JOHN WESLEY BUTLER AS EXECUTOR OF THE WILL OF GORDON HENRY CAINE

Succession - Inheritance (Family and Dependants Provision) Act 1972 - Application under s 6 for adequate provision for proper maintenance, support and advancement in life - Whether applicant had moral claim arising from injury received whilst working for testator - relevance of evidence of relationship between applicant and deceased

Inheritance (Family and Dependants Provision) Act 1972

1 TEMPLEMAN J: This is an application under the Inheritance (Family and Dependants Provision) Act 1972 in which the plaintiff, Mr Albert Martin Caine, claims an order under s 6 of the Act on the basis that adequate provision has not been made for his proper maintenance support and advancement in life under the will of his late father Gordon Henry Caine, to whom I shall refer as the testator.

2 The application gives rise to two questions: first, it is necessary for the Court to determine whether Mr Caine, who I will call Albert, has a moral claim to a provision out of the testator's estate and if so whether he has been left without adequate provision. Secondly, if I find that he has a moral claim and has not been adequately provided for, there is then the question of what, if any, further provision should be made. That is a question which involves the exercise of a discretion.

3 The testator was born on 30 April 1914 and died on 29 August 1997. His estate now available for distribution is relatively small, not taking account of some legal fees which I understand have been charged to it, it amounts to some $325,000 approximately.

4 The story starts in 1944 when the testator, having returned from overseas war service, married his wife Janet Mary Caine, as she then became, and bought 646 acres of virgin bush in Gidgegannup where he built a simple basic house.

5 Albert was the testator's first child. He was born on 5 September 1946. Between 1948 and 1961 a further seven children were born to the testator and his wife. Those children are the second to the eighth defendants. The first defendant is the executor named in the will, Mr John Wesley Butler, who is a solicitor. I shall refer to the will later in these reasons.

6 Family life for the testator, his wife and children was very basic and primitive. The house was very small. The accommodation was cramped. There were very few home comforts and all the children were expected to work hard. Again, I shall refer to that in more detail.

7 On 18 June 1966 when Albert was 19 years old his left thumb was severed in an accident on the Gidgegannup property. It was, I find, cut off and later stitched back on but not entirely successfully. It is clear from the observation I made when Albert gave evidence that he has really only a stump of a thumb and not a functional digit.

8 When the accident happened Albert was working for the testator cutting firewood using a motorised saw made from an old car engine and transmission. It was obviously a very unsafe system of work. Wood jammed in the saw and Albert tried to free it. In so doing his thumb was caught and severed in the way that I have described.

9 After the accident Albert had a series of operations but he has been left with a permanent disability, which has been exacerbated by arthritis as a result of a build up of calcium in that region of his hand.

10 In about 1967 when Albert was 21 he married and moved away from the family property. He says that at about that time the testator made him a promise. In his affidavit Albert said this:

"My father told me in 1967 that, in compensation for my injury, he would give me 20 acres of land from the property. He added that this was to constitute my 21st birthday present and my Wedding present as well. He added that I would have to get the 20 acres subdivided at my expense."

11 In 1971 or thereabouts the testator subdivided the property. He excised a 40-acre block around the house; and two 10-acre blocks. One of the 10-acre blocks was bought for the sum of $1000 by Gordon Jeffrey Caine, who is known commonly as Jeffrey, the testator's second son.

12 According to Albert, the other block was intended for Milton Clive Caine, who is the testator's third son. Milton's evidence, which I accept, confirms that that was the intention. I find that Milton told the testator that he did not want to live on the land. The testator then offered the 10 acres to Albert for $2500. Albert says, and I accept, that that was then about the going rate for a 10-acre block in that area.

13 It is Albert's evidence that he paid $1000 down but he was slow in paying the balance of the $1500. The testator became concerned about that and so Albert borrowed $1500 from his mother. I accept that that is the way in which the block was paid for.

