Supreme Court of WA|2011-05-17|Before: Pritchard J

DEVENISH -v- DEVENISH [2011] WASC 129 (17 May 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DEVENISH -v- DEVENISH [2011] WASC 129

BRUCE HORACE DEVENISH as Executor of the Will of JOAN FRANCES DEVENISH

GERALDINE CAMPBELL DEVENISH as Executor of the Will of JOAN FRANCES DEVENISH

BRUCE HORACE DEVENISH as Beneficiary under the Will of JOAN FRANCES DEVENISH

Succession - Inheritance - Adequate provision for proper maintenance, support, education or advancement - Application by grandchild of testator under s 7(1)(d) of the Inheritance (Family and Dependants Provision) Act 1972 (WA) - Competing need and moral claims

Bondelmonte v Blanckensee [1989] WAR 305

Bosch v Perpetual Trustee Co Ltd [1938] AC 463

Butcher v Craig [2010] WASCA 92

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

Daniel v Western Australia [2004] FCA 849; (2004) 138 FCR 254

Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127

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

Hall v Philip Roland Wilson as Executor of the estate of Anthony Lawrence Patrick Duffy (Dec) [2005] WASC 207

Jingellic Minerals NL v Beach Petroleum NL (1991) 55 SASR 424, 426

Kitson v Franks [2001] WASCA 134

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

Osborne v Landpower Developments Pty Ltd (In liq) [2003] WASCA 117

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

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

Re Australasian Meat Industry Employees' Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491

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

Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256

Telstra Corporation Ltd v Australian Competition & Consumer Commission [2008] FCA 1436; (2008) 171 FCR 174

Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471

Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88

1 Mrs Joan Frances Devenish died on 1 November 2007, at the age of 90 years. Mrs Devenish had been widowed in 1945 and never remarried. There were two children of the marriage: Malcolm Keith Devenish, and Bruce Horace Devenish (the second defendant).

2 Mrs Devenish's eldest son, Malcolm Devenish, died in 2003, aged 59 years. He had two children, Adrian Keith Devenish (the plaintiff), who is now 42 years old, and Ms Eleanor Lyons, who is now 40 years of age.

3 The second defendant married Ms Geraldine Devenish in 1984, and they separated in 1997. They had two children, both of whom are now in their twenties.

4 On 11 November 2003, Mrs Devenish made a will in which she left the entirety of her estate to the second defendant. She appointed the second defendant and Ms Geraldine Devenish to be the executors of her will. In that capacity, they are the first defendants in these proceedings.

5 Initially the plaintiff and his sister made this application pursuant to s 6(1) of the Inheritance (Family and Dependants Provision) Act 1972 (the Act) seeking a share in the estate of Mrs Devenish. As Mrs Devenish's grandchildren, and as their father had pre-deceased his mother, the plaintiff and his sister were each entitled to make an application under s 6(1) of the Act: s 7(1)(d) of the Act. However, prior to the hearing Ms Lyons withdrew from the proceedings and her claim was dismissed. These proceedings therefore concern only the question whether the plaintiff should have a share in Mrs Devenish's estate.

6 Section 6(1) of the Act provides:

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.

7 Having regard to the terms of s 6(1) of the Act, the plaintiff's application gives rise to two issues:

whether the disposition of Mrs Devenish's estate by her will was not such as to make adequate provision for the plaintiff's proper maintenance, support, education or advancement in life; and
if so, what would be adequate provision for the proper maintenance, support, education or advancement of the plaintiff?

Was adequate provision made in Mrs Devenish's will for the plaintiff's proper maintenance, support, education or advancement in life?

8 The question whether adequate provision was made for the plaintiff's proper maintenance, support, education or advancement in life is to be determined as at the date of Mrs Devenish's death: Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494. It involves, in effect, a jurisdictional question: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 208 - 209 (Mason CJ, Deane & McHugh JJ); Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [75] (Gummow & Hayne JJ); and Bondelmonte v Blanckensee [1989] WAR 305, 307 (Malcolm CJ).

9 In order to determine whether the plaintiff has been left without adequate provision in all of the circumstances for his proper maintenance, support, education or advancement in life, it is necessary to consider his financial position, his need for, and moral claim to, provision from the estate, the need and moral claims of other persons who have a legitimate claim upon Mrs Devenish's bounty (in this case, the second defendant), and the size of Mrs Devenish's estate: Butcher v Craig [2010] WASCA 92 [12]; Devereaux-Warnes v Hall [No 3] [2007] WASCA 235 [9]; [2007] WASCA 235; (2007) 35 WAR 127 (McLure JA); see also Singer v Berghouse (210) (Mason CJ, Deane & McHugh JJ); Kitson v Franks [2001] WASCA 134 [35] (Parker J), [10] (Malcolm CJ agreeing), [20] (Kennedy J agreeing).

10 In support of his claim, the plaintiff swore three affidavits. In addition, the plaintiff gave evidence at the hearing in which he updated the information set out in his affidavits, and was cross-examined.

11 The defendants filed two affidavits prepared by the executors of the estate in relation to the value of the estate, and two affidavits prepared by Mr Paul Rogers, who valued Mrs Devenish's home, both as at the date of her death and shortly before the hearing. In addition, the defendants relied on three affidavits sworn by the second defendant, an affidavit sworn by Ms Geraldine Devenish, an affidavit of Mr John Harler (Mrs Devenish's brother), an affidavit of Ms Karen Dillon (the daughter of Mr John Harler), and two affidavits prepared by the second defendant's doctor, Dr Marcus Middleton. The second defendant, Dr Middleton and Mr Rogers gave evidence at the hearing. The other witnesses for the defendants were not cross-examined on their affidavits.

12 At the date of Mrs Devenish's death, the plaintiff was 39 years of age, was married and had two children, aged 2 years and 6 months respectively. He was employed by the Department for Planning and Infrastructure in its Aviation Policy Branch, on a salary of approximately $65,000 per annum. However, in the 2007/2008 financial year he in fact earned only $56,781 as he had two months' leave without pay while he and his family visited his wife's family in Switzerland.

13 The plaintiff's wife was not working at the time of Mrs Devenish's death as she had ceased working on the birth of her first child.

14 The plaintiff and his wife had combined assets worth approximately $46,000, comprising $8,500 in savings, $20,000 in shares, a car with an estimated value of $7,500 and household contents with an estimated value of $10,000. The plaintiff's evidence was that his salary after tax was entirely consumed by the payment of rent and household and living expenses, and that the savings he and his wife had accumulated had been eroded since his wife stopped working.

15 Counsel for the defendants pointed to various deficiencies in the evidence given by the plaintiff as to his financial position. These deficiencies pertained both to the plaintiff's evidence concerning his financial position at the date of Mrs Devenish's death, and at the date of the hearing, but it is convenient to deal with the submissions as a whole at this point. (Counsel for the defendants also formally objected to parts of the plaintiff's evidence. I deal with those objections later in these reasons.)

16 Counsel for the defendants submitted that the deficiencies in the plaintiff's evidence included that the evidence was inconsistent and inaccurate in a number of respects, and that in other respects the evidence did not make sense. Counsel submitted that it was not necessary to decide whether the evidence was unsatisfactory by accident or design because whatever the reason for the deficiencies, the result of those deficiencies was that the court could not be satisfied on the balance of probabilities of the plaintiff's true financial position, either at the date of death or at the date of the hearing. Counsel submitted that unless the court was satisfied that it had at least a substantially accurate financial position before it, it could not be satisfied that the plaintiff had established a need for provision from the estate.

17 It was the case that there were a number of deficiencies in the plaintiff's evidence as to his financial position. The plaintiff's oral evidence as to his financial position was vague and imprecise in a number of respects, and it was far from comprehensive. By way of example, the plaintiff was unable to recall precise details of his shareholdings, or transactions in relation to those shareholdings. Further, the plaintiff's affidavits did not include any reference to his wife's superannuation entitlements, but in cross-examination, it emerged that the plaintiff's wife would have accumulated some superannuation entitlements as a result of her employment in Australia for approximately 18 months. (Given the short period of that employment the amount of superannuation involved is likely to be negligible for present purposes.) The plaintiff's affidavits also did not include reference to tax refunds and family tax benefits that he received between 2007 and 2010. For example, it emerged during the course of the hearing that during the 2007/2008 financial year (in which Mrs Devenish died), the plaintiff and his wife received family tax benefits amounting to $12,539.16. That figure included a lump sum payment of approximately $5,000 for the birth of each child, in addition to an annual family tax benefit of approximately $2,460.

