Blair v Blair [2002] VSC 95

Supreme Court of Victoria|2002-04-04|Before: HARPER J

The plaintiff, Richard Malcolm Douglas Blair, is the second son of the testator, Douglas William Blair. Richard's elder brother, the defendant Stephen Garde Blair, is the testator's only other child. Following the testator's death at the age of 78 on 9 June 1999, his estate was valued for probate at about $774,000 net. His wife, the mother of Richard and Stephen, pre-deceased him. By his will, probate of which was granted on 4 November 1999, the plaintiff received a legacy of $150,000. The defendant was the only other beneficiary. He received the residue of his father's estate.

The first issue concerns the status of the plaintiff. He was born on 23 October 1961. He is therefore now 40 years old. The defendant, who is 44, was born on 16 December 1957. A little more than nine years earlier, the judgment of Fullagar, J in In re Sinnott[1] was delivered. In a passage which has echoed through countless judgments since, his Honour said (at 280):

"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."

The legislation then operating in Victoria was the Administration and Probate Act 1928, as amended by the Administration and Probate (Testator's Family Maintenance) Act 1937. Following that amendment, s.139 of the Principal Act provided (in effect) that if a person died leaving a will without making adequate provision for the proper maintenance and support of his or her spouse or children, the court might in its discretion order that such provision be made out of the deceased's estate. With the enactment of the Administration and Probate Act 1958, s.139 was re-enacted as s.91.

This legislation remained substantially in the same terms until 16 July 1998, 11 months before Douglas Blair died. Section 55 of the Wills Act 1997 then came into force. It replaced the former s.91 of the Administration and Probate Act 1958 with a new s.91. In doing so, it removed family membership as a necessary qualification for the remedies for which the legislation provided. An applicant now must merely show that he or she is a person for whom the deceased had responsibility - whether arising out of a family relationship or otherwise - to make provision for his or her proper maintenance and support. Of more importance for this application, s.91(4) now enumerates the matters to which the court must have regard in determining (a) whether the deceased had responsibility for the person claiming relief; (b) whether the distribution of the estate as effected by the will or by the legislation governing the distribution of an intestate's residuary estate (or both) makes adequate provision for the proper maintenance and support of the applicant; (c) the amount of provision (if any) which the court will order; and (d) any other matter related to the application.

Twelve such matters are set out. The sex of the applicant is not one of them. The last is "any other matter the court considers relevant". Depending upon the particular circumstances of the particular case, the court might put the sex of the applicant in the "any other [relevant] matter" category. Otherwise, differences in sex are henceforth, of themselves, irrelevant. In other words, the court must not, in the case of an adult son, or indeed of any male applicant, adopt an approach which - by reason only of the difference in sex - differs from that taken in the case of a female applicant whose position in every other respect is relevantly indistinguishable from that of a male. It is of course likewise true that the court must not, in the case of an adult daughter, or indeed of any female applicant, adopt an approach which - by reason only of the difference in sex - differs from that taken in the case of a male applicant whose position in every other respect is relevantly indistinguishable from that of a female. In coming to this conclusion, I respectfully acknowledge the assistance given by the judgment of McDonald J in Allan v. Allan[2].

For these reasons, it is not open to me to approach this application, as Fullagar, J would have done in 1948, by treating the plaintiff as prima facie able to maintain and support himself and by excluding him from further consideration unless he could show some special need or special claim. To this extent it may be that the recent changes in the legislation assist the plaintiff; but, as one would expect, age is a factor to which, under the new legislation, the court must have regard. At least if they are in good physical and mental health, adult applicants are necessarily in a different position from that of infants. The practical effect of any legislatively-directed shift away from In re Sinnott is therefore unlikely to be great. Other factors must also be taken into account. First among these is the statutorily-imposed pre-condition to the exercise by the court of the power, given to it by s.91(1), to order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had the relevant responsibility. Such an order must not be made unless the court is of the opinion that the distribution of the estate, whether effected by the will or the intestacy provisions of the Act, or both, does not make adequate provision for the proper maintenance and support of someone for whom the deceased had that responsibility: s.91(3).

This brings me to the second of the issues which require re-examination. It concerns the basis upon which the court exercises its jurisdiction in these cases. It is relevant here that the plaintiff does not present as one whose means of maintenance and support are obviously inadequate. Not only is he an adult, but he has a degree in veterinary science, and has made his career in that profession. He is in good health, and there is no reason to think that he will not be able to build a successful practice from that which he has recently begun in Geelong. His age is no barrier. He owes the Macquarie Bank some $368,000 (exhibit PP). He would rather he did not. He submits that he is entitled to receive from his father's estate a sum which would enable him to substantially reduce or eliminate this debt. Yet he already has the financial resources necessary to service it, albeit with funds he would prefer to spend elsewhere.

For his part, the defendant is similarly situated. He is a graduate in agricultural science, with a graduate diploma in "agribusiness and marketing". He is also a registered certified inseminator of cattle, and has completed the Melbourne College of Textiles' course in wool classing. He is the managing director of Rural and Agricultural Management Ltd., a company listed on the Australian Stock Exchange. He too is in good health. His financial position and prospects appear to be entirely sound.

Under these circumstances, a trial judge "must not underestimate the significance, both practical and symbolic, of freedom of testation": Grey v. Harrison[3] per Callaway, JA, with whom Tadgell and Charles, JJA agreed. His Honour returned to the point at 366:

"[I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s.91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent. So much may be derived from the concept of 'proper' maintenance and support but also, and more fundamentally, from those considerations."

The relief which the plaintiff seeks cannot be granted unless I am of opinion that the distribution of his father's estate as effected by his father's will does not make adequate provision for his proper maintenance and support. This essential pre-condition to the grant of relief was described by Mason, CJ and Deane and McHugh, JJ in Singer v. Berghouse[4] as "the jurisdictional question", an expression categorised by Dixon, CJ in Blore v. Lang[5] as indicating "more respect for the language of Chancery tradition than for juristic theory". Doubtless trial judges can be excused if, like Mason, CJ and Deane and McHugh, JJ they adopted the former course. This I propose to do.

It follows from the judgments of the Court of Appeal in Grey v. Harrison that I cannot be satisfied that the jurisdictional pre-condition has been made out unless I am satisfied that Douglas Blair failed, by his will, to fulfil his moral duty to his younger son. Assuming that the jurisdictional question is answered in the plaintiff's favour, the court "is [then] 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": Pontifical Society for the Propagation of the Faith v. Scales[6].

The powers and duties thus imposed upon the court are not easily discharged. As long ago as 1938, the Privy Council in Bosch v. Perpetual Trustee Co. [1938] AC 463 at 476 referred to the "great difficulty" of deciding whether orders should be made pursuant to the legislation of which Part IV of the Administration and Probate Act is an example. The problems are in part conceptual, in part in ascertaining the facts and in part in applying the relevant principles to the facts once found.

The conceptual difficulty lies in bringing the two concepts - moral duty and freedom of testation - into an appropriate relationship. Neither are absolutes. Freedom of testation, formerly unrestricted, has been limited by the legislation itself. The moral duty has, since the legislation was enacted, been enforceable in the courts only so far as it extends to the adequate provision, out of the estate of the deceased, of proper maintenance and support of a person for whom the deceased had responsibility to make provision. Depending upon the size of the estate, and upon the other factors to which s.91(4) refers, the discharge of that responsibility may not amount to enough to provide subsistence for those for whom the deceased had responsibility; or it may go well beyond subsistence to the provision of the material means for a very comfortable life. The relevant law is expounded in an often-quoted passage from the judgment of Dixon, CJ in Pontifical Society for the Propagation of the Faith v. Scales at 19_:_

"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 its 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."

