MATTER : Section 6 of the Inheritance (Family and Dependants Provision) Act 1972

ROSS NEWHAM DUNCAN as Executor of the Will of JEAN FRANCES HOGG (DEC)

SUSAN SHERYL DUNCAN Beneficiary of the Estate of JEAN FRANCIS HOGG (DEC)

MATTER : Inheritance (Family and Dependants Provision) Act 1972

ROSS NEWHAM DUNCAN as Executor of the Will of JEAN FRANCES HOGG (DEC)

SUSAN SHERYL DUNCAN Beneficiary of the Estate of JEAN FRANCES HOGG (DEC)

Succession - Inheritance (Family and Dependants Provision) Act 1972 (WA) - Applications by adult daughters for provision out of the estate of their deceased mother - Residuary estate left to elder daughter and her husband to the exclusion of the two younger daughter applicants - Beneficiaries in secure financial circumstances - Applicants each in reduced financial circumstances - Disharmony between deceased and two younger daughters - No disentitling conduct by younger daughters - Moral claim - Extent of provision

Inheritance (Family and Dependants Provision) Act 1972 (WA)

Provision for each applicant ordered to be made from estate of deceased

Estate of deceased to be distributed in the following shares:

- four one-tenth shares to the defendants as tenants in common in equal shares

- three one-tenth shares to the applicant Judith Jean Curran

- three one-tenth shares to the applicant Jacqueline Elizabeth Hogg

A certified copy of this order be added to the Probate of the Will of the deceased

Blore v Lang [1960] HCA 73; (1960) 104 CLR 124

Bondelmonte v Blanckensee [1989] WAR 305

Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494

Cooper v Dungan (1976) 50 ALJR 539

Delacour v Waddington [1953] HCA 64; (1953) 89 CLR 117

Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490

Gorton v Parkes (1989) 17 NSWLR 1

Hawkins v Prestage (1989) 1 WAR 37

Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134

Kitson v Franks [2001] WASCA 134

Kleinig v Neal (No 2) [1981] 2 NSWLR 532

Lambeff v Farmers Co-operative Executors and Trustees Ltd [1991] SASC 2879; (1991) 56 SASR 323

McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566

Niehoff v Niehoff [1995] VicRp 61; [1995] 2 VR 356

Pontifical Society for the Propagation of the Faith and St Charles Semenary v Scales [1962] HCA 19; (1962) 107 CLR 9

Prosser v Twiss [1970] VicRp 29; [1970] VR 225

Re Allardice; Allardice v Allardice (1910) 29 NZLR 959

Re Allen (Dec); Allen v Manchester [1922] NZLR 218

Re McNamara (Dec) (1938) 55 WN (NSW) 180

Re Sinnott [1948] VicLawRp 48; [1948] VLR 279

Rowley v Bouwmeester [2005] TASSC 34

Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201

Vigolo v Bostin [2005] HCA 11; (2005) 79 ALJR 731

Welsh v Mulcock [1924] NZLR 673

Browne v Macaulay [1999] WASC 208

Burns v Milne [2000] NSWSC 351

Dobra & Anor v Brennan & Ors [1999] WASC 98

Krygger v Commonwealth of Australia, unreported; FCt SCt of WA; Library No 940070; 1 February 1994

Marks v Marks & Ors [2003] WASCA 297

Matthews v Platzi, unreported; SCt of WA; Library No 4306; 19 October 1981

Nelson v Nelson, unreported; FCt SCt of WA; Library No 990136; 9 April 1999

Permanent Trustee Co v Fraser (1995) 36 NSWLR 24

Rowan & Anor v Roche [2005] WASCA 6

Shearer & Anor v The Public Trustee; Hawke v The Public Trustee [1998] NSWSC 87

Tace Pty Ltd v Coles Myer Ltd, unreported; FCt SCt of WA; Library No 8514; 27 September 1990

Wilson v Wilson, unreported; FCt SCt of WA; Library No 930705; 17 December 1993

Young v Young, unreported; SCt of WA; Library No 7626; 26 April 1989

1 EM HEENAN J: Two separate applications by daughters of Jean Frances Hogg (deceased) for provision out of her estate pursuant to s 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA) were heard together. The applicants are Mrs Judith Jean Curran and Ms Jacqueline Elizabeth Hogg, the second and third of the three children of the deceased.

2 Jean Francis Hogg died on 16 November 2002 in her 84th year. Her husband, William Joseph Hogg, predeceased her on 28 February 1973, losing his life in a tragic accident at the mine where he was working. There are three children of the marriage, namely:

Susan Sheryl Duncan - born 25 May 1949

Judith Jean Curran - born 22 September 1952

Jacqueline Elizabeth Hogg - born 14 October 1961

3 Probate of the last will of the deceased made 25 June 1997 was granted by this Court to Ross Newham Duncan, the executor named in the will who is a son-in-law of the deceased and the husband of her eldest daughter, the third defendant. The net value of the estate of the deceased, in the affidavit of the executor filed in support of the application for probate, was set at $219,623.53. It comprised bank accounts, savings accounts and listed shares to a total value of $74,142.73, household furniture and personal effects of $5,740 and the deceased's house and land at 17 Boonooloo Road, Kalamunda, valued at $150,000. The liabilities of the estate, including funeral expenses, arrears of rates and some small outstanding accounts totalled $10,259.20. There has been an appreciation in the net value of the estate since the date of death.

4 By her last will Mrs Jean Hogg appointed her son-in-law, Ross Newham Duncan, to be her sole executor and trustee if he survived her, failing which she appointed her daughter Susan Sheryl Duncan as the sole executrix and trustee. The will contained only one general devise and bequest leaving all the estate, both real and personal, to her trustee upon trust for the payment of her just debts, funeral and testamentary expenses, probate estate or other duties and then upon trust for such of Susan Sheryl Duncan and Ross Newham Duncan as should survive the deceased as tenants in common in equal shares. So it is that the second and third defendants have become entitled, as tenants in common in equal shares, to the whole of the estate of the deceased and no provision of any kind is made in that will for either of the two younger daughters.

5 The evidence discloses that there were two earlier wills made by the deceased before the last will of 27 June 1997. The first will dated 1 October 1968 was made when the deceased's husband was still alive and when the youngest daughter, Jacqueline, was not quite 7 years of age. By this will Mrs Hogg appointed the Public Trustee as her sole executor and trustee, bequeathed two of her diamond rings to her daughters Susan and Judith respectively and, subject to payment of just debts, funeral and testamentary expenses, made a single residuary devise and bequest of all her property, both real and personal, to such of her three children as should be living at the date of her death in equal shares. Nothing was left by this will to the deceased's husband and there is no evidence of what estate or property the late Mr Hogg himself owned, if any. However, there is evidence that the relationship between the deceased and her husband before his death was strained for some years and that there had been problems over money within the family.