18 The plaintiff's evidence as to his financial position was also inaccurate in a number of respects. By way of example, in his first affidavit, the plaintiff addressed his financial position as at the date of Mrs Devenish's death but failed to include reference to approximately $10,000 in a bank account which he and his wife held in Switzerland. Reference to this account was included in the plaintiff's second affidavit, although the plaintiff then did not include reference to the balance of that account. At the commencement of his oral evidence, the plaintiff produced a document which 'updated' the information set out in his most recent affidavit concerning his financial position. However, as the plaintiff acknowledged, a number of those 'updates' were in fact corrections of errors or of imprecise information set out in his affidavits.

19 Another difficulty was that the plaintiff's affidavits contained references to sums of money expressed in Swiss francs, but without any evidence as to the value of the Swiss franc by comparison with the Australian dollar. This difficulty was eventually resolved when both counsel agreed that the value of the Swiss franc was equivalent to that of the Australian dollar. (All references in these reasons to amounts of money are therefore expressed in Australian dollars.)

20 Some of these deficiencies in the evidence may not have arisen, or could have been relatively easily resolved, if the plaintiff's affidavits had annexed copies of documents to corroborate his evidence in relation to his financial position. However, the plaintiff's affidavits did not annex copies of any bank statements, certificates of shareholdings, tax returns or other documents which would have provided confirmation of his affidavit evidence. The plaintiff appeared to be under the misapprehension that because those documents (or at least some of them) had otherwise been provided to the defendant's solicitors, there was no need to annex them to his affidavits.

21 The imprecision and inaccuracies in the plaintiff's evidence in relation to his financial affairs, and the absence of any documentary evidence to corroborate the plaintiff's evidence, meant that there appeared, at first blush, to be discrepancies in the plaintiff's overall financial position as disclosed in his affidavits. In his cross-examination of the plaintiff, counsel for the defendant sought to demonstrate that the plaintiff's assets increased in value by approximately $84,000 (from $46,000 as at the date of Mrs Devenish's death to $130,359.93 in November 2009) despite the fact that his income during the 2007/2008 and 2008/2009 financial years was not markedly different, and notwithstanding that his expenses during the 2009 calendar year were significantly higher than in previous years. Counsel for the defendant submitted that this suggested that the plaintiff's assets, or his income, or both, as at the date of death, were higher than he had set out in his affidavits, or that he had subsequently received income from an undisclosed source, and that accordingly, the court could not be satisfied that it had before it an accurate picture of the plaintiff's true financial position.

22 I am unable to accept that submission. During the course of cross-examination the plaintiff was able to explain much of the increase in the value of his assets. I have referred, below, to the plaintiff's evidence in this regard.

23 Despite the deficiencies in the plaintiff's evidence, I am not persuaded that they raise a real question about the accuracy, in broad terms, of the evidence concerning the plaintiff's financial position. Nor am I able to accept the submission of counsel for the defendants that the vague and imprecise nature of the plaintiff's evidence meant that it should not be given any weight. I have reached that conclusion for three reasons.

24 First, having regard to the plaintiff's demeanour during his cross-examination, and the tenor of his evidence as a whole, I am satisfied that there was no attempt by the plaintiff to conceal his true financial position. It was apparent that the plaintiff was genuinely confused by questions posed by counsel for the defendants about an apparent increase in the value of his assets. The imprecision in the plaintiff's evidence as to his financial position appeared to be attributable either to a lack of preparation on his part, or to ignorance of the precise details of his own financial position at particular points in time, or both. Although the plaintiff's affidavit evidence was not comprehensive, at the commencement of his oral evidence he did seek to update and correct omissions or inaccuracies in that evidence.

25 Secondly, the plaintiff's evidence as to his financial position, at least in broad terms, was credible, having regard to the plaintiff's circumstances. Counsel for the plaintiff submitted that although the plaintiff's evidence was 'fairly scant' it had to be viewed in light of his history, and from this perspective, the court could conclude that his evidence in relation to his income was reasonably accurate. I accept that submission. It is entirely credible that a family of four living on one salary of approximately $65,000 per annum (or in fact, just under $57,000 in the financial year in which Mrs Devenish died) with no significant savings or assets, would consume all, or very nearly all, of that salary on day to day living expenses.

26 Thirdly, the plaintiff's evidence as to his employment history (to which I have referred in more detail below) tends to corroborate the plaintiff's evidence that he had only a very small amount of savings and other assets as at the date of Mrs Devenish's death. Counsel for the plaintiff submitted that the plaintiff's history was of a young man who had only matured and settled down in his thirties, and who had not held a highly paid job prior to about 33 or 34 years of age. In my view, that submission accurately reflected the plaintiff's situation. The small quantum of assets accumulated by the plaintiff was entirely consistent with the fact that he only completed his university education, and commenced working in the public service in 2003, that he earned an average salary in that position, and that the two or three years in which both he and his wife worked before they commenced their family would not have been sufficient for the plaintiff to accumulate wealth or assets of any significance.

27 I accept that in the financial year in which Mrs Devenish died, the plaintiff earned a salary of less than $57,000. He did not own his own home, or any other real property. The deficiencies in the plaintiff's evidence make it difficult to determine precisely the value of his assets at the date of Mrs Devenish's death, and it appears that the value of those assets may have been more than the plaintiff's evidence suggested (for example, if the value of the limited superannuation entitlements the plaintiff had accumulated was included). Nevertheless, even if his superannuation entitlement is included (notwithstanding it probably could not have been accessed by the plaintiff for some years), the value of the plaintiff's assets at the date of Mrs Devenish's death was in the order of $80,000, which is still a modest figure.

28 Counsel for the defendants submitted that the plaintiff and his wife were highly educated individuals, who were in good health, and who had a considerable earning capacity. He also submitted that the plaintiff's wife intended to return to the workforce in the near future. He submitted that there was no evidence that the plaintiff could not provide for any of the accommodation, education, health or other needs of himself or his family from his existing resources. Counsel for the defendants submitted that although the plaintiff might find more money an advantage, this was not enough to establish a need on his part.

29 I am unable to accept the submission of counsel for the defendants that the plaintiff failed to establish that he had a need for provision from the estate as at the date of Mrs Devenish's death. In my view, the plaintiff clearly established such a need, for the following reasons.

30 As I have already observed, at the date of Mrs Devenish's death, the plaintiff was 39 years old. He was earning only an average salary. He was supporting a wife and two infant children. He did not own his own home, nor does it appear that he had the means to purchase a home, as his salary was entirely consumed by day to day living expenses.

31 I accept that the plaintiff and his wife were highly educated. Both had bachelor level university degrees. However, in the plaintiff's case, that had not translated into a proven capacity to earn a high income by the date of Mrs Devenish's death. The plaintiff's employment history also weighs against the conclusion that, as at the date of Mrs Devenish's death, the plaintiff had a high income earning capacity. A brief traverse of what the plaintiff's counsel aptly described as the plaintiff's 'quite erratic' employment history will suffice to demonstrate the point.

32 The plaintiff finished school in 1985. Between 1986 and 1989 the plaintiff had enrolled in two university degrees, failed the first year of each, and been required to withdraw from each course. In the intervening periods the plaintiff pursued unskilled work, and travel. None of the jobs the plaintiff held during this period appears to have lasted for more than nine months. Throughout the 1990s, the plaintiff pursued a variety of different occupations. He worked on a freelance basis operating audio equipment in the theatre, and worked as a paralegal for three years. He worked as a driller's offsider for approximately nine months, as a bus driver for approximately nine months, and was unemployed for at least eight months. The plaintiff also spent time travelling, and after meeting his wife, spent time in Switzerland.

33 From 2000 to 2003 the plaintiff was a full time university student. He was awarded a Bachelor of Science degree in Aviation and Computer Science in 2005.

34 The plaintiff and his wife returned to Perth in February 2003, and later in that year he obtained the full time position with the Department for Planning and Infrastructure which he held at the date of Mrs Devenish's death.

35 For completeness, I note that the plaintiff obtained an Australian Commercial Pilot's Licence in June 2002 and at the time of Mrs Devenish's death he was studying towards an Airline Transport Pilot's Licence and Command Instrument Rating in order to become qualified to attain employment as an airline pilot. However, given that he had not completed that qualification, it cannot be said that that would have added to his income earning potential as at the date of Mrs Devenish's death.

36 I am also unable to accept the submission of counsel for the defendants that as at the date of Mrs Devenish's death, the plaintiff's wife had a high income earning potential. The plaintiff's wife had a Bachelor of Arts degree in film and television and a Diploma in Journalism, and had worked in radio in Switzerland for approximately three years prior to 2000. She was a full time student between 2001 and June 2002, and thereafter worked as a production manager for approximately 18 months. However, the plaintiff's wife ceased work when her first child was born, to become the primary caregiver. The plaintiff's evidence was that he and his wife intended that she would return to the workforce in about 2013 when both their children were in full time primary school. However, even if she does return to work at that stage, the plaintiff's wife will have been out of the workforce for approximately eight years, with only a few years of prior work experience. In those circumstances, a return to the workforce in a high income earning capacity would be far from assured, particularly if the plaintiff's wife decided to return to work on a part-time basis while her children were at school.