14 Albert then says that at some later time, and it is not entirely clear when, the testator told him to do something about getting his 20 acres subdivided off. Albert says that he went to the Swan Shire and was told that that could not be done because the minimum block size was 50 acres. I accept that evidence.

15 Various witnesses have given evidence in support of Albert's claim saying, in substance, that the testator told them of his intention to give Albert 20 acres of land.

16 Those witnesses include Ms Alverna Freind, who was a friend of the testator for many years. She said that the testator told her that Albert was to be given the land because of the work he had done on the property, and in compensation for the loss of his thumb.

17 Mr Barry Michalczyk, who was a friend of Albert and his parents, gave evidence that he had been told by the testator that Albert was to have an extra 10 acres for the work that he had carried out, for the loss of his thumb and for the loss of wages.

18 Mr Kingsley Todd, an old friend of Albert's since teenage years, said that the testator told him that he was giving Albert 20 acres. All those witnesses were cross-examined on their evidence and maintained that what they had said happened and was true.

19 Evidence was also given on affidavit by Mrs Janet Caine, the testator's wife and the parties' mother. She said that the land was to be given to Albert as compensation for the work done on the property and for the loss of his thumb. Mrs Caine was not cross-examined because she was too ill to attend the court.

20 I believe Albert. I accept his evidence and the evidence of the other witnesses to this extent: I find, as a fact, that in about 1967 the testator did say to Albert that it was his intention then to give him 20 acres of land as compensation for his injury and as a 21st birthday present and as a wedding present. I therefore accept the evidence of the other witnesses to the extent that I believe them when they say that they were told by the testator that he intended to give 20 acres of land to Albert.

21 I find further that that statement made by the testator was not legally binding and was not regarded by Albert as legally binding. Had it been legally binding, Albert would have been obliged to disclose the promise to his trustee in bankruptcy in 1973 when he was declared bankrupt following the failure of a hairdressing business, in which he and his wife were engaged.

22 The papers relating to that bankruptcy were tendered in evidence and they include the transcript of a public examination of Albert by a Registrar on 17 October 1973. The Registrar asked Albert expressly:

"Do you know of anyone holding property or goods belonging to you in trust for you?---No.

Are you likely to be a beneficiary in a will?---Well, I don't know. I have five sisters and three brothers and my mother and father. If they kick the bucket at any time, I don't know if."

"Well, you understand that if you do become a beneficiary in a will during the currency of your bankruptcy, that benefit will vest in the trustee. You are aware of that, aren't you?---Yes.

And it's your duty to advise the trustee if you do become a beneficiary?---Mm."

23 So there was a situation in which Albert had the clearest opportunity to make disclosure of any legally binding arrangement or agreement relating to the land and he did not do so. That is why I conclude that the statement made by the testator was not in any way legally binding or intended to be so.

24 The fact that the testator made a promise to Albert in 1967 is by no means the end of the matter. The question remains, whether adequate provision was made for Albert under the will. In answering that question I have to have regard to all the circumstances. That not only includes Albert's moral claim but the moral claims of his brothers and sisters. They also have moral claims, not only because they are all the testator's children but arising from various aspects of their life in relation to the testator.

25 As I have said, all the children undoubtedly led a very hard life. They lived in primitive conditions. The house was small. It had a kitchen and two bedrooms, but no living room. A bathroom was added later and a shed was built for the boys to live in at some later stage. The house was probably insanitary and there was no running water.

26 The testator supported the family largely by cutting and selling firewood and by selling fruit and vegetables as well as some paid employment as a shift-worker, although that appears not to have been of any great consequence.