6 The second will made by the deceased is dated 2 May 1994, long after her husband's death. By that will the deceased appointed her son-in-law, Mr Ross Newham Duncan, to be her sole executor and trustee and, in the event that he predeceased her, then her eldest daughter, the third defendant Susan Sheryl Duncan as sole executrix and trustee. There were two specific bequests, namely, a gift of the deceased's motor car to her daughter Judith Jean Clowser (that is to the plaintiff Judith Jean Curran before her last marriage), and of the deceased's jewellery and certain personal items to her eldest daughter Mrs Susan Sheryl Duncan, the third defendant. Subject to the payment of all just debts and testamentary expenses, the residue of the deceased's estate was left to her trustee to be held on trust for her two elder daughters, Judith Jean Clowser and Susan Sheryl Duncan, but as joint tenants. Consequently, had this been the last will of the deceased, the two residuary beneficiaries would have been entitled to the income of the residuary estate equally but, unless one or both took steps to sever the joint tenancy, the capital of the trust of the residuary estate would go to the survivor of the two absolutely. No provision was made by this will for the third daughter, Jacqueline Elizabeth Hogg.

Inheritance (Family and Dependants Provision) Act 1972 (WA)

7 These two applications made by Mrs Judith Curran and by her sister Jacqueline Hogg are made pursuant to s 6(1) of the Inheritance (Family and Dependants Provision) Act 1972 which provides:

"6(1) If any person (in this Act called 'the deceased') dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose."

Both of the applicants, as children of the deceased living at the date of death, are eligible applicants under s 7.

8 In Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 observations were made by Mason CJ, Deane and McHugh JJ in relation to comparable legislation in New South Wales which are applicable to the legislation in this State. Their Honours said at 208 - 209:

"It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the 'jurisdictional question'."

This, and other relevant authorities were examined recently in Vigolo v Bostin [2005] HCA 11; (2005) 79 ALJR 731 where Gleeson CJ (at [15] and [17]) observed that the correct approach to the exercise of jurisdiction under this legislation continues to be that stated by Salmond J in Re Allen (Dec); Allen v Manchester [1922] NZLR 218 at 220 - 221:

"The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances."

9 In Vigolo v Bostin (supra) Gleeson CJ at [22], Gummow and Hayne JJ at [56] and Callinan and Heydon JJ at [112] all cited with approval the earlier decision of the court in Singer v Berghouse and, the learned Chief Justice cited the following passage as descriptive and authoritative of the role which the court is required to perform in the exercise of this jurisdiction: (1994) 181 CLR 209 - 210:

"The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty."

In relation to the concept of "proper" provision (which Gleeson CJ termed a "value-ladened concept" - in Vigolo v Bostin (supra) at [6]), Callinan and Heydon JJ later said at [114]:

"The first of the indications is the use of the word 'proper'. It implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all of the relevant surrounding circumstances and would entitle a court to have regard to a promise of the kind which was made here. Unfortunately for the appellant however, and as will appear, the making of that promise is not the only, and is indeed, far from a conclusive fact in the appellant's favour. The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."

10 Also, in Vigolo v Bostin (supra) at [26] reference was made by Gleeson CJ to earlier decisions in Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494 and Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 as cases dealing with a situation which had caused difficulties in the operation of the legislation, namely, the situation which arises in the case of an application by an able bodied adult son. After referring, with approval, to the judgment of Fullagar J in the Supreme Court of Victoria in Re Sinnott [1948] VicLawRp 48; [1948] VLR 279 at 280, the following passage was cited:

"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."

These present applications are, of course, by adult daughters and the need for an adult applicant to show some special need or some special claim has, since 1948, been relaxed considerably because of changes in social circumstances and in family living standards. Particularly is this the case in relation to claims by adult daughters where, in the past, special need had often been readily recognised in the case of unmarried daughters or thought to be absent in the case of married daughters who were supported by a husband. It is now generally accepted that when determining whether a claimant who is a mature child has been left without adequate maintenance, it is not necessary to show some special need or some special claim: Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

11 Instances of applications under this or comparable legislation by adult daughters are numerous. In Prosser v Twiss [1970] VicRp 29; [1970] VR 225 Lush J considered a claim, by an adult daughter, against the estate of her late mother. The applicant was the only surviving child of the deceased whose will provided that her estate should be divided between the applicant's three children (the deceased's grandchildren), the youngest of whom was then aged 20 years. The evidence disclosed that there had been a long estrangement between the deceased and her daughter, apparently because of the latter's decision to live with a man in a relationship of which the deceased disapproved and which led to the applicant becoming estranged from two of her three children. The applicant had been provided for substantially by her father, both during his lifetime and by his will, and the deceased had left a document explaining that she had made no provision for the daughter by reason of the previous financial assistance advanced to her. At page 234 Lush J examined a number of the cases in which an order had been made under comparable legislation in favour of an adult daughter but, in the end, concluded that no order should be made for the applicant, largely because of her own adequate financial circumstances but also because of her role in the conduct which led to the estrangement with the deceased.

12 In Cooper v Dungan (1976) 50 ALJR 539 an application by a daughter for provision out of the estate of her deceased mother, which had been left for division entirely between her two brothers, was eventually successful, although the extent of the provision which had been made at first instance was reduced in the ultimate appeal. The reason given by the deceased, in her will, for not making provision for her daughter was because she had already been adequately provided for. The decision of the learned trial Judge, upheld on the appeal, was that the daughter's financial position and that of her husband and children were not secure and that they were indeed at risk of a decline in their financial circumstances. Nevertheless, in upholding the entitlement of the daughter for provision out of her late mother's estate, the court reduced the amount awarded from an equal one third of the estate to a lump sum of $20,000 out of a net value of $123,000.

13 In Lambeff v Farmers Co-operative Executors and Trustees Ltd [1991] SASC 2879; (1991) 56 SASR 323 an adult daughter was successful in obtaining an order for provision out of her late father's estate which had been left entirely in trust for his two sons equally between them. The applicant was the only child of an earlier marriage of the deceased and she had been abandoned at a young age by her father, who had provided no support for her at all from then on. There had been no disentitling conduct by her and the evidence established that she would have done better with proper support from her father for her advancement in life. Although the plaintiff daughter had secure well-paid employment, substantial equity in a property in Melbourne where she lived, no dependants and good prospects of benefiting ultimately from the estate of her mother and stepfather, it was considered that she was entitled to provision and, notwithstanding that the two beneficiaries, her half-brothers, were in uncertain and reduced financial circumstances, she was awarded a lump sum out of the estate of $20,000. Matheson J expressly found that while the plaintiff, Lambeff, may have established a special claim upon the estate within the meaning of some of the earlier cases it was not necessary for her success that she should do so in the light of McCosker v McCosker (supra); Bondelmonte v Blanckensee (supra) and Kleinig v Neal (No 2) (supra) at 538.

14 I appreciate that in Niehoff v Niehoff [1995] VicRp 61; [1995] 2 VR 356 Eames J held that an adult son who applied for provision under this legislation must establish some special need or special claim but in the light of the decisions to the contrary in this State, namely Bondelmonte v Blanckensee (supra), Hawkins v Prestage (supra) and McCosker v McCosker (supra), I am not prepared to accept that such an approach is essential in this case - see also Kitson v Franks [2001] WASCA 134 per Malcolm CJ at [15] and Parker J at [68] - [69]. The same conclusion was reached by Bryson J in Gorton v Parkes (1989) 17 NSWLR 1 at 6.

15 The deceased, then Jean Francis Holst, married William Joseph Hogg at West Perth on 6 December 1947. Susan was born in May 1949 and Judith in September 1952. It was not until nine years later in October 1961 that Jacqueline was born and by the time that Mr Hogg was killed in the accident on 28 February 1973, Jacqueline was six and living at home but her elder sisters had both moved out. The evidence is that there was a loving relationship between the parents and the children but that there was an atmosphere of tension in the household between husband and wife, apparently due to financial difficulties which may well have stemmed from periods in which the late Mr Hogg was unemployed. The three daughters now all recall a close family relationship but an atmosphere of tension and strain between their mother and father. Each of the three girls was educated at primary school and secondary school but left school at the ages of 15 or 16.

