Beyond that exchange, the marital status of the applicant and his wife was not explored.

39 Towards the end of his cross-examination of the applicant, counsel for the respondent began to ask the applicant a series of questions about a Centrelink document attached to the applicant's second affidavit. Counsel said to the applicant:

"Now from about March 2004, 'absent hospitalization', you've been living with your wife?"

The applicant replied "Yes". Counsel then referred to an entry in the Centrelink document where it said "Customer Partnered" and the entry beside it, which was the letter "N". The applicant then said when asked if he had a partner, "No, I haven't". He said his wife lived in the same house but they had been separated since 2002. When pressed about the fact that he had not disclosed this in his affidavits, his response was "What was the need to". It was put to the applicant that in fact he was not separated and he denied that. He gave evidence he had been investigated twice by Centrelink about the issue and that no irregularity had been found.

40 The applicant's explanation for failing to disclose in clear terms that he was separated from his wife was unsatisfactory. The affidavit material prepared by his solicitors did not disclose the fact. The most likely inference is that this was so because the applicant did not tell them, and, unfortunately perhaps, the material the applicant provided was not scrutinised to the extent that it should have been by the solicitor preparing the affidavits.

41 While it is not uncommon for married couples to have separate financial arrangements, unless explained it would not have been obvious from the material supplied that indeed the parties were, at the date of the testatrix's death, the commencement of these proceedings, and the time of the hearing, separated. The material put before the Court by the applicant appeared designed to indicate that the applicant's wife was in poor health as a consequence of a longstanding fight with cancer, that the applicant and his wife were a couple, that the applicant was solely responsible for his wife's care, that he was extremely distressed as to his inability to be with her when she came out of hospital, that their needs and expenses were joint ones, and that "they" needed a home of some description to make Mrs Coulston's life more comfortable. To the extent that it did so, I am satisfied that the applicant attempted to mislead the Court as to his true position by his affidavits and initial oral evidence.

42 Counsel for the respondent submitted that, if I accepted that the applicant and his wife were separated, I should disregard her needs and income because they were not those of the applicant. He submitted that there was nothing to stop the applicant at any point simply ceasing to be his wife's carer. Counsel for the applicant, on the other hand, submitted that I could consider the parties' situation together, irrespective of the legal status of their relationship, because it was clear on the evidence that the applicant was committed to supporting his wife, financially and otherwise, for as long as it took. He submitted that his and her needs were the same, irrespective of the status of their relationship. He further submitted that the applicant's failure to disclose was an omission rather than a deception, a submission I do not accept.

43 In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, the High Court dealt with an application by the widow of a deceased. They had married later in life, and each had children. At the date of the deceased's death, the widow had a child still dependent upon her, which child was not dependent at the time the application for provision was made. Gibbs J said at 498:

"It was in my opinion a relevant circumstance that the appellant had a child of her own who was dependent upon her. Although the child of a claimant is not himself entitled to relief under the Act, the fact that a claimant has to support and educate a child is one of the circumstances that have a bearing on the question of what is necessary for the claimant's proper maintenance: see Cooper v Dungan (1976) 50 ALJR 539, at p 540; In re Worms; Worms v Campbell [1953] NZLR, at p 941-942] . The question is not one of very great importance in the present case since Michael had ceased to be dependent upon the appellant by the time the application was heard. It was established in Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494 that the question whether the provision made in a will is inadequate for the proper maintenance of the claimant is not to be determined at the date of the application, but at the date of death of the testator, although, if that question be answered in the affirmative, the court, in exercising its discretionary power to make such provision as it thinks fit, must take into account the facts as they exist at the time of making its order. In the present case therefore the fact that Michael was dependent on the appellant was relevant to the question whether the preliminary condition of the power to grant relief had been satisfied, but could not be considered once the Court, having answered that question in favour of the appellant, proceeded to determine what relief should be granted."