But for all that, the legislation remains only concerned with the adequate provision of proper maintenance and support. The fact that adequate provision (a) may go well beyond mere subsistence and (b) sometimes involves a careful assessment of what is fair as between competing claimants, may and often does lead to the mistaken equation of (on the one hand) adequate provision for maintenance and support with (on the other) a fair general distribution of the deceased's property among persons for whom the deceased has or once had responsibility. It is therefore necessary to emphasise that the legislation is concerned with concepts of fairness in the distribution of an estate only to the extent that they bear upon the adequate provision of proper maintenance and support. This point, too, is made in the judgment of Dixon, CJ in Pontifical Society for the Propagation of the Faith v. Scales, again at 19:

"The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning ... All authorities agree that it was never meant that the court should rewrite the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being invested in the court."

The present case, I think, illustrates the point. I will therefore return to this issue later in my judgment.

The second difficulty, that of ascertaining the facts, arises because the scope of the inquiry is often very large and, as Dixon, CJ said in Pontifical Society for the Propagation of the Faith v. Scales[7]:

"... the court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator is dead and cannot tell his."

The same point was made by Lowe, J in Re Butler[8]:

"The moral claim may involve a consideration of the whole history of the child in relation to the parent, its services to the parent, its disabilities, if any, and the cause of them, the expectations which the parent fostered in the child and many other matters which will depend on the particular circumstances. It will often happen that the court can do only imperfect justice, because of its inability completely to put itself in the place of the parent."

That difficulty is often compounded by the practice of receiving the evidence in chief not orally but by affidavit.

Once the facts have been found, the relevant principles must be applied to them. The court must determine whether the applicant has been left without adequate provision for his or her proper maintenance and support. This involves the exercise of value judgments, but (strictly speaking) not the exercise of a discretion. It "is a question of objective fact to be determined by the judge at the date of hearing": Singer v. Berghouse[9]. At the same time, as Mason, Jobserved in White v. Barron[10]:

"There is an element of the artificial in saying that it is only after jurisdiction is established that the exercise of discretion begins, for the twin tasks which face the primary judge are similar."

I will return, later in this judgment, to battle with these problems. In the meantime, it is appropriate to note that judgment in Grey v. Harrison was handed down on 19 November 1996, some 20 months before the coming into operation of the provisions of the Wills Act 1997 that effected the amendments to Part IV of the Administration and Probate Act 1958. In my opinion, however, those amendments did not alter the basic structure of the legislative scheme. It remains clear "that, under these provisions, the court is required to carry out a two-stage process": Singer v. Berghouse[11]. First, the court must determine whether or not in its opinion the distribution of the estate does not make adequate provision for the proper maintenance and support of the applicant, he or she being a person for whom the deceased had responsibility to make such provision. Then, if and only if that pre-condition is satisfied, the court must determine the amount of the provision (if any) which the court should order be made. At each stage, the court must have regard to each of the 12 matters to which s.91(4) refers. They include the following, each of which is preceded by the designating letter given to it in the sub-section itself:

(e) Any family or other relationship between the deceased and the applicant, including the nature of the relationship and, where relevant, its length. (f) Any obligations or responsibilities of the deceased to the applicant, any other applicant and the beneficiaries of the estate. (g) The size and nature of the estate and any charges and liabilities to which it is subject. (h) The financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future. (i) The physical, mental or intellectual disability of any applicant or any beneficiary of the estate. (j) The age of the applicant. (k) Any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or his or her family. (l) Any benefits previously given by the deceased to any applicant or to any beneficary. (m) Whether the applicant was being maintained by the deceased before his or her death either wholly or partly and, where the court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility. (n) The liability of any other person to maintain the applicant. (o) The character and conduct of the applicant or any other person. (p) Any other matter the court considers relevant.

Save for the absence of any reference to the sex of the applicant, the 12 matters cover those which a court would in any event ordinarily have taken into consideration. To this extent, I respectfully agree with Eames, J, who in Richard v. Axa Trustee Ltd.[12] accepted, at [7], that "the overall effect of the changes in the legislation [was] to codify that which had been well established as the relevant principles ... but to expand the category of persons for whom applications for family provision might be made."

Other changes to the old testator's family maintenance provisions were effected by the Wills Act 1997. Not all are of present relevance. Some, however, should be noted here. By s.56 of the amending Act, paragraph (c) was inserted into s.94 of the principal Act. This provides that, on the hearing of an application for further provision out of the estate of the deceased, the court may accept any evidence, written or otherwise, of the reasons of the deceased for making the dispositions in his or her will, and for not making proper provision for the applicant. As Gibbs, J noted in Hughes v. National Trustees, Executors and Agency Co. of Australasia Ltd.[13], legislation of that kind had by 1979 been enacted in the United Kingdom, New Zealand, and some parts of Australia, but not in Victoria or indeed in most of the Australian States.

Another change of relevance effected by the Wills Act 1997 was the repeal of s.96(1) of the Administration and Probate Act. That sub-section empowered the court to consider, when deciding whether or not to grant an application, whether the conduct of the applicant was such as in the opinion of the court to disentitle him or her to the benefit of any provision.

It is now at least arguable that, since the repeal, the court will no longer take such conduct into account unless in the particular case it falls within s.91(4)(p). This may affect the nature of the moral duty by which a testator is bound. In this case, however, no question of disentitling conduct arises. Indeed, it is one of the features of this litigation that neither brother has done anything which a wise and just parent could properly regard as warranting a less than benevolent approach in the division of his or her property after death. Equally (save in one respect, to which I will return) neither is as against the other so especially deserving of testamentary beneficence that failure to bestow it would amount to an abuse of the testator's freedom of testation.

The family history is unremarkable. In the abbreviated account that follows, I have drawn upon the evidence of both the plaintiff and the defendant. That evidence was initially given by affidavit. Richard swore the first of these on 16 March 2000. Stephen responded on 8 May 2000. Richard then swore an answering affidavit on 6 July 2000. Each was by this means afforded an opportunity, which each took, to put his own case and respond to that of the other. By the end of this process, each had made a number of assertions which the other did not contradict. Much of what follows is based on evidence which was thus shown to be uncontroversial. I have tried, where differences arose, to indicate accordingly. Where their accounts differ, I have generally preferred that of the defendant. In both his affidavit and oral evidence, Stephen was prepared to be more even-handed than Richard, and he has a much better grasp of detail than has his brother. Although at least one portion of his affidavit material is unsatisfactory (see paragraph [56] of this judgment) there is in general no reason to question his accuracy.

Both Douglas Blair and his wife were brought up in North Eastern Victoria. Douglas came from farming stock. On 13 September 1920, when Douglas was barely a month old, his father acquired a property near Tallangatta. It was known as "Telford". There Douglas remained for the balance of his life. Meanwhile, on 22 February 1921, Benjamin Butler purchased property nearby. He was, or was to become, the grandfather of Daisy Heath Ronan. His son in law, Daisy's father, was at times a schoolteacher and at times, with his wife (who was Benjamin's daughter and Daisy's mother) the proprietor of a milk bar in Tallangatta.

Douglas Blair and Daisy Ronan, known not as Daisy but by her middle name of "Heath", were married on 26 April 1947. They at once settled on "Telford", which was then a dairy farm. It had grown from the original holding. On 25 June 1940, Douglas' mother (Julia Blair) purchased adjoining land known as "The Hill". It and the original "Telford" were thereafter worked by the family as one property. When Julia died on 26 October 1975, she left "The Hill" to Douglas' two sons in equal shares. They remain its joint proprietors; and the status of "The Hill" as part of the one enterprise also remains.