16 Susan lived at home with her mother and sisters until 1967 when, at the age of 18, she moved to the eastern states for employment and between then and 1973 also worked occasionally in the northwest of this State. Between those episodes of employment she lived at home in Perth with her mother. She returned home again when she obtained employment with Qantas Airways in 1973 and remained living at home until mid-1978 when she moved to Subiaco and then to Koondoola for about nine months in July 1979 when she married Ross Newham Duncan and set up home at their current at address at Gooseberry Hill. She and her husband have remained living at that address. After a long career as a customer service officer in Qantas, she retired on 26 May 2004. Ross Duncan had a successful career as an information technology consultant but retired from his employment at the end of October 2005, then aged 55 years. They are both financially secure and independent and are living in comfortable circumstances. The relevant details of their financial positions are set out later.

17 Judith left her parents' home in about 1971 when she was first married at the age of 19 years. There are two sons of that marriage now aged 32 and 30 years respectively who are living independently. The marriage failed, leading to separation in 1984, and Judith referred to this relationship as being occasionally violent and stressful. She was left in the position, after 1984, of raising her two sons and no doubt experienced difficulties and financial hardship in that role. She was educated until the age of 15 years and, after leaving school, attended Key Personnel Business College in Perth and later Fremantle TAFE and obtained secretarial and business qualifications. She was married a second time in February 1996 to Wayne Curran, then a security guard and now a prison officer, and the couple live in Mandurah. In fact she had begun the relationship with Wayne Curran some years before and had moved to Mandurah in about 1993. She is qualified as a land settlement agent and, on her own behalf, runs an independent settlement agents business with growing financial success over recent years.

18 Judith described her relationship with her late mother as being good and said that there was never any estrangement between the two of them. Although she was living in Mandurah, Judith kept in touch with her mother by telephone over the years before her death calling every 10 to 14 days. In addition, she would make visits to her mother's house at Kalamunda during her mother's illness, usually about once every four to five weeks, and would stay at her mother's home when she was in Perth. However, Susan asserts that Judith's relationship with their mother became estranged during the period 1997 to December 1998 and that this followed the time when Judith got married without telling her mother because this shocked and disappointed the deceased.

19 According to Susan, Mrs Hogg had a slight stroke in late 1998 and, after this Judith re-established contact with her mother. It is evident that Susan's recollection of dates is somewhat awry because it was in 1993 that Judith moved to Mandurah and she married Wayne Curran in 1996, as stated. Judith accepts that she did not inform her mother of this marriage but explains that she had been living with Wayne for several years and that the couple simply decided to marry quietly without involving the family. I accept that there may have been some disappointment by the late Mrs Hogg arising from this but, nevertheless, I am satisfied that Judith was on reasonably good terms with her mother and kept in touch with her by telephone calls and visits as far as was reasonably practicable over the last four or five years of her mother's life.

20 It was expressly accepted by all parties that there was no conduct or lack of conduct by Judith, or for that matter by Jacqueline, which could be characterised as conduct disentitling either from consideration for possible benefit under her mother's will - Inheritance (Family and Dependants Provision) Act 1972, s 6(3); Delacour v Waddington [1953] HCA 64; (1953) 89 CLR 117 and Hughes v National Trustees Executors & Agency Co of Australasia Ltd (supra) per Gibbs J at 156.

21 It is perhaps not insignificant that the deceased's last will was made on 25 June 1997 during the period of temporary estrangement between Judith and her mother. While accepting that such a period of limited estrangement did occur in the relationship between Mrs Curran and her mother, I am not prepared to accept that it was a serious disruption to their relationship nor attribute any particular reason for its occurrence.

22 Judith described her relationship with her elder sister Susan as being "quite amicable" until she moved to Mandurah but that since then it has been strained. It is clear from observing these two sisters giving evidence that this is unfortunately still the present position. For reasons which are set out later, it is obvious that intra-familial relations in this family were difficult and that events occurred and things were said which caused great offence and resentment from time to time. It is neither possible nor desirable to attempt to attribute blame for these rifts, nor to exclude the deceased from responsibility for some of them no matter how far one seeks to uphold the precept "de mortuis nil nisi bonum". I have no doubt that, to a substantial extent, all three daughters have sought to draw a veil over episodes in the past which produced major family upheavals and which indicated that Mrs Hogg herself could be difficult to get along with and that, despite their ordeals, they have preserved a respectful memory and affection for their late mother. However, the signs of these episodes of discord remain and not the least of these is the unexplained but very marked hostility which Mrs Susan Duncan revealed towards her sister, Mrs Judith Curran, in the course of being cross-examined - a disposition which I consider must be taken into account when evaluating her description of the relationships which existed between her mother and each of her two younger sisters.

23 Mrs Judith Curran has also experienced intermittent poor health. She has had surgery for a cholecystectomy, further surgery for hernia correction and for removal of a possible cancerous growth in her oesophagus. She has hypertension and has been treated for depression. Her husband, Wayne Curran, suffers from diabetes with associated heart and liver weakness. Nevertheless, he is able to carry out his present occupation as a security guard.

24 As already described, Mrs Curran owns and operates a land settlement agency at Mandurah. Although this is reasonably successful, and indeed has increased its annual profits over recent years, the business largely consists of connections with real estate agents and customers in the Mandurah area which are personal to her.

25 The evidence of Mr B J Pike, a business broker from Mandurah, put the current market value of the business as a going concern at about $30,000, which he estimated as being the result of a mathematical function of the income of the business, less its liabilities. That estimate was based on an annual profit of $60,000 for the year ended 30 June 2005, discounted to an extent for market conditions and/or attributing only minor values to depreciated plant. In cross-examination by counsel for the defendants it was put to Mr Pike that for the year ended 30 June 2004 the profit was closer to $134,000 for this business and that, applying a similar mathematical function to that figure to estimate its market value at that time would produce a figure of approximately $70,000 for a more contemporary market value. Mr Pike acknowledged that that would be the case and that the market value of the business did reflect its annual profit, but he was unable to take the matter further and there was no evidence to establish that the substantial improvement in the profit of the business in recent years is indicative of a sustainable trend or whether indeed the 2003/2004 year was particularly profitable because of passing conditions. Notwithstanding this, I consider that I should proceed on the basis that the current market value of that business, which as already noted is owned solely by Mrs Curran, is something of the order of $65,000 or slightly more.

26 The evidence of the taxable incomes of each of Mrs Judith Curran and Mr Wayne Curran over recent years is as follows:

Year of income Judith Jean Curran Wayne Curran

Taxable Income Taxable Income

2000/2001 $18,939 $29,220

2001/2002 $49,216 $33,567

2002/2003 $74,722 $36,619

2003/2004 $134,524 N/A

27 According to the Table of Financial Affairs summarising the evidence on these matters (Exhibit 13) which became non-contentious by the end of the trial, Mrs Curran's net assets at the date of her mother's death totalled $119,000 and, at the date of the trial, totalled $275,500 (or $310,000 - taking into account the higher market value which I have attributed to the Mandurah settlements business). Her husband's net assets at the date of trial comprise about $231,000 including his one-half share in the family house and land at 3 Langer Court, Mandurah. The value attributed to that property at the date of hearing was $330,000 in aggregate to which each spouse is equally entitled. The mortgage on that property had been fully repaid by the date of trial, although some $50,000 in aggregate by husband and wife was owing at the date of Mrs Hogg's death.