Counsel for the respondent relied on this passage to support his contention that, if indeed the applicant and his wife were separated, I could not consider her position. With respect, that passage does not support that proposition. What it says is that the date of death of a testator is the date at which the first step in the two-stage process is to be carried out, but that an applicant's position as at hearing is relevant to the second stage. No issue is taken with that proposition, either by counsel for the applicant, or indeed this Court. If it is accepted that the applicant and his wife are separated, and I so find, then that was the position both at the date of death and now. The question to be determined is whether Mrs Coulston can be said to have been dependent on the applicant at either or both of those dates.

44 The evidence before the Court is that the applicant is 73 years old and Mrs Coulston is 70. Mrs Coulston has had significant ill-health over many years, since being diagnosed with cancer in 2004. She has only just been released from hospital after surgery. While the medical records disclose a number of diagnoses and operations, and Mrs Coulston gave evidence of having had two courses of chemotherapy in response to cancer diagnoses, there was no evidence of what her long term prognosis was. At the date of death of the testatrix, the applicant was Mrs Coulston's carer and received pension entitlements to recognise that. That has in fact been the situation since 2004 and remains so. The parties are currently sharing a caravan, owned by Mrs Coulston, which is on the site of the parties' son's home at Boulder, Kalgoorlie. They have together moved on more than one occasion since 2004 from one place of residence to another, more recently to accommodate the needs of Mrs Coulston.

45 Counsel for the respondent argued that the applicant could simply walk away from his carer's responsibilities. With respect, even if the parties were not separated, that could be the case. The legal status of the relationship in my view is not determinative of dependence. It is a question of looking at the facts. In this case, Mrs Coulston is dependent upon the applicant for a degree of her physical care, and has been so for a number of years. That, combined with the facts set out in the preceding paragraph, lead me to the conclusion that Mrs Coulston was, despite the legal status of the parties' relationship, dependent for many of her physical needs, upon the applicant as at the date of the testatrix's death and remains so. It follows that the Court may, for the purpose of determining the needs of the applicant, take into account his obligations to his wife.

46 The question then is, what were the needs of the applicant as at the date of death of the testatrix? The evidence of the applicant was that:

•

He had never owned any real estate.

•

He did not at the date of hearing have any investments or shares.

•

He had not disposed of any investments or shares in the last 10 years.

•

He had not lodged a tax return since about 1994.

•

He had been in receipt of a pension since 1994, firstly a disability pension, and then an age pension, which pension had continued to the date of hearing.

•

He had disposed of a Nissan Patrol motor vehicle some time in the first half of 2007 for $5,400.

•

The applicant and his wife moved from Kalgoorlie to South Australia in 2008 to be near his wife's family.

•

That prior to that move, he sold furniture, white goods, a trailer and a motor bike for about $2,000.

•

That that money was used to buy furniture and white goods when the parties moved to Ardrossen in South Australia, and that the $5,400 from the Nissan Patrol sale was used for living expenses.

47 There was also evidence in the applicant's first affidavit to the effect that "over the past few years" the applicant and his wife had used their life savings of approximately $30,000 to pay for the costs associated with treating his wife's cancer. There was no explanation as to over what period that money was spent, what it was actually spent on, or precisely where it came from.

48 There was no evidence as to what the expenditure of the applicant was in January 2007. The only evidence of expenditure arises in the applicant's first affidavit and relates to the period in the middle of 2008 for both him and Mrs Coulston.

49 Mrs Coulston's evidence disclosed she had some assets, no real estate and had also been on a pension for many years. There was no evidence of any separate expenses she might have had at any time, either at or since the date of death of the testatrix. There was, for example, no evidence of any expenditure related to her medical conditions, either at the date of death, or since, or as might have been anticipated.

50 It is clear that the applicant and his wife have never owned a home, that is that they have throughout their married lives lived in rented accommodation. For the last 16 years, the applicant's income has been a pension.

51 The applicant stated in his first affidavit that he was "reasonably well". His medical practitioner listed in his affidavit a number of conditions from which the applicant suffered, including arthritis. I am satisfied having regard to the medical evidence and the applicant's age that he has no capacity to earn income and that he will be dependent on his pension for support. The lack of evidence does not enable me to make any finding as to any special needs he might have arising from his health.