The farm expanded again with the purchase on 14 June 1955 of adjoining land to the south. It was and is called "Bullawarra". Bought by Julia Blair and her son Douglas, it and the original "Telford" passed to the latter on Julia's death in 1975. I note here, in passing, that in an affidavit sworn by him on 16 March 2000, Richard (at paragraph 7) states that "... over the years extra parcels of adjoining land were purchased by Douglas." This is not true. "Bullawarra" was the only acquisition to which Douglas made a direct financial contribution.

Meanwhile, the land purchased by Benjamin Butler in 1921, which adjoined "Bullawarra", had for many years been worked with the balance of the farm. It had acquired the name "Bens". It passed on Benjamin's death to his daughter. I have already noted that she was Heath's Blair's mother. When she died on 13 August 1982, ownership was transferred to her daughter. When, in turn, Heath Blair died on 16 October 1993, "Bens" was left to her two sons Stephen and Douglas in equal shares. They remain the owners of "Bens" as tenants in common. As with "The Hill", Bens continues to be part of the one farming enterprise. For this reason, it is convenient to call the original holding and all the subsequent accretions by the generic name "Telford".

Very few if any families entirely escape times of tension and trouble. Douglas and Heath Blair and their sons had their share. I am satisfied, however, that throughout their difficulties the family ties remained intact. The detail is now unimportant. Douglas and Stephen shared a special bond, although they argued frequently. For their part, Heath and Richard formed a particular relationship. Stephen and Richard were rivals in many things, as brothers often are. As is also the experience of many brothers, alliances in which each was involved were rare, if they occurred at all. My conclusion is that, at least as adults, their dealings with each other have been civil though differences in temperament have remained as barriers to friendship. The pity is that this litigation has put that civility to the test. It is very much to be hoped that it does not sever the relationship entirely.

Since 1980, Stephen has had interests in cattle. These he ran in conjunction with his father until his father's death. They form and have formed a significant part of Stephen's wealth. By contrast, Richard established his career without significant assistance. I will return to this issue later. In the meantime, it is apposite to note that the brothers otherwise appear to have been treated with equality by each parent during the parents' lifetimes. That at least is, I think, generally true provided that one accepts that exact equality of treatment may be difficult or even inappropriate as the needs of children change. The concept of "equality" in such contexts has a specialised meaning which absorbs notions of common sense and of swings and roundabouts.

Both sons were educated at local schools before being sent to board at Melbourne Grammar for the last two years of their secondary education. For Stephen, those years were 1974 and 1975; for Richard, 1978 and 1979. Each then pursued an undergraduate degree at the University of Melbourne: Stephen in Agricultural Science, and Richard in Veterinary Science. Stephen graduated in 1979; Richard in 1984. During his first year as an undergraduate (1976) Stephen was a resident in Trinity College. In the following year, he lived at the University field station at Mt. Derrimut. Thereafter, for the balance of his course, the academic year was spent in rented accommodation. For his part, Richard was a resident in Ormond College for three years. He then lived in the residential quarters of the School of Veterinary Science at Werribee.

In about 1973, the farm changed from the production of milk to the production of beef. Stephen maintains that it has operated as a beef producer ever since. Richard states that his father briefly resumed "some" dairy farming in the mid 1970's. This is an odd, but essentially irrelevant, difference of recollection. Save for a period between 1975 and 1977, when the beef industry was in recession, "Telford" has doubled as an Angus beef stud.

Neither of the sons returned to live on the farm after his departure for school in Melbourne, save that Stephen was in residence from the end of the 1979 academic year until about April 1980 (there is some discrepancy at this point between Stephen's affidavit of 8 May 2000 and his curriculum vitae which was tendered as exhibit X). He then commenced employment with the Commonwealth Development Bank as a trainee rural officer. Three or four years later, he joined an incorporated agricultural consultancy. This job continued between 1983 or 1984 and 1987. He then became a funds manager of the Rural Investment Trust, which operated under the umbrella of Brick Securities Ltd. When that company was taken over by National Mutual, Stephen incorporated Rural and Agricultural Management Ltd. ("RAM"), the business of which was the management of the Rural Property Trust. This arrangement ended in 1997, when the trust was incorporated as Australian Food & Fibre Ltd., and listed on the Australian Stock Exchange. Since then, Stephen has once again worked as an agricultural consultant. He has throughout been based in Melbourne, although a large amount of travel through rural areas of Australia (and especially Victoria and southern New South Wales) has been incorporated into his working life.

In 1983, Stephen purchased a house at 280 Canning Street, North Carlton. His parents assisted by lending him $5,000. The following year, he married Margaret Snell, herself a graduate in Agricultural Science. Their first child, Angus William Snell Blair, was born on 2 September 1987. In 1989, Stephen and his wife purchased their present matrimonial home at 22 Denmark Hill Road, East Hawthorn. That was the year in which, on 11 March, their second child (Virginia Margaret Blair) was born. They now have three children. Joanna Jennie Blair was born on 3 September 1992.

Richard first practised his profession in Mornington (1984-1986), Benalla (latter half of 1986) and Albury (1987-1990). On 20 February 1988 he married Lisa Bent. Her family came from Geelong, and it was to that city that the couple moved in 1990. Here, Richard (in his own words) "literally just hung out my shingle": affidavit sworn 16 March 2000, at paragraph 37. Previously he had been an employee. Now he was on his own. His wife, who is not a veterinary surgeon, assists with the administration of the practice. Their first child (Ruth Blair) was born on 23 July 1991; and their second (Ian Douglas Blair) on 20 June 1993.

Richard concedes that he borrowed $1,000 from his father and $14,000 from his father in law. Both sums have been repaid. According to Richard (affidavit sworn on 7 May 2001, paragraph 7) his father otherwise "made absolutely no contribution of any type towards me setting up my practice, or during the operation of my practice." I accept this evidence.

Certainly, more money had to come from somewhere. Richard does not say how much, if any, he contributed himself. He does say how much was borrowed from institutions: $120,000 from the LaTrobe Building Society and $50,000 from the Commonwealth Development Bank. The money from the building society was used to purchase a property at 208 High Street, Belmont. At first it was divided, with the matrimonial home occupying one half and the surgery the other. The latter was equipped by using the funds obtained from the Commonwealth Development Bank. More recently, the surgery expanded into the entirety of the building. This was made possible following the purchase of a new matrimonial home at 5 Union Street, Belmont, directly behind the High Street property.

Richard, however, now lives at neither address. In April 2001 he and his family moved to 255 Anderson's Road, Barrabool. It is a small farm: slightly less than 100 acres. It is owned by a company controlled by his wife's parents, Mr. and Mrs. Bent. In an affidavit sworn on 4 April 2001, Richard states that no rent is charged to the Blair family for their occupancy, provided he and his wife "keep it going" and meet the "overheads". The affidavit defines neither expression, although it does appear later in the document that at the time it was sworn Richard and Lisa jointly owned 14 calves and six cows. One is left, on the affidavit material, to assume that these are pastured at Barrabool; but even if they are, that throws little light on what is encompassed by Richard's use of the words "keep it going".

In evidence in chief given orally at the trial, Richard said that, an attempt to sell the Union Street property having been unsuccessful, it was now let at a rental of $165 per week, less commission.