37 The evidence supports the conclusion that as at the date of Mrs Devenish's death, the plaintiff and his wife were in a somewhat tenuous financial position. Although they were able to meet their day to day living expenses from the plaintiff's salary, they were not in a position to accumulate savings of any significance, which might have permitted them to make their financial position more secure. Furthermore, the plaintiff's living expenses were likely to increase as his children grew up and their needs increased. Without an increase in his income, the plaintiff's financial position was likely to become more tenuous over time.

38 The plaintiff also relied on a moral claim to provision from Mrs Devenish's estate. The existence of any such moral claim was contested by the defendants.

39 The plaintiff's parents separated in 1976 when he was about 8 years old. Following the separation, the plaintiff's father spent most of the remainder of his life in Europe, and the plaintiff and his sister resided with their mother. The plaintiff's mother remarried in 1981 and the plaintiff and his sister then resided with his mother and her husband.

40 Having regard to the evidence of the plaintiff, and to the uncontested evidence of Ms Geraldine Devenish and Ms Karen Dillon, it was apparent that between 1976 (when his parents separated) and around 1985 (when the plaintiff obtained his driver's licence), the plaintiff did not see Mrs Devenish frequently, or on a regular basis. As the years went by, such contact as there was appears to have occurred mostly on festive occasions. That is hardly surprising, given that the plaintiff resided with his mother and step-family, and his father lived overseas.

41 However, the plaintiff's evidence was that after 1985, when he obtained his driver's licence, he had more frequent and regular contact with Mrs Devenish. I accept the plaintiff's evidence that in 1986, when his father returned to Perth for a holiday, he and his father resided with Mrs Devenish for approximately two months. I also accept the plaintiff's evidence that between 1986 and 2000 he visited Mrs Devenish about once a month or so, and for about nine months during 1998 (while he worked as a bus driver) the plaintiff visited Mrs Devenish every week for a couple of hours at a time.

42 Once the plaintiff's sister, and then the plaintiff himself, had families of their own, the plaintiff's contact with Mrs Devenish also increased in frequency and regularity. The plaintiff's evidence was that from about 1999, when his sister had her first child, the plaintiff and his sister and their families would gather at Mrs Devenish's home, or at his sister's home, for dinner about once a month.

43 The plaintiff also gave evidence that after he commenced full time study in 2000, he visited Mrs Devenish each week. After he moved to Switzerland, he kept in contact with Mrs Devenish by telephone. Following his return to Perth in 2003, the plaintiff said that he continued to see Mrs Devenish. Initially this was made a little difficult by virtue of the fact that the plaintiff had to rely on public transport, and the plaintiff acknowledged that as a result he only saw Mrs Devenish a handful of times during 2003. However, once he had his own transport, these visits increased. The plaintiff's evidence was that he would see Mrs Devenish at least once a month, for family dinners at his sister's home or for family celebrations such as birthdays.

44 Following the birth of the plaintiff's first child in 2005, the plaintiff's wife and his children visited Mrs Devenish once a week while the plaintiff was at work, and the plaintiff and his family visited Mrs Devenish on the weekends as well. The plaintiff's evidence was that he and his family took Mrs Devenish out on social outings, and that she dined with the plaintiff's family at their home about once a month. In addition, the plaintiff and his family saw Mrs Devenish on special occasions, including her 90th birthday, which was celebrated with a family dinner at the plaintiff's home.

45 In addition to this contact, Mrs Devenish attended significant celebrations in the plaintiff's life, including his wedding and the baptism of his son. The plaintiff attended Mrs Devenish's funeral.

46 Counsel for the defendants did not dispute that there may very well have been a 'normal love and affection' between the plaintiff and Mrs Devenish, but submitted that a moral claim could not be established by virtue of a loving relationship between family members. He submitted that in the absence of evidence that a claimant had made sacrifices to care for a testator, or contributed financially to assist a testator, the relationship must be more than what might be called the ordinary, familial relationship, involving contact which is intermittent, in order to give rise to a moral duty.

47 That was a broad submission, particularly when put in the abstract. However, it is not necessary in the present case to decide whether that broad submission should be accepted as there was also evidence that the plaintiff did more than simply visit his grandmother and maintain a relationship with her over the years. The plaintiff's evidence was that between 1986 and 2000, when he visited Mrs Devenish, he would sometimes undertake odd jobs around her house and garden, such as mowing the lawns or cleaning the gutters. Following his marriage, the plaintiff and his wife would run errands for Mrs Devenish, such as taking her shopping, doing small gardening jobs, and cleaning the carpets. The plaintiff also gave evidence that he gave Mrs Devenish a new television that he had initially purchased for himself.

48 Counsel for the defendants submitted that the plaintiff had not made any significant sacrifices or services to, or for the benefit of, Mrs Devenish and that he had not materially assisted Mrs Devenish in building up her estate. I accept that submission. However, taking into account the evidence of the relationship between the plaintiff and his grandmother as a whole, I am unable to accept the submission of counsel for the defendants that Mrs Devenish did not owe any moral duty to the plaintiff. It seems to me that that moral duty is founded on two factors in this case.

49 First, once the plaintiff reached early adulthood, and had the means to independently maintain his relationship with his grandmother, he did so. It has been observed that it is not surprising or out of keeping with the relationship of grandparents and adult grandchildren that the relationship may become less close when adult grandchildren are seeking to make their own lives: see Kitson v Franks [74] (Parker J, Malcolm CJ & Kennedy J agreeing). In this case, the situation was quite the reverse. The plaintiff effectively re-established his relationship with his grandmother once he reached early adulthood, notwithstanding that he had not had frequent or regular contact with his grandmother during his childhood. In those circumstances it would not have been surprising for a young person in his position to let the relationship fall away altogether. The plaintiff's relationship with Mrs Devenish appears to have become even stronger following his marriage and the birth of his children.

50 Secondly, the plaintiff was willing to assist his grandmother with some tasks which helped her maintain her home and her independence. Although the evidence did not suggest that this assistance was significant, it nevertheless needs to be remembered that the plaintiff commenced providing this assistance during his early adult years, at a time when many grandchildren in young adulthood might have been too preoccupied with their own lives to provide such assistance. He continued to provide assistance, occasionally, even once he had established a family of his own.

51 I turn, now, to consider the need and moral claim of the second defendant, who was the only other person, apart from the plaintiff, with a legitimate claim upon Mrs Devenish's bounty.

(d) The need and moral claims of other persons who have a legitimate claim upon the bounty of the testator

52 The plaintiff did not dispute that the second defendant had a claim on Mrs Devenish's bounty. That was clearly the case. The second defendant had both a need for provision from Mrs Devenish's estate, and a very strong moral claim to provision from the estate.

53 Two considerations support the conclusion that at the date of Mrs Devenish's death, the second defendant had a need for provision from the estate. First, like the plaintiff, the second defendant had limited financial means. At the date of Mrs Devenish's death, the second defendant was employed as the Chief Executive Officer of Abmusic, a non-profit Aboriginal corporation. He had held that position since 2005. His gross salary was $62,884 per annum, which amounted to a net salary of $45,072 or approximately $3,756 net per month. He estimated that his monthly expenditure at the time was $3,103. In other words, at best, the second defendant had only about $650 surplus each month to cover any unexpected contingencies, or to accumulate as savings.

54 The second defendant's evidence as to his assets and liabilities was largely unchallenged by the plaintiff. There were some errors apparent in the second defendant's affidavits in so far as they addressed his financial position. In his first affidavit, the second defendant underestimated the value of his superannuation entitlements (by $16,800) and overestimated the value of his liabilities (by $17,895). These errors were, however, corrected in the second defendant's second affidavit, and I accept that corrected evidence as to the second defendant's financial position.

55 The second defendant estimated that at the date of Mrs Devenish's death his assets (including superannuation entitlements) were valued at approximately $66,300. The second defendant did not own any real estate. He had transferred his former matrimonial home to his former wife in 1994 without any financial benefit in return.

56 The plaintiff's counsel submitted that the second defendant had the potential to make a claim to some entitlement in respect of his former matrimonial home. In her affidavit Ms Geraldine Devenish expressed the view that the second defendant had no legal, beneficial or other interest in their former matrimonial home. This statement constituted the expression of an opinion on a legal question which Ms Devenish was unqualified to give, and I place no weight on it. Having regard to the available evidence, I am not persuaded that the second defendant has any interest in his former matrimonial home which might translate into a financial benefit were he and his former wife now to formally enter into a property settlement in view of the breakdown of their marriage.