27 There were endless jobs to do around the house and those involved very heavy work, for the girls as well as for the boys. All the defendants gave evidence about this. I refer to Dianne's affidavit - Dianne Lee McCracken, who is the sixth defendant. She gave a list of chores which the children were required to undertake. These included feeding the sheep and the chooks, collecting eggs for sale, carrying water from a well uphill on a track some three or four hundred metres away from the house in two gallon buckets, scrubbing the wooden floor in the kitchen of the house, bringing wood to the house in a steel wheelbarrow for the wood stove, emptying human waste from the toilet out back into a hole in the ground; on weekends in particular, picking rocks off the ground and putting them in larger piles, picking up roots and tree branches and placing on stumps for burning, picking and preserving fruits such as figs, quinces, oranges and apples, washing of dishes, bringing in clothing from the lines, etcetera.

28 She does not mention cooking or washing but it seems that is because those sort of jobs were done to a large extent by Monica Rose Black, who was the second child, the eldest daughter, who said in her affidavit that she also did a large number of chores, including carrying the water buckets up the hill, helping to prepare breakfast for the family and doing the dishes.

29 She said, "I learned to cook at an early age and was also required to help with the washing. This was done with a hand wringer washer. I was pretty handy with the iron too. The iron was heated on the wood stove."

30 I am not going to go through the evidence of all of the defendants about the work that they did in their young days, but the evidence is set out in the affidavits and I accept it all. I am quite satisfied that all of the defendants are truthful witnesses.

31 I accept also Albert's evidence that he was required to carry out work and that he also did heavy work, clearing and matters of that nature, helping the testator.

32 Whether as a result of the conditions in which they lived, I do not know, but several of the children suffered illness during their younger days which have persisted; and others suffer serious health problems today.

33 Several of the children suffered accidents at the property helping the testator in doing the various jobs. Their education also suffered as a result of being required to do the domestic chores. This took priority over homework in many cases. Later, the younger daughters were required not only to help their parents but also to work at Albert's house looking after his children and doing other jobs there.

34 It is not surprising that in those circumstances the children, and the girls in particular, left home as soon as they reasonably could.

35 At some stage, I think in the late 1970s, but the date is not critical, the testator and his wife, in effect, separated. He moved into the shed which I have already referred as the boys' shed where he lived something of an independent life.

36 In 1990 the testator suffered a stroke which affected him physically. As a consequence he was not able to speak properly: I find hardly at all. And he was not able to write properly. This was no doubt a great burden to him because I am quite satisfied that he was an avid letter writer. The stroke, I find, did not affect his mind in the sense that he had a full understanding and knew perfectly well what was going on around him.

37 In 1994 the testator's wife commenced proceedings in the Family Court in which she claimed an interest in the Gidgegannup property which was registered in the testator's sole name. I find that she was encouraged to take that action by Albert because Albert feared the testator would sell the property and distribute the proceeds among the children, the proceedings being of the order of a million dollars.

38 Albert wanted to safeguard his mother's interest because he was concerned that she would be left with little or far less than her entitlement. I am satisfied that Albert's action in encouraging his mother to take the proceedings in the Family Court was prompted out of a genuine concern for his mother.

39 The proceedings were settled in December 1994 on the basis that Mrs Caine senior would take half of the property and either one-half of the 40-acre block (in the sense that it would be subdivided) or if it could not be subdivided, she would take the whole of the 40 acres, subject to giving credit to the testator for half the value.

40 Shortly before the proceedings were settled but in contemplation of their being settled, the testator made the will which is now in issue. It was made on 15 September 1994 and it appointed Mr Butler to be the executor and trustee. It then set out a trust for sale of all of the testator's assets and a direction to distribute the net proceeds of sale to all of the children in equal shares. There were other provisions which it is not necessary for me to read.

41 The was encouraged to make the will by his daughter Janet. She says in her affidavit that at one stage she discussed with the testator an earlier will in which he only left $1000 to Albert. She said:

"Dad told me in effect that he was sick and tired of getting Albert out of trouble. Dad also told me that he had spent a lot of money trying to get Albert's children back from the welfare department of Western Australia. After his stroke in 1990 I again spoke with dad about his will. I thought that if dad changed his will to leave Albert an equal share in the property, then Albert would not be able to contest the will and we could all get on with our lives. Some time after that dad made a new will and that is the will that is presently before the court."