Each son remained in close contact with his parents following his departure for boarding school. This continued until the death of Heath in 1993 and of Douglas almost six years later, and included active support on the farm. In his affidavit of 16 March 2000, Richard describes (at paragraph 23) what he contends was the beginning of his contribution:

"From the time that I graduated as a veterinarian and indeed even during the period whilst I was a veterinary student, I began assisting my father on the farm with veterinary advice and animal husbandry. In particular I assisted my father on the farm with pregnancy testing of cows, and surgery (when required), ambulatory medicine, and providing extensive advice to him as to parasite control on the farm. Whenever my father required veterinary medicines I always procured them for him at cost price."

This passage is not as tight as it should be. It is not clear whether Richard extended to his father all the assistance described from student days onwards, or whether some part came only after graduation. Stephen, in an affidavit sworn on 8 May 2000, commented on Richard's paragraph 23 in the following terms (paragraphs 88 and 89):

"I agree that while a veterinary student and after graduating, Richard provided some assistance in relation to veterinary advice on the farm. Indeed, my father and I were greatly encouraged by his renewed interest in the farm and the animals. We had hoped that he would become much more involved in the farm and that he might ultimately settle in the area and, in particular, buy into the Tallangatta veterinary practice. However, the contribution made by Richard when a veterinary student and after graduating, was not as significant as that suggested in paragraph 23 of his affidavit. So far as the parasite control program on the farm was concerned, that program was developed primarily by [my wife Margaret] and myself, who (both holding Bachelors of Agricultural Science degrees) were qualified to prepare and implement such a program. Notwithstanding that, Richard's input was greatly appreciated and it was hoped that his involvement would continue."

By contrast with the above, Richard's evidence contained little by way of concession to Stephen. For example, in paragraph 21 of his affidavit, Richard refers to "frequent arguments" between his parents. As a result of these, he says, Stephen "in particular" (that, one assumes, is intended to mean "in contrast to me") was "not able to cope with this and consequently in the years while he was still residing at the farm he lived in a room out the back of the main farm house". In paragraph 86 of his affidavit, Stephen accepts that Heath and Douglas did argue from time to time but denies that this had anything to do with the move to the "room out the back of the main farm house". This came after Stephen completed his schooling. He was then 18 years old, and no longer wished to continue the arrangement by which, until then, he shared a bedroom with Richard. He accordingly moved into what was to that point a guest room.

Richard, in his answering affidavit of 6 July 2000, does not respond to Stephen's account of the change in sleeping arrangements. That account is not only credible, but is corroborated by an affidavit sworn on 7 May 2001 by Beverley Stewart, a first cousin of Heath Blair. Like Heath, Ms. Stewart has lived in Tallangatta all her life. She and Heath were not only relatives but also very good friends. They met several times each week. Ms. Stewart, therefore, speaks with some authority. All of which makes one question Richard's motive in raising the issue in the first place.

Richard's first position as a vet, in Mornington, was geographically distant from "Telford" compared to his second and third, in Benalla and Albury. Following his arrival in Benalla, Richard "was able to visit my parents more frequently and provide regular assistance to my father on the farm": affidavit sworn 16 March 2000 at paragraph 25. Presumably, Richard means by this that he was not only able to, but did; and did so more frequently than when living in Mornington. Not surprisingly, this is what Stephen understands his brother to be saying. While agreeing (affidavit of 8 May 2000, at paragraph 85) that Richard's visits to the farm were rare when he was at Mornington "as he was always on call at the races on Saturdays", Stephen (at paragraphs 90-92) questions Richard's later contribution:

"Unfortunately, Richard's veterinary contribution on the farm was not as great as he and our father might have liked. I believe there are certain ethical difficulties with a vet who is registered outside an area, practising within the area, in routine matters. This ethical issue was further compounded by the fact that the local vet at Tallangatta in the early 1980's was Callum McLeod, a family friend. I recall that an issue arose about Richard doing veterinary work on the property, as it was in Callum McLeod's area. So far as the supply of drugs was concerned, a vet can only supply drugs if he administers them himself, or is present while they are administered. For that reason, Richard did not supply drugs to our father very often. I am only aware of three occasions on which he did so. On each of those occasions, he supplied Estrumate, a hormonal heat synchronising drug administered by me, although he may have supplied vaccines for cats and dogs on the property. He very occasionally made trips to the farm specifically to attend to a sick animal, and I am particularly grateful to him for saving one of my horses after it was bitten by a snake. Another difficulty with Richard providing veterinary services on the farm was the fact that local tests on animals are required to be conducted for sale (both interstate and overseas) and I believe that those tests are required to be carried out by a vet registered in the area. Those tests, as well as almost all pregnancy testing on the farm, were conducted by Dr. McLeod. Richard may have done some pregnancy testing, although my recollection is that it was fairly rare and usually to give him some practice. While Richard did have greater contact with our parents and did visit the farm more often than before when he moved to Benalla and subsequently to Albury, his visits to the farm were still not that frequent. When he was living in Albury, my father and I often visited Richard ... My recollection is that my father's visits to Richard on these occasions were more frequent than Richard's visits to my parents at the farm."

In his answering affidavit, Richard does not challenge any of this evidence.

Richard's move from Albury to Geelong was, as he accepts (paragraph 33 of his affidavit sworn on 16 March 2000) a disappointment to his father (as it was doubtless a source of pleasure to his parents in law). It was induced by his failure, for largely undisclosed and for present purposes irrelevant reasons, to be admitted into partnership of the Albury practice: I accept Richard's evidence, to be found in paragraph 2(xxxiii) of his affidavit of 6 July 2000, that "my reason for not continuing at the Albury veterinary practice was that I was told in clear terms that I could not obtain a partnership interest in that practice." But Geelong was not the only alternative to Albury. Another was the purchase of the practice at Tallangatta. Richard decided against this because, as he says in paragraph 34 of his affidavit, he believed that it "was very small and had very limited potential for growth." In 1990, at the time Richard moved to Geelong, it consisted of one veterinary surgeon. It "now involves five vets and three assistants": Stephen's affidavit of 8 May 2000 at paragraph 97. This evidence is not challenged by Richard. There is nevertheless no adequate basis upon which to conclude that Richard's 1990 belief about the potential of Tallangatta was not genuine. Even if it was not, the decision to set up practice in Geelong, close to his wife's family, would not of itself influence a wise and just testator to treat his son any differently. Of course, however, Richard's position as the local vet who in fact gave his father special assistance may have resulted in his father properly making special testamentary provision for him.

Geelong in 1990 suffered from the collapse of the Pyramid Building Society. It was not a good time to commence business in the city. Richard describes in the following words (paragraphs 38 and 39 of his affidavit of 16 March 2000) the effect this had on his practice:

"In the early months of my practice I would have had on average only about two consultations per day, so I offered a seven day 24 hour on call veterinary service in order to attract greater clientele. From 1993 onwards I became part of a group of veterinarians who worked in co-operation on a roster for out of hours calls. Even during this time, I was working at least five and a half days every week, and every third weekend I would be on call to work for the whole weekend. Due to the heavy commitment that I had to put in to establish my practice in Geelong, I was not able to visit Tallangatta very often to see my parents, usually only about twice [a] year. I did however maintain regular contact with Dad on the phone and would invariably speak to him about once a week. I have no doubt that my father noticed my absence from the farm in comparison to the always on hand assistance I had previously been able to provide him when I lived at Albury."