57 The second defendant's evidence was that at the date of Mrs Devenish's death, he had liabilities of $23,930, including a debt to his uncle, Mr John Harler (Mrs Devenish's brother) arising from a loan of $10,000 from Mr Harler in the early 1990s. The second defendant's evidence in relation to the loan was anomalous in some respects, for example, in relation to the interest he claimed was payable on the loan. However, the terms of the loan were not explored in the evidence and it was not possible to resolve those anomalies. Nor is it necessary to do so as the quantum of the loan was such that even if interest was payable, the total debt would not be determinative of the present application.

58 The second factor which went to establishing the second defendant's need was the combined effect of his age and poor health. The second defendant was 62 years of age at the date of Mrs Devenish's death. His general practitioner, Dr Middleton, gave evidence that the second defendant had suffered from a number of medical problems since before Mrs Devenish's death. The nature of those medical problems need not be set out in detail here. At the time of Mrs Devenish's death, the second defendant was taking a variety of medications, and saw his general practitioner and a variety of specialists, including a cardiologist, to manage his health problems.

59 The second defendant's age and poor health had two implications relevant to the present context. First, the evidence was that as at the date of Mrs Devenish's death, the second defendant would not have been able to continue working for many more years. Consequently, and having regard to his limited financial means, the second defendant had no prospect of being able to accumulate significant, or sufficient, savings to independently fund his retirement. Secondly, Dr Middleton's evidence was that as a result of his health problems, the second defendant was highly likely to suffer other disease in the future, including heart disease, kidney disease, stroke, and cancer. Some of those conditions, if they occurred (and if they were not immediately fatal) could result in significant disability and require long periods of hospital and rehabilitative care. Dr Middleton's evidence was that it was highly likely that the second defendant's condition would necessitate an increase in the medical care he would require in the future. If the need for such additional medical care arose, it would potentially need to be at least partly funded by the second defendant himself.

60 The evidence also supported the conclusion that the second defendant had a very strong moral claim to provision from Mrs Devenish's estate. The evidence was that the second defendant had maintained a close relationship, and had had regular contact, with his mother throughout his life, and this continued once he had children of his own.

61 Following the breakdown of his marriage, the second defendant moved to Sydney. When he returned to Perth in 1999, the second defendant moved into Mrs Devenish's home. He continued to reside with his mother until her death. The second defendant's evidence was that he was responsible for a variety of general maintenance tasks at his mother's home, such as cleaning the gutters, changing blown power fuses, hanging out the washing, assisting his mother with her Christmas shopping, doing the gardening, helping her pay her bills, and driving her to the shops, to her social engagements, to her medical appointments, and to visit her friends. However, when the second defendant's health began to deteriorate in 2002 he gradually became unable to undertake heavier or manual tasks, such as lawn mowing and gardening.

62 The second defendant's evidence was that he 'was at [Mrs Devenish's] beck and call' (exhibit 14, par 33). However, I do not consider that the evidence established that the situation was as entirely one sided as the second defendant sought to suggest. By way of example, the second defendant's evidence was that he moved in with his mother because she was then 82 years old and was beginning 'to evidence the frailty of age' (exhibit 14, par 28). However, under cross-examination the second defendant acknowledged that when he returned to Perth in 1999, he was unemployed for approximately one year, and was separated from his wife and therefore could not return to live in his former marital home. He therefore accepted that from his own perspective, it was, at least initially, quite convenient for him to move in with Mrs Devenish. It also appears to have been financially advantageous. The second defendant did not pay Mrs Devenish any board, and contributed only $50 to the weekly shopping bill.

63 In addition, the second defendant acknowledged that, other than when she was unwell, his mother made his lunch, and cooked his evening meal, every day. She also did all his laundry. From that perspective, the maintenance tasks which the second defendant performed around Mrs Devenish's home can, at least in part, be seen as amounting simply to the second defendant's reasonable and appropriate contribution as a resident of the household.

64 On the other hand, I accept the second defendant's evidence that during the nine years he resided with his mother, she had suffered a number of viral infections which left her bed ridden, and that on these occasions he cooked for his mother and attended to all of her needs. The plaintiff quite properly did not dispute that the second defendant was Mrs Devenish's primary source of care and that she depended on him first and foremost.

65 Counsel for the defendants also submitted that the personal sacrifices that the second defendant made 'undoubtedly resulted in a diminution of his own resources to the enlargement of [Mrs Devenish's resources] and therefore the estate' (ts 149). I am unable to accept this submission in so far as it seemed to imply that the second defendant's conduct resulted in a diminution of his financial resources. Counsel for the defendants ultimately conceded that the evidence did not support the conclusion that the second defendant's financial resources had been diminished as a result of his years of living with his mother. This was not, for example, a case in which the second defendant gave up his employment to care for his mother. Whilst he lived with his mother the second defendant was engaged in full time employment.

66 Nevertheless, I accept that the second defendant gave his time and energy to assist his mother over a number of years. In addition it was undoubtedly the case that the second defendant provided security and comfort to Mrs Devenish which enabled her to pursue her interests and live in her home until her death. These considerations, together with the close and loving relationship between the second defendant and his mother, support the conclusion that Mrs Devenish was under a moral duty to provide for the second defendant from her estate.

(e) The size and nature of the deceased's estate

67 The plaintiff's claim must be viewed not only in the context of the second defendant's claim to Mrs Devenish's estate, but also in the context of the size of the estate itself.

68 Shortly after the date of her death, Mrs Devenish's estate had a reasonably significant value. The defendants filed an affidavit in October 2008 indicating that the assets of the estate comprised $1,334.33 held in trust, some personal effects including jewellery with a total value of $12,570 and Mrs Devenish's home in South Perth.

69 Mr Paul Rogers prepared a valuation of Mrs Devenish's home as at the date of her death and valued the property as at that date at $1,325,000. According to the defendants' affidavit of 14 October 2008, the assets of the estate also included savings and cash of $16,562 and personal effects worth $17,570. The debt of the estate at the date of Mrs Devenish's death comprised a loan of $67,881.65. Accordingly, the net value of the estate at the date of Mrs Devenish's death was just over $1,290,000.

(f) Conclusion: adequate provision was not made for the maintenance, support, education and advancement in life of the plaintiff

70 The term 'maintenance' in s 6(1) of the Act refers to a provision for the supply of the necessaries of life, although it also extends to provision over and above a mere sufficiency of means upon which to live: Vigolo v Bostin [115] (Callinan & Heydon JJ), cf Kitson v Franks [44] (Parker J). It may also imply a continuity of a pre-existing state of affairs: Vigolo v Bostin [115] (Callinan & Heydon JJ). 'Support', too, may imply provision beyond bare need: Vigolo v Bostin [115] (Callinan & Heydon JJ). In contrast, provision to secure or promote 'advancement' will ordinarily be provision beyond the necessities of life, and may extend to a provision which would enable a potential beneficiary to improve his or her prospects in life: Vigolo v Bostin [115] (Callinan & Heydon JJ).

71 The defendants' counsel submitted that the court should conclude that the plaintiff had not met the jurisdictional threshold so as to permit the exercise of its discretion to make an award under s 6(1) of the Act. However, he went on to submit that at best this case involved a poor claim on the basis of need by the plaintiff, and no basis for a moral claim by the plaintiff, as compared with a pressing need and a high moral claim on the part of the second defendant, all in the context of a very modest estate.

72 The evidence supported the conclusion that the plaintiff had been able to provide the bare necessities of life for himself and his family. However, that does not preclude a finding that he established the jurisdictional threshold under s 6(1): see, for example, Kitson v Franks [15] (Malcolm CJ), [69] (Parker J, Malcolm CJ & Kennedy J agreeing). In this context, 'need' is not determined by reference only to minimum standards of subsistence: Devereaux-Warnes v Hall [No 3] [9] (McLure JA). I have taken into account the fact that the plaintiff was employed and able to cover his family's living expenses on the salary he was being paid at the date of Mrs Devenish's death. He and his wife were also apparently in good health, and therefore could be expected to work to support their family in the years to come. On the other hand, the standard of living enjoyed by the plaintiff and his family on his then salary was modest, and in the years to come the plaintiff and his wife could expect an increase in their living expenses as their children grew older and their needs increased.

73 The use of the word 'proper' to qualify the words 'maintenance, support, education or advancement' requires consideration to be given to more than satisfying the basic needs of an applicant: Butcher v Craig [21]. The fact that the plaintiff did not own his own home, had few assets of any value, and at the time of Mrs Devenish's death could not be expected to earn a substantially higher salary in the future, provides strong support for the conclusion that his need was such that his proper maintenance, support and advancement required some provision to be made for him from Mrs Devenish's estate.