42 I accept that evidence. The earlier will to which Janet refers is exhibited to Mr Butler's affidavit. It was made on 8 November 1982. The will appointed Mrs Freind, to whom I have already referred, to be the executrix and it then, as Janet says in her affidavit, included a bequest to Albert of $1000. It then provided for the other seven children to have an equal share of the property; that is, the larger portion of the property, 580-odd acres. It then provided for the testator's wife to have a life tenancy of the 40-acre block, which on her death was to be divided among the seven children.

43 That will was made shortly after the testator had spent some $4500 (on Albert's evidence, which I accept) appealing against a decision of the Children's Court that Albert's children should be kept in care. That explains the reference in Janet's affidavit to the testator spending a lot of money trying to get Albert's children back from the welfare department.

44 It appears from the will of 8 November 1992 that the testator had then decided not to make any provision for the 20 acres which he had said he would give Albert. However, even then it appears that he did have some second thoughts, although he did not implement them. I refer again to Mrs Freind's affidavit in which she said:

"Gordon Henry Caine once asked me to write a letter to be attached to his will to ensure that the 20 acres promised to his son Albert should be included in the will. Gordon Henry Caine then requested that I not proceed with the writing of the letter as he was unsure whether it affected the validity of his will. He was concerned that if it invalidated his will, he would die without a will."

45 I accept that evidence. It was not challenged and I have no reason to doubt it. I draw the inference that the conversation to which Mrs Freind referred took place sometime after the testator made his 1982 will.

46 When the testator made his will in 1994 he would have had regard to the circumstances of each of his children. The first of those is of course Albert, who had been on an invalid pension since 1987. He had arthritis in his hand and he had some heart problems, albeit unspecified. He has the 10 acres at Gidgegannup which he bought in the circumstances I have described. He says that the property is heavily mortgaged but I have no details of that.

47 He says he has a very modest house on the property. He has some small business interests through Pro-Ma and Grace Cosmetics franchises of some sort. His wife contributes to the expenses of the household through practising upholstery, now apparently in a small way.

48 Albert owns an old Rolls Royce. This is not as impressive as it sounds because I am satisfied that the car is not of any great value. He also owns a strata title unit in Midland where his mother lives. That is registered in his own name and it is not mortgaged. It is not clear what financial arrangements were made to acquire it. I accept Albert's evidence that he borrowed money, including money from his mother, to make the purchase. However, I am unable to make any finding beyond that.

49 I therefore have very little information about Albert's financial position. That is somewhat surprising because it is essential for a claimant in cases of this kind to set out fully to the court what their financial position is or was at the material time, including capital, income, assets and liabilities. The explanation for this lack of evidence is that Albert was of the view, as he made it quite plain in cross-examination, that his financial position was not relevant to his application.

50 He was of the view that all that was relevant was the fact that the testator had made the promise and his medical condition. That was, of course, an entirely wrong view. However, I must do the best I can with that evidence and I must have regard also to the evidence of the other children and their respective financial and other circumstances, which I will summarise from their respective affidavits, the truth of which I accept.

51 Going in order of age there is, first, Monica, who was born on 24 July 1948 and was therefore aged almost 49 at the date of the testator's death, that being the relevant date for present purposes. Monica has lived with her husband in Canada since 1977.

52 She lives in a wood structure home on a farming property of some 480 acres on which she and her husband owe some $25,000 plus taxes. I am not sure whether that is Canadian or Australian dollars but I think the two are largely equivalent. She earns about $17,000 a year and her husband, between 7 and 8 thousand Canadian dollars.

53 She works as a cook. She has problems with her knee, having been injured in a work accident. It is not clear where that accident took place or in what circumstances. She is a qualified nursing aide: and it was she who, following the testator's stroke was able to teach her sisters how to understand and to communicate with him. That was something which was unquestionably of enormous benefit to the testator after he suffered the catastrophe of his stroke.