28 It follows from this that Mrs Judith Curran and her husband appear to have improved their mutual financial positions markedly over the past five years and that Mrs Curran is presently enjoying a high income from her business as a settlement agent. How long this can continue, and how fragile it is because of market conditions and her own susceptible health, remain imponderables. The appearances are, however, that before her move to Mandurah and her marriage to Wayne Curran, Judith had a long struggle following the failure of her first marriage and her obligation to raise her two sons as a single parent. While her present situation and prospects are vastly improved, her capital resources remain relatively modest.

29 Jcqueline, the youngest child, has not married and has no children. She is employed as a purchasing officer and lives in the house which she owns at 63 Manly Street, Cannington, which is mortgaged to the ANZ Bank.

30 As stated earlier, Jacqueline was only six when her eldest sister Susan left home to go to work in Sydney in 1967 and aged only 11 when her father was killed in the accident in February 1973. She remained living at home with her mother and her relationship with the deceased was initially good but became strained in her late high school years. When Jacqueline was aged about 17 or 18, that is in about 1978 or 1979, she formed a relationship with a young man and moved out of her mother's home. She lived with this young man for about six months in her early twenties. Her mother strongly disapproved of this relationship and told her so, leading to strain between them.

31 Jacqueline moved back home briefly for a short time when she was 18 but moved out again after a few months. She kept in contact with her mother but was not close to her. She returned home again in her early twenties but experienced problems in living with her mother and then left to go to the northwest of the State to work for a mining company for about 15 months. During that period she had little or no contact with her mother but passed her news through her sisters about once a month. According to Susan, Jacqueline moved back home to stay with their mother at Kalamunda in about 1986 or 1987 but within a short time there was a marked disagreement between Jacqueline and the deceased. According to Susan, Jacqueline telephoned her and asked her to come around and pick her up. She was in tears and left the home distraught, staying with Susan for some weeks and after that never went back to stay with her mother or made contact with her again. According to Susan, Jacqueline gave instructions that she was not to give their mother any of her details or give her any mode of contact because of this very acrimonious parting. I have no doubt that such an episode did take place and have concluded that it occurred when Jacqueline was in her mid twenties, having moved back to Kalamunda after her employment in the northwest. The precise date is not important but it is clear that something happened which resulted in Jacqueline becoming extremely upset, taking great offence and determining not to communicate with her mother again.

32 There is some evidence that in later years Mrs Hogg attempted to contact Jacqueline by sending Christmas cards or by writing on other family occasions but, sadly, it seems that no reconciliation ever occurred. Whatever may have been the cause, the consequence was that, because of this rift which occurred when Jacqueline was a very young woman and when one would have hoped that the future would still have offered great opportunities for mother and daughter to share together, the door to a happier relationship had been closed. That this situation continued for 10 years or so and remained the position at the mother's death is very sad indeed and no doubt was a source of pain to both mother and daughter. It can be very difficult to restore peace or a good relationship after a bitter break but in most circumstances it is better for all if this is attempted.

33 The deceased's relationship with her second daughter, Judith, also had its difficulties as I have described, but after about 1998 it seems to have been restored to a significant degree. Whether this might also have happened in different circumstances with Jacqueline cannot be known, but there is nothing in Jacqueline's conduct which necessitated a permanent exclusion from her mother's good will or from the parental ties which extend from every mother to an adult independent daughter.

34 With regard to the proper outlook of a parent contemplating the disposition of his or her estate where there are children a description of the approach which wisdom and responsibility should inspire is very helpfully contained in the observations of Holland J in Kleinig v Neal (No 2) (supra) at 540:

"If it is a case of parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned for the child's welfare. A wise parent will recognize that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed. The court must take in the whole scene and make the judgment that it considers that a wise and just parent would have made in the circumstances."

35 Over recent years Jacqueline Hogg has been working as a purchasing officer for various companies and has been undertaking a part-time TAFE course for special qualifications as a company purchasing officer. In between these different positions she has had occasional short periods of unemployment - no more than 12 weeks in total between April 2001 and November 2005, the longest of which was four and a half weeks in December 2003/January 2004. Her taxable income for this period was:

2001/2002 $41,197

2002/2003 $43,587

2003/2004 $67,611

2004/2005 $65,369

36 At the date of her mother's death, Jacqueline Hogg's net assets were worth approximately $67,500. This included the house and land at 63 Manly Street, Cannington, then valued at $125,000 but which was subject to a mortgage in favour of the ANZ Bank under which $98,669.20 was then owing. At the date of trial her net assets were estimated to be worth $176,876.95 which again included the house and land at 63 Manly Street, Cannington, then worth $195,000 with the mortgage reduced to $85,442. In the period since her mother's death her superannuation fund entitlement had also increased in value from $28,087 to $51,258 which, together with the appreciation in the value of the house and land, were the main factors accounting for the increase in value of net assets.

37 These circumstances reveal that Jacqueline Hogg has been able to maintain regular employment for at least the last four and a half years. It is evident, however, that her ability to meet her commitments and repay the loan on her house is dependant on her maintaining her level of earnings and, apart from her superannuation fund entitlement which would ordinarily not be accessible until she retires from work, she does not have any significant disposable capital. Her present financial circumstances can therefore be described as improving but she remains susceptible to the consequences of unemployment or illness and has no immediate family to support her. She still has a substantial liability for the outstanding balance due on the mortgage over her home and it can be expected that, on her current levels of income, it will be quite some years before that can be fully repaid. Her financial position is therefore quite fragile.

38 As already described, Mrs Susan Duncan and Mr Ross Newham Duncan were married in July 1979 and moved to Gooseberry Hill where they have remained. She was employed as a customer service agent at Qantas until her retirement on 26 May 2004. Mr Duncan had only recently retired from his position as an IT consultant shortly before the trial. Mrs Duncan has always had a close relationship with her mother and since Mrs Hogg moved to Kalamunda in 1986 they have been living nearby.

39 Mrs Duncan described Mrs Hogg as remaining in good health until about 1992, when Mrs Hogg was then aged 72 or 73. From that date she began to receive assistance from Silver Chain Care. In 1997 Mrs Hogg needed a walking stick for assistance and by 1998 she was no longer able to drive a motor vehicle. Susan has already said that she thought her mother underwent a slight stroke sometime in about 1998. However, from April 2001 Mrs Hogg was able to get around by using a three wheel "Gopher", a self-powered vehicle rather like a golfing cart. Mrs Duncan described her mother's condition from 1992 until her death in 2002 as being fragile but said that her mother was always alert. During that 10 year period Mrs Hogg had a variety of hospital admissions at Hollywood Repatriation Hospital, Royal Perth Rehabilitation Hospital, Shenton Park, Kalamunda Regional Hospital and Royal Perth Hospital for various procedures and treatments. Mrs Duncan and her husband assisted in taking Mrs Hogg to hospital and looking after her upon her discharge, visiting her daily while in hospital, sometimes during admissions lasting up to nine weeks, and generally assisting her in many ways, with her shopping, in various fetching and carrying, in advising and assisting her perform her various financial affairs and in many other respects. Mrs Duncan described how, from January 1994 she and her husband helped manage Mrs Hogg's financial affairs and were granted an enduring power of attorney by the deceased on 24 July 2004. From 1998 on they did all Mrs Hogg's shopping. Mr Duncan helped in many ways around the house and garden at Kalamunda advising and making recommendations when requested with regard to her financial affairs.

