de Angelis v de Angelis [2003] VSC 432

1 In this proceeding the plaintiff, Peter Marlon de Angelis by originating motion filed 2 October 2000 seeks, inter alia, an order pursuant to Part IV of the Administration and Probate Act 1958 (Vic) ("the Act") that further provision for his proper maintenance and support be made from the estate of his late father, Angelo de Angelis ("the deceased") who died on 1 November 1999.

2 The defendant is Frank (Francesco) de Angelis, the younger brother of the plaintiff, who is sued in his capacity as executor and trustee of the will of the deceased made 26 November 1998. The plaintiff lodged a caveat dated 6 November 1999 preventing the grant of probate. In February 2000 the plaintiff withdrew the caveat. The defendant proved the will and obtained a grant of probate on 30 March 2000.

3 The deceased's estate consists of two adjoining residential units situated in Doncaster (valued for probate at $100,000 and $165,000 respectively) and a personal estate consisting principally of money and shares with a net value of approximately $190,000.

4 The deceased by his will made 26 November 1998 ("the will") devised the larger residential unit to the defendant. He devised the adjoining unit to the plaintiff for life. The plaintiff's life estate is determinable upon failure to maintain the unit or to pay associated costs. The remainder interest in the unit was devised to the plaintiff's infant children. The deceased's residuary estate was bequeathed to the defendant. The deceased included in his will a clause which explained the nature and quantum of his provision for the plaintiff by reference to the plaintiff's disrespectful conduct towards the deceased and his squandering of the assistance already provided to him.

5 The plaintiff is currently aged 46. Due to his poor physical and psychiatric condition he is permanently incapacitated from gainful employment. The plaintiff ceased paid employment in mid 1997. Since that date he has been in receipt of a disability pension. He has no assets other than his life estate under the deceased's will and an undetermined entitlement to a fund of $114,000 (plus interest), being the net proceeds of sale of his former matrimonial home. The fund is the subject of competing claims by the plaintiff and his former spouse. The defendant is currently aged 42 and is employed as a lending manager with a major bank. The defendant has a steady income from employment. He owns property in addition to the property obtained under the will. He has no dependants. There is no evidence that the defendant suffers from any disabilities. There is no evidence of the financial position or needs of the infant remaindermen.

6 The plaintiff contends that a wise and just testator would have made a greater provision for him, as a needy and disabled son, than for the defendant, a son who was in superior financial circumstances and who had no apparent need or disability. The plaintiff seeks an order that he receive three-quarters of the deceased's estate.

7 The beneficiaries under the deceased's will were his two sons (the plaintiff and the defendant) and his grandchildren (the plaintiff's son and daughter).

8 The will appointed the defendant, Frank de Angelis, executor and trustee.

9 The deceased devised Unit 1, 46 Beverley Street, East Doncaster to the defendant absolutely.

10 By clause 6 of the will, the deceased devised Unit 2, 46 Beverley Street, East Doncaster to the plaintiff for life with remainder to the plaintiff's children, Christian and Kylie. Clause 6 of the will provided that the plaintiff's life estate was determinable on failure by the plaintiff to pay due rates, taxes and fees, to keep the unit insured or to maintain its state of repair.

11 By clause 7 of the will the residue of the deceased's estate was devised and bequeathed to the defendant should he survive the deceased for seven days. Should the defendant fail to so survive the deceased, the residuary estate was given to the deceased's grandchildren living at the date of his death in equal shares.

"I specifically declare that I have made the provision in this my Will for said sons after having already considered the help and financial assistance that I have given to my sons during my lifetime and that my son Peter de Angelis squandered what I have given to him and he has caused me much pain and anguish and shown no respect to my (sic) and accordingly have taken this into account in the distribution of my estate."

13 I recently considered the legislation and general legal principles relevant to the operation of Part IV of the Act as amended in MacEwan v Shaw.[1] For convenience, I set out the relevant section of that judgment.

14 "Part IV of the Administration and Probate Act 1958 (Vic) ("the Act") governs the Court's power to make provision for the maintenance and support of applicants from the estate of deceased persons.

15 Section 91 of the Act provides:

"91. Power of the Court to make maintenance order

(1) Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.

(2) The Court must not make an order under sub-section (1) in favour of a person unless -

(b) another person has applied for the order on behalf of that person.

(3) The Court must not make an order under sub-section (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by -

(b) the operation of the provisions of Part I, Division 6; or

(c) both the will and the operation of the provisions -

does not make adequate provision for the proper maintenance and support of the person.

(a) whether or not the deceased had responsibility to make provision for a person; and

(b) whether or not the distribution of the estate of the deceased person as effected by -

(ii) the operation of the provisions of Part I, Division 6; or

(iii) both the will and the operation of the provisions -

makes adequate provision for the proper maintenance and support of the person; and

(c) the amount of provision (if any) which the Court may order for the person; and

(d) any other matter related to an application for an order under sub-section (1) -

(e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;

(f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;

(g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;

(h) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;

(i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;

(k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;

(l) any benefits previously given by the deceased person to any applicant or to any beneficiary;

(m) whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;

(n) the liability of any other person to maintain the applicant;

(o) the character and conduct of the applicant or any other person;

(p) any other matter the Court considers relevant."

16 The current provisions of Part IV of the Act, introduced by the Wills Act 1997, as amended by the Miscellaneous Acts (Omnibus No.1) Act 1998, came into operation on 20 July 1998. They introduced a substantially amended statutory scheme intended to widen the category of persons entitled to make application for "testator's family maintenance". Previously, eligible applicants were limited to widows, widowers and children. The Attorney-General's Second Reaching Speech (9 October 1997) referred to the need to amend provisions which were "quite restrictive, excluding the ability of other persons who may have a moral claim on the deceased's estate from making a claim".

17 Although the current provisions are frequently referred to as testator's family maintenance provisions, eligible applicants are not limited to family members or to persons with any particular status or relationship to the deceased. Rather, by s.91(1) eligibility to apply depends upon a responsibility in the deceased to make provision for the proper maintenance and support of the applicant. In determining whether the deceased had such a responsibility and whether the terms of any will or rules of intestacy (or the combined application of the will and intestacy provisions) make adequate provision, the Court, by s.91(4), is required to have regard to a number of specific matters and to any other matters it considers relevant.

18 Under Part IV, in its current form, the question of eligibility overlaps with the substantive determination of the application.

19 A substantial body of precedent decided under the previous legislation indicated that the correct approach in the context of maintenance applications was to apply a two stage test. The first stage of the applicable test involved a determination of whether the deceased's will (or intestacy) was such as to provide adequate provision for the proper maintenance and support of the applicant.

20 In resolving that question, the Court was required to place itself in the testator's shoes and determine what testamentary dispositions ought to have been made by a just and wise testator in all the circumstances of the particular case.

21 In Bosch v Perpetual Trustee Co Ltd,[2] Lord Romer stated -

"Their Lordships agree that in every case the court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband and father."[3]

22 In several cases, the concepts of moral duty or moral claim and the wise and just testator have been criticised, as constituting a judicial gloss without statutory justification. That criticism culminated in Singer v Berghouse [No. 2][4] where Mason CJ, Deane and McHugh JJ doubted whether the just and wise testator provided useful assistance in elucidating the statutory provisions.

23 Despite those observations of the High Court in Singer v Berghouse (No. 2), and their subsequent endorsement by the New South Wales Court of Appeal, Victorian authority has adhered to the tests of moral duty and the wise and just testator. In Collicoat v McMillan[5] Ormiston J declined to endorse the criticism of the Mason CJ, Deane and McHugh JJ observing that it was obiter dicta only. His Honour there observed that much of the criticism of the moral obligation misconceived its nature. In Ormiston J's view, the test did not require an applicant to demonstrate entitlement by reference to the merits of his character or conduct. Rather, it focused on the obligation of the testator to make such testamentary dispositions as were right and proper, according to accepted community standards, having made a wise and just assessment of the entitlements.

