Supreme Court of WA|1999-07-23|Before: Commissioner Kenneth

Dobra & Anor v Brennan & Ors [1999] WASC 98 (23 July 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DOBRA & ANOR -v- BRENNAN & ORS [1999] WASC 98

THOMAS PETER BRENNAN as Executor of the Will of James William Brennan (Deceased)

Testator's Family Maintenance - Advancement in Life - Farming Property - Residuary Gift to Son of Farming Lands - Claim by Sister

Allardice v Allardice [1910] NZLR 959

Coates v National Trustees Executors and Agency Company Limited & Anor (1956)

Cooper & Anor v Dungan [1976] 50 ALJR 539

Davey v Fairhead, unreported, SCt of WA; Library No 960088

Donaldson v Harvey, unreported, SCt of WA, Library No 970304

Hawkins v Prestage (1989) 1 WAR 37

In re Hodgson (Deceased) [1955] VicLawRp 77; [1955] VLR 481

M & Anor v H & Anor, unreported, SCt of WA; Library No 950304

Re Harrison (Deceased), Thomson v Harrison [1962] NZLR 6

1 James William Brennan ("James") a retired farmer, died on 15 February 1993. He was almost 81 years old. He is survived by his son Thomas Brennan ('Thomas") and three daughters Maureen Allen ("Maureen"), Deborah Dobra ("Deborah") and Dorothy Motherway ("Dorothy").

2 By the terms of a Will executed in 1983, James appointed Thomas his executor, made a bequest of $20,000 to each of his three daughters, and left the balance of his estate to Thomas.

3 By this proceeding Deborah challenges the Will of her late father pursuant to the provisions of s 6(1) of the Inheritance (Family and Dependants Provision) Act 1972. She had originally been joined in her application by Maureen. However, Maureen settled her claim against James' Estate prior to trial. Thomas, as residuary beneficiary of his father's estate, resists the claim of his sister Deborah. He is supported in that stance by Dorothy, who is named as third defendant to these proceedings. Dorothy gave evidence at trial as a witness. Her position was that the terms of her father's Will should not be altered. Maureen gave evidence at trial as a witness in support of Deborah's case.

4 James had farmed at Calingiri in the central wheatbelt of Western Australia from the late 1940s. He and his brother Laurence, acquired approximately 4,100 acres (1,663 hectares) of land at Calingiri which they worked as a wheat and sheep property. The entirety of their farming properties at Calingiri comprised Melbourne Locations 2539, 2222 and 2802 (these properties I shall refer to in aggregate as "the Estate Lands") together with another seven Melbourne Locations being 1806, 2086, 2728, 2722, 2780, 2779 and 2733 (all ten location properties in aggregate I shall refer to as "the Calingiri Properties"). James' brother Laurence appears to have transferred his half interest in these lands to James in about 1955.

5 James and his wife Maria lived for the years after their 1951 marriage, in a dwelling ("the homestead") constructed on Melbourne Location 2539. Over time the Calingiri Properties appear to have acquired the name "Green Valley Farm".

6 James and Maria had four children: Maureen (born 4 January 1952), Deborah (born 29 April 1954), Thomas (born 12 September 1955) and Dorothy (born 18 February 1957). In the main, the four children were all educated at a local private school, St Gertrude's New Norcia, some 20kms by road from Calingiri.

7 Sometime in early 1968, Maria and James separated. Maria left the farm, as well as her four children. Reference is made, in one of the affidavits, to her suffering something akin to a nervous breakdown. At this time, the children were then aged approximately 16 (Maureen), 14 (Deborah), 12 (Thomas) and 11 (Dorothy) respectively. The children continued their educations at St Gertrude's. The girls, were boarders, returning to the farm at the end of each school term, whilst Thomas commuted on a daily basis by bus from the homestead. Boys could not be accepted as boarders at St Gertrude's at that time.

8 James continued to farm the Calingiri Properties as well as taking full responsibility for the education and support of his four children. He never remarried.

"6.(1) If any person (in this Act called 'the deceased') dies, then, if the court is of the opinion that the disposition of the deceased's estate effected by his Will, or the law relating to intestacy, or the combination of his Will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 of this Act 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."

10 The Act does not authorise a court to write out a replacement Will for a deceased simply because it thinks it might do a better or fairer job than the testator. Within the parameters laid down by the Act, the wishes of a testator or testatrix are to be respected. In Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19, Dixon CJ said:

"All authorities agree that it was never meant that the Court should re-write the Will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his Will have only a prima facie effect, the real depositive power being vested in the Court."