52 The focus in determining this issue is clearly the relationship between the applicant and his mother. In this context also the issue of estrangement arises. There was no relationship between the applicant and his mother at all between 2004 and 2007. The testatrix was 94 years old when she died, and a widow. As at about 1995, she was living in Bacchus Marsh in Victoria. By 2000, she had moved to Latrobe in Tasmania. She moved to the unit in Perth late in 2004. She had moved from there to a nursing home by the time the applicant's brother Peter died in June 2005. There was no evidence to suggest the applicant visited his mother at any of those places. He recalls a Christmas card in 2002 and a telephone call in 2004.

53 The evidence about the applicant's relationship with his mother came primarily from the applicant himself. The applicant said that he left home in 1955, when he was about 17 or 18, having been "kicked out" of home by his mother following an altercation with her male friend, Ralph Evers, a man who later became his mother's second husband. Having urged me not to accept virtually the entirety of the applicant's evidence, counsel for the respondent seemed content to accept this evidence and, indeed, rely on it as establishing the commencement of an estrangement. I accept the incident occurred. At the time that incident occurred, the applicant had already met and formed a relationship with Patricia Hancock and she had become pregnant. The applicant gave evidence that his mother disliked anyone of the Catholic faith, to the extent that she would not allow the applicant to have friends who were Catholic, and expected her son not to even walk past the local Catholic school. Patricia was Catholic. The applicant's evidence was his mother "ranted and raved" about Patricia's faith when he asked for permission to marry.

54 The evidence of the applicant as to his upbringing discloses that his was not a happy childhood, and that his relationship with his mother was never a close one. He described her in very unflattering terms. His father died the year before he left home, and I infer that his mother's relationship with Mr Evers was the cause of some angst for the applicant. There seems no doubt there was, after the applicant's marriage, an estrangement between him and his mother. The applicant moved to South Australia in about 1961. He said in his first affidavit as to his contact with his mother thereafter:

"17 Throughout the time I lived in South Australia my mother and Ralph visited on a number of occasions. My family also visited my mother on a number of occasions at the various places she lived being Dilston, Werribee in Victoria and Bunbury in Western Australia.

18 Throughout my time in South Australia whenever one of my brothers got into trouble my mother would pay for them to come over to me. Peter was often in trouble with the Police. Police attempted to arrest him at our home on more than one occasion. Whenever Peter was in trouble he returned home to my mother. That lead [sic] their relationship to become strong.

24 My contact with my mother was amicable right up until we lost contact in 2004. On that occasion I rang my mother. (A young woman answered who identified herself as a Nurse who looked after my mother). She refused to accept that I was her son. She said she only had one son who was dead. She then hung up. I rang back and the Nurse said that my mother was suffering dementia.

25 Although my contact with my mother through the years could be described as amicable we did not have a close relationship. I was not made aware of brother Peter's death until several months after the event. When I tried to contact my mother I was not able to locate her. My sister would not respond to attempts to locate her. I only found out of my mother's death by chance. As a result I was not at her funeral and I would have liked to have been present."

55 The applicant provided little further detail of his contact with his mother in oral evidence. The evidence of contact between mother and son is vague and not illustrative of any sort of mutually supportive relationship. Indeed there is no evidence at all that, after leaving home, the applicant did anything for his mother at all save, it seems, care for his younger brother Peter at an unidentified time and for an unidentified period. Consistent with his submission about the manner in which I should deal with the applicant's evidence, counsel for the respondent urged me to ignore the material set out above, and find that the applicant had been estranged from his mother since he left home in 1955. I am not prepared to make that finding.

56 Counsel for the respondent also relied, to support the contention as to the lack of relationship between the applicant and his mother, on a letter the applicant agreed he probably wrote to his mother in about 1995 where he said that he did not consider himself part of his mother's family. The letter was not put into evidence. Counsel simply extracted small parts, read them to the applicant and had him agree he probably wrote them. It is difficult to determine the significance of the comments in the absence of the whole letter. I do not give the comments extracted from the letter any real weight.