24 Ormiston J in Collicoat v McMillan also observed:

"the expression `moral duty' remains a simple and convenient way of referring to the obligation ... resting on a testator to make a wise and just assessment of the interests of all persons who might fairly ask to be taken into account in determining what adequate provision for proper maintenance and support should have been made for them had the testator been fully aware of all the relevant circumstances ... It is sufficient to say that the word `moral' used in connexion with the legislation is apt to describe what is generally considered according to accepted community standards to do what is right and proper for those members of his family whom one would expect to be entitled to a share in the distribution of his or her estate on death."[6]

25 In Grey v Harrison,[7] the Court of Appeal confirmed Ormiston J's reaffirmation of the wise and just testator. Callaway JA, with whom Tadgell and Charles JJA concurred, noted that -

"The touchstone of what a wise and just testator would have thought his or her moral duty has been accepted for many years. It supplies the norm that the legislature left unexpressed. See and compare Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 46 per Sheller JA. It is the way in which the courts, for almost the whole of this century, have construed the legislation. As Ormiston J explained in Collicoat v McMillan (unreported, 30 October1995) at 63-76, it is in large measure exegetical of the `proper' in the phrase `proper maintenance and support'. It also reflects the view that there is no legislative justification to abridge freedom of testation unless the testator has breached a moral duty, or alternatively that there is no judicial reason to exercise the statutory discretion except for the purposes of remedying such a breach."[8]

26 Callaway JA also observed that the doubt expressed in Singer v Berghouse (No. 2)[9] in relation to a just and wise testator and to moral duty was clearly obiter. Although it merited careful consideration he considered that, "the authorities so strongly favour the criterion of what a wise and just testator would consider his or her moral duty that we are not free to jettison it."[10]

27 Tadgell JA also expressly rejected the view that Victorian courts should follow the obiter dictum in Singer v Berghouse (No. 2).[11]

28 Callaway JA considered that the retention of the wise and just testator test was justified, particularly in Victoria "where there has been no legislative change of the kind that has occurred in New South Wales".[12] In that context, his Honour referred to the presence in the legislation since 1937 of the words "proper maintenance and support" and the fact that the legislature had amended Part IV against settled judicial construction of those words.

29 Callaway JA considered that the dictum in Singer v Berghouse (No. 2) might be a caveat against departure from the language of the statute, coupled with a recognition that the content of wisdom, justice and moral duty is not static, but may change over time.

30 His Honour observed that finally, the question is always what constitutes adequate provision for the plaintiff's proper maintenance and support and "duty is but an element that is to be taken into account in weighing all the considerations".[13]

31 Further, his Honour reiterated that the inroads made into the significant human right of freedom of testation by Part IV of the Act were justifiable only by reference to a breach of the moral duty. A breach of moral duty defined the legitimate extent of curial intervention.[14]

32 As Callaway JA referred to the absence of statutory amendment as a particular justification for adherence to settled law, the question arises whether the significant amendments introduced shortly after the decision in Grey v Harrison[15] warrant a different approach.

33 In my opinion, the amendments to Part IV introduced by the Wills Act 1997 do not require or justify a different approach. The retention of the traditional words "proper maintenance and support", the express reference to the responsibility of the testator in the legislation and the acknowledgment in the Second Reading Speech that the remedial legislation was directed at facilitating applications by those who have "moral claims", reinforce rather than attenuate the application of the traditional concepts of moral duty and the wise and just testator.

34 That approach was confirmed by Warren J in Lee v Hearn[16] where her Honour observed:

"The post amendment case law has made it clear the common law moral duty or obligation to provide still permeates codification and that the significant changes have been first the possibility of application by a wider class of persons and secondly the application by the court of criteria in making its determination whether or not a claimant should have been provided for or should have been more generously provided for."[17]

35 Similarly, Harper J in Schmidt v Watkins,[18] on considering the Second Reading Speech, concluded that the amendments effected by the Wills Act were seen by Parliament as "part of a continuum, rather than as a complete break from the unamended provisions of Part IV" and "not as creating a new class of claimant but merely as expanding the boundaries of the old."[19]

36 Harper J stressed that a breach of duty and an abuse of the freedom of testation are at the core of the court's jurisdiction in this context.

37 His Honour recognised a three-stage process in Part IV applications as a result of the amendments to the Act effected by the Wills Act 1997.

38 First, the Court must, as its initial focus of inquiry, decide whether or not the claimant falls within that class of persons for whom the deceased had responsibility to make adequate provision for his or her proper maintenance and support. This is a jurisdictional question, as the Court has no power to make an order in favour of an applicant who does not fall within that category.

39 Secondly, the Court must decide whether the claimant has been left without proper maintenance and support.

40 Thirdly, if the deceased has failed in the duty to make such provision, the Court has power to exercise its discretion to make an order granting such provision as would have been made by a wise and just testator.

41 At each stage of the three-stage process, the wise and just testator is a governing point of reference.

42 In Harper J's view, all twelve factors set out in s.91(4)(e) to (p) are relevant to each of three questions. That is, whether the deceased had a responsibility to provide for the claimant; whether the duty was breached, in that adequate provision for proper maintenance was not made; and thirdly, if a breach is established, the amount of the provision to be ordered.

43 Harper J also observed in Blair v Blair[20] that the legislation remains concerned with only the adequate provision of proper maintenance support. Adequate provision may go well beyond mere subsistence and may involve careful assessment of what is fair between competing claimants.[21] On the other hand, the legislation does not authorise a general curial redistribution of the deceased's property, according to notions of fairness.

44 In Pontifical Society for the Propogation of the Faith v Scales,[22] Dixon CJ observed that the notions of what is adequate or proper are relative. They necessarily involve consideration of the "nature, extent and character of the estate, the other demands upon it, and what the testator regarded as superior claims or preferable dispositions."[23]

45 Victorian authority has held that although need is a relative concept, it must be shown in order to establish a claim.[24] A moral claim alone will not suffice. In my opinion, that authority is unaffected by the amendments.

46 The amended legislation requires a less restrictive approach to claims by adult sons. Authorities decided under the previous legislation indicated that prima facie an adult son would be treated as able to maintain and support himself. As such, he would not be entitled to further provision pursuant to Part IV of the Act in the absence of a "special claim" or "special need".

47 National Trustees Executors and Agency Company Limited v Hughes[25] is the leading case on the position of adult sons prior to the enactment of the 1997 amendments. In that case the testatrix made no provision for her only child, an able-bodied son aged 54, who had virtually no income or assets. He had a de facto wife and dependent child. The son had for many years lived continuously on a farm property which constituted the principal asset of the testatrix's estate. The testatrix had claimed that she had been badly treated by her son and was forced to leave the farm. The son had done little or nothing for his parents. He had also had the benefit of occupation of the farm free of charge, but had done nothing to improve it. The trial judge dismissed the son's application. His decision was upheld by the Full Court of the Supreme Court. The son appealed to the High Court.

48 Gibbs J (with whom Mason, Murphy and Aickin JJ agreed) referred to general principles and stated that:

"It is well settled that these general principles apply to the case of an adult son as well as to other cases. The age of an applicant is, however, material and if a son is mature, able-bodied and capable of supporting himself he may in those circumstances be in no need of maintenance or support. In In re Sinnott Fullagar J said: `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.' More recent cases confirm the view there expressed: see Stott v Cook; Pontifical Society for the Propagation of the Faith v Scales; Re Buckland, deceased [No. 2]; Re Adams, deceased. In some cases a special claim may be found to exist because the applicant has contributed to building up the testator's estate or has helped him in other ways. In other cases a son who has done nothing for his parents may have a special need. This may be because he suffers from some physical or mental infirmity, but it is not necessary for an adult son to show that his earning powers have been impaired by some disability before he can establish a special need for maintenance or support. He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependants who rely on him for support which he cannot adequately provide from his own resources. There are no rigid rules; the question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances - that is, on all the facts that existed at the date of the death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts."

49 Gibbs J accepted that the applicant son had done "little or nothing for his parents but has on the contrary received benefits from them".[26] Further, although he was able-bodied, there was no evidence that the son could readily find employment. He had, for many years, acted on the assumption, induced by his parents, that the farm would be his. As such, "wise and just parents, having allowed him to base his life on that foundation would not years later attempt to deprive him of what had become necessary for the support of himself and the family".[27]

"The appellant is in very poor financial circumstances. His deserts may be small, but his needs are considerable. There were no competing claims on the bounty of the testatrix ... ".[28]

51 The High Court majority found that in the circumstances, the testatrix had failed to make adequate provision for the son's proper maintenance and support.