In Young v Young & Ors, unreported, SCt of WA, Library No 7626, delivered 26 April 1989 at reasons p 12, Malcolm CJ said:

"It appears to be accepted that a cautionary approach is called for in relation to the invoking of provisions such as s 6(1). One of the reasons for this is the inevitable fact that the application proceeds without the capacity for the testator or testatrix to participate with the consequence that there is a danger that the entire picture may not fully emerge through the evidence presented at trial."

11 Recently, in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209, a majority of the High Court (Mason CJ, Deane and McHugh JJ) as obiter (see Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 26) considered the so-called "moral duty", often referred to in Inheritance Act cases both in Australia and New Zealand. In considering the New South Wales Family Provisions Act 1982, their Honours said:

"In Australia, it has been accepted that the correct approach to be taken by a court invested with jurisdiction under legislation of which the Act is an example was that stated by Salmond J in In re Allen; Allen v Manchester (1921) 41 NZLR 218. In that case his Honour said:

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

For our part, we doubt that this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to 'moral duty' or 'moral obligation' may well be understood as amounting to a gloss on the statutory language.

The first question is, was the provision (if any) made for the applicant 'inadequate for [his or her] proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc. were explained in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476. The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant ..."

(See also the contrasting observations of Toohey J as to moral duty at 220 in referring to In re Allen and also Gaudron J (dissenting) at 227.)

12 The observations of the majority in Singer v Berghouse concerning 'moral duty' and 'moral obligation' as a "gloss on statutory language" are supported by reference to footnote 14. That footnote itself contains reference to passages from two prior High Court decisions, namely Hughes v National Trustees, Executors and Agency Company of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 158 and Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 504-505. The passages identified in footnote 14 were both from the reasons for judgment of Murphy J in both cases.

13 In the first passage from Hughes v National Trustees, Murphy J had said at 158:

"Many cases suggest that an applicant must show a moral claim as well (see Bosch v Perpetual Trustee Co Ltd [1938] A.C. 463); this gloss on the Act is unwarranted and inconsistent with the language and with the legislative scheme. The statutory specification of a deceased's spouse and children as persons entitled to claim if the distribution of the estate does not make adequate provision (s.91) is a legislative judgment that such persons have a claim unless disentitled under s.96(1) or unless they are adequate provided for by independent means (s.95)."

Murphy J formed part of the majority in Hughes' case. They concluded that inadequate provision had been made by the testatrix in her Will for the proper maintenance and support of her son.

14 In Goodman v Windeyer, Murphy J was a dissentient. Unlike the majority, he would have dismissed the appeal. But in the passage identified by footnote 14, Murphy J had said this:

"This is another case in which the question of whether an applicant was left without adequate provision is confused by the introduction of considerations of moral duty. In Re Bodman [1972] Qd.R. 281 at p284 Hoare J said:

'Unless the applicant can show that he or she was, at the relevant time, in 'need' of proper provision from the estate then the Court has no jurisdiction to make an order even though it considers that there was a clear failure of a moral obligation on the part of the testator.'

The reference to lack of jurisdiction is inappropriate but the principle stated is correct. Unless an applicant is left without adequate provision, he or she is not entitled to an order, even if the circumstances disclose a breach of moral obligation. I adhere to what I said in Hughes v National Trustees, Executor and Agency Co (Australasia) Ltd (1979) 143 CLR at pp157-160.

... 'Advancement in life' is not confined to the early part of an applicant's life, although it is generally applicable to younger rather than older persons (see Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 at 128). Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."

Sir Anthony Mason sat as a member of the High Court in both Hughes v National Trustees and Goodman v Windeyer. He also was one of the majority judges in Singer, approving the footnote 14 references to passages from the earlier reasons for judgment of Murphy J.

15 The majority judgment in Singer leads me to conclude that the cited observations of Murphy J in footnote 14 deprecating the terms "moral duty" or "moral obligation" as no longer being useful in elucidating the statutory provision, are now persuasive, notwithstanding that the majority's observations in Singer appear to be obiter. Of course, in the Western Australian Act there is no counterpart to s 23(b)(ii) of the Family Provision Act 1982 of New South Wales, which expressly uses the term 'moral obligation'. Notwithstanding that difference, in Permanent Trustee Co Ltd v Fraser, Kirby P at 31B could still conclude:

"Therefore, notwithstanding the long history behind the use of the concept of 'moral duty' in this area of legal activity, I respectfully argue with the opinion now expressed in the High Court. Although obiter and not technically binding, it must not be seen as a slip. Courts in this State, including this Court, should conform."