57 There can be little doubt that the applicant's relationship with his mother was never a close one. It was fractured in 1955, and there is little evidence to suggest when, and to what degree, if at all, that fracture was repaired. Even accepting the applicant's affidavit evidence, it discloses occasional visits only, which appear to have ceased many years prior to the death of the testatrix. There was no explanation for the lack of contact which appears to have existed since 1995. The applicant suggested that his contact with his mother was "amicable" until he lost contact with her in 2004. I am unsure what the applicant intended by his use of the word "amicable". His relationship with his mother by that time was obviously not close enough that he had any real idea of her state of health. That suggests minimal contact, if any. The applicant also made no real attempt to follow up his contact with his mother after the conversation in 2004, and had no contact from then until her death in 2007.

58 I am satisfied that the applicant may have had some contact with his mother between 1955 and 2004. However, I am unable to make any finding as to the extent of it save to say it was not reflective of any real ongoing and uninterrupted relationship. I am satisfied that, even allowing for that intermittent contact, there was no ongoing relationship and no level of support provided by the applicant for, or even offered by him to, his mother for at least the last 12 years of her life, and most likely longer.

59 The first question to be considered is whether the applicant has been left without adequate provision for his proper maintenance and support. In determining this threshold issue, the test to be applied is what a wise and just testator would have done if in possession of all relevant facts. That question is to be asked as at the date of death of a testator. If the answer to that question is that the applicant has been so left, then the Court must determine what, if any, provision should be made. The Court may refuse an application if the character or conduct of the applicant is such as, in the opinion of the Court, should disentitle an applicant to provision.

60 The relevant circumstances at the date of death were that the applicant was aged 69 and in only modest health. He was in receipt of an age pension. He was living with his wife, who suffered significant ill-health, although they were separated. He was receiving a carer's allowance on top of his age pension because he assisted his wife with her care. There was no evidence as to where the applicant was then living (it might be inferred he and his wife were living in Kalgoorlie because they moved from there to Adelaide in 2008) or indeed the circumstances in which he was living. There was no evidence as to what his usual expenditure then was or precisely what his assets were. I infer that he owned a Nissan Patrol worth about $5,400. He and his wife appear to have owned miscellaneous items sold in 2008 for about $2,000. The applicant did not own a home and it appears had never done so. The inference to be drawn from that evidence, and Mrs Coulston's ownership of a caravan, is that they had either rented accommodation or lived in a caravan.

61 Counsel for the applicant referred to statements made by Underwood CJ in Hope's case, in circumstances where the evidence of income and needs was scant, and the applicant was in receipt of an age pension, in particular that:

"I can confidently say that an income of approximately $510 per fortnight will provide the applicant with nothing more than the very barest of essentials for living. It is insufficient for her to acquire any capital and insufficient for her to travel, to take holidays, and the like."

62 That may very well have been an accurate statement having regard to the circumstances with which his Honour was there dealing. In Hope's case, the value of the estate was over $1,000,000. The applicant had been used to better things but as a result of ill-health, her income and financial situation had worsened. That is not the case here. The applicant in the present case has been a pensioner since 1994. He has never owned a home. There was a suggestion on the evidence that the applicant and his wife had disposed of the entirety of their savings on medical and living expenses and were, in effect, reduced to living in a caravan. However there was no evidence about what those expenses were and over what period this money was spent. Accepting that the estimate of income in the applicant's first affidavit was an error and referred to fortnightly income, that income met the needs said to exist in June 2008 which included rent. There was no explanation as to why, at the date of hearing, that situation had altered and in particular, as to why now the applicant and his wife could not afford to rent and needed to buy accommodation. There was evidence that the applicant had no car as a result of a car accident.