52 In Collicoat v McMillan[29] the testatrix left identical, reasonably substantial benefits to each of her children. She devised the principal asset of the estate, a farm, to her grandson who had assisted her to run it for a decade. The testatrix's 50 year old son had received gifts of land from her during her lifetime, but had sold it due to his financial difficulties. He was bankrupt at the time of the testatrix's death and divorced from his wife, to whom the net proceeds of his real estate had been paid under a settlement. He had no assets. He owed a substantial sum to creditors. He had provided considerable assistance to the testatrix by working on the farm for inadequate remuneration (although he received a gift of land). He was able-bodied and earned a subsistence living from intermittent work.

53 Ormiston J observed that a testator is normally not morally obliged to make provision for an able bodied and successful adult son.

"However, if as is not uncommon these days, a son has reached adulthood without establishing himself in life and without adequate or certain prospects of doing so, the position will be different, and subject to competing claims, he may well show that the testator was under a duty to make appropriate provision for him. ... Again, if a son has reached late middle age or beyond, then, notwithstanding that he has met with reasonable prosperity during most of his working life, he may be able to show, especially in recent years, that his prospects of gaining employment (or improving his financial position where he is earning but a bare sufficiency) are such that the testator fairly should have contemplated that he would likely be in needy circumstances for much of the rest of his life. In such a case a moral obligation to make further provision will likewise have rested on the testator. Not only may an applicant in the latter circumstances be able to show that he has over the years contributed to the building up of the testator's estate or given other assistance worthy of recognition (a `special claim'), but he may, alternatively or in addition, be able to establish a `special need for maintenance or support' in that `he may have suffered a financial disaster: he may be unable to obtain employment ... ` etc. Hughes' case at 147".[30]

54 In Collicoat v McMillan[31] at least half of the provision already made for the adult son would pass to his trustee in bankruptcy, but he would retain some benefit. Ormiston J observed -

"If an order for further provision, intended as it is to provide for a person's maintenance and benefit would go to his creditors and provide no other benefit to the applicant, then it would not seem appropriate to exercise the discretion at the second stage of the enquiry even if a decision were made that the testator had otherwise failed in the distribution of his or her estate to make adequate provision for proper maintenance and support."[32]

55 His Honour ordered that the son receive additional provision.

56 In Anderson v Teboreras[33] Ormiston J held that a testator had failed to make adequate provision for the proper maintenance of his young adult son. The testator had employed the son for some years in the hairdressing business "for barely more than board and lodging and pocket money for about four years".[34] The testator had given his son two small hairdressing businesses of relatively little value.

57 The testator had provided the son with other assistance during his lifetime. That assistance was also of modest value.

58 The testator's estate was quite substantial and there were no other proven moral claims to significant provision therefrom.

59 The son was, at the date of his father's death, 22 years of age, newly married and burdened with significant debt. He had received limited education and, despite his vocational training as a hairdresser, had limited business experience. His income was modest.

60 Ormiston J considered that the son could not legitimately be viewed as an adult son well able to earn his own living. A wise and just testator, given the size of the estate and the absence of other significant claimants, would have either provided a greater income or relieved the son of the debt, which was a "millstone around the necks" of the young married couple.

61 Alternatively, if the applicant were to be characterised as a conventional adult son, Ormiston J considered that he had both a special claim and a special need in the circumstances existing at the time of the testator's death. He had served his father essentially without reward for several years and had received, in return, businesses of doubtful value, which did not secure any long term support.

62 The special need arose from his youth, inexperience in business and his financial vulnerability as a recently married man. The testator's estate was such that the son's position could be readily ameliorated.

63 In In re Waters deceased[35] Bray CJ applied the requirements of special need or special claim in an adult son recognised by Fullagar J in In re Sinnott.[36] His Honour held that a 50 year old son, estranged from his deceased father following parental breakdown, was entitled to further provision. The deceased father had devised his entire estate to a friend. The son had a daughter whose significant physical disability imposed extraordinary financial burdens. His Honour considered that a just father, even had he disliked his son, would have recognised the special need and provided a contribution to lighten the additional burdens.[37]

64 In Baird and Ors v National Mutual Trustees Ltd and Attorney-General for the State of Victoria[38] Harper J made orders for further provision for a testator's adult sons and daughters. He observed that a testator who had behaved reprehensibly to his family and had occasioned suffering to his children through abuse, aggression, violence and material deprivation, had a moral duty to provide for his adult children. His Honour observed:

"The conscience of a testator who has actively mistreated his children should react differently where those children, although not living in poverty, are `by no means wealthy'. In such circumstances although the plaintiffs were well into adulthood and well beyond any period of dependence on their parents, they had a special claim."

"In my opinion, those who have suffered financially and emotionally from the misbehaviour of a testator have a special claim upon his estate. Such a claim is not extinguished by the circumstances that a particular claimant enjoys financial means which put him or her above the poverty line ... ".[39]

65 In Grey v Harrison[40] the Court of Appeal ordered further provision for an adult son of mature years, whose career as a barrister had been destroyed by alcoholism. He was unemployed and had no significant assets. After the son's rehabilitation from alcoholism his father, the testator, had reconciled with him and provided him with a home. The testator's will (executed during a period when the plaintiff was suffering from alcoholism and alienated from the testator), made no provision for the plaintiff.

66 Callaway JA, with whom Charles JJA agreed, recognised that given the plaintiff's conduct, including drinking, theft and mendacity, it was "not difficult to understand why the testator omitted [the son] from his will".[41]

67 While acknowledging the importance of freedom of testation, and the continuing relevance of character and conduct to the exercise of the discretion, Callaway JA observed that "It is another thing to say that a person whose dire need would have engaged the sympathy of a wise and just testator may be punished for immoral conduct such as mendacity, of which the court does not approve".[42]

68 In Blair v Blair,[43] Harper J ordered additional provision for an able-bodied adult son who was well-educated and professionally established. In that case the testator had given the principal asset of his estate, a farm property, to one of his two sons who had made a significant contribution to it. He left only a modest legacy to the plaintiff, his other son. Harper J observed that equality of treatment was not a necessary element of testamentary duty. Further, the legislation was concerned with fairness only in so far as it related to the question of adequate provision. His Honour held that in the circumstances, the plaintiff was entitled to further provision equivalent to comparable assistance in the commencement of his career as his brother had received from the testator.

69 In Carter v Vernon,[44] Beach J ordered that an adult son in comfortable circumstances should receive half the estate of his deceased mother. The testatrix had left the son no benefit under her will, mistakenly assuming that his sister (to whom she devised the entire estate) would honour her wishes to transfer half to the son. The testatrix omitted to benefit the son in her will, due to a fear (which subsequently proved unjustified) that any benefit would be appropriated by his spouse in the event of an apprehended marriage breakdown.

"I do not propose to raise in my reasons for judgment the question as to whether it is still appropriate to discriminate against an adult son in the way in which adult sons have been discriminated against in a number of authorities ... Principles in that regard which were accepted as correct in the 1950s and 1960s may not necessarily be viewed in the same light in the 1990s or the 21st Century."[45]

71 In Blair v Blair[46] Harper J recognised that under the amended legislation, the sex of the applicant is irrelevant, unless included in "any other [relevant] matters".

"Otherwise differences in sex are henceforth, of themselves, irrelevant. In other words, the court must not, in the case of an adult son, or indeed of any male applicant, adopt an approach which - by reason only of the difference in sex - differs from that taken in the case of a female applicant whose position in every other respect is relevantly indistinguishable from that of a male".[47]

73 Therefore, it was unnecessary henceforth to approach the claim of an adult son on the basis that he was prima facie able to maintain and support himself and would be excluded from further consideration unless he could show some special need or claim.[48]

74 Harper J noted, however, that age remained a specified factor to be taken into account. Able-bodied adults, at least, were necessarily in a different position from that of infants. In so far as the amended legislation appeared to direct a shift from the principles of In re Sinnott, its practical effect was unlikely to be great.[49]

75 The authorities decided both before and after the amendments consistently indicate that while "disentitling" character and conduct (if established by the defendant) should be taken into account, as Ormiston J observed "the principal determinant of proper maintenance or support is what the testator in all conscience should have felt bound to provide, and it has never been suggested that the plaintiff's behaviour was the principal determinant ... ".[50]

76 Although made in relation to the previous legislation, in my opinion the amendments have merely fortified the observation of Ormiston J that "it is primarily to the testator's moral obligations that the court has been required to look, rather than the virtues and vices of those who seek provision".[51]

77 The limitations of a life estate, particularly when unaccompanied by a fund to support the life tenant's duties to maintain the property, were recognised by Hedigan J in King v White.[52] In that case, the beneficiary of the life tenancy was the testator's widow.