54 Then I turn to Janet, born in September 1949, who was therefore nearly 48 at the testator's death. She is married and her husband is a labourer. She used to work part-time as a courier for the company which employed her husband. But neither of them is now working. He has poor health. She says that he is on an insulin pump 24 hours a day. Janet herself has heart problems. They live in rented accommodation. They own a caravan worth about $5000 and an old Holden Commodore worth about $2000.

55 Then there is Gordon Jeffrey, referred to as Jeffrey, born in 1951. He is now 47, so he was about 45 when the testator died. He had an accident when a child, working on the property. He was thrown from a plough and the top of his big toe was cut off. That has caused some permanent disfigurement in that the nail now goes straight up. He has worked as a gardener for the last eight years and has earned between $15,000 and $20,000 per annum.

56 He is also involved in the Pro-Ma activities in which he earns about $10,000 per year. He, of course, has the block at Gidgegannup which he purchased from the testator. That is mortgaged and there is a debt of some $7000 in respect of it. He also has a debt of $4000 on bankcard and MasterCard. He owns a Nissan Pintara and an old Datsun utility worth about $6000 together but he owes $2000 on the Pintara.

57 Jeffrey, as I will call him, has had trouble with his ears all through his life. He was in trouble at school because he could not hear properly. He is now completely deaf in his left ear. For years he suffered from headaches and dizziness, due to the imbalance of his inner ear, for which he is still receiving treatment. Since high school he has had problems with his teeth. He suffers from abscesses on his legs, mouth and groin. The abscesses are related to the teeth problem.

58 Milton, born in 1952, and was aged about 45 at the testator's death has lived in New South Wales since 1982. He also suffered from ear problems as a child: in particular, mastoid ear infections. Milton has had many operations on his ears and he has very poor hearing. Although he works as a bus driver and operator in New South Wales, he has an interest in two houses, both heavily mortgaged. His income in the past five years has been between $5000 and $35,000 after tax.

59 Milton's wife is a part-time physiotherapist who has earned an average between $20,000 and $30,000 per annum over the past 5 years. He and his wife own two Nissan Urvans, old ones, worth about $3000 and an old Nissan utility worth about $1000.

60 Before Milton lived in New South Wales, there was a time when he embraced Christianity and went off to bible college. This resulted in some differences between him and the testator, but ultimately they were reconciled.

61 I am quite satisfied that in later years Milton and the testator were on very good and close terms despite the physical distance between them. They kept in contact by phone and by writing letters. The testator visited Milton in New South Wales and assisted him in his political activities.

62 Dianne was born in 1953 and was therefore about 44 years old when the testator died. She suffered an injury working on the property as a child, a severe cut to her leg when she fell into a tank stand at the age of 13.

63 She has health problems. She suffers from hepatitis C contracted from a blood transfusion. She and her husband are lessees of a liquor and grocery store which they have run for the past five years. They draw modest earnings of $225 per week each. They own a home and have an investment property. I do not know the value of the home but they have substantial liabilities amounting to about nearly $150,000. They have two motor vehicles worth about $12,000 and a boat worth $5000.

64 Lynda was born in 1959 and was therefore about 37 when the testator died. She has dependent children, with ages ranging from 10 to 17 years. She has very serious health problems. She had her teeth removed when she was in grade 5, which was a very traumatic experience, as one could well understand.

65 She has an interest in the house that she and her husband own. I do not know its value, but it is mortgaged for about $50,000-odd. They own old cars on which they owe almost as much as the value and her income ranges from between $10,000 and $20,000 annually after tax. Her husband is employed as a subcontractor with a taxable income of about $11,000. He operates a truck as a subcontractor to Wesfarmers. She and her husband receive social security assistance.