40 It had been the practice of Mr and Mrs Duncan to take regular interstate or overseas holidays and, indeed, they took Mrs Hogg with them on visits to the USA, to Penang, to Singapore and to Sydney. However, because of Mrs Hogg's deteriorating health, she was not able to travel during the last two years of her life and because of this neither Mr and Mrs Duncan took holidays themselves but remained at home, assisting Mrs Hogg as described, and in case they were suddenly needed.

41 Mrs Hogg had asked Mr Duncan in 1994 whether he would agree to be executor of her will and he indicated that he would be pleased to accept that task. Mrs Hogg obviously acted on that indication because Mr Duncan was nominated as sole executor under the will of 2 May 1994. However, he says, and I unhesitatingly accept, that before Mrs Hogg's death he had no inkling of any kind of the contents of that will. Similarly, Mrs Hogg enquired again of Mr Duncan whether he would again agree to act as her executor shortly before she made her last will in June 1997. Again, Mr Duncan agreed and Mrs Susan Duncan assisted her mother in driving her to an appointment with the solicitors to make and execute that will. Again, however, neither Mr nor Mrs Duncan were privy to the contents of that will or involved in any way in the instructions given by the testatrix to the solicitors when it was prepared and executed.

42 The evidence at this trial demonstrates that the solicitor who drafted the will must have explained to Mrs Hogg that by leaving her estate entirely to Mr and Mrs Duncan there was a significant risk that one or both of her other daughters might challenge the will by proceedings under the Inheritance (Family and Dependants Provision) Act 1972 and might successfully establish a claim. There is no admissible evidence as to any direct response by Mrs Hogg to this advice but I am satisfied that the probabilities are that she was aware of the potentiality of claims to be made against her estate by her younger daughters but, nevertheless, proceeded with her testamentary intentions which have been recorded in that last will. There is also evidence that, among her personal papers found after Mrs Hogg's death, there was a letter from her general medical practitioner reporting on a consultation occurring shortly after the execution of the will to the effect that she appeared to be perfectly lucid, aware and competent at the time. There is other evidence to suggest, and I find, that Mrs Hogg sought and obtained this medical opinion upon the recommendation of her solicitor whose practice was to advise elderly clients that it would be a wise precaution to seek a medical certificate shortly after they had made a new will, lest it ever later be suggested that they lacked requisite testamentary capacity.

43 I am satisfied that these facts reveal that Mrs Hogg's decision to leave her estate exclusively to her elder daughter Susan and to her husband Mr Ross Duncan equally between them was a deliberate decision made in circumstances when she knew that questions might well be raised about her failing to make any provision for either of her two younger daughters. There has been no attempt by the deceased, by the terms of the will, to offer any explanation for the omission of the two other daughters from the benefit and none was put forward in these proceedings, except for the submissions that Mrs Hogg was free to dispose of her estate as she chose and that neither of the two younger daughters was in need of testamentary provision from her.

44 Because neither Mrs Susan Duncan nor her husband Mr Ross Duncan are claimants under the Inheritance (Family and Dependants Provision) Act 1972 in these proceedings their financial circumstances at the date of Mrs Hogg's death have not been disclosed. No question arises as to whether or not the deceased made proper provision for Mrs Susan Duncan's proper maintenance and support, education or advancement in life. No challenge was made to this non-disclosure in these proceedings but it is not suggested that Mrs Duncan, or for that matter her husband, were then in necessitous financial circumstances - quite the contrary.

45 However, the evidence does disclose the financial position of both Mr and Mrs Duncan at the date of trial in November 2005. Between them they own their house and land at 55 Girrawheen Drive, Gooseberry Hill, which is estimated to be worth $490,000. Each has other assets, including a motor vehicle, bank accounts, shares and other property, including substantial superannuation entitlements. Neither has any significant liabilities. As at the date of the trial the net asset position of the two defendants was as follows:

Susan Cheryl Duncan $705,767.95

Ross Newham Duncan $1,197,030

These assets include a superannuation entitlement of $411,744 for Mrs Duncan and an additional superannuation entitlement of $873,468 for Mr Duncan.

46 Quite frankly and commendably, Mr Duncan acknowledged, in the course of his evidence, that neither he nor his wife was in financial need at the date of Mrs Hogg's death and that neither is now. Together, their combined assets are worth approximately $1.9 million and, putting aside their unencumbered house and land as an asset not available for sale because of their need for a home, they have other liquid assets including superannuation of about $1.33 million which are invested and producing income. These figures do not include any part of the value of the unadministered estate of Mrs Hogg which, as the will stands, would all also go to them.

47 The assets comprising the estate of the deceased and its net value at the date of death of $219,623.53 have already been described. The principal asset was the house and land at 17 Boonooloo Road, Kalamunda, then valued at $150,000. Since the grant of Probate the first defendant, as executor, has proceeded with the administration of the estate, sold the disposable assets and discharged the minor liabilities. He has also sold the house and land during the second half of 2005 and the net proceeds of the sale received in September 2005 were $274,670.06.

48 At the date of trial the gross value of the estate was estimated to be $344,656.09 made up as follows:

Assets:

Sale of BankWest shares $5,312.50

BankWest Saver Account $33,889.70

BankWest Term Deposit $16,604.33

BankWest Term Deposit $11,384.30

BankWest Term Deposit $7,314.40

Proceeds of sale of 17 Boonooloo Road $274,670.06

Household furniture and chattels $5,740.00

Less liabilities:

- as listed in Statement of Assets and Liabilities

filed in support of the application for Probate ($10,259.20)

Legal fees paid to defendants' solicitors ($65,000.00)

Contingent tax liability ($5,000.00)

Net assets $274,656.09

49 At the trial the existence of the alleged liability to the defendants' solicitors was challenged by counsel for Ms Jacqueline Hogg. As a result of his cross-examination of Mr Ross Duncan, it emerged that fees had been paid by Mr Duncan to the solicitors for the defendants at various stages since Mrs Hogg's death and that a significant liability for further fees arising from this present litigation was expected. The fees which had been charged and paid in the past could be segregated into three categories. The first category is fees and disbursements in connection with the application for the grant of Probate and administration of the estate, including the sale of the Kalamunda home. The second category comprises fees for legal services incurred in relation to a caveat lodged by one or other of the defendants against any application for Probate on the grounds that a later will was at one time thought to have been made. The third category of legal expenses is for fees and disbursements incurred in relation to the defence of the present proceedings by the executor and for further fees in this regard which are expected to be charged once the trial has been completed.

50 The basis for this cross-examination by counsel for Ms Jacqueline Hogg is the contention that further fees in relation to the application for Probate and the administration of the estate are properly charged against estate assets but that fees for the defence of the present proceedings, and more particularly for the defence of the two defendants' personal interests rather than for the performance of Mr Duncan's role as executor, should not be payable out of the estate unless and until an order of the court to that effect is made or all persons entitled in distribution to the residue of the estate consent.