78 The widow had no assets and was dependant on an old age pension. Hedigan J observed "that the plaintiff's asset position, known to the testator was such that by failing to provide her with any capital sum at all, and only an equitable life interest in the house, he left her in a position of pecuniary anxiety and difficulty with no proper provision against erosion of her pitifully small capital and unable to cope with unforeseen contingencies."[53]

79 Hedigan J concluded that ownership in fee simple of the residence was necessary to give the plaintiff "that degree of protection which will provide an adequate bulwark against inflation, future vicissitudes and uncertainties. Moreover, since the plaintiff will have to maintain the house, I think it appropriate that some provision from residue to enable her to do that should be made".[54]

80 In 1955 the deceased married his wife, Maria. They had two children, the plaintiff, Peter, who was born on 4 August 1957 and is now aged 46, and his younger brother, Frank, the defendant, who was born on 15 May 1961 and is now aged 42.

81 The plaintiff's evidence, discussed below, is that his father was a cold, detached and abusive parent and spouse, who left parenting responsibilities to his wife and had little contact with his sons. The plaintiff was extremely close to his mother.

82 In 1971 the plaintiff's mother was diagnosed with breast cancer. At Christmas 1972, the family took a holiday, allegedly at the deceased's insistence, despite his wife's reluctance due to her poor health. Whilst on holiday in Queensland, the family suffered a car accident in which the plaintiff's mother was killed. The deceased was driving at the time, but the driver of the other vehicle was held responsible for the accident.

83 Following the death of the plaintiff's mother, his maternal aunt and cousins moved in to the household to help the bereaved family for several months.

84 The plaintiff's evidence is that the maternal aunts and uncles offered further domestic help and care, but the deceased rejected it. The deceased worked seven days a week as a taxi-driver and limousine hirer. The plaintiff claims that the deceased required the plaintiff to perform domestic tasks, cooking and associated household work in the period following his mother's death.

85 The plaintiff's asserts that one maternal aunt unsuccessfully attempted to have the boys removed from the custody of the deceased. The deceased insisted on retaining custody of his sons.

86 In 1973 the deceased accepted a teacher's recommendation to place his sons in boarding school. The plaintiff and his brother were consequently enrolled as boarders at St Patrick's, Ballarat. The plaintiff was expelled from St Patrick's shortly thereafter. The school authorities allegedly informed the deceased that the plaintiff was a trouble maker. The deceased then arranged for his sons to attend St Bede's, Mentone, in 1974. The plaintiff was again expelled before the end of the year. The plaintiff alleges that he was, in both instances, expelled for resisting homosexual advances, but felt unable to inform his father of the circumstances. From 1975, the brothers attended Box Hill High School.

87 The plaintiff was ejected from the deceased's house in 1976. He then worked for two years in his maternal uncle's import-export business. He established a counselling centre and undertook a tertiary course in legal studies.

88 In 1978 the plaintiff married his first wife. In 1980 the couple were divorced. The plaintiff established and worked in a detective agency. He continued to study and to conduct counselling services.

89 From 1980 until 1984 the plaintiff lived with his father and brother in the deceased's residence. In 1985 he married his second wife. The plaintiff and his wife purchased a matrimonial home situated at 8 Village Avenue, Doncaster.

90 The deceased disapproved of the plaintiff's second wife. The deceased himself had a short lived second marriage in 1986.

91 In 1988 the plaintiff's first child, Kristian, was born. The deceased visited the baby at the hospital soon after his birth. The plaintiff thereafter visited the deceased twice weekly with Kristian, subsequently including his daughter Kahli (or Kylie), born on 6 January 1993, in the visits. According to the plaintiff, the deceased loved the grandchildren but did not visit the plaintiff's home.

92 In 1993 the plaintiff was diagnosed with a heart condition known as atrial fibrillation. Despite the diagnosis of his cardiac problem, he continued to work on a part-time basis. From 1992 he was actively involved in politics. He stood as the ALP candidate for State or Federal seats in 1992, 1993 and 1996. He was actively involved in politics until 1996.

94 In 1997 the plaintiff began taxi driving and counselling in order to supplement the family income.

95 In June 1997 the plaintiff claims that he became aware that his wife was sexually abusing the children of the marriage. The marriage broke down. The plaintiff began Family Court proceedings. In September 1997 he began receiving sickness benefits.

96 In September 1998 the plaintiff was assaulted. He was hospitalised but was released the next day. The deceased collected him from hospital.

97 The plaintiff asserts that the deceased was an alcoholic who physically abused his wife and children. The plaintiff described the deceased as "a very cruel, cold and almost heartless person".

98 When the deceased died on 1 November 1999 the plaintiff was still living in the matrimonial home, although his marriage had broken down. He was, at the time, dependent on crutches and had various physical problems as a result of injuries suffered in the assault in September 1998. He was also engaged in the Family Court proceedings. He had debts due to those proceedings. He was receiving food and assistance from a number of friends and family. He was dependent on a disability pension.

99 The plaintiff alleges that in November 1999 he was twice beaten and assaulted by the defendant. He asserts that he is unable to occupy unit 2, due to his anxiety and fear of his brother. He claims that he requires an alternative residence and a monthly income to meet recurring needs and expenses.

100 The plaintiff's disabilities have not improved. He remains, and is likely to remain, incapable of paid employment.

101 The plaintiff seeks an order that he be awarded three-quarters of the deceased's net estate. Mr Gronow, counsel for the plaintiff, submitted that the plaintiff's special needs enlivened a moral duty in the deceased to make better provision for the plaintiff than that which was made in the will. He submitted that equality of treatment between the two sons would not be adequate in the circumstances of this case. The plaintiff's combined health conditions prevent him from working now and render it improbable that he will be capable of working in the future.

102 Mr Gronow submitted that the court should have regard to the testastor's ill-treatment of the applicant. In Baird v National Mutual Trustees, Harper J recognised that a testator's ill-treatment may properly be taken into account.[55]

103 Mr Gronow also submitted that the plaintiff required the fee simple estate in the unit, as his plaintiff's special needs justified greater flexibility than a life estate could offer. He alternatively contended that a capital sum should have been provided to fund the life tenancy expenses.

104 It was stressed that the plaintiff has no financial resources and depends on a social security pension.

105 Mr Gronow submitted that although the plaintiff has a potential interest in the net proceeds of sale of the matrimonial home, the entire fund is likely to be awarded to his former wife.

106 He further contended that the plaintiff made a contribution to the deceased through housekeeping work after his mother's death.

The deceased did not confer any significant benefits on the plaintiff during his life.

There was no disentitling conduct by the plaintiff. The plaintiff had struggled hard in difficult circumstances to maintain a relationship with the deceased.

The alleged financial squandering by the plaintiff is not proved. The plaintiff's ill-health and Family Court proceeding have caused his want of assets, rather than improvidence. In any event, financial imprudence does not disentitle a claimant.

The defendant has steady employment as a loans manager. He is 42. He is in good health. He is better off than the plaintiff and has a better prospect for the future. The absence of evidence on these matters justified an inference against the defendant.

The deceased's estate is quite large. In a recent appraisal, the units were valued as at April 2003, at $350,000 to $385,000 for unit 1 and $300,000 to $310,000 for unit 2.

108 Further, it was submitted that no other party had a superior or significant claim to the deceased's bounty.

109 Mr Ahearne, counsel for the defendant, submitted that the plaintiff was not a person for whom the deceased had a responsibility to provide.

110 He submitted that the mere fact of a blood relationship did not found a responsibility to provide for the plaintiff. Further, any responsibility that may have existed was satisfactorily discharged by the deceased by devising a life estate in unit 2 to the plaintiff.

111 Mr Ahearne relied on Taylor J's observations in Stott v Cook[56] that a testator, more often than not, is better able to comprehend the family circumstances and to decide the best provision in those circumstances.

112 It was contended that the deceased knew his son, the plaintiff, his aberrations and his tendency to squander all too well and upon that basis the deceased decided to provide for the plaintiff as he ultimately did in his will, giving the plaintiff `a roof over his head'.

113 The cases on claims by adult sons remain relevant and instructive in determining such claims under Part IV of the Act as amended. While Part IV as amended has introduced greater flexibility, it does not represent a radical break with the principles recognised in previous authorities. Nevertheless, under s.91(4) the Court is now required to consider the factors set out in s.91(4)(e) to (p).

s.91(4)(e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship.