Plaintiff and defendant gave evidence in some detail about their contact with their parents in the years following their departure for school in Melbourne. The picture which emerges is one of two brothers who avoided visits home when the other was present, but who otherwise went to some lengths to keep in regular contact with their parents. I accept that Richard returned to the farm at intervals which were at least sufficiently frequent to comply with his filial obligations. Stephen was, however, the more frequent visitor. His interest in beef cattle was undoubtedly a major influence in this regard.

Stephen was 22 years old when, in 1980, he began his own career in the cattle industry. He bought 20 cows with calves. They cost him about $14,000, money that he obtained from the Commonwealth Development Bank. With his father's approbation, Stephen's herd was run at "Telford" and the stud cows among them were "integrated into the main stud herd": Stephen's affidavit of 8 May 2000, at paragraph 36. It is not clear, however, what the "main stud herd" was. According to Stephen's affidavit evidence, Douglas then owned approximately 180 head of breeding cattle, together with 100 steers and heifers: a total of about 280 head. Of these, some 120 were commercial cows, about 60 of which "were eligible to be stud cows": ibid, paragraph 35. It may be that, while not being not registered as such, they were regarded by Douglas and Stephen as stud cattle.

This uncertainty aside, I accept Stephen's evidence to the effect that his entry into beef production proved to be a tonic for his father. By 1980, Douglas was 60, "and his enthusiasm for cattle had been somewhat diminished, due to the hardship he had experienced during the beef recession": ibid, paragraph 35. Although "400 head of adult cattle could be maintained [on 'Telford'] with adequate fertiliser and given average seasons" (Stephen's affidavit of 8 May 2000, at paragraph 41) Douglas' 1980 herd was, if steers and heifers are excluded, approximately 220 short of that figure.

Following Stephen's intervention, these numbers increased; Stephen's dramatically, his father's markedly less so. Between 1980 and 1983, the former's own herd grew from 20 to approximately 50 head. Another 50, making a total of about 100, had been added by 1986. This number was doubled again (to about 200) by 1990. Nine years later, on Douglas' death, the joint herd (according to Stephen in paragraph 48 of his affidavit of 8 May 2000) boasted 1,353 head, with a further 172 calves. Of the total, 431 were included in the inventory of assets and liabilities which accompanied the application for probate of Douglas' will. This figure was reached "by approximation and counting": Stephen's affidavit of 8 May 2000, paragraph 48. The herd thus included in Douglas' estate was valued for the purpose of probate at $217,117.00. If the numbers are right, however, the balance of 1,094 head (a figure which includes the 172 calves) belonged to Stephen; and he has done well out of his alliance with his father. Indeed, the expansion of his herd is all the more remarkable because, if he is to be believed, he paid for his rights of agistment on "Telford" by giving his father approximately 10 steers and bulls per annum (worth between $400 and $1,000 per head): paragraph 37 of his affidavit of 8 May 2000. It is not clear how this was worked out. Presumably, account was taken of the fact that (a) at all material times "The Hill" and (from 1993) "Bens" were jointly owned by Richard and Stephen; and (b) Douglas used both parcels of land for pastoral and perhaps for other purposes.

Stephen explained the different rates of growth of the two herds. His was supplemented by natural growth and by the purchase by him of some 50 head between 1980 and 1999. His sales, compared with those of his father, were few. By contrast, his father bought no cattle at all over that period: see paragraph 49 of Stephen's affidavit of 8 May 2000, a paragraph not challenged by Richard in his affidavit in reply. During the same period, however, Douglas sold in the vicinity of 160-170 head per annum, as Stephen deposed in his cross-examination. I accept this evidence (at transcript 775 and 776):

"... Dad was quite happy to sell his 160-170 a year, and have a stable herd and have me build up on the external properties which is what happened ... There was no doubt that dad kept his sales levels up because he was an old man and he needed to be sure he had cash coming in, so his sales were higher than mine. I was quite happy up to 1997 not to sell a lot of cattle, I had outside income. I didn't need to sell cattle, I didn't need any more tax liability than I already had, so I was quite happy to have my numbers build up."

It is clear that what I have described as the "alliance" between Douglas and Stephen was profitable for them both - and not just financially. They never became business partners, but there was a marked degree of integration of the management of their herds. This continued from 1980 until Douglas' death some 19 years later. It could not have endured so long unless the personal relationship was fundamentally sound; and the things the two did together are, I think, further proof of that. Each was a member of the Victorian State Committee of the Angus Society of Australia. According to Stephen (affidavit of 8 May 2000, at paragraph 50) "[t]his required regular attendance at meetings in Melbourne which we both enjoyed very much." Together, they exhibited cattle in the Tallangatta and Royal Melbourne Shows. They jointly agisted their herds (on land the agistment fees for which were largely if not wholly paid by Stephen). A proportion of their cattle were sold under their joint names and, irrespective of ownership, were known as "Telford Angus". They entered "significant numbers of commercial cattle in the annual Albury/Wodonga Breeders' Sale": Stephen's affidavit of 8 May 2000 at paragraph 44. In 1990, they joined in holding a sale of bulls. Their breeding programs were in part designed to complement those of each other. As Stephen said in his affidavit of 8 May 2000 at paragraph 45:

"For example, my father might have had a top cow. I would pay for artificial insemination of the cow, and we would both use the resulting bull to cover our respective commercial and stud herds."

That paragraph (paragraph 45 of Stephen's affidavit) also contains the assertions that:

"By 1990 the number of cattle owned by my father had increased from that held by him in 1980. However, more importantly, the quality of cattle held improved substantially. This was achieved by selective bull purchases and artificial insemination."

The necessary conclusion from this is that the "selective bull purchases" were made by Douglas for his herd. But paragraph 49 of the affidavit, to which I have already referred, makes it clear that this is not so. In these circumstances, paragraph 45 should not have been drawn as it was.

It remains true that, while retaining the individual right of each to his own herd, father and son operated on the swings and roundabouts principle, with no attempt at fine distinctions or exact accounting. This suited them both; I have already noted that each enjoyed benefits from the alliance. This fact is especially important in this case. The relationship between Stephen and his father is relevant not because it demonstrates that at the time of his death Douglas continued to have a responsibility to provide for Stephen's maintenance and support. He did not. Stephen was by then well able to maintain and support himself and his family. Rather, it is important to describe the relationship because only then can one appreciate the extent to which it gave Stephen a start in the cattle industry; a start which otherwise he would not have enjoyed.

I have already described how Stephen paid his father agistment fees in kind, and without regard to strict financial criteria. On the other hand, I am satisfied that the number of Stephen's visits to "Telford" was increased because his cattle were there and because accommodation for himself and his family was available. This suited both Stephen and his parents. So did the other arrangements which were mutually worked out between them. Douglas paid for tractor fuel, while Stephen paid for all semen, whether for use on his or his father's cattle. Stephen also paid for feed and fertiliser, and all external agistment fees and rental. Douglas assisted Stephen in his choice of cattle to purchase. A company, the Bullioh Pastoral Company Pty. Ltd., was formed with Douglas and Stephen as its two directors. In 1986 or thereabouts it took out a lease of about 600 acres at Ettamogah on which they ran their cattle and Margaret ran sheep. Some three years before, Stephen leased approximately 250 acres on the Murray. Known as "Bells", up to 150 head of commercial cows, most of which belonged to Douglas, were pastured on it. In managing these cows, Douglas and Stephen were assisted by Richard, who in his own words (paragraph 2(xi) of his affidavit of 6 July 2000) said:

"I myself spent many hours working on the leased property known as 'Bells'. However unlike my brother Stephen I had no financial interest in any livestock on that property or on my father's property and the work and assistance that I provided to both my father and Stephen gave me no financial benefit whatsoever and was done merely as part of my filial obligations."