51 At one point this issue loomed large in the submissions made for Ms Jacqueline Hogg and counsel further submitted that there should be an order made referring the assessment of proper costs and, if necessary, a further order to take an account of those costs which are properly payable out of the estate should also be made. However, at the trial I indicated and now confirm that it is premature to enter upon this apparent dispute about the propriety of estate funds used by Mr or Mrs Duncan for the payment of legal expenses at this point.

52 Until the resolution of the present proceedings by the decision which I must now give, Mr and Mrs Duncan are the sole residuary beneficiaries of the estate of Mrs Hogg and, so long as that remains the case and they both agree, they may apply the assets of the estate to such purposes as they consider fit. If, for example, Mr Duncan was to incur unnecessary costs in the administration of the estate then the effect of that would be to deplete the residuary estate distributable to themselves as residuary beneficiaries. But, as the only persons interested in that estate, they are entitled to authorise the application of those funds, even if not for estate purposes, as they may both together choose. Put another way, neither Ms Jacqueline Hogg nor Mrs Judith Curran is a beneficiary under the will and, unless the result of these proceedings produces a variation in the terms of the will so that they become beneficiaries, they have no present standing to require any explanation or account from the executors about the administration of the estate.

53 All that will change, however, if, either Mrs Judith Curran or Ms Jacqueline Hogg succeeds and obtains relief, whether in the form of a legacy or a share in the residuary estate, which then might stand to be depleted by unauthorised payments from or expenses charged to, the estate by the executors in the course of administration.

54 It seems to me that the costs and disbursements properly incurred by the executor in relation to the removal of any caveats lodged against a grant of probate, and in applying for and securing a grant of probate are proper expenses incurred in the course of administration in his role as executor. The same goes for the costs, expenses and any commissions associated with the sale of the deceased's property at Kalamunda. The costs of defending these proceedings by the executor needs to be considered both from the point of view of his interest solely as executor, and from the personal interests of Mr and Mrs Duncan as the sole residuary beneficiaries. There again, however, the appropriate orders to be made in relation to the costs of these proceedings and whether or not the defendants should bear their own costs or have some or all of them paid out of the estate, are matters to be addressed after judgment has been given and in circumstances where all the parties are at liberty to make further submissions once the result of the proceedings becomes known.

55 In the event that either, or both, of the applicants succeed in this litigation and that an order is also made that the defendants may recover some or all of their costs of these proceedings from the estate, it will be necessary for those costs to be taxed if not agreed. That process of taxation will provide the proper opportunity for any disputes about the nature and the extent of costs incurred by the two defendants to be resolved and only the amount allowed on that taxation (or otherwise agreed) may be charged by the executor against the estate. This process will, therefore, allow ample opportunity for the contentions raised by counsel for Ms Jacqueline Hogg to be addressed in due course when the results of these proceedings are known and the impact, if any, of costs paid or incurred by the executor can be assessed by all parties.

56 At present, therefore, I consider that I should proceed on the footing that the value of the net assets of the estate, at the date of trial, is approximately $275,000 on the basis that the whole of the legal fees of $65,000 paid to the executor's solicitors and the further contingent tax liability of $5000 are properly chargeable against the estate. If that is not the case then the net value of the estate will be correspondingly higher to the extent, if any, that parts of those liabilities may not, in the end, be chargeable against the estate. The maximum increase in the value of the estate might be $70,000 ($65,000 + $5000), but the probabilities are that it might be well less than that.

Adequate provision from the estate of the deceased for the claimants

57 It is now necessary to address the first stage, of the two stage process required of the court by these applications or, in other words, to address the "jurisdictional question". In Vigolo v Bostin (supra) Gleeson CJ, at [11], cited with approval the observations of Salmond J in Welsh v Mulcock [1924] NZLR 673 at 685 that:

"The testamentary duty of a man towards his family is not limited to a merely eleemosynary provision sufficient to provide the necessities of existence. This may be the measure of the legal obligation of a husband or a father in his lifetime under the Destitute Persons Act, but it is not the measure of that moral obligation - that officium pietatis, as the Roman lawyers called it - which he owes to his family in respect of the testamentary disposition of his estate, and which is recognised and enforced by the Family Protection Act."

"The 'testamentary duty' which justified legislative interference with a free exercise of testamentary capacity, that is, the duty of a man to make provision for his wife and children, was seen as a moral duty. The legislation was not merely, or even primarily, concerned with relieving the State of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution. The legislative power was to make 'proper' provision. Judicial explanation of what was meant by proper provision was based upon the idea of a moral obligation arising from a familial relationship. That is one of the fundamental ideas upon which the structure of our society is based."

What is the proper level of maintenance, etc. appropriate for an individual claimant has been much discussed in many cases, but it is universally acknowledged that the assessment must be made having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty - Singer v Berghouse (supra) at 209. Similar criteria and expressions of the formulation of the test have been set out by Nicholson J in Hawkins v Prestage (supra) at 44 - 45. This case also contains a helpful analysis of the principles dealing with the situation where an attitude of hostility or indifference characterises the relationship between the claimant and a testator which will sometimes result in a conclusion being reached that no moral claim exists. However, as in Hawkins v Prestage, the explanation for such an attitude of hostility or indifference may be that the attitude was one-sided on the part of the testatrix or caused as a result of conduct or events on her part in the past. Acute difficulties can arise in such cases in determining whether or not such a moral duty still remains on the part of the testatrix - see also Rowley v Bouwmeester [2005] TASSC 34 per Blow J at [32] - [33]. Even if there is mutual or one-sided hostility or indifference between parent and child, that does not dispense with the obligation of the testator to make proper provision for a child but it may mean that it is, in certain situations, "proper" to make little or no provision for that child. It all depends on the particular circumstances and there can be no universal rule.

58 In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gibbs J said, at 502:

"[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."

59 Therefore, attempting, as best one can, to place myself in the position of the testatrix in considering whether any moral duty was owed by her towards her two younger daughters and, if so, what would be proper provision at the time Mrs Hogg's will took effect, I must re-examine the facts which were, or should have been, apparent to the testatrix at that time. There is no doubt that her eldest daughter Mrs Susan Duncan, and her husband, were in secure and comfortable financial circumstances, with good incomes and with no financial liability. As they acknowledge, they were not in need and indeed they were, in comparison with the younger daughters, quite well off. The only significance of this conclusion at this first stage of the process is to point to the conclusion that the beneficiaries whom the testatrix actually favoured by her will were not in great need of her bounty. That in no way diminishes the very considerable services which both Mr and Mrs Duncan provided for Mrs Hogg, nor the extent of the assistance which they gave to her or the companionship and support which was given during the years of her illnesses and decline.

60 By contrast, Mrs Judith Curran, at the date of her mother's death, was modestly circumstanced in Mandurah, with a mortgage under which she and her husband were jointly liable over the house which they owned there. She was operating on her own account the settlement agency business which, while expanding and increasing in its profitability, was solely dependant upon her own personal exertion and connections. Her health was suspect and despite her improving financial circumstances she was still in a stage of rehabilitation from the difficult years following the failure of her first marriage. Her reserves of capital were limited and, in my view, if her mother had been fully attentive to her testamentary obligation she would have recognised that Judith had a justifiable claim for expectation that some benefit should come to her from her mother's estate and that any benefit which did come would be of great assistance in her particular circumstances.