66 Lynda lives in a three-bedroomed house, with her husband and four children. She looked after the testator after he had his stroke for between 18 and 20 months from 1993 to 1995. She did that despite the cramped conditions and despite the fact that she suffers from Sneddon syndrome and has had eight strokes during the course of her life. She had her first stroke when she was 21 years old. She has congestive heart failure and deteriorating lungs. She has suffered a great deal of emotional stress.

67 Beverley, born in 1961 was almost 36 years old when the testator died. She is married with five children, all living at home. Her children have attended speech therapy. They have had grommets in their ears and one is experiencing learning difficulties. The testator, who I may say was very loving and caring towards his grandchildren, knew about these matters, although I think not the severity which has become apparent since his death.

68 Beverley's financial means are limited. She receives a low income supplement family payments and has had a healthcare card for a number of years. Her husband operates a small part-time business and his taxable income has ranged from $15,000 to $22,000 a year. Her house is worth about $100,000 but she and her husband owe $58,000 on mortgage. Her husband owns two vehicles, a 1991 Nissan utility that he owns outright and a 1984 Pajero. on which he owes about $11,000.

69 Those are the circumstances of the children which the testator knew about when he died and which must therefore be taken into account. Nobody is terribly well off. Nobody is financially secure. They have their various problems, financial difficulties and family difficulties.

70 They all have moral claims on the testator resulting from their early life, the hardships they suffered and the love and care which they had devoted to the testator throughout his life, but particularly after his stroke.

71 When the testator made his last will his circumstances were quite different from the circumstances in 1967 when he told Albert that he would give him 20 acres of land. By the date of his death, the testator was in poor health. His marriage had ended, half his land had gone and the various needs and problems of his other children had manifested themselves in a way which he would not have foreseen in 1967.

72 I accept that the testator had a moral obligation to Albert but he had a moral obligation, as I have said, to all of the children, and he had a relatively small estate, amounting to some $325,000, out of which to make provision for everybody. I am quite satisfied that the testator did what he thought best for everyone in the circumstances and that he did so by giving them all equal shares.

73 Having regard to all the circumstances, I am quite satisfied that the testator did make adequate provision for Albert out of his estate and that the application should therefore be dismissed. Having come to that view in answering the first question, it is not strictly necessary for me to answer the second question, but in case I am wrong in answering the first question, I will go on and deal with the second one. If I am wrong, and the will does not in fact make adequate provision for Albert, the question then arises as to whether I would exercise my discretion in Albert's favour, and the answer to that is that I would not.

74 There are two reasons on which I have come to that view. The first is simply that all the children, including Albert, have moral claims, but the estate is so small, relatively speaking, and it is impossible to put any kind of value on those claims, either absolutely or in relative terms. It seems to me that in those circumstances equality is the only disposition which is likely to do justice.

75 The second reason raises the question of what has been described in these proceedings as disentitling conduct. It arises in this way - under s 63 of the act - which says, in effect, that if the Court does not consider that the disposition of the deceased's estate has been adequate, it may make an order in favour of the applicant. Section 63 goes on to say:

"The court may attach such conditions to the order as it thinks fit or may refuse to make an order in favour of..........the benefit of an order or on any other ground which the court thinks sufficient."

76 The question is whether there is character or conduct relating to Albert which would, in effect, reduce his moral claim. There are a number of matters which I would take into account under that heading. The first is that the testator had in fact been owed money by Albert from quite an early stage.

77 I have referred to the bankruptcy proceedings in 1973 in which Albert disclosed that he owed $1300 to the testator who got a dividend of $19.52. $1300 in 1973 was quite a lot of money. It would certainly have been a significant amount of money to the testator in those days.

78 Then there is the $4500, to which I have already referred, which the testator spent trying to get Albert's children out of care. I accept entirely that that was not a debt which he incurred on Albert's behalf, it is something which the testator did for himself when Albert, as he put it in his evidence, had given up. Nevertheless, it is something which in my view would reduce Albert's moral claim to some extent.