Every word of this may be true. I accept that it is. Even so, it does nothing to advance Richard's moral claim over that of Stephen. While the one may have been financially disinterested and the other the opposite, Stephen's interest promoted and enhanced the like interest of his father; and gave his father much pleasure and satisfaction besides. On the other hand, it is another instance of Stephen receiving assistance from Richard (I have already quoted - at [45] above - from Stephen's affidavit in which he expresses his gratitude for the fact that Richard once saved one of Stephen's horses). More importantly, it forms part of the general assistance which Stephen received from his family while establishing himself in the cattle industry. Richard was not similarly favoured.

"Bells" and "Ettamogah" were not the only properties on which Douglas and Stephen agisted cattle. From time to time, as drought or other occasion dictated, they acquired rights of agistment in the Yarra Valley (at a property called "Yarraloch"), Narbethong, Yea and Wagga Wagga. Stephen asserts (paragraph 57 of his affidavit of 8 May 2000) that "[s]ince 1983, when my father and I started agisting cattle and leasing other properties, I have paid all agistment fees and rental." Richard, in reply, does not deny this, but (paragraph 2(xx) of his affidavit of 6 July 2000) attests to his belief "that my father would have made payments associated with agisted cattle such as rates, fertiliser and weed control as my father often spoke about such matters with me."

As expressed in the affidavit material, the position of neither son is wholly convincing. According to Stephen (paragraph 42 of his affidavit of 8 May 2000) "Ettamogah" was leased through the Bullioh Pastoral Company:

"... of which my father and I were the two directors ... the Bullioh Pastoral Company agisted the land to my father and [me], who ran cows on it ... While we paid the Bullioh Pastoral Company an agistment fee, it did not make a profit, as the agistment fee simply paid the leasing costs."

The leasing and agistment arrangements concerning "Ettamogah" seem on this account overly complicated if, in the end, Stephen simply paid all the costs involved. On the other hand, the notion that Douglas paid the costs of fertiliser sits uneasily with Richard's statement, to be found at paragraph 2(xviv) of his affidavit of 6 July 2000, that his father "would often be quite upset to the extent of being close to tears about the size of the fertiliser bills that Stephen had run up." Why would Douglas be paying for fertiliser if he were of the view that Stephen spent too much on it? Perhaps Richard contends that Stephen was spending Douglas' money. If so, that is not how paragraph 2(xx) of Richard's affidavit of 6 July 2000 reads. Indeed, there is no suggestion anywhere that Stephen had access to Douglas' funds.

Initially, the two herds were distinguished by different ear tags (for the stud cattle) and ear marks (for the others): the left ear for Douglas' cattle, the right for Stephen's. This was abandoned several years before Douglas' death. As Douglas explained to Ricky Wood, a farm hand employed on "Telford" "there was no need to worry about it anymore": affidavit of Ricky Dean Wood sworn 7 May 2001, paragraph 6. The herds were too large and scattered over too many properties to make the distinguishing marks worthwhile.

I accept this evidence. It is corroborated by other affidavit material. Edward McEvoy, a livestock agent and auctioneer based in the Wodonga district, has been involved with the Blair cattle for the last 30 years or so. He remembers the distinguishing marks; but in an affidavit sworn on 9 May 2001 he states (at paragraph 6):

"... by the mid 1990's the cattle were run together as one herd, and there was no distinguishable difference between them. When cattle were sold I would normally receive instructions from Doug (and occasionally Stephen) in relation to how the proceeds should be split. Doug would just nominate how many cattle were his and how many cattle were Stephen's."

Evidence to the same effect was given in an affidavit sworn on 8 May 2001 by Alister John Moyle, a farmer and livestock carrier whose father and Douglas Blair were first cousins and close friends. Father and son "carted stock from 'Telford' to market from the 1970's on": affidavit of Alister Moyle, at paragraph 2. Mr. Moyle continues (at paragraph 3):

"In the early years the stock owned by Doug and Stephen were individually marked. However, during the 1990's there were no distinguishing marks between the two ownerships ... When the cattle were yarded they were arbitrarily split, it being Doug who would normally give instructions, saying things like 'five for me and four for Stephen' and so on. Cartage might also be split up like this ... Notwithstanding this, I have no doubt that Doug was well in control of his finances at all times."

I accept this evidence. It is, I think, significant in its confirmation of the close co-operation between Stephen and his father in the management of their cattle.

This is not to say that they did not have their differences of opinion. As Stephen admits, the relationship between himself and his father was one punctuated by arguments ("my father and I argued a great deal": affidavit of 8 May 2000 at paragraph 62); but as he also says - and I accept - these were seen by both as an inevitable part of their working together, especially when under the stress imposed by obdurate cattle. They had no permanently deleterious effect on what was a fundamentally sound friendship. I am therefore satisfied that, despite their arguments, the two remained close.

I am also satisfied that Stephen made a significant financial contribution to their joint commercial endeavours. I quote from paragraphs 53-56 of his affidavit of 8 May 2000:

"53. From 1980, with the exception of a hay mower and hay roll lifter, every piece of major equipment purchased for the property was bought by me. Every new fence was erected by me and/or my father with posts and wires purchased by me. Richard had a minor involvement in one of the boundary fences. 54. From 1980 to the present, I have undertaken a substantial pasture improvement program at the property, resowing almost all pastures at 'Telford' and the adjoining properties of 'Bullawarra', 'Bens' and 'The Hill'. Carrying capacity and quality (weight gain) have been considerably enhanced, despite droughts. On each occasion, I predominantly drove the tractor and paid for seed and fertiliser. My father paid for the diesel for the tractor. From 1980 onwards, I paid for all semen and bulls used by my father. 55. Since 1980, I have spent at least $1,000 - $1,500 per annum for seed and fertiliser and between $2,000 - $4,000 per annum on cattle purchases. The costs in relation to the farm and cattle generally were much more than this. 56 The main items of plant and equipment purchased by me for the farm, which are still there, include the following: * a Mitsubishi 4-wheel drive purchased in 1989; * a new Mitsubishi 4-wheel drive purchased in November 1998 for my father to drive ...; * a new Commodore Berlina (with all optional extras) was purchased for my father's personal use in December 1996, in the name of Bullioh Pastoral Company; * in 1990 I purchased a new 80 horse power 4-wheel drive Ford tractor with front end loader and fully air conditioned cabin for all harvesting, cultivation and major jobs; * a new hay mower; * all horses and saddlery located at the property, which are used for work with the cattle, are owned by me; * since 1980, there have been up to five motor bikes located at the property, all of which were purchased by me; * a second hand feed roller mill; * a new hay shed purchased and built on 'Bullawarra'."

Although Richard, in his affidavit in reply, queries some of this evidence and seeks to put a different gloss on other parts of it, I accept Stephen's evidence on these points.

Margaret Blair was herself a significant figure in the relationship between Stephen and his parents. From 1980 or thereabouts, she had an intimate involvement in the affairs of the farm. She was the record keeper for the stud cattle, and ensured that the necessary stud fees were paid. An attempt was made to throw doubt upon the accuracy, and even perhaps on the honesty, of her book work. In my opinion, Mrs. Blair fulfilled her tasks in this regard to the best of her ability under difficult circumstances. I have no reason to think that in so doing she was otherwise than scrupulously fair. I also find that, by the time of her marriage, she had formed a close friendship with her parents in law. This continued until the death of Douglas.