74 I also accept that the plaintiff established a moral claim to provision from the estate, having regard to his re-establishment of contact with Mrs Devenish once he reached adulthood, his social contact with her, on his own and at family gatherings, and by the practical assistance he occasionally provided. However, I also accept that the plaintiff's moral claim was not as strong as the second defendant's moral claim to provision from the estate. That was not unexpected, given that the plaintiff was the grandson and not the son, of Mrs Devenish. Further, the strength of the second defendant's moral claim in this case derived in particular from the care and support he provided to Mrs Devenish over the nine years prior to her death.

75 The second defendant, too, had a need for provision from the estate. At the time of Mrs Devenish's death, he did not own his own home, had assets of little value, and although he was able to support himself on his salary, had little in reserve. The second defendant's future income earning capacity was also limited, given his age and his declining health.

76 I take into account also the size and nature of the estate. As I have found, at the date of Mrs Devenish's death, the estate had a value of just over $1,290,000. It was therefore of a reasonable size.

77 Having regard to the plaintiff's need, his moral claim to provision from the estate, to the second defendant's need and moral claim to provision from the estate, and to the size of the estate itself, I am satisfied that the absence of any provision for the plaintiff from the estate constituted a failure to provide adequately for his maintenance, support, or advancement in life.

What would be adequate provision for the proper maintenance, support, education or advancement of the plaintiff?

78 Having determined that jurisdiction exists for the exercise of the discretion under s 6(1) of the Act, I turn to consider the question of what provision would be adequate for the proper maintenance, support, education or advancement of the plaintiff.

79 In exercising the discretion the question is what award would be adequate for the 'proper' maintenance, support, education or advancement of the plaintiff. The term 'proper' prescribes a standard, whereas the term 'adequate' is concerned with the quantum of the award. The propriety of a provision for an applicant is to be assessed by reference to all the circumstances, including contemporary accepted community standards: Devereaux-Warnes v Hall [No 3] [73] (Buss JA); Singer v Berghouse (211) (Mason CJ, Deane & McHugh JJ), (227) (Gaudron J); Bondelmonte v Blanckensee (308) (Malcolm CJ).

80 These circumstances may include matters such as what once was called the 'station in life' of the parties and the expectations to which that has given rise, or in other words, reciprocal claims and duties based on how the parties lived and might reasonably have expected to live in the future: Vigolo v Bostin [114] (Callinan & Heydon JJ); see also Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 476, 478 (Lord Romer). It will also be appropriate to take into account not only the needs of the applicant but his own capacity and resources for meeting those needs: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ). Determining the quantum of an award which would be adequate for the proper maintenance, support, education and advancement of an applicant is also a relative question, which requires consideration of the nature, extent and character of the estate and the other demands upon it: Pontifical Society v Scales (19) (Dixon CJ).

81 Consequently, the determination made at the second stage involves similar considerations to those which are relevant in relation to the jurisdictional question. However, the determination at the second stage involves a consideration of the facts which exist at the time of making the order: Coates v National Trustees Executors and Agency; Dun v Dun [1957] HCA 91; (1957) 99 CLR 325, 331 (Dixon CJ, Kitto & Taylor JJ); and Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490; Bondelmonte v Blackensee (307) (Malcolm CJ).

82 The financial position of the plaintiff and of the second defendant had changed somewhat between Mrs Devenish's death and the hearing of this application. The second defendant objected to the admission of some of the plaintiff's evidence, most of which concerned his current financial position and anticipated future needs, and I provisionally admitted certain paragraphs of the plaintiff's affidavits. In addition, following the hearing of the application, the second defendant sought leave to adduce fresh evidence concerning a change in his own financial position. The plaintiff opposed the grant of such leave.

83 Accordingly, in this part of my reasons, I deal with the following issues:

(a) The plaintiff's evidence which was provisionally admitted;

(b) The plaintiff's present financial position and need;

(d) The second defendant's present financial position and need;

(f) What would constitute an adequate provision for the proper maintenance, support or advancement of the plaintiff?

(a) The plaintiff's evidence which was provisionally admitted

84 The defendants objected to a number of paragraphs in two of the plaintiff's affidavits on various bases, including that they contained hearsay or were expressions of opinion. I provisionally admitted a number of those paragraphs, namely par 53 of exhibit 1 and pars 28 and 47 - 51 of exhibit 3. The defendants also made the same broad objections to the content of exhibit 4, which was a document tendered by the plaintiff containing information to update the contents of his final affidavit (exhibit 3).

85 Neither par 53 of exhibit 1 nor par 28 of exhibit 3 assists me to resolve the issues requiring resolution in this matter. Evidence concerning the second defendant's belief as to Mrs Devenish's wishes in relation to her family home, and his intentions in relation to the management of Mrs Devenish's estate in accordance with his understanding of her wishes, do not assist me to determine any of the issues arising from the application of s 6 of the Act. I admitted these paragraphs provisionally because the plaintiff's counsel submitted that they would be relevant to issues of credit in relation to the second defendant's recollection of events. Having regard to the evidence as a whole, that did not transpire to be the case. I have given no weight to the content of par 53 of exhibit 1 or par 28 of exhibit 3.

86 The plaintiff's evidence was that immediately following the hearing, he and his family were to move to Switzerland, where he had obtained employment in a Swiss corporation as a flight data analyst.

87 Paragraphs 47 - 51 of exhibit 3 dealt with the plaintiff's expectations about matters relating to his financial position in Switzerland, such as the cost of living there, additional living expenses which he expected to incur, and his understanding of the availability and cost of housing in Switzerland. The plaintiff's evidence was that the basis for his views was research he had conducted on the internet, but the accuracy of the information on which he relied was not supported by any additional evidence. Accordingly, I am unable to give any weight to the evidence set out in these paragraphs of exhibit 3. Ultimately, however, this evidence assumed far less significance in the plaintiff's case because he was able to give oral evidence of some of the actual expenses he had or would incur in relation to his family's relocation to Switzerland, particularly the cost of rental accommodation he had secured for his family.

88 The defendants made the same broad objections to exhibit 4 as they had to pars 47 - 51 of exhibit 3. In so far as the information set out in exhibit 4 dealt with the plaintiff's salary and taxation position in relation to his employment in Switzerland and the cost of rent in Switzerland, the basis for this information - correspondence from the plaintiff's Swiss employer - had already been annexed to exhibit 3. I discuss this evidence in greater detail below. Although the evidence was not entirely precise, I consider it sufficiently reliable to be accepted for present purposes.

89 In addition, much of exhibit 4 set out in written form the plaintiff's oral evidence concerning the cost of the rental accommodation the plaintiff and his wife had leased in Switzerland from the time of the commencement of his employment there. Although there was no documentary evidence (such as a copy of the lease) to confirm the plaintiff's oral evidence, I accept the truth of the plaintiff's evidence as to the amount of rent which he will now be paying for his accommodation in Switzerland.

(b) The plaintiff's present financial position and need

90 Counsel for the defendants submitted that the plaintiff's financial position had improved by the date of the hearing, as compared with his position at the date of Mrs Devenish's death. There were three planks to that argument: the plaintiff's earning capacity had increased, the value of the plaintiff's assets had increased, and the plaintiff's wife was closer to being in a position to resume her employment.

91 Counsel for the defendants submitted that the plaintiff's income earning capacity increased between the date of death and the date of the hearing, from approximately $68,000 per year to almost $100,000 per year. The plaintiff's evidence was that he expected to earn approximately the equivalent of $AUS104,132 per annum, comprising a base salary of approximately $AUS97,500 and allowances for his children amounting to approximately $AUS6,632. Based on these figures, the plaintiff's evidence was that he expects to receive between $AUS82,491 and $AUS86,594 per year after taxes, although a letter from his employer, which was appended to his affidavit, suggested that the plaintiff would receive approximately $AUS90,600 per annum after taxes. Accordingly, it appears likely that the plaintiff will earn a little over $100,000 gross, or between $82,491 and $90,600 after tax, from his employment in Switzerland.

92 While the plaintiff's income earning capacity has, therefore, increased since the date of Mrs Devenish's death, the evidence suggested that a large portion of the plaintiff's increase in income will be consumed by higher costs for rent. The plaintiff's evidence was that he and his wife had entered into a 12-month lease on an apartment from 15 August 2010 at a cost of $2,650 per month. That represents a significant increase in the amount of rent the plaintiff had been paying since the date of Mrs Devenish's death. Prior to his relocation to Switzerland, the plaintiff was paying $275 per week rent. Rent of $2,650 per month equates to just over $660 per week. The plaintiff will therefore now pay approximately $20,000 more per annum for rent than he had been paying at the date of Mrs Devenish's death.