114 The plaintiff is the eldest son of the deceased. The mere blood relationship of a father and adult son does not, in itself, give rise to a responsibility to provide.

S.91(4)(o) the character and conduct of the applicant or any other person.

115 The plaintiff contended that the deceased was guilty of significant misconduct towards him, his late mother and his brother, the defendant.

116 The plaintiff asserted that the deceased was an alcoholic, who was violent, abusive and controlling towards his family. He stated that the deceased was "aggressive, violent, irrational, illogical and insensitive".

117 The defendant did not deny that all family members were emotionally scarred by the death of the mother. However, he deposed that the deceased reared and educated his sons "responsibly and caringly". According to the defendant, the deceased provided for his children's basic needs. The defendant also deposed that the deceased was not an alcoholic or a heavy drinker. His occupation as a taxi driver rendered sobriety essential.

118 The defendant deposed that the deceased was not abusive to him. He did not regard the deceased as a cruel, cold and almost heartless person.

119 Neither the plaintiff nor the defendant were cross-examined on their differing evidence of the deceased's conduct and character.

120 The parties' aunts, sisters of their late mother, gave evidence in support of the plaintiff. Mrs Enrichetta Galli deposed that she had not approved of her late sister's marriage to the deceased. She disapproved of his behaviour towards his wife, which she considered controlling and disrespectful. She described the deceased as a selfish and uncaring husband. She further deposed that he was cold and distant to his children. Following her sister's death, the children ran away from home and made attempts to live with their aunts but the deceased always collected them and insisted that they remain in his custody. Mrs Galli deposed that when the plaintiff's marriage broke down in 1997 the deceased expressed disappointment in both his sons. He told her that they did not deserve the help which he had provided in the past by giving them money, and that he did not intend to give them any more.

121 The plaintiff's other maternal aunt, Mrs Anna Crema, also gave evidence in support of the application. She deposed that her sister's marriage was loveless and that the deceased was controlling and dictatorial towards his wife. She further deposed that he appeared to be a cold and distant father who intimidated his children. She agreed that the children "ran away" to her home frequently after their mother's death. The deceased asked her to attend a parent/teacher interview, at which it was decided to send the children to boarding school.

122 The plaintiff's own evidence indicates that the deceased was hardworking and from the income derived from a relatively modest occupation, provided for his family and accumulated substantial assets.

123 It is not contended that the deceased was in any way responsible for his wife's premature death. Following his wife's death, according to the plaintiff's own evidence, the deceased did not abdicate his fundamental paternal responsibilities. On the contrary, he resisted attempts by the boys' maternal relatives to assume responsibility for their primary care. He behaved responsibly in accepting independent advice to send his sons to boarding school. He successively funded their education at two fee paying private boarding schools. That course must have entailed a considerable financial commitment and sacrifice for the deceased. The plaintiff was expelled from both the fee paying schools in rapid succession. By his own account, he did not inform his father that the misconduct leading to his expulsion was provoked, on each occasion, by homosexual assault. As the deceased received no explanation, it is understandable that he evinced no understanding of the plaintiff's expulsions.

124 Following the expulsions, the deceased oversaw the completion of his sons' secondary education at a high school.

125 The plaintiff voluntarily resided with the deceased for prolonged periods at various times during adulthood. He resided with him for five years from 1980 until late 1985 after the breakdown of his first marriage. There is no evidence of whether the plaintiff was required to make any payment for the accommodation provided at the deceased's residence during that time.

126 The plaintiff also took his young children to visit the deceased several times a week. He deposed that the deceased appeared relieved at the resolution of their conflict. The deceased apparently enjoyed the frequent contact with his grandchildren.

127 It is clear that the deceased's personality and authoritarian paternal demeanour failed to satisfy the plaintiff's emotional and psychological needs, which intensified after the premature death of his mother. The evidence also establishes that the deceased was disliked by his in-laws due to his demeanour and the control he exercised within his family unit.

128 The deceased's sisters-in-law, however, did not allege that the deceased was guilty of wrongful conduct or failure to fulfil his fundamental familial obligations. The plaintiff alleged that the deceased was abusive, violent and frequently inebriated, but the defendant denied those allegations. Neither the plaintiff nor the defendant were cross-examined on those issues. Expert psychiatric evidence given on behalf of the plaintiff indicates that he is prone to adopt a negative interpretation of events and to misinterpret ambiguous situations which may lead to misunderstanding in inter-personal dealings. I am unable to conclude that the deceased ill-treated, abused or misconducted himself towards the plaintiff, although the plaintiff perceived the deceased's conduct negatively. The deceased fulfilled his basic paternal obligations towards his sons in the difficult circumstances of a bereaved working parent. He resisted the repeated offers by his wife's sisters to relieve him of his paternal responsibilities.

129 I do not consider that the plaintiff's disabilities and difficulties can fairly be attributed to any misconduct or character fault of the deceased. It appears that the deceased and the plaintiff had different outlooks and values which led to mutual misunderstanding and disapproval.

130 The deceased, in his will, made statements critical of the plaintiff's character and conduct. He justified the limited provision made for the plaintiff by reference to the plaintiff's squandering of assistance previously given and by his disrespectful conduct which had caused the deceased pain. The plaintiff had expended funds on his Family Court litigation following the breakdown of his marriage. Although the plaintiff believed expenditure on the litigation to be justified, the deceased did not approve and refused to assist with requests for financial assistance for that purpose.

131 The plaintiff absconded from home and was twice expelled from school in circumstances which were not explained to the deceased. Those events occurred during the plaintiff's adolescence and are not relevant to an assessment of his adult character.

132 The evidence suggests that the plaintiff suffers from a personality disorder and a "pan neurosis" which may have contributed to conduct and interpersonal dealings which the deceased did not understand or approve.

133 The evidence does not justify adverse conclusions on the plaintiff's character or conduct. I conclude, however, that his conduct and personality caused the deceased pain, that their relationship was difficult, and their values different and that the deceased disapproved of the objects of the plaintiff's expenditure, perceiving it as wasteful.

134 Despite their conflicting temperaments and the mutually unsatisfactory nature of their personal relationship, both the deceased and the plaintiff consistently acknowledged their important familial bond. Each expressed disapproval of the character and conduct of each other. Both men nevertheless remained committed to the relationship. They remained in frequent contact with each other.

s.91(4)(f) "Any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate"

s.91(4)(g) "The size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject."

136 The estate of the deceased consisted of real and personal property. The personal property consisted of bank accounts, shares, furniture and a car. The real estate consisted of the residential units situated at 46 Beverley Street, Doncaster. Unit 1, which was devised to the defendant absolutely, is slightly more valuable than unit 2 due to its added accommodation.

137 In the inventory of assets and liabilities exhibited to the defendant's affidavit of 11 January 2000 in support of the application for a grant of probate ("the executor's inventory), Unit 1 was valued at $170,000. Unit 2 was valued at $165,000, resulting in a total estimated value of real estate of $335,000.

138 Those estimates were subsequently increased by later appraisals. By "kerb-side" appraisals of the units conducted in about April 2003, the value of Unit 1 was estimated by one real estate agent in a range of $350,000 to $385,000. Another real estate agent estimated its value in the range of $260,000 to $320,000. The value of unit 2 was estimated by one real estate agent in the range of $300,000 to $310,000 and by another real estate agent in the range of $220,000 to $270,000.

139 On the lowest updated estimates, the total value of real estate is $480,000. On the highest current estimates, the total value of the real estate is $695,000. Unit 2 is estimated at a value of $310,000 at its highest, and $220,000 at its lowest.

140 The executor's inventory estimated the total gross value of the deceased's personal estate at $322,855.66, made up as follows:

141 There was a liability of $47,546.00 to the NAB, resulting in a total net value of the personal estate of $275,309.

142 The estimated value of the personal estate subsequently decreased. The Mercedes motor vehicle was sold for only $20,000. After payment of capital gains tax, funeral and other expenses, the NAB account was reduced to $171,129.79. The furniture was retained in specie by the defendant. A further 600 Telstra shares were subsequently discovered. On the basis that the Telstra shares are valued at about $2,800, the personal estate is thus valued at about $193,000. When the value of the furniture is deducted, it is reduced to $173,000.