I agree with those views, see also Sheller JA at 46B and G. I also note the observations of Steytler J in Grainger v The Public Trustee & Ors, unreported, SCt of WA; Library No 950670; 6 December 1995.

16 Another principle relevant to present proceedings is seen in Murphy J's observation in the nominated passage from Goodman v Windeyer, to the effect that the words "advancement in life", as considered by Dixon CJ in Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 at 128, are of broad application and are not to be confined to the early part of an applicant's life, see also McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 575. However, Dixon CJ went on to observe in Blore v Lang at 128, that:

"... all the circumstances must be weighed and they include the size of the estate and the claims of the members of the testator's family and others upon his consideration. The section speaks of the testator's having left the applicant without adequate provision for her proper maintenance and advancement in life and in this the words 'adequate provision' and 'proper' must be given their full value."

17 In Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, Gibbs J (as he then was), said at 147:

"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."

18 In Young v Young & Ors, Malcolm CJ at reasons p13, referred to those observations of Gibbs J and said: "This approach applies equally to an adult daughter."

19 There is a recognisable distinction between the words "adequate" and "proper" as used in legislation such as s 6(1) of the Act which has been the subject of prior judicial consideration. In Bosch v Perpetual Trustee Co Ltd & Ors (1938) AC 463 at 476, Lord Romer said:

"The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances.

20 In Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19, Dixon CJ said of the words 'adequate' and 'proper', that:

"It has often been pointed out that very important words in the statute are 'adequate provision for the proper maintenance and support' and that each of these words must be given its value. 'Adequate' and 'proper' in particular must be considered as words which must always be relative. The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning."

See also the joint judgment of Dixon CJ and Williams J in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571 as to the interpretation of the word 'proper'.

21 Essentially then, the approach to be taken to an application under s 6(1) of the Act is as stated by the majority in Singer v Berghouse at 209. As a matter of law the approach involves a two stage process. Whilst the first stage has in the past been referred to as a jurisdictional question, it is now perhaps inappropriate to use such terminology, see Steytler J in Grainger's case (supra) at reasons p12.

22 The case proceeded in the main on affidavit evidence with each deponent being called and cross-examined. In addition, I gave leave for the calling by the second defendant of a Mr Mervyn Brennan, a cousin of Thomas Brennan to give viva voce evidence at trial.

23 Three affidavits were tendered on behalf of Deborah (Exhibits 3, 4 and 6). Save for the financial circumstances of Deborah and her husband (Branimar), there was, in the main, little else that was truly contentious in her affidavits. For reasons which I will explain subsequently, I found Deborah's testimony to be somewhat unreliable insofar as her evidence dealt with her family's financial matters. Deborah's sister Maureen, also provided affidavit evidence (see Exhibits 20 and 21) and was cross-examined. I thought that Maureen's evidence, to the limited extent that it was relevant, was reliable.

24 Evidence was also received from Maria Charlotte Baxter, James' estranged wife (Exhibit 23). Mrs Baxter appeared to be of advancing years, and it became obvious at trial that she was somewhat hard of hearing. She was called in the apparent endeavour to elicit some direct evidence for the plaintiff's case, as to how much of the Calingiri Properties had been cleared by James himself. However, it very quickly became clear at trial, that the sole basis of Mrs Baxter's knowledge as to such matters was through what she had been told by her former husband. Thus, the hearsay nature of this information rendered it inadmissible, as a matter of law. Mrs Baxter was unable to provide any other admissible evidence upon the issue of land clearing of the Calingiri Properties.

25 The plaintiff also tendered as part of her case a valuation report in respect of the Estate Lands from a rural property valuer, Mr Allan Morcombe (Exhibit 15). Mr Morcombe's expertise as a rural property valuer was not in question, and there was essentially no challenge to his valuation, which attributed a value of some $600,000 to the Estate Lands, as at 17 July 1998. More controversial, however, were the plaintiff's attempts to elicit from Mr Morcombe his interpretation of certain aerial photographs taken of the Calingiri Properties in 1963, once again in furtherance of the issue which was sought to be pursued as to how much of the Calingiri Properties has been cleared by James, rather than by Thomas.

26 According to Exhibit 17 tendered through Mr Morcombe, his analysis of a 1963 aerial photograph led him to conclude that only about 410 hectares of the Calingiri Properties remained uncleared as at 2 April 1963. I will have more to say about that issue later in these reasons.