93 The plaintiff sought to put forward evidence concerning a wide range of living expenses he expected to incur in Switzerland. Having concluded that I could give no weight to much of the plaintiff's third affidavit which set out information he had obtained about the likely cost of living in Switzerland, the available evidence as to the plaintiff's likely future living expenses (other than rent) was scant. In view of the dearth of evidence concerning the cost of living in Switzerland, counsel for the plaintiff submitted that I could take judicial notice of the fact that Switzerland is an advanced country and that 'the cost of living there is unlikely to be cheap' (ts 188). While there may well be merit in that very broad submission, it does not assist me to calculate with any precision the plaintiff's likely cost of living in Switzerland. However, even if the plaintiff's living expenses (apart from rent) are put to one side, as I have already noted the increased rent alone appears likely to consume a considerable portion of the additional salary that the plaintiff will now earn.

94 Counsel for the defendants submitted that the value of the plaintiff's assets in November 2009 was approximately $130,000, an increase of about $84,000 since November 2007. As I have already observed, the plaintiff was able to explain the basis for most of that increased value. He said that he received a 'windfall' of some $41,250 as a result of a significant increase in the value of shares he held. The plaintiff's evidence was that this windfall brought the overall value of his shareholding to approximately $55,560. Of the remaining $43,000 increase, the plaintiff's evidence was that the increase in his savings was probably attributable to the fact that he sold some $20,000 worth of shares, that he and his wife received $10,000 in family benefits as a lump sum following the birth of their children, and that he had received a tax refund in approximately October 2008 of approximately $10,000. Accordingly, the increase in the value of the plaintiff's assets appears attributable to windfalls which seem unlikely to be repeated to the same extent in the future.

95 As at the date of the hearing, the evidence was that the plaintiff and his wife held shares valued at approximately $43,500 and had cash savings of just over $27,000. In addition, the plaintiff's evidence was that he would be paid $4,000 relocation costs provided that he remained with his Swiss employer for two years. Finally, the plaintiff's understanding was that his wife would continue to receive Australian family allowances of approximately $AUS2,450 per year while they lived in Switzerland.

96 As for counsel's submission that the plaintiff's wife is now closer to being able to return to the workforce, the evidence was that the plaintiff's wife intended to return to the workforce in 2013. As I have already observed, by that time, the plaintiff's wife will have been out of the workforce for approximately eight years. In my view there are too many contingencies to be able to draw any conclusion about the likely impact that any such return to work would have on the plaintiff's overall financial position in the years to come. I do not accept that this factor supports the conclusion that the plaintiff's financial position had improved in the period since Mrs Devenish's death.

97 Despite the increased salary the plaintiff will receive from his employment in Switzerland, I am satisfied that the plaintiff has established that he continues to have a need for provision from Mrs Devenish's estate, for five reasons.

98 First, although the plaintiff will earn a higher salary than he had previously earned, much of this increase will be consumed by the increased rent that the plaintiff will pay for accommodation in Switzerland.

99 Secondly, by the date of the hearing the plaintiff had incurred a debt which he had not owed at the date of Mrs Devenish's death. The plaintiff's evidence was that he had borrowed a total of $72,700 from his step-father in order to undertake the training for his United Kingdom pilot's licence. Although this loan was not recorded in writing, but rather was a family arrangement, the plaintiff maintained that the loan was required to be paid back as soon as possible when circumstances permitted and that it was his intention to repay the money as soon as possible.

100 The defendants' counsel noted that the loan was uncorroborated by any other evidence, and submitted that reference to the loan amounted to nothing more than an assertion that an amount was owed. He submitted that the evidence suggested that it was not the sort of loan where there was any pressure to pay it, or where there would be any detriment if it was not repaid. The plaintiff acknowledged that there was no agreement as to the date by when the loan was required to be repaid. However, the plaintiff's unchallenged evidence was that between November 2009 and June 2010 he repaid $20,000 of this loan. That supports the conclusion that the loan was one which the plaintiff was in fact required to repay.

101 Thirdly, although the plaintiff has now secured a job with a higher salary than he previously earned, and although his evidence was that he intends to remain in this position for the foreseeable future, his recent employment history continues to warrant caution about the plaintiff's future employment prospects. Since the date of Mrs Devenish's death, the plaintiff's employment (and consequently his income) has continued to be somewhat erratic. From late June 2008 until early April 2009 the plaintiff worked for Aerodrome Management Services. Initially he was employed on a full time basis (earning $90,000 per annum for the last six months of 2008). However, his hours were then reduced to three days per week in December 2008, and he continued to work part time for the first three months of 2009. Accordingly, his actual income between June 2009 and April 2009 was $57,386. The plaintiff was made redundant in April 2009. Between April and June 2009 the plaintiff did some casual work.

102 By February 2009, the plaintiff had obtained his Australian command instrument rating and his Australian Multi Engine Instrument Rating. Around the same time, the plaintiff and his wife decided that they would move to Europe to enable her to live closer to her family. They agreed that the plaintiff's best chance for employment would be to convert his Australian pilot's qualifications to their European equivalents and to seek employment as an airline pilot in Europe. By February 2009 the plaintiff completed the theory component of a United Kingdom Airline Transport Pilot's Licence. In June 2009 the plaintiff went to England to undertake the practical training component of that licence, which qualified the plaintiff for a European Commercial Pilot's Licence. The plaintiff completed the course and returned to Perth on 6 November 2009. The plaintiff did not work while undertaking this course.

103 Following his return from England the plaintiff was unsuccessful in obtaining work either as a pilot or in an aviation related capacity, despite numerous attempts to secure such work. Instead, between November 2009 and July 2010, the plaintiff obtained casual employment, which included work as a labourer and a dogman.

104 In late May 2010, the plaintiff accepted an offer of full time employment with the Swiss corporation to which I have already referred. He was to commence that employment on 1 September 2010.

105 I note that although the plaintiff's evidence was that he intends to continue to pursue work as a commercial pilot, even he acknowledged that his prospects of finding work as a commercial pilot, and for a higher salary than he could earn as a flight data analyst, were poor.

106 Fourthly, the plaintiff's evidence was that he anticipated that his children would complete their secondary education and proceed to obtain tertiary education. Given the age of the children (5 and 3 years respectively, at the date of the hearing) the plaintiff's evidence as to the cost of their future education was necessarily highly speculative and I am unable to place any weight on it. Of greater significance, as I have already mentioned, is that for many years into the future the plaintiff and his wife can be expected to bear the financial cost of supporting their two children through the entirety of their primary and secondary education and possibly into their early adulthood. The cost of raising the children will be a significant additional financial demand on the plaintiff in the years to come.

107 Finally, it remains the case that the plaintiff and his wife do not own a home. Counsel for the defendants submitted that because the plaintiff had moved to Switzerland, the Court could not take judicial notice of Australian conditions to assist it to determine the plaintiff's likely future needs for things such as purchasing or renting a home. However, for present purposes, it suffices to say that given that much of the increase in the plaintiff's salary is likely to be consumed by the payment of higher rent, it does not appear likely that the plaintiff would readily be able to accumulate a deposit for a home.

(c) Whether the second defendant should have leave to adduce fresh evidence

108 At the date of the hearing, the second defendant was employed as the Chief Executive Officer of Abmusic and his gross annual income was $85,500, which equates to $56,150 net (or approximately $4,680 net per month). However, on the day immediately following the hearing the second defendant tendered his resignation from his position at Abmusic. There had been no indication, either in the affidavit evidence filed by the second defendant, or in his oral evidence at the hearing, that the second defendant intended, imminently, to resign from his employment.

109 Several weeks after the hearing, the defendants applied for leave to file a further affidavit sworn by the second defendant on 9 September 2010 (the fresh evidence). The second defendant deposed that the day after the conclusion of the hearing he resigned from his job, that his employment would cease on 30 September 2010, and that he intended to retire from the workforce and not undertake further paid employment.

110 The plaintiff opposed the grant of leave to admit the fresh evidence. Following a further hearing in relation to the admission of the fresh evidence, I reserved my decision in relation to whether the defendants should have leave to file, and to rely upon, the second defendant's further affidavit.

111 A court clearly has power to re-open a case after a hearing has concluded but before judgment is delivered for the purpose of admitting new or additional evidence. The decision to do so involves an exercise of discretion. Leave will more readily be given where the application is made after judgment has been reserved and before judgment has been given: Jingellic Minerals NL v Beach Petroleum NL (1991) 55 SASR 424, 426 (Zelling AJ) and the cases there cited.