The impact of costs incurred in this proceeding.

143 The costs incurred by the defendant in relation to this proceeding are estimated at $45,000 to $50,000.

144 The costs incurred by the plaintiff in relation to this proceeding are estimated at $80,000 comprising party and party costs of $35,000, solicitor-own client costs of $15,000 and disbursements and out-of-pocket expenses of $30,000. The plaintiff has a "no-win no-fee" arrangement with his solicitors and counsel. In the event of the plaintiff's failure in the proceeding, the plaintiff has assigned the rental income from unit 2 to Messrs Galbally and O'Bryan to cover payment of the out-of-pocket expenses.

145 If the entire costs of the proceeding are properly to be borne by the estate, it would appear that the net value of the personal estate may be reduced to about $43,000.

s.91(4)(h) The financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future.

146 The plaintiff has a life estate in unit 2 under the deceased's will.

147 The plaintiff has an undetermined interest in the sum of $114,000 (with interest), which represents the net proceeds of sale of his former matrimonial home. The money is the subject of the competing claims of the plaintiff and his former wife in the Family Court proceeding. The plaintiff contends that it is likely that the entire sum will be awarded to his former wife. It is not possible for this Court to draw any conclusions on that issue. The possibility that the plaintiff may receive some part of the fund cannot be discounted. There was no evidence of the financial circumstances and needs of the plaintiff's former wife and children.

148 The plaintiff has debts to individuals and family totalling $22,000 to $26,000.

149 The plaintiff has not had paid employment since mid 1997. The evidence on his medical condition (discussed in detail below) suggests that he will not be capable of paid employment in the future.

150 His income is currently derived from a disability pension which he has received since mid 1997 and the rental from unit 2. The rental from unit 2 is irrevocably assigned, in the event of the plaintiff's failure in this action, to cover the $30,000 out of pocket expenses incurred.

151 The plaintiff, by affidavit sworn 2 October 2003, provided an estimate of his current and future financial needs. He set out his requirements as follows:

$22,000 to $26,000 for repayments of the plaintiff's debts

Monthly recurring costs of rent, outgoings, services, living expenses, medical expenses, children's expenses and child support and psychological counselling which amount to $4,300 per month if rental were included. If rental were not included the monthly required sum would be reduced by $1,400 - $1,600 and would thus total $2,700 - $2,900.

To the above must be added the estimated $30,000 out-of-pocket expenses incurred on behalf of the plaintiff in respect of the proceeding.

152 The plaintiff's estimated financial requirements range from capital needs of $412,000 to $526,000 and recurring expenses of $2,700 to $2,900 per month. Alternatively, he has estimated or capital needs of $112,000 to $126,000, plus recurring expenses of $4,300 per month.

153 The defendant is aged 42. There is no evidence that he has any disabilities or health problems. Under the will, the defendant is absolutely entitled to unit 1 and to the personal estate.

154 The defendant is the registered proprietor of a unit and accessory unit in East Malvern, which he purchased for $217,000 in 2002. There is no evidence of whether the unit is subject to a mortgage or other liabilities.

155 There is no other evidence of the defendant's financial circumstances, assets or liabilities.

156 The defendant is employed as a lending manager with Westpac. His income from that employment was not disclosed.

157 The plaintiff's children, Christian and Kylie, are the only other beneficiaries under the will of the deceased. They have a remainder estate in the fee simple of Unit 2, vested in interest, but not vested in possession until the death of the plaintiff as life-tenant.

158 The children's mother (in whose custody they are), was notified of the current application. The children were not independently represented in this proceeding.

159 There was no evidence before the Court of the financial circumstances of the infant beneficiaries. From the evidence of the plaintiff's financial circumstances, it can be inferred that he will be unlikely to be capable of making any significant contribution to their future maintenance and educational needs. There was no evidence of the assets, liabilities or financial circumstances of the children's mother, with whom they reside. It would appear that the children's mother is current employed. There are no details of the nature of her work or its remuneration.

160 There is no evidence that the children have any disabilities or any unusual needs.

s.91(4)(i) Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate

161 The plaintiff suffers from a number of physical and mental conditions which have prevented him from maintaining gainful employment and are likely to preclude him from obtaining employment in future.

162 Three medical practitioners gave expert evidence on the plaintiff's condition and prognosis. The expert witnesses presented as competent and credible. Their evidence was not shaken on cross-examination.

163 Dr Layla Asaf, the plaintiff's general practitioner, provided a medical report and gave evidence at trial. Dr Asaf gave evidence the plaintiff had consulted her on numerous occasions since 8 July 1997. She identified the plaintiff's medical problems as "recurrent atrial fibrillation (AF) which is related to stress and anxiety; anxiety and probably panic attacks (ie. He gets sweating palpitations, weak and looks unwell); fibromyalgia; history of haematuria; obsessive compulsive disorder (as he stated was diagnosed by his psychiatrist); low back pain and sciatica, multiple joint pain with left knee effusion".

164 Dr Asaf observed that the repeated attacks of atrial fibrillation, anxiety attacks and multiple joint problems were in part due to the assault suffered by the plaintiff in September 1998.

165 Dr Asaf stated that the plaintiff's anxiety and joint pain were still recurring as at 21 September 2003. She noted that he still used a walking stick. Dr Asaf considered that it was difficult for the plaintiff "to maintain any job at present and that he was and is unemployable".

166 Under cross-examination, Dr Asaf denied that the plaintiff was a hypochondriac. She agreed that his panic attacks and mental condition affected and precipitated his physical problems.

167 Dr Sweet, a consultant physician and associate professor of medicine at the University of Melbourne, gave evidence on behalf of the plaintiff.

168 Dr Sweet had examined the plaintiff on several occasions in 1994 and again in 1999. He also re-examined the plaintiff on 25 September 2003. He provided a report dated 3 July 2002 and a report dated 19 February 2003.

169 In the reported dated 19 February 2003, Dr Sweet described a number of consultations with the plaintiff in 1994 and one in 1999 in which he complained of heart palpitations connected with stress, anxiety and atrial fibrillation. Dr Sweet prescribed medication.

"My impression at that stage was that his major problem was of his anxiety and nervousness, possibly relating to the court case pending. He'd had an episode of atrial fibrillation which had been controlled with a small dose of Digoxin and Aspirin ... My overall impression was that most of the problems related to the anxiety and stress that he was under. That his capacity to work was related more to those problems than to any cardiac abnormality ... ".

171 In his further report dated 25 September 2003, Dr Sweet recounted the plaintiff's history of palpitations and a recent episode of atrial fibrillation. He concluded that when he examined the plaintiff on 25 September 2003 "there was no evidence of heart failure and heart signs were normal. The chest was clinically clear". Dr Sweet concluded, "I believe that his major medical problem causing him incapacity for employment is the psychiatric anxiety disorder. The cardiac symptoms, ie: palpitations, may well relate to these, and as yet, there is no evidence that he has a primary cardiac problem".

172 Dr Lester Walton, a consultant psychiatrist, also gave evidence on behalf of the plaintiff.

173 Dr Walton had a consultation with the plaintiff on 11 August 1999 and further consultations on 25 September 2002, 11 November 2002 and 7 October 2003.

174 By his report dated 7 February 2003, Dr Walton set out the plaintiff's account of his problems, family history and anxiety.

"I find it difficult to apply a sensible diagnostic label to Mr de Angelis. I am quite convinced that he has suffered from serious psychological damage as a child, which has blighted personality development, and he would attract a diagnosis of personality disorder of a non-specific type. In addition, there is superimposed mixed anxiety and depressed mood and ritualistic behaviour, that is, there are elements of an anxiety disorder, depressive disorder and obsessive-compulsive disorder. I would describe the seriousness of the psychiatric condition as reasonably severe ... As I understand it this man was deemed incapacitated for work and awarded a Disability Support Pension on the basis of the physical injuries he sustained in 1998. If there is any doubt about his persisting total incapacity for work then that is put to rest once his psychiatric problems are taken into account. As best I can determine, as at 1 November 1999 Mr de Angelis would be properly described as totally incapacitated for gainful employment. In my opinion, the combination of this man's multiple physical health problems and his mental disturbance render him totally and permanently incapacitated. Given this man's multiple adverse life experiences and his continuing ill-health, in my opinion Mr de Angelis is a person inclined to interpret situations negatively. I am not suggesting that he is paranoid in the sense of psychiatric mental disturbance nor that he wilfully distorts information but he is at risk of misinterpreting ambiguous situations, which may lead to poor communication and misunderstanding in his interpersonal dealings".