27 On behalf of the second defendant, Thomas Brennan, there was received some seven of his affidavits (Exhibits 24 to 30 inclusive) sworn between 22 September 1994 and 28 January 1999. Thomas was also subjected to quite a lengthy cross-examination. Having observed him closely cross-examined, my impression of Thomas as a witness was that his evidence was invariably both forthright and reliable. Furthermore, from his physical presence daily working upon the Calingiri Properties from a young age performing the many farming related activities on the lands essentially over his entire working life until present, it became obvious that Thomas' personal knowledge as to the state of clearing and the improvements made to the Calingiri Properties from time to time was most detailed and comprehensive. I have little hesitation in accepting the reliability of Thomas' evidence. In any (limited) instances where there is a conflict between his evidence and that of any other witness as to the state of clearing of the Calingiri Properties, I would prefer Thomas' evidence as the more reliable. (For the most part, however, Thomas' evidence as to the Calingiri Properties was essentially uncontradicted, save for one significant exception - this being the issue as to the extent of the clearing of the Calingiri Properties which Thomas performed after 1970).

28 Mr Mervyn Brennan's oral evidence also essentially dealt with the extent of the clearing of the Calingiri Properties at various occasions, initially in 1969/70, when he attended upon the Calingiri Properties as a young man to perform some contract ploughing thereon with his father. The broad thrust of his evidence was supportive of Thomas, to the effect that over time from 1969/70 that there had been considerable clearing works take place on the properties over the periods Mr Mervyn Brennan had attended. Allowing for the fact that Mr Mervyn Brennan was a cousin of Thomas and a fellow farmer living in the same district, so that he could have been sympathetic towards his cousin's position in this litigation, nevertheless, I am comfortably satisfied that he was a truthful witness who did his best to answer questions honestly. His evidence provides some support for the contention that it was Thomas who carried out a good deal of the clearing work to large areas of the Calingiri Properties after 1970, particularly to the seven Melbourne Locations that do not comprise the Estate Lands. However, since I find the evidence of Thomas to be entirely reliable as to this issue, it was not necessary for me at the end, to rely to any real extent upon the evidence of his cousin.

29 Dorothy Motherway (named as a third defendant) also gave evidence in these proceedings (Exhibit 39). Her evidence was straightforward, and in my assessment, thoroughly reliable.

30 Finally, Thomas introduced into evidence an expert report from a Mr Michael McFarlane dealing with financial matters relevant to the Calingiri Properties and to the Estate of his father (Exhibit 42). Mr McFarlane was only faintly cross-examined concerning his report.

31 What now follows in sections E to L herein, are my findings as to the essential facts based upon my rationalisation and sifting of all the disparate evidence adduced by affidavit, cross-examination, documents or by direct evidence. In the main however, the essential facts were never really in any great dispute. Issues of credibility were also of minimal significance, save in relation to Deborah's evidence as to her (and her husband's) financial circumstances, and as to the issue of the extent of Thomas' labours in clearing parts of the Calingiri Properties not already cleared by his father after 1970.

32 Thomas was sent to board at St Louis School for boys in Perth between 1969 and 1970. He obtained his junior certificate (now the equivalent of a Year 10 qualification) at the end of 1970. After completing his Junior Certificate examinations (at age 15), Thomas returned to Calingiri to assist his father on the properties.

33 By 1970 (at age 58), James was suffering with some health problems. He needed help with the physical demands of daily farming life working the Calingiri Properties. This led to Thomas, then aged 15, beginning the process of stepping into his father's shoes as a career farmer. Thomas was enthusiastic about becoming a farmer, but because his father was suffering ill health in 1970 he was particularly anxious to assist his father as much as he could on the farm.

34 Thomas and his father always enjoyed a close personal and working relationship. They were happy living proximate to each other at the homestead and working the farms together on a daily basis. But, in 1970 the Calingiri farming operation established by James was facing a difficult and very uncertain financial future.

35 In 1969, Australian farms were under a limiting regime of wheat quotas to constrain production and thereby curtail a global oversupply of wheat.

36 In an endeavour to reduce a somewhat pressing overdraft debt (secured against the Calingiri Properties), James in 1969 attempted to sell off 900 acres of the Calingiri Properties. His attempt was unsuccessful.

38 In February 1970, James placed all his properties on the market as he came under increased pressure from his bank to clear the farm overdraft. James' asking price for all his properties in 1970 was apparently $75,000. According to Thomas, his father had said to him that had that price been obtained, there would have generated just enough money to clear farm debts. But the farms were not sold. During difficult economic times Thomas and his father lived frugally off the land, living off kangaroo, rabbit, rice and potatoes.