112 The first question of relevance to the exercise of the discretion to admit fresh evidence is why that evidence was not called at the hearing, and in particular to consider whether a deliberate decision was made not to call the evidence at the hearing, or whether the evidence would have been available had reasonable diligence been exercised: see Smith v New South Wales Bar Association [1992] HCA 36; [1992] HCA 36; (1992) 176 CLR 256, 266 - 267 (Brennan, Dawson, Toohey & Gaudron JJ); Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, 475 - 476 (Clarke JA, Mahoney & Meagher JJA agreeing); Osborne v Landpower Developments Pty Ltd (In liq) [2003] WASCA 117 [12] (McLure J); Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88, 89 (Wolff CJ).

113 The second defendant's affidavit of 9 September 2010 did not set out the reason why there was no mention of his resignation in the course of the hearing. For the purpose of ascertaining why that was so, I permitted the second defendant to give oral evidence, and to be cross-examined in relation to the fresh evidence.

114 The second defendant's evidence was that he decided to resign his employment only after attending the hearing in these proceedings, in the course of which he heard his doctor give evidence to the effect that he was endangering his health by continuing to work. After hearing that evidence the second defendant decided that continuing to work was 'not worth it'. It was clear from his evidence that the second defendant's decision to resign his employment only came to the attention of his legal representatives by chance, and once they became aware of this development, a decision was made to bring it to the attention of the court by an application to admit new evidence. I accept the second defendant's explanation as to why the evidence in his affidavit of 9 September 2010 was not led at the hearing.

115 Accordingly, this was not a case where a deliberate decision was made by the defendants not to adduce any evidence concerning the second defendant's resignation. Rather, immediately after the hearing, the second defendant appears to have made a spontaneous decision, without any prior indication to his legal advisers, that he would resign from his employment.

116 Another consideration of relevance to the decision to admit further evidence is the materiality of the evidence to the issues in dispute: Osborne v Landpower Developments [13] - [14] (McLure J). Different views have been expressed as to what is required in order that new evidence can be considered 'material'. In Watson, Wolff CJ held that the evidence should be admitted 'only when it is so material that the interests of justice require it' (89). In Daniel v Western Australia [2004] FCA 849; (2004) 138 FCR 254 [67] Nicholson J seemed to suggest that these considerations amounted to a requirement that the evidence, if accepted, would most certainly affect the result (see also Re Australasian Meat Industry Employees' Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491, 493 - 494 (Toohey J). There is not a single formulation as to the degree of probability required before it may be said that the admission of new evidence will affect the result: Telstra Corporation Ltd v Australian Competition & Consumer Commission [2008] FCA 1436; (2008) 171 FCR 174, 216 - 217 (Lindgren J).

117 Counsel for the defendants submitted that the fresh evidence should be admitted if it was 'sufficiently significant'. In other words, if the evidence was unlikely to affect the court's decision in a significant way or a substantial way, counsel submitted that leave should not be given to reopen the matter to admit that evidence. Counsel submitted that provided that fresh evidence may affect the court's decision to a significant degree rather than to a minor degree (in the sense of affecting the decision as a matter of substance, rather than determining whether an applicant was successful or not) then the fresh evidence should be admitted.

118 Given the breadth of the discretion required to be exercised under s 6 of the Act, fresh evidence concerning the financial position of an applicant, or of an existing beneficiary under a will, will necessarily have the potential to affect the exercise of the discretion. Whether it will do so will depend on the interplay between that evidence and all of the other factors of relevance in the exercise of that discretion. For that reason, in the context of applications under s 6 of the Act it may not be appropriate to adopt a test which limits the admission of fresh evidence to evidence which would 'most certainly' affect the result. In my view the preferable approach, in the context of applications under s 6 of the Act, is to admit fresh evidence when it is so material that the interests of justice require it.

119 The evidence given by the second defendant and by Dr Middleton was to the effect that work stress was affecting the second defendant's physical health and lifestyle, and that his future employment prospects would be limited by his health, and by his age. In July 2010, the second defendant swore an affidavit in which he stated that he only continued to work because he had to for financial reasons, but that he did not know how much longer he would be able to continue to do so. The evidence suggested that the second defendant would probably be able to continue working for only a relatively short period of time, and that thereafter he would retire from paid employment.

120 The fresh evidence thus effectively confirmed that that anticipated outcome had come to pass more quickly than had been estimated. The fact that the second defendant has resigned from his employment is clearly material to an analysis of his need. To refuse to admit this fresh evidence would mean that the court would engage in the exercise of its discretion under s 6 of the Act with inaccurate information concerning the need of the second defendant.

121 It has been pointed out that 'justice is a protean concept' which must be administered having regard to the rights and interests of both sides: Jingellic (425) (Zelling AJ). In the case of applications under s 6 of the Act, in my view, the interests of justice warrant the court being as fully and accurately informed as is possible about the financial position (and thus, the needs) of both an applicant under the Act and existing beneficiaries under a will. The plaintiff did not claim that he would be prejudiced by the admission of the fresh evidence or that he would need to respond to it. Given the nature of the fresh evidence, this was not surprising.

122 Having regard to these considerations, I am satisfied that the fresh evidence is so material to the issues arising from the plaintiff's application that it would be in the interests of justice to admit this fresh evidence. I therefore grant leave to the defendants to rely on the affidavit of the second defendant sworn on 9 September 2010.

(d) The second defendant's present financial position and need

123 Having regard to the fresh evidence, clearly the financial position of the second defendant has declined since the date of Mrs Devenish's death, in that he is now no longer earning income from employment. The second defendant's health, and his age, mean that it is unrealistic to think that he could seek any further employment in the future.

124 The second defendant's evidence was that as at the date of the hearing, he had assets (including superannuation entitlements) with an estimated value of $72,478 and had liabilities amounting to $45,713. The second defendant estimated that his monthly expenditure was approximately $3,341.

125 It remains the case that the second defendant does not own any real estate or shares and he does not derive any income from such other sources. He is now, presumably, able to draw on his superannuation, which at the date of the hearing was estimated to be worth approximately $60,000.

126 The second defendant continues to suffer from poor health. His evidence was that he continues to suffer from a variety of medical problems, which require that he take regular medication, and visit his general practitioner and other specialists, including a cardiologist. So far his medical problems are controlled by medication. Although his health has not improved in recent years, his condition appears to have been relatively stable, necessitating only two consultations with his general practitioner in the year prior to the hearing. Nevertheless, the second defendant remains at risk of suffering from a major health event, such as a heart attack or stroke, with the potentially debilitating (if not fatal) consequences that that can produce.

127 Counsel for the defendants submitted that to satisfy the second defendant's need, enough money was required to purchase a house or unit, and to provide a capital sum on which the second defendant might draw to cover his living expenses and any medical expenses in the future. Counsel acknowledged that there was no evidence before the court as to what amount would be required to enable the second defendant to purchase a house or unit. In so far as the capital sum was concerned, counsel submitted that an investment of approximately $500,000 would be required in order to earn even $30,000 of income per year (which was less than the second defendant's current expenditure per year), having regard to current interest rates (which he submitted were at 5% - 6%). Counsel submitted that $1,000,000 'was not going to go very far' in view of the second defendant's situation (ts 161).

128 Counsel for the plaintiff submitted that it was not necessary for the second defendant to purchase a house, given that he had not owned his own home since 1994. He submitted that renting accommodation in the future would be sufficient. In any event, counsel for the plaintiff submitted that a unit, rather than a house, would be suitable accommodation for the second defendant in his circumstances.

129 The defendants filed an affidavit dated 16 July 2010 which indicated that the assets of the estate by then comprised $381.90 in cash, personal effects including jewellery with a total value of $12,570, and Mrs Devenish's house in South Perth. Mr Rogers provided a further valuation in which he valued that property, as at the date of valuation on 16 July 2010, at $1,150,000. The assets of the estate therefore have a combined value of just under $1,163,000.

130 According to the defendants' affidavit of 16 July 2010, the estate also had debts amounting to $148,602.99. These debts included a mortgage with a balance of $85,000, the defendants' legal costs (relating to the grant of probate and to these proceedings), other modest expenses including outstanding water and shire rates, and amounts owed to reimburse the defendants for payments made in relation to Mrs Devenish's house or on behalf of the estate.

131 Consequently, the net value of the estate was just over $1,000,000 at the date of the hearing. In other words, there has been a substantial decline in the value of the estate, which is largely attributable to the decline in the value of Mrs Devenish's house. Nevertheless, the estate remains of a reasonable size.

(f) What would constitute an adequate provision for the proper maintenance, support and advancement of the plaintiff?