61 In other words, I consider that Judith did have a moral claim upon her mother's testamentary bounty and that the testamentary duty upon Mrs Hogg called for adequate provision to be made for her second daughter from her estate. That no such provision was made satisfies me that there was a failure to make adequate provision for her proper maintenance and support within the language of s 6 of the Act and that Mrs Curran has satisfied the court that she is entitled to have appropriate provision made for her out of this estate. There is really no reason to explain why no provision was made by Mrs Hogg for her second daughter and I am left to infer that the omission was in some way due to the estrangement which developed in the years from 1993, or thereabouts, until 1998. However, there was no hostility shown by Mrs Curran towards her mother and she did attempt to maintain contact and stayed with her mother from time to time during her illness.

62 No doubt the main burden and responsibility of caring for Mrs Hogg over her last years fell upon Mr and Mrs Duncan, but they were living nearby, they had the resources of time and opportunity to care for her and were obviously willing to do so. Because Mrs Curran was located and working in Mandurah it is not surprising that she did not take an active role in the care for her mother and perhaps this underlines the attitude of hostility evident to her from Mrs Duncan. However, this has little to do with the essential point. I am satisfied that Judith Curran did have a moral claim upon her mother's testamentary bounty, had done nothing to disentitle herself from participation in that bounty and was, having regard to her personal financial circumstances and prospects taken in combination with those of her two sisters, entitled to be provided for under Mrs Hogg's will.

63 The position of Jacqueline Hogg in relation to need and her own financial circumstances at the date of her mother's death, reveals that she was in even greater need of provision from her mother's estate. Her net assets were only $67,175 and she was meeting a liability of $98,669 under a mortgage to the ANZ Bank over her house and land at Cannington, then valued at only $125,000. She had very little else in the way of disposable assets and was completely dependant upon her earnings which, for the last financial year, were $41,197 gross. She was then aged 41 years and had no other financial or family support.

64 Jacqueline had been living independently for most of the last 20 years before her mother's death. After the relationship with the young man which caused her to leave home and earn the disapproval of her mother, she did attempt to return to the house and live there with her mother for some time in her early twenties. It was then that the episode occurred which led her to leave the house suddenly in tears, go and stay with her elder sister, and then not communicate with her mother again. There is no direct evidence as to what happened on that occasion but all the circumstances point to something being said or done by the deceased which gave great offence to Jacqueline and wounded her deeply. No doubt she was in a vulnerable and sensitive position at that time but I have the impression that Mrs Hogg could be determined and unforgiving. The probabilities are that it was this attitude which contributed, significantly, to the break with Jacqueline which unfortunately lasted for so long. This same determined disapproval is apparent from the fact that Mrs Hogg persisted in the instructions which she had given for her last will, notwithstanding that her solicitors, quite properly and necessarily, drew to her attention the distinct probability of challenges being made to it in proceedings such as the present by her two younger daughters when advising her.

65 That no initiative was taken by Mrs Hogg to attempt to repair her relations with her younger daughters, and particularly with Jacqueline, at a time when she must have known that she was in declining health and when she was considering the disposal of her estate, leads me to the conclusion that the estrangements which occurred were, to a significant degree, due to the deceased. This is not meant to be a harsh or unsympathetic conclusion because, according to her own lights, I have no doubt that Mrs Hogg felt that she was justified in her attitude. Nevertheless, the persistence in these old attitudes of hostility seem to have blinded her to the real need that both her younger daughters, in particular Jacqueline, had and, especially in view of Susan's secure financial circumstances, the need to make provision for Jacqueline. Accordingly, I conclude that Jacqueline has established that Mrs Hogg's last will failed to make adequate provision for her proper maintenance and support and that she is entitled to relief in the claim that she has brought.

66 Having concluded that there was a failure by the deceased to make adequate provision for either Judith or for Jacqueline, it is necessary to consider whether the discretion to order relief should be exercised. Satisfaction of the jurisdictional test means that the discretion to make an order is enlivened but not that it must be exercised. However, where the necessary conditions for an order for provision have been demonstrated it will usually be the case that an order for relief should be granted unless there is good reason to the contrary: Re Sinnott (Dec) (supra) at 281; Pontifical Society for the Propagation of the Faith and St Charles Semenary v Scales [1962] HCA 19; (1962) 107 CLR 9 and Bondelmonte v Blanckensee (supra) at 308. There have been no circumstances which have arisen since the date of the death of the deceased which so alter the comparative positions of the two claimants and the residuary beneficiaries under the will that would result in a decision to decline relief, nor has there been any material deterioration or other change in circumstances in the nature or extent of the assets of the estate: Coates v National Trustees Executors and Agency Co Ltd (supra) at 509 and Re McNamara (Dec) (1938) 55 WN (NSW) 180 at 181 and Inheritance (Family and Dependants Provision) Act 1972, s 6(3).

67 Importantly, there are limits upon the proper exercise of the power of the court to award relief which derive from the parliamentary policy which entitles orders of any kind to be made. In this regard the obligation for the court is to make an order for proper maintenance and support for the applicant but not more than is adequate having regard to all the circumstances. It is not for the court to rewrite the will of the deceased: Re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 969 - 970 and 975 and, particularly with reference to the claims formulated in the present litigation, it is not the purpose of the legislation or the power of the court to make an order simply to achieve equality of distribution between the children of the deceased: Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 at 134 - 135 and 136 and Cooper v Dungan (1976) 50 ALJR 539 at 540 and 542.

68 In the present case, because the net value of the estate is relatively modest there is little capacity to make orders which would result in excessive provision in the sense of providing more than adequate provision for each claimant's proper support and maintenance. Furthermore, the evidence unmistakably shows that, notwithstanding their more advantageous financial circumstances, Mr and Mrs Duncan, the residuary beneficiaries, certainly were persons to whom the deceased had a moral obligation having regard to the support, assistance and affection which they provided for Mrs Hogg over a very long time - particularly during her years of declining health and frequent hospitalisation.

69 There is a difficulty in formulating relief by reference to any order for fixed sums of money to be paid to the claimants as if, in effect, there were legacies under the will. The difficulty comes in the uncertainty which remains about the extent of the net assets of the estate, having regard to the cost of these proceedings and the issues which have been foreshadowed by counsel for Jacqueline Hogg about costs which the executor has already paid out of the estate. An unexpectedly high, or low, final liability for costs could well significantly distort the proportionality between any fixed sum ordered to be paid by way of a legacy and the value of the residuary estate which could leave the overall proportions between the benefits taken by all the parties under the will in an unsatisfactory state. For that reason I consider it better to make an order which will have the effect of dividing the estate in portions between the existing beneficiaries and the two claimants, having regard to the conclusions which I have already set out.

70 Having regard to the intention of the testatrix to benefit Mrs Susan Duncan and her husband, and particularly the very large role which they performed in caring for her, I consider that they are, between them, entitled to a larger share of the estate and that each of the claimants should, proportionately, have smaller shares. After considerable thought, I think this is best achieved by directing that, instead of the disposition of the estate of the deceased directed by the will of 25 June 1997 which is the subject of the grant of Probate and which provides for the whole of the estate to be left to Susan Sheryl Duncan and Ross Newham Duncan as tenants in common in equal shares, there should be an order that the whole of the estate of the deceased, after the payment of all just debts, funeral and testamentary expenses and any other duties or charges upon the estate, shall be held by the executor in trust for distribution as follows:

(a) four equal one-tenth shares be payable to Susan Sheryl Duncan and Ross Newham Duncan as tenants in common in equal shares;

(b) three equal one-tenth shares be payable to Judith Jean Curran; and

(c) three equal one-tenth shares be payable to Jacqueline Elizabeth Hogg.

