TASSC 25 per Holt AsJ at [12].

[3] Also citing Re Allen, Allen v Manchester [1921] NZGazLawRp 155; [1922] NZLR 218 per Salmond J at p 220; Hughes v National Trustees, Executor & Agency Co of A/asia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 147-148.

[6] Par [31] of the affidavit sworn 16 Feb 2025, and par [23] of the affidavit sworn 12 June 2024.

[8] Affidavit of Bradley Cole sworn 24 July 2024, para [19].

[9] Fullagar J made these remarks "speaking generally", during the course of reasons in an application by an adult daughter. Even so, the passage has been applied often in Tasmania: see O'Connor v Tasmanian Trustees Limited [1995] TASSC 100 at [23] per Crawford J (as he then was); Morse v Morse; Morse v Morse [2003] TASSC 103; Coulston v Tasmanian Perpetual Trustees [2010] TASSC 22; Trumbull-Ward v Michell and Haley [2012] TASSC 67.

[10] Affidavit sworn 16 February 2025, par 23.

[11] Affidavit of Brendan Barker sworn 15 February 2025, par 31.

[12] Fullagar and Menzies JJ were in dissent and would have allowed the appeal but this frequently cited passage is not in conflict with the dispositive, separate reasons of each of Dixon CJ and Windeyer J.

[13] See the discussion in Dal Pont, Law of Succession 3rd Ed, 17.74-17.75.

[14] MacEwan Shaw v Shaw [2003] VSC 318; [2003] 11 VR 95, VSC 118 at 213-214.