79 There is also evidence about various acts amounting at least to unkindness including some acts of violence by Albert towards the testator. Evidence has been given by some of the children about Albert fighting with the testator, kicking him and matters of that kind. I accept that evidence and I prefer the evidence to that of Albert where there is a conflict.

80 That again, I think, is conduct which would reduce Albert's moral claim.

81 There is also evidence which I accept that the testator was unhappy when he lived at Albert's house, as he did, after his stroke. In saying that, I want to emphasise that I do not make any finding of any blameworthy conduct on the part of Albert. I do not know what happened within the house or in any detail why the testator was unhappy there.

82 Certainly it seems that Albert's wife treated the testator kindly and he recognised and appreciated that. Of course, there is the fact that Albert took the testator in after he had had his stroke which is no easy thing to do. It seems to me that disentitling conduct in this context is not necessarily morally blameworthy conduct and I take the law as I find it in that context from Dr Dickey's book: Family Provision after Death on page 94 where he says:

"Just as the existence of a moral claim for provision does not necessarily depend upon any commendable or virtuous quality in an applicant, so its diminution or extinguishment does not necessarily depend upon any blameworthy or bad quality of an applicant."

83 There is reference to authority which I need not quote now.

84 I think the most important element of this part of the case is the application which Albert made to the Guardianship and Administration Board in 1997 or thereabouts. That was an application to have the testator's affairs put under the control of the Public Trustee as an administrator. The basis for that application was that the testator was not able to look after his own affairs and it was therefore a reflection on the testator's mental capacity.

85 I accept the evidence that after his stroke, despite his physical difficulties, the testator was able to understand clearly what was going on around him and I also accept that he was a very independent man, with an independent spirit. The application to the Guardianship and Administration Board was an attempt to take away that independence which I think was very precious to him and was in many ways one of the last things that he had left.

86 I think therefore that that conduct on the part of Albert has a serious effect on his moral claim because of the trauma which I think the testator must have suffered as a result of that application. I have been referred by counsel to Draper v Nixon (1999) NSWSC 629 in which there was an attempt by the family in that case to have the testator put into a mental institution.

87 It was said that that was disentitling conduct of the worst kind (I am paraphrasing). I do not put the conduct here in that category because I am satisfied that to a certain extent, Albert had good intentions when he made that application. I accept his evidence that he was concerned about the fact that Mr Butler was charging legal fees to the testator. Albert believed that the testator's estate was being diminished improperly.

88 That, I may say by way of a digression, is the subject of a complaint to the Legal Practice Board which the board has put on hold pending the outcome of these proceedings. I want to make it quite plain that I make no finding and express no view whatsoever about fees charged by Mr Butler or the circumstances in which he charged those fees or really anything relating to Albert's complaint.

89 It is simply not a matter with which I am in any way concerned. I do accept that Albert had a genuine concern and it is regrettable that he went about things in the way that he did.

90 I have had regard to the reasons given by the Guardianship and Administration Board in the cost determination which they made. Reference is there made to Albert's evidence that he believed the testator to have capacity to make judgments, albeit this took time; and that his application for an administrator to be appointed was prompted by his concerns relating to the unresolved issues in the property settlement between the testator and his wife. Albert was of the view that the testator had not treated his wife fairly with regard to the division of the land. He believed also that the testator ought to have included him in any division of the property: and he was concerned about the legal fees incurred by both his parents.

91 I understand Albert's concern about the division of the property to be a reference to the 20 acres. It follows that at least in part, Albert was acting somewhat selfishly in taking the action that he did. It therefore seems to me that despite Albert's good intentions which, as I have said, are not necessarily the only consideration, this conduct was such as to constitute disentitling conduct on the part of Albert.

92 The result of those considerations is that if I was wrong in my view that adequate provision was made for Albert, I would come to the conclusion that his moral claim resulting from the promise was reduced by taking account of these factors. I would not, therefore, vary the distribution of the estate, even if I had answered the first question favourably to Albert.

93 For all those reasons, I have come to the conclusion that the claim should be dismissed.