63 Accepting that it is relevant, there was no evidence as to what Mrs Coulston's needs for medical treatment were, and what costs might have been associated with those needs

64 Another issue is clearly the applicant's relationship with the testatrix. The applicant suggests on his own evidence that his mother may have thought he was dead and perhaps this explained why she had not provided for him in her will. Even if that were so, the facts are that the applicant's last contact with his mother, on his evidence, was in 2004, at that point he said she said she had no son because he was dead, and the applicant did nothing to correct that misapprehension. He did not even know she had died. While estrangement in itself may not be a disentitling factor, the circumstances of it are clearly relevant.

65 Has the applicant in the circumstances discharged the onus which falls upon him to satisfy the Court that he has been left without adequate provision for his proper maintenance and support? From the testatrix's point of view, had she been aware of the circumstances, she had a 69 year old only surviving son who had been a pensioner for many years. He had a sick wife for whom he provided care, albeit they were separated. He did not own any real estate, but had never done so, and he did not have any shares or investments. At the relevant time he had a car which he sold later for $5,400. Neither she nor this Court could know what the needs of the applicant were, if any, beyond what was being met by a pension. The only conclusion which could be drawn from the evidence is that the applicant had no capital reserves in the event of some unexpected need. The testatrix had had no relationship with the applicant for many years. There was no evidence the applicant had done anything to pursue, and, if necessary, restore that relationship. From the limited evidence available as to the testatrix's character, it may be she would have proved a difficult person to restore a relationship with. The applicant had done nothing to assist the testatrix in her old age, or indeed at all. Their relationship had never been a particularly good one. She had one other surviving child. Her estate was of a size where some provision could have been made.

66 Taking all those matters into account, I am satisfied that a wise and just testator would have made some provision for the applicant and that, in those circumstances, he has been left without adequate provision for his proper maintenance and support.

67 The next question is what should that proper provision be, and are there factors which might cause the Court to dismiss the application, notwithstanding the findings above, by reference to the Act, s8?

68 The applicant has not established on the evidence any reason why he is not able to continue to rent accommodation as he and his wife have clearly done over many years and effectively why, now, he needs to be able to buy accommodation. His evidence as to what he would require in any event to purchase what he described as a "park home" was vague and varied. There was no evidence as to any particular expenses either relating to himself or his wife's medical condition which were not able to be met from their or his own resources. For example there was no evidence of any loans incurred to cover such things, although there did appear to be evidence of some sort of loan repayments and credit card repayments in the applicant's bank statements. These however were not explained. There was evidence the applicant had no car because of an accident. I am satisfied in the circumstances there is evidence of some need to replace a motor vehicle of a modest nature and provide for some sort of capital reserve.

69 However, should the Court, also in the exercise of its discretion, decline to order that provision because of some disentitling conduct? I accept that a failure to maintain children would perhaps have been frowned upon in the early 1960s. However, it was not an uncommon event (the extract from the court records demonstrates that). Had for example there been evidence that the testator stepped into the breach and provided for her grandchildren in the absence of their father, that factor might have told against the applicant. However otherwise I cannot see it as a disentitling factor by reference to s8.

70 As to the second matter, that is the punching of Mr Evers, counsel for the respondent used somewhat florid terms in his description of this incident, asserting that the applicant assaulted a guest in his mother's house and that such behaviour was frowned upon by society. With respect, the incident needs to be put in context. The guest in question was a male companion of the applicant's mother who was clearly spending a great deal of time in the house. He sat down to a meal with the family and chastised the applicant's younger sister by hitting her over the hand with a spoon. The applicant resented that and hit him. The applicant was 18 years old. Unquestionably the applicant should not have hit Mr Evers. It resulted in the applicant having hot water thrown over him by his mother, a need to be taken to hospital by a neighbour for treatment as a consequence, and his being evicted from the home for good. It can hardly be considered to be disentitling conduct 52 years later.

71 In all the circumstances I am satisfied that some provision should have been made from the testatrix's estate and that, having regard to all the factors I have identified, that provision should be in the sum of $25,000. I will hear counsel as to the final orders to be made including as to the costs of this application.