132 Having regard to the need and moral claim of the plaintiff, the need and moral claim of the second defendant, and the size of the estate, I am persuaded that a wise and just testatrix, who was fully aware of all the circumstances, would have made provision for the plaintiff from her estate: cf Re Allen (Deceased); Allen v Manchester [1922] NZLR 218, 220 (Salmond J); approved in Singer v Berghouse (209) (Mason CJ, Deane & McHugh JJ); Kitson v Franks [7] (Malcolm CJ).

133 In reaching this conclusion I have taken into account not only the evidence in relation to the present financial position of the plaintiff and second defendant, but also the findings I made earlier in relation to matters relevant to their respective financial positions which continue to be relevant (such as the plaintiff's working history and his income earning capacity). I have also taken into account the moral claims of the plaintiff and the second defendant, and the present value of the estate.

134 There was no suggestion in the hearing that any provision was required for the education of the plaintiff, and accordingly, I have focused solely on what would constitute an adequate provision for the proper maintenance, support and advancement of the plaintiff.

135 Counsel for the plaintiff submitted that in this case adequate provision for the proper maintenance, support and advancement of the plaintiff would encompass a contribution towards the purchase of an average home worth $500,000, sufficient funds to pay off the plaintiff's debt to his stepfather and 'a little cheese and jam' (ts 186, 189). Counsel for the plaintiff suggested that a sum in the vicinity of $300,000 would be adequate, having regard to the size of the estate, and allowing for a contribution to the purchase of a home in the sum of $200,000 together with the repayment of the loan to his stepfather.

136 I am unable to accept that adequate provision for the proper maintenance, support and advancement of the plaintiff would require the provision of $300,000 from the estate. In my view the provision of 20% of the value of the estate (net of the estate's expenses), which would be a sum in the vicinity of $200,000, would be adequate.

137 In reaching that view I have taken into account the fact that the plaintiff has a debt of $50,000 to his stepfather. The provision of funds to enable the plaintiff to repay that debt would clearly assist in the maintenance and support of the plaintiff.

138 In my view, a wise and just testatrix would also view a contribution towards the plaintiff's purchase of his own home as appropriate for his proper maintenance and support. Given that the plaintiff does not own his own home, the provision of accommodation for him and his family necessarily constitutes a major element in the maintenance of the plaintiff. The plaintiff will clearly pay far more for rent in Switzerland than he has previously paid in Australia. Further, although there was no evidence as to the cost of purchasing a home in Switzerland, it is not necessary to have that information in order to reach a view about what would be an appropriate provision from the estate. In my view, a contribution towards the purchase of a home (rather than funds to purchase a home outright) would be adequate in this case. Given that the plaintiff's income is now at a reasonable level, and there is the prospect that in a few years' time, his wife may be able to return to work and to make some contribution to the family income, there seems some prospect that the plaintiff would be able to service a loan for the purchase of a home within the parameters of his present financial circumstances, were he able (through provision from the estate) to put a reasonable deposit toward the purchase of a home. A provision of 20% of the net value of the estate appears to me to be likely to enable the plaintiff to reach the position where the purchase of his own home is within reach.

139 The plaintiff's present financial position and need is such that an award of greater than the value of 20% of the net value of the estate would undoubtedly assist the advancement of the plaintiff. However, the capacity of a court to make 'adequate' provision for the 'proper' maintenance, support and advancement of an applicant may be constrained by practical considerations such as the size and nature of the deceased's estate, and competition from other persons having competing claims upon the deceased's bounty, and their relative urgency: Devereaux-Warnes v Hall [No 3] [78] (Buss JA) citing McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, 571 - 572 (Dixon CJ and Williams J); Singer v Berghouse (227) (Gaudron J) and Barns v Barns [2003] HCA 9; (2003) 214 CLR 169 [4] (Gleeson CJ).

140 Such practical considerations operate as a constraint on the court's ability to make adequate provision for the proper maintenance, support and advancement of the plaintiff in the present case. In this case, although the estate is of a reasonable value, the second defendant has a compelling need for the provision of an award from the estate, and has a very strong moral claim to provision from the estate. Although the plaintiff also has a moral claim to provision from the estate, the nature of his relationship with Mrs Devenish was such that that moral claim is not as strong as the second defendant's claim.

141 I have also taken into account the fact that the plaintiff and his wife have the ability, and presently enjoy sufficiently good health, to enable them to earn a reasonable income to support their family in the years to come. The second defendant, on the other hand, is no longer employed, and has no real prospect of further employment, has no stream of income (other than a small amount of superannuation), has few assets, and suffers from poor health as a result of which he may incur increased medical expenses in the future.

142 Having regard to all of these considerations, in my view a provision for the plaintiff of 20% of the net value of Mrs Devenish's estate would be adequate for his proper maintenance, support and advancement. The provision of 20% of the net value of the estate reflects the comparative strength of the plaintiff's claim, having regard to his need and moral claim, as compared with the second defendant's claim on the estate.

143 Counsel for the second defendant submitted that even if the plaintiff persuaded the court that the jurisdictional threshold was satisfied, this was a case in which no award should be made to the plaintiff. Given that the decision at the second stage is a discretionary one, it is open to a court to refuse to make an order even if the jurisdictional question has been answered in an applicant's favour: Singer v Berghouse (211) (Mason CJ, Deane & McHugh JJ) and see the cases cited therein.

144 Counsel for the second defendant submitted that the size of Mrs Devenish's estate was such that it was not possible to make provision for the maintenance of the plaintiff in addition to that of the second defendant. He submitted that this was a case in which adequate provision for the proper maintenance of the second defendant would exhaust the estate, leaving nothing to meet the need of the plaintiff, whose claim to provision from the estate was less compelling: cf Hall v Philip Roland Wilson as Executor of the estate of Anthony Lawrence Patrick Duffy (Dec) [2005] WASC 207 [76] (Master Newnes). The tenor of counsel's submission was that an award of $1,000,000 - in other words, the entire value of the estate - would barely be sufficient to enable the second defendant to purchase his own home and to have a sufficient income stream on which to live for the remainder of his life.

145 I am unable to accept that submission. This is not a case in which the future living expenses of the second defendant can be precisely quantified so as to permit the conclusion to be drawn that the second defendant would require at least $1,000,000 for his proper maintenance. There are many variables which will affect the amount of money the second defendant would require to support himself, such as his likely life span, the risk of his experiencing an adverse health incident, the risk that such an incident would result in higher medical or living expenses and so on. If the second defendant lives to an average age of around 80 years, he will need to support himself for the next 15 years. Although the possibility exists that the second defendant's higher risk of an adverse health incident will manifest itself in the future, giving rise to higher medical expenses, it is also possible that such an incident will not occur or will not increase the second defendant's expenses at all.

146 I consider that if a provision of 20% of the net value of the estate were made to the plaintiff, the residue of the estate (which is likely to be in the vicinity of $750,000 to $800,000) would be adequate for the second defendant's proper maintenance and support. An award of that sum would enable the second defendant to purchase a small residential property. Given that the second defendant is a single man, and that his health precludes him from undertaking physically demanding work such as gardening, a small property would be more suitable from a practical, as well as a financial, perspective than a house on a large block of land. In my view, an amount of $400,000 - $500,000 would be adequate to enable the second defendant to purchase such a property. Alternatively, the second defendant might prefer to rent a home, and thus to preserve the bulk of an award from the estate to invest so as to derive a more substantial income to cover his living expenses, including rent.

147 If the second defendant were to purchase a home valued at approximately $400,000 - $500,000, then after the discharge of his debts he would be left with a sum in the vicinity of $300,000 - $350,000 to invest, or to expend to meet his needs, into the future. Obviously, if the second defendant decided not to purchase a home, but to rent one, then he would be at liberty to invest all or most of the entirety of the residue of the estate, which at current rates of interest is likely to provide the second defendant with a reasonable income for the remainder of his life.

148 A provision of 20% of the net value of the estate should be made out of Mrs Devenish's estate for the proper maintenance, support and advancement of the plaintiff. I will hear the parties as to the orders which should be made to give effect to this decision, and in relation to costs.

(Family and Dependants Provision) Act 1972

DEVENISH -v- DEVENISH [2011] WASC 129 (17 May 2011)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (195 paragraphs)

DEVENISH -v- DEVENISH [2011] WASC 129 (17 May 2011)

(d) The need and moral claims of other persons who have a legitimate claim upon the bounty of the testator

(e) The size and nature of the deceased's estate

(f) Conclusion: adequate provision was not made for the maintenance, support, education and advancement in life of the plaintiff

(a) The plaintiff's evidence which was provisionally admitted

(b) The plaintiff's present financial position and need

(c) Whether the second defendant should have leave to adduce fresh evidence

(d) The second defendant's present financial position and need

(f) What would constitute an adequate provision for the proper maintenance, support and advancement of the plaintiff?

Legislation Cited (1)

Cases Cited (15)