It is in these circumstances not surprising that the effect of Douglas' will is to leave the farm to Stephen. In my opinion, this reflected his testamentary wishes. That being so, I have no jurisdiction to interfere with them unless I am satisfied on the balance of probabilities that their fulfilment would amount to an abuse of Douglas' freedom of testamentary disposition. Such an abuse will arise if by leaving the farm to Stephen, Douglas was in breach of his moral duty to Richard. Once such a breach is established, however, Richard is entitled to such amount as is adequate to provide for his proper maintenance and support. If that amount cannot be provided without selling the whole or part of Douglas' interest in "Telford", then so much must be sold as is required to remedy the breach. Douglas' wish that Stephen have the farm as the third generation of the family to run "Telford" must in those circumstances yield to Richard's entitlement.

In saying this, I have not forgotten that "The Hill" and "Bens" belong to Stephen and Richard anyway. Neither has received agistment fees since each acquired his present beneficial interest on 26 October 1975 ("The Hill") and 16 October 1993 ("Bens") although, throughout that period, Douglas used the land as required for the commercial enterprise carried on at "Telford". Stephen, too, has pastured cattle there. Richard has not, and has received nothing in return. Doubtless allowances will have to be made accordingly. But that is not my present concern. For present purposes, it is sufficient to note that during his lifetime Douglas paid no agistment fees to Richard (or, for that matter, to Stephen). This is a fact which a wise and just testator would bear in mind when considering the provisions of his or her will.

I do not see any necessary conflict between the position I have outlined in paragraph [71] above and that taken by Pidgeon, J in Roberts v. Roberts[14]. His Honour there quoted from a judgment of his own when sitting as a member of the Full Court of the Supreme Court of Western Australia in Young v. Young[15]. The quotation is set out below:

"In my view a wise and just testator, who has as one of his assets a farm on which he has resided or occupied for the greater part of his life and personally conducted and which is subsequently being conducted by one of his children, would wish to make provision to preserve that farm even if it gives a greater benefit to the beneficiary conducting the farm. This would, a fortiori, be the position if the farm has been in the family for a number of generations. It would still be necessary to make proper provision for other members of the family."

It is a very human thing to derive pride from the fact that for generations the same property has remained within the same family. It is likewise a natural human desire to pass that property from one generation to the next. In ascertaining his or her moral duty, a testator might properly take such considerations into account. But only to a point. The duty towards a number of possible beneficiaries might be ascertained, and the boundaries of the duty as between each possible beneficiary might be set, after those considerations among many others have been placed in the scales. Having weighed them all, it may nevertheless be that the duty can only be discharged if the property is sold. If the deceased had responsibility to make adequate provision for a person's proper maintenance and support, then that duty must be fulfilled. It is no excuse that the duty was incompatible with the preservation of the family farm.

In Roberts' case, it was submitted that the claims for maintenance made by deserving daughters should be devalued in favour of the claims of two sons to inherit the family farms. The argument was outlined, and then rejected, by Murray, J at 564, in a passage with which I respectfully agree:

"As the argument was developed it became clear that the contention was that in all the circumstances ... those claims [of the sons] were to be satisfied in priority to any other competing claims. To that extent it would be found necessary to substantially devalue the claims of the daughters, but that result merely reflected in the circumstances of the case, a proper exercise of the discretion conferred on the court by the law. In other words, the nature of the [sons'] claim was said to give rise to a need to satisfy them in priority to, and at the expense of, the ... claims of their sisters. I join with Pidgeon, J in the rejection of that argument."

Very often, a claim to inherit a farm will be founded on an assertion that the claimant made a contribution to it over and above that of other possible beneficiaries. Such is Stephen's case. It would have force if Stephen was a person for whom Douglas had responsibility to make provision for his maintenance and support. I find that Stephen's contribution was quantitatively and qualitatively markedly greater than that of Richard. I come to that conclusion accepting Richard's point that what Richard did was not for material reward. But, given that Stephen is well able to support himself and his family, none of this is relevant.

What is important is to note that Stephen obtained financial benefit from pasturing his cattle on the original "Telford", on "Bullawarra" and (relevantly) before October 1993 on "Bens" - which, however, then belonged to his mother. It is true that he gained no benefit from his father in relation to the other parcels of land over which, from time to time, he acquired rights. And it is also true that he paid for the "Telford" and "Bullawarra" benefit by giving his father cattle in lieu of agistment fees. At the same time, it must be acknowledged that (even though he had from the outset rights over "The Hill") his start in the cattle industry could not but have been greatly assisted by the fact that at "Telford" his parents had land and accommodation which they made available to him. In the absence of these facilities, and without the comfortable certainty that they would continue while one or other of his parents was alive, Stephen might not have become a producer of beef.

It is now appropriate, I think, to look in the light of the evidence at some of the matters to which, by s.91(4) of the Administration and Probate Act 1958, I must have regard. As sons of the deceased, both Stephen and Richard are clearly persons to whom - at least during infancy - Douglas had responsibility to make adequate provision for their proper maintenance and support. But by the time of their father's death each had already received, from Douglas as from Heath, a good education and, so far as the family finances would allow, a good start in life. Stephen had benefited, while Richard had not, from being allowed to run his cattle on "Telford", on "Bullawarra" and - before October 1993 - on "Bens". Save for a loan of $1,000, since repaid, Richard during his father's lifetime received no assistance in establishing the veterinary practice. Nevertheless, by mid 1999 Richard had established that practice. While it was not then returning him and his wife much more than a subsistence income, his father could reasonably assume that Richard's future was secure, especially if left by Douglas' will a benefit which would be roughly equivalent to that received by Stephen as a consequence of the latter's use of his parents' land.

When Douglas died, both Richard and Stephen were adults. Neither suffered from any physical, mental or intellectual disability. Each had been a dutiful son. To a significantly greater extent than Richard, however, Stephen had made a positive difference to his father's quality of life in the 19 years between 1980 and Douglas' death in June 1999. Stephen had also significantly assisted in safeguarding Douglas' material wealth. Richard had not. He had, however, rendered some veterinary assistance and other help on the farm. Neither Richard nor Stephen were being maintained by Douglas before Douglas' death, and nobody else was under any liability to maintain either of them.

All this indicates to me that, at the moment of his death, Douglas had largely expiated his moral duty to provide Richard with maintenance and support. Such duty as remained was in my opinion restricted to assisting Richard with the provision of seed capital for his practice. Douglas had already - in effect, though not by direct monetary means - eased Stephen's entry into the cattle industry. In my opinion, adequate provision for Richard's maintenance and support could not be made unless the father provided like assistance to his second son.

Equality of treatment is of course not a necessary element of a testator's testamentary duty. Nor is such equality the appropriate outcome here. As Fullagar and Menzies, JJ said in Blore v. Lang at 135 in a judgment which, although dissenting as to the result, has been accepted as an accurate exposition of the law:

"The Testator's Family Maintenance Act is legislation for remedying, 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. As has been said in another context, the Act is to provide maintenance, not legacies. Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instance, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same."

It does seem to me, however, that Douglas' moral duty to Richard included an obligation to give him comparable assistance in the commencement of his career to that accorded to his brother. Once that assistance has been given, Douglas' moral duty will, in my opinion, have been discharged; and beyond that point his freedom of testamentary disposition must therefore prevail. Any other result would be incompatible with the proposition, to which I have already referred as being put by Callaway, JA in Grey's case at 366, that "[a] breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."