176 By a further report dated 18 September 2003 Dr Walton set out the plaintiff's updated history. The report noted that the plaintiff slept poorly and suffered nightmares, but had discontinued medication because it caused him distressing visual images.

177 Dr Walton described the plaintiff as markedly anxious, agitated and restless. He concluded:

"It would appear that there has been no significant shift in the psychiatric clinical profile. I refer you to in my original report. Mr de Angelis continues to suffer what might be described as a pan-neurosis."

178 From the medical evidence, which I accept, I conclude that the plaintiff, due primarily to his reasonably severe psychiatric condition, in combination with his physical problems, is currently incapable of engaging in gainful employment. He is unlikely to be capable of undertaking paid work in future. Although the basis of the plaintiff's psychiatric condition was pre-existing, it was aggravated and entrenched due to the breakdown of the plaintiff's marriage.

179 There is no evidence that any other beneficiary under the will suffers from any physical, mental or intellectual disability.

180 The applicant is aged 46. He is neither elderly nor of tender years. In the present case, the capacity for independent maintenance ordinarily entailed by maturity has been eroded due to the plaintiff's disabilities.

s.91(4)(k) Any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased.

181 It was submitted that the plaintiff's performance of cooking and housekeeping tasks for the family after the death of his mother constituted a contribution within terms of s.91(4)(k) of the Act. It was not disputed that the plaintiff performed such tasks. I do not consider that such contribution to the common household needs of the family, himself included, in the difficult circumstances following the death of his mother is a circumstance warranting further provision.

s.91(4)(l) Any benefits previously given by the deceased person to any applicant or to any beneficiary

182 The plaintiff denied that the deceased conferred any benefits on him. The defendant asserted that the deceased had provided some assistance to the plaintiff. Neither the plaintiff nor the defendant was cross-examined on that issue. The deceased, in his will, stated that he had provided assistance to the plaintiff. The plaintiff's aunt, Mrs Galli, gave evidence that the deceased made a similar assertion to her. I conclude that the deceased did provide some limited financial assistance to the plaintiff in adult life. Any such assistance was not of a significant scale or nature.

s.91(4)(m) Whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased has assumed that responsibility.

183 The plaintiff was not being maintained by the deceased either wholly or partly before the deceased's death.

s.91(4)(n) The liability of any other person to maintain the applicant

184 No other person is liable to maintain the plaintiff. The plaintiff is in receipt of a disability pension. The available medical evidence suggests that he will continue to be incapable of paid employment and will remain eligible for a disability pension.

s.91(4)(o) The character and conduct of the applicant or any other person

185 The character and conduct of the plaintiff and the deceased are considered in detail above.

s.91(4)(p) Any other matter the Court considers relevant

186 In the present case, the deceased included in his will a statement explaining the inferior provision made for the plaintiff. He stated that he had given "help and financial assistance" to his sons during his lifetime and that the plaintiff had "squandered what he had given to him". Further, the deceased stated that the plaintiff had "caused [him] much pain and anguish and shown no respect".

"At the hearing of such application the Court shall inquire fully into the estate of the deceased, and for that purpose may -

(a) summon and examine such witnesses as may be necessary; and

(b) require the executor or administrator to furnish full particulars of the estate of the deceased; and

(c) accept any evidence of the deceased person's reasons for making the dispositions in his or her will (if any) and for not making proper provision for the applicant, whether or not the evidence is in writing".

188 My own researches and those of counsel have failed to identify any decided case in which s 94(c) of the Act was considered.

189 Section 94(c) was introduced in 1998. The only substantial reference in Hansard to s.94(c) is in the speech of Mr Katsambanis in the course of the Second Reading. He observed:

"A welcome change to testator's family maintenance provisions will be introduced into section 94 of the Administration and Probate Act by clause 56 of the Bill. When assessing applications for testator's family maintenance the Court will look at any evidence of the deceased person's reasons for making the dispositions in his or her will, if any, and for not making proper provision for the applicant whether or not the evidence is in writing. For the first time this provision recognises what I said at the outset: that our law is based on the fact that an individual has the right to make dispositions in their will and to indicate how they wish their property to be disposed of after their death; it recognises that right of the individual and that individual will have specific reasons for excluding certain people. For the first time legislation will affirm the right of testators to freely alienate their property after death through a will. The Court will have to give weight to any evidence that indicates why a particular person was not made provision for, or was not made further provision for, in the will. I welcome that amendment because it gives recognition in law again of the right of the testator to freely dispose of his property - within limits, of course. It is the Court's responsibility to make provision for certain persons in proposed new section 91, that is the limit that is imposed on that absolute right."

190 Section 94(c), in terms, permits the Court to accept any evidence of the deceased person's reasons for not making proper provision for the applicant. The above speech suggests that s.94(c) affirms freedom of testation in that it requires the court to give weight to any evidence for failing to make such provision.

191 In my opinion, evidence of reasons for failing to make adequate provision, however persuasive, cannot render a responsible person's failure to do so immune from curial redress pursuant to s 94(c).

192 Further, s.94(c), while it permits the Court to accept evidence of reasons for failure to make provision, does not compel it to attribute any particular weight to that evidence or to accept a statement of reasons as establishing the truth of what is asserted. A statement, or other evidence of reasons for not making provision, should be given appropriate weight in all the circumstances, in determining whether or not the deceased made adequate provision for the applicant's proper maintenance and support. Such evidence may constitute "any other matter the Court considers relevant" pursuant to s 91(4)(p).

193 In the present case the deceased made a solemn statement recording his perception that the plaintiff had squandered assistance, showed disrespect and caused him pain.

194 In so far as the statement relates to the plaintiff's character and conduct, those issues have been considered in detail above. Whilst there is no reason to doubt that the plaintiff's conduct caused the deceased pain and may have been wanting in respect, I am unable to conclude that the plaintiff was solely responsible for the conflict in the relationship. Moreover, faulty conduct will not preclude the making of further provision where other relevant factors establish a moral duty to make it.

195 In so far as the deceased's statement indicates that the plaintiff has squandered past benefits, there is no evidence that any significant benefits were conferred, or were misused by the plaintiff. The deceased's statement may suggest not only an intention to penalise the plaintiff for past conduct but an apprehension that he might squander future benefits. A likelihood that further provision will be dissipated may be relevant to the exercise of the discretion to award it.

"The court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator is dead and cannot tell his".[57]

"The moral claim may involve a consideration of the whole history of the child in relation to the parent. ... It will often happen that the court can do only imperfect justice, because of its inability completely to put itself in the place of the parent."[58]

198 In the present case, the plaintiff submitted that his poor financial circumstances were not due to improvidence but attributable to marriage breakdown, difficulties associated with the claimed abuse of his children and his medical condition. No evidence was advanced to the contrary.

199 In my opinion, the available evidence does not permit the court to conclude that the plaintiff is likely to squander any additional provision which may be ordered.

200 The deceased himself apparently recognised a moral responsibility to provide for the plaintiff. The plaintiff received the significant benefit of a life-estate in unit 2 under the deceased's will. The plaintiff had incurred the deceased's disapproval and had made no substantial contribution to the deceased's welfare. Further, his difficulties were not fairly attributable to any misconduct by the deceased. However, the plaintiff's disabilities, financial circumstances, the consistent mutual commitment of father and son, the size of the estate and the known circumstances of all other natural objects of the deceased's bounty, gave rise to a moral responsibility.

201 There is no evidence that the deceased conferred significant benefits on the plaintiff during his lifetime. There is no evidence to establish that the plaintiff is of poor character. The deceased's testamentary statement is some evidence that the plaintiff had disappointed the deceased and may have misconducted himself in the course of their personal dealings. The plaintiff's psychiatric and personality disorders, which cause difficulties in interpersonal relations, must be taken into account in this context. I do not consider that "disentitling" conduct is established. If it were, it would not outweigh the compelling circumstances of the plaintiff's ill-health and need. It is established that in this context, the court looks primarily to the testator's moral obligations rather than "the virtues and vices" of the applicant. The plaintiff's disabilities and medical condition at the date of the deceased's death were significant, incapacitating him for work and likely to render him permanently incapacitated. Although the probable permanence of his condition and of his incapacity to work may not have been evident to the deceased at that date, the Court must determine what provision should have been made had the testator been aware of all relevant circumstances. The plaintiff's financial circumstances at the date of the deceased's death were poor. He had some debts. His only asset was the disputed claim to the matrimonial home or its proceeds. His sole income was a disability pension.