71 The variation and distribution of the estate produced by such orders should provide proper and adequate provision for the applicants without disentitling Mr and Mrs Duncan, nor depriving them of the primacy in distribution which Mrs Hogg intended and which also reflects the great services and comfort which they each gave to her. In the case of Mrs Judith Curran's application, it should provide her with additional capital and security and reduce her dependence on the financial fortunes of her business at Mandurah, and especially the risks of illness. In the case of Ms Jacqueline Hogg, it should allow her much needed capital and an opportunity to reduce her mortgage liability which, at her age and circumstances, can only be a significant financial burden.

72 In accordance with s 14(4) of the Act I shall also order and direct that the grant of Probate of the will of the deceased be produced to the Registry for the purposes of being endorsed with a certified copy of the judgment and orders in the proceedings.

73 I will hear counsel as to the precise details of orders to give effect to these conclusions.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : CURRAN -v- DUNCAN as Executor of the Will of JEAN FRANCES HOGG (DEC) & ORS [2006] WASC 9 (S)

MATTER : Section 6 of the Inheritance (Family and Dependants Provision) Act 1972

ROSS NEWHAM DUNCAN as Executor of the Will of JEAN FRANCES HOGG (DEC)

SUSAN SHERYL DUNCAN Beneficiary of the Estate of JEAN FRANCIS HOGG (DEC)

MATTER : Inheritance (Family and Dependants Provision) Act 1972

ROSS NEWHAM DUNCAN as Executor of the Will of JEAN FRANCES HOGG (DEC)

SUSAN SHERYL DUNCAN Beneficiary of the Estate of JEAN FRANCES HOGG (DEC)

Inheritance (Family and Dependants Provision) Act 1972 - Costs - Successful applicants - Costs out of estate

Inheritance (Family and Dependants Provision) Act 1972 (WA)

1 EM HEENAN J: The orders which I make in these proceedings to give effect to the conclusions set out in my reasons for decision are these: Rather than the provision contained in the will of Jean Frances Hogg admitted to probate, there will be an order that the whole of the estate of the deceased after the payment of all just debts, funeral and testamentary expenses and any other duties or charges upon the estate shall be held by the executor in trust for distribution as follows: four equal one-tenth shares be payable to Susan Sheryl Duncan and Ross Newham Duncan as tenants in common in equal shares; (b) three equal one-tenth shares be payable to Judith Jean Curran; and (c) three equal one-tenth shares be payable to Jacqueline Elizabeth Hogg. Next, in accordance with s 14(4) of the Inheritance (Family and Dependants Provision) Act 1972, I order and direct that the grant of the probate of the will of the deceased be produced to the registry for the purposes of being endorsed with a certified copy of the judgment and orders in these proceedings.

2 It is necessary now that I deal with the question of costs upon which extensive submissions have been heard this morning.

3 In this respect I must recognise that these two applications had been listed for hearing before a Commissioner of this Court in July 2005 but were adjourned on the first day listed for the trial after submissions were made by the parties. Odes C on that occasion ordered that the costs of the adjournment, including costs thrown away, be paid by the second and third defendants, Mrs and Mr Duncan respectively. The reason for that adjournment was related to, but not entirely, issues arising from disputes over the valuation of the principal asset of the estate of the deceased and also controversy about the value of the assets of one of the applicants, Ms Hogg. The order for costs which I must now make therefore will be supplementary to the order relating to that earlier stage of the proceedings.

4 I approach this matter on the basis that, generally speaking, successful parties should have their costs out of the estate and that the executor and other parties should also have their costs out of the estate to the extent that, in the case of the executor, the costs are incurred in performing the limited role of the executor and in relation to other parties, to the extent that they have sought to preserve an interest which is consistent with their entitlement under the will.

5 In the present case the applicant, Mrs Curran, applies for an order for her costs to be paid out of the estate with no special orders. The applicant, Mrs Hogg, applies for an order that her costs be paid out of the estate but with special orders relating to certain categories of costs which, on her counsel's submissions, were incurred as a result of unproductive opposition by the defendants to estimates of value which she had put forward. In relation to those components of the costs, counsel for Ms Hogg in effect submits that they should not be borne by the estate generally but should be paid by the defendants who were responsible for them being incurred - in the end unnecessarily.

6 The position in relation to the defendants is that the executor Mr Ross Duncan asks for his costs as an executor to be paid out of the estate and there is no controversy about this. No application is made for any separate order for costs to be awarded to the second and third defendants Mr and Mrs Duncan in their capacities as residuary beneficiaries. It is therefore necessary to ensure that a clear distinction is made between the role of Mr Duncan as executor and the associated but separate role of Mr Duncan and his wife as residuary beneficiaries.

7 In the circumstances, I consider that the following orders should be made: that Mrs Judith Jean Curran should recover her costs of the proceedings, including any reserved costs, to be taxed and paid out of the estate of the deceased. In relation to the applicant Jacqueline Elizabeth Hogg, I consider that she should recover her costs of the proceedings, including any reserved costs, to be taxed and paid out of the estate of the deceased.

8 In relation to Mr Ross Newham Duncan in his capacity as executor, I consider that he should recover his costs incurred in the performance of his role as executor and limited to the performance of that role to be taxed, including any reserved costs, and to be paid out of the estate. There will be no order for the recovery of costs by the second and third defendants, Mr and Mrs Duncan, in their capacity as residuary beneficiaries of the estate of the deceased.

9 With respect to the special issues raised by counsel for Ms Hogg, the situation is that, by the time of this trial before me in November 2005, the principal asset of the estate of the deceased, the unit at Kalamunda, had been sold and the proceeds of the sale recovered and invested, so the controversy about the value of that asset had disappeared, however the net sale price achieved was a figure, as I understand the submissions, significantly greater than the figures contended for by the executor and residuary beneficiaries at the time that issue was in controversy. Similarly, by the time of the trial in November, the controversy over the value of the assets of the second applicant, Jacqueline Hogg, had also disappeared and agreement had been achieved upon the values of her various assets and liabilities largely, as I understand it, at or near the figures that she had always been contending for.

10 Put another way, the objections to the valuation of assets and liabilities of Ms Jacqueline Hogg which had engendered the dispute between her and the respondents had disappeared but in a manner which effectively conceded the position which she had been maintaining. Much the same can be said about the controversy concerning the value of the deceased's unit at Kalamunda.

11 It seems to me, therefore, that the events have revealed that the position adopted by the defendants in contending for a lower value of the house and unit at Kalamunda, and in disputing the extent of the assets and income of Ms Hogg, have failed and that the efforts which were necessary to reach the situation in which her position was accepted have been achieved, were only necessary because of unsuccessful resistance by the defendants. The same result could have occurred without that additional effort and expenditure. As a consequence, the costs incurred by that additional effort and expenditure, in my view, should fall on the interests who caused it, for what in the end, has turned out to be unsuccessful objections.