It is at this point that Richard's case takes a commonly adopted but erroneous position. It pays superficial obeisance to the undoubted truth that the jurisdiction cannot be invoked unless Douglas has failed to make adequate provision for Richard's proper maintenance and support. It then slides into the mistake of equating whatever might be thought of as fair, or wise, or just, in the totality of the division of the estate as between Stephen and Richard, with what should properly be awarded to Richard pursuant to Part IV of the Act.

Richard's case was that a wise and just testator would have brought about an equal division of Douglas' estate. Perhaps so. But, as the passage quoted above from the joint judgment of Fullagar and Menzies, JJ in Blore v. Lang demonstrates, I have no general jurisdiction to rewrite Douglas' will in accordance with that which seems to me to be justice and wisdom. It is only to the extent that Douglas failed in his duty adequately to provide Richard with proper maintenance and support that I have power to intervene. It is only then that the judge can assume the mantle of the wise and just testator and, bearing in mind the matters to which s.91(4) of the Act refers, determine what wisdom and justice would decree was an outcome consistent with the discharge of that duty. Otherwise, freedom of testation prevails to confer upon testators the right to do what they like with their own, unjust or unwise as that may be.

Consistently with the above, I must now determine what sum would serve to put Richard on terms of equality with Stephen in the assistance received from Douglas towards the launch of their careers. Comparisons are, however, difficult because the assistance received by Stephen cannot be quantified in monetary terms.

I have already noted (see paragraph [22] above) that the Court may accept any evidence, written or otherwise, of the reasons of the deceased for making the dispositions in his or her will, and for not making proper provision for the applicant. The evidence of Douglas' solicitor, Mr. Brendan John Reidy, is perhaps admissible under this provision. In any event, it was tendered by consent.

Mr. Reidy was not called. He did, however, swear an affidavit to which he exhibited a statement made by him "in relation to the making of" Douglas' last will: affidavit of Brendan John Reidy sworn 11 May 2001 at paragraph 2. The relevant portions of that statement are as follows:

"I spoke to the deceased [Douglas William Blair] by telephone on 30 March 1998 ... My recollection is that the deceased wished to make a new will in view of the events which had occurred subsequent to the death of his wife. He stated that he had heard little from his son Richard and that Richard had not visited him at 'Telford' for a number of months. He said that Stephen regularly came to 'Telford' and worked on the property. Whilst away from the property Stephen involved himself in the farm business. The deceased wished to recognise that contribution from Stephen and no longer believed that the equal division of his estate between his two sons was fair. He estimated his net estate at approximately $500,000. He nominated an amount of $150,000 be bequeathed to Richard and the balance of the estate was to pass to Stephen ... On 15 April 1998 I again spoke to the deceased by telephone ... He informed me that he had considered the matter. He confirmed his instructions concerning a bequest of $150,000 to Richard and the balance of his estate to Stephen. He believed on an estimate of his then financial position that this represented approximately a 30 percent/70 percent division of his estate between Richard and Stephen. He wished that division to recognise the work and improvements to 'Telford' carried out by Stephen. The will was forwarded to the deceased under cover of a letter dated 28 May 1998 confirming that the effect of the will was that ... $150,000 [would] ... go to Richard and the balance of the estate [would] ... pass to Stephen. On 4 August, I spoke by telephone to the deceased ... He again reiterated his wish to recognise what he saw as a greater contribution to 'Telford' by Stephen. He used the term 'Stephen has sunk more into it than Richard'. He ... estimated his debts at $120,000. He estimated the value of livestock at $70,000 and the value of the balance of his estate at $500,000. On such a division a provision of $150,000 to Richard would provide a residue of $300,000 to Stephen which he acknowledged would vary dependent upon the actual value of his assets and the amount of his liabilities at the time of his death. Having had the discussion, the deceased confirmed his instructions. He indicated that he would sign the will as drawn and return it to our office for safekeeping. The original will was returned to our office at a date I can no longer recall."

Helpful though this may be in assessing why Douglas thought it appropriate to leave more to Stephen than to Richard, it does not address the issue of central concern to me. The statement says nothing about the adequacy of any provision made for Richard's maintenance and support. Indeed, it is clear that Douglas did not, when speaking to Mr. Reidy during the conversations recorded above, turn his mind to the subject. It may well be that Douglas no longer saw himself as having any responsibility to provide Richard with assistance of that kind. In any event, the statement is evidence of a quite different matter: why, regardless of need, Stephen deserves 70% of the estate to Richard's 30%. Since my inquiry is no more and no less than an inquiry into whether Richard was left without adequate provision for his proper maintenance and support, Mr. Reidy's evidence is therefore necessarily irrelevant. Although it was heavily relied upon by the plaintiff, in my opinion that reliance was unhelpful. My assessment of that which is necessary adequately to provide for Richard's proper maintenance and support must proceed independently of it.

If, at the moment of his death, Douglas did think that he had discharged his duty to provide for Richard's maintenance and support, then in my opinion he was wrong. He had given Stephen much assistance, albeit not generally of a directly monetary kind, in beginning an aspect of Stephen's career from which his elder son clearly derives much enjoyment and as a partial result of which Stephen has acquired a herd of cattle of considerable value: $450,000 on Stephen's estimate in September 2001. (Richard would add a further $50,000 to that making a total value placed by him on his brother's herd of $500,000). In short, Stephen received the benefit of 19 years during which he was able from time to time to pasture his cattle on his father's land, was offered accommodation in his father's home more or less whenever he wished to avail himself of it, and was the beneficiary of his father's assistance in their joint and singular endeavours and of Douglas' experience and advice. As the evidence discloses, Stephen gave much in return. It remains true that his career received a boost from these arrangements which Richard's did not.

By contrast, indeed, Richard's career was assisted only by a loan of $1,000. At the same time, the plaintiff was repaying a debt of nearly $370,000 to the Macquarie Bank, while he and his wife worked hard to establish, from nothing, a viable veterinary practice in Geelong. He could, of course, like Stephen, take advantage of his parents' hospitality; but not so as to gain an advantage from it in pursuit of his career.

The assessment of the amount necessary adequately to provide for Richard's proper maintenance and support requires more than merely plucking out of the air some proportion of his father's property. While wise and just testators contemplating the division of their property between fully self-supporting adult children may well look first to the proportions which should go to each, my inquiry must be different. I have to determine the amount which, as nearly as these things can be calculated, will allow Richard an equal start in life to that enjoyed by his brother. Given the factual matrix as I have explained it above, a division of the estate by reference to proportions is in my view inappropriate.

In my opinion, an amount of $200,000 would put Richard on terms of rough equality with Stephen in the amount of the provision each received from his parents for his maintenance and support. Exactness in the calculation of this sum is impossible; but in these things, perfect equality is likewise impossible, and for that reason the attempt to maintain it might even be unwise. I have already noted that equality of treatment by parents of their children will be best promoted by the application of common sense and a weather eye on the swings and roundabouts. Strict logic here plays a minor role.

I am of course required by s.91(4) of the Act to have regard to the size and nature of Douglas' estate and any charges and liabilities to which it is subject. This I have done. It is not in dispute that the amount which, in my opinion, Richard should receive is within the estate's financial capacity. Since no other persons have been left by Douglas without adequate provision for their proper maintenance and support, there is no need for me to ask whether the provision to be made for Richard would deplete that of another claimant.

For these reasons, I will make orders having the effect that the plaintiff receive a legacy of $200,000 from his father's estate.

[6] [1962] HCA 19; (1962) 107 CLR 9 at 19 per Dixon, CJ

[15] (unreported, Library No. 8175, 3 April 1990)

Administration and Probate (Testator's Family Maintenance) Act 1937

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