202 The deceased's estate was of moderate size. There were no persons with a higher claim on his bounty. The terms of the will indicate that the deceased viewed the defendant as a more dutiful and provident son. The defendant, however, is an able-bodied adult who enjoys steady employment and who has advanced no evidence of need. Further, there is no evidence of any circumstances which would impose on the deceased a moral responsibility to provide for his grandchildren.

203 The difficult question in the present case is not whether the deceased had a moral responsibility to provide for the plaintiff. Rather, the questions are:

(a) whether the nature and quantum of the provision made for by the deceased were, in the light of the matters set out in s.91(4)(e) to (p) of the Act, adequate, and such as a wise and just testator would have made for the plaintiff's proper maintenance and support; and

(b) if the provision made by the deceased were not adequate, what provision should be made? The matters set out in s.91(4)(e) to (p) are equally relevant to this enquiry.

204 As the authorities have consistently recognised, the court, in exercising its discretion, is not licensed to re-write the will in accordance with fairness. Its power is limited to rectifying a breach of the moral duty to make adequate provision for proper maintenance and support, measured by reference to the standards of a wise and just testator. The jurisdiction to interfere with freedom of testation is commensurate with its abuse.

205 In the present case the deceased, in my opinion, failed to make adequate provision for the plaintiff's proper maintenance and support. The plaintiff received only a life-estate in a residence, which was liable to forfeiture should he fail to pay the indeterminate associated charges. In view of the plaintiff's ill-health and impecuniosity, the bare life-estate was and is unduly inflexible and insecure, as recognised by Hedigan J in King v White.[59]

206 The nature and level of the provision made for the plaintiff reflect not only disapproval of the plaintiff's previous conduct but apprehension that the plaintiff might squander further benefits. It may be that the deceased also feared that any greater provision would fail to benefit the plaintiff personally, because it would result in a commensurate reduction of his disability pension, be successfully claimed in Family Court or other litigation, applied to discharge debts or, (if in a more freely alienable form), be expended on objects which the deceased considered wasteful.

207 Ormiston J recognised in Collicoat v McMillan[60] that if an order for further provision would invariably go to the applicant's creditors and provide no personal benefit, a court would be unlikely to exercise its discretion to order further provision. His Honour stated:

"Because of the personal nature of the claim the better view appears to be that an order should not be made if it will not in fact benefit the applicant."[61]

208 His Honour's observation, although in that case directed at creditors, embodies a principle of wider application. Given that the object of the section is provision for maintenance and support, other circumstances which would render an order nugatory may also inhibit the exercise of the discretion. Such circumstances may include the inevitability that the entire provision would be lost in litigation, would reduce a pension or similar entitlement by a commensurate amount, or would be dissipated by the applicant for other purposes.

209 In the present case I am not persuaded that the plaintiff would dissipate any further provision awarded to him. The plaintiff has debts which must be discharged. However, it was not contended that (other than for the amount of the debts) any additional provision is likely to be paid to creditors or to other third parties. It was acknowledged that the plaintiff's entitlement to a disability pension would be unaffected by the ownership of a residence, but would be reduced by ownership of a capital sum. There was no evidence of the amount of capital (if any) which can be retained without reducing a disability pension.

210 The plaintiff's financial position has deteriorated since the death of the deceased. The plaintiff has incurred additional debts now totalling an estimated $22,000 to $26,000. The plaintiff's prognosis, if not his underlying condition, has also deteriorated.

211 The position of the estate has also altered. Its value has increased due to the appreciation of value in the real estate. On the other hand, an estimated total of up to about $130,000 in legal expenses has been incurred by the parties. I consider that the burden of costs in the proceeding should be out of the personal estate, as in Collicoat v McMillan[62]. That may reduce the value of the personal estate to approximately $43,000.

212 Taking into account the above matters, the plaintiff's state of health, his desire to relocate his residence and his financial circumstances (including the possibility that he will be awarded some portion of the disputed fund of $114,000, plus interest) I consider that his adequate provision requires; and a wise and just testator aware of all relevant circumstances would have given:

213 In my opinion, such provision will satisfactorily address the plaintiff's needs while respecting the deceased's freedom of testation to the greatest extent possible.

214 The plaintiff will be absolutely entitled to unit 2. He may retain it or sell it to acquire an alternative residence more suitable to his requirements. His existing debts can be discharged. His costs of the proceeding will be paid. His entitlement to a disability pension will be unaffected. In this context, an applicant should not be confined to "bread and butter" but should be entitled to some "cheese and jam".[63] The above orders will not necessarily ensure the plaintiff a significant capital sum for luxuries or emergencies. The plaintiff may, however, receive some share of the disputed fund. The award of a capital sum is problematic, due to its potential effect on pension entitlements. To the extent to which he may retain capital without reducing his pension entitlement, the plaintiff will also be free to purchase a cheaper residence and to retain such balance of funds as he sees fit. Although the plaintiff sought an order that he receive three-quarters of the estate, I do not consider that the nature and extent of the plaintiff's needs justify such drastic curial interference with the deceased's freedom of testation.

215 The order in favour of the plaintiff will affect the defendant and the infant beneficiaries. The evidence of the defendant's circumstances (or lack thereof) indicates that he will not suffer undue detriment. The defendant is independent, employed and able-bodied. The effect of the proposed order is that he will retain unit 1 and any of the personal estate remaining after the payment of the costs of the proceeding and the further award of money to the plaintiff.

216 The infant remaindermen will lose their entire benefit under the will. As grandchildren, their moral claims on the deceased are more remote than those of the plaintiff or the defendant. There is no evidence of the grandchildren's circumstances and needs, and no basis to conclude that the deceased had any responsibility to provide for their maintenance and support. Further, the nature of the remainder interest is such that it would be unlikely to confer any short-term or medium-term benefit. The children would receive no effective benefit under the deceased's will until the death of the plaintiff. The plaintiff's avowed commitment to his children indicates that they may ultimately receive benefits under his own will. There is a reasonable prospect that the adjustment will not adversely affect the infant beneficiaries. The Court, in exercising its discretion, must weigh competing claims. The plaintiff's needs are such that they outweigh the claims of the infant beneficiaries to retain the remainder interest conferred on them under the will.

[1] [2003] VSC 318

[4] [1994] HCA 40; (1994) 181 CLR 201 at 208.

[5] [1999] 3 VR 803.

[7] [1997] 2 VR 359.

[9] [1994] HCA 40; (1994) 181 CLR 201.

[10] [1997] 2 VR 359 at 365.

[15] [1997] 2 VR 359.

[16] [2002] VSC 208 (31 May 2002).

[18] [2002] VSC 273, 24 July 2002.

[20] [2002] VSC 95; BC200201276, Supreme Court of Victoria, 4 April 2002.

[22] [1962] HCA 19; (1962) 107 CLR 9.

[24] Hallam v Maxwell (Supreme Court (Vic)) Hansen, J, No. 1351198, 13 November 1998 unreported; See also In re Anderson (1975) 11 SASR 276 at 283 per Zelling J.

[25] [1979] HCA 2; (1978-1979) 143 CLR 134.

[29] [1999] 3 VR 803.

[33] [1990] VicRp 46; [1990] VR 519.

[35] [1975] SASR 315.

[36] [1948] VicLawRp 48; [1948] VLR 279.

[38] BC 9502528, SCV Harper J, 22 November 1995.

[40] [1997] 2 VR 359.

[43] [2002] VSC 95

[44] BC 9704034 5399 of 1996, SCV 28 August 1997.

[46] [2002] VSC 95, 4 April 2002.

[50] Collicoat v McMillan [1999] 3 VR 803 at 816.

[52] [1992] VicRp 72; [1992] 2 VR 417.

[55] BC 9502528 SCV Harper J, 22 November 1995.

[57] Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLK 9 at 20.

[58] Re Butler [1948] VicLawRp 77; [1948] VLR 434 at 435.

[59] [1992] VicRp 72; [1992] 2 VR 417.

[60] [1999] 3 VR 803.

[62] [1999] 3 VR 803.

[63] Blove v Lang [1960] HCA 73; (1960) 104 CLR 124 at 135.