39 In 1971 Thomas related that he repaired an old bulldozer on the farm and began clearing more land on the Calingiri Properties.

40 Thomas says that between 1970 and 1980 he had cleared 1,000 acres of previously uncleared virgin land on the properties. He built sheds, fences and installed more windmills.

41 In 1974, shortly after attaining his majority, Thomas became an equal partner with his father in a trading partnership which was then established by James, and which continued to work all the Calingiri Properties continuously up until James' death in 1993. Between 1955 and 1974 James worked the Calingiri Properties as a sole trader. His farming lands were encumbered by mortgages, securing his borrowings which in turn financed his farming operations.

42 Thomas deposes that between 1980 and 1984 he cleared a further 1,000 acres of virgin land, having leased a large bulldozer to accomplish this task.

43 In 1983, James (then aged 71) made a deed of gift of seven of the ten Melbourne Locations to Thomas. Not all of the Calingiri Properties were transferred over to Thomas. James retained ownership of three locations which I have described as the Estate Lands. Thomas says, and I accept, that his father told him that he had wanted him (Thomas) to take all the lands in 1983, but that he (Thomas) then told his father, that he opposed that being done at the time. Thomas says he told James that he should retain some land "as security for his old age". Accordingly, James transferred only some 1009.4 hectares (of 1,663 hectares) of farming land to Thomas in 1983. But notwithstanding the legal transfer of titles, the Calingiri Properties continued to be worked as a single farming unit by the partnership, as they had been since 1974. Indeed, it seems that it would be uneconomic or at least unviable to operate these farming properties distinctly - see in this regard the report of rural property valuer Allan Morecombe, who said:

This is a portion only (referring to the three Melbourne locations comprising the Estate Lands) of a larger farming property, which if operated separately would probably not be considered to be large enough to provide financial viability.

The property would however be suitable as an add-on block for expansion by adjoining owners, or continue to be farmed in conjunction with the adjoining land."

44 There is nothing in the financial accounts of the farming partnership operated between James and Thomas, to indicate that rent was ever paid by the partnership to James or to Thomas for the partnership's use after 1983 of any of the Calingiri Properties.

45 Thomas made partnership drawings from time to time to meet his general living expenses, but he never drew wages or a salary from the partnership in respect of the farming work that he carried out. In the early years after 1970, Thomas also sought and obtained other external work as a casual labourer in the district, working off the Calingiri Properties as his farm commitments to his father permitted. Thomas paid over his wages from this off-farm labours to his father. That money assisted his father to, amongst other things, fund the tertiary educations of his three sisters at Perth.

46 Thomas says, and it is essentially uncontradicted, that in these early years, from 1970, he worked an average of 80 hours a week, 51 weeks of the year (18 hours per day, 7 days a week during seeding and harvest).

47 Maria had left in 1968, leaving James to see to and fund the secondary and tertiary educations of his children. I am satisfied that Thomas laboured particularly hard as a young man over this early period, both on and off the Calingiri Properties. By his labours off-farm, additional income was earned which contributed to keeping his father's farming operation afloat in difficult economic times. Moreover, Thomas' work off-farm, generated extra income which supplemented his father's farm income. Thomas' endeavours assisted his father in financing the tertiary educations in Perth of his three sisters.

48 In 1970 when Thomas left school to join his father, they had agreed that if the Calingiri Properties were sold, Thomas would return to Perth and complete his education to at least Leaving standard (ie now Year 12).

49 However, the farming properties were never sold. Thomas has remained on the land from 1970 until the present. Initially, Thomas was involved in bearing the brunt of physically assisting his father on the farm, but he gradually assumed greater responsibilities in the running of the whole farming operations, eventually taking over completely from his father.

50 I find it well established on the evidence (indeed hardly in dispute) that Thomas from the outset in 1970 was, and remained, faithfully devoted to his father until James' death in 1993.

51 The seven locations gifted to Thomas by James in 1983 had no residential dwelling built thereon, no buildings, and no sheep yards. Mostly, these locations were the less well developed properties which Thomas had taken early responsibility for developing, so as to thereby render them capable, or the more capable of being used productively for partnership farming purposes. In paragraphs 79 and 80 of his affidavit of 22 September 1994 (Exhibit 24) Thomas says:

"79. Whilst my father was alive the farm property was run as one unit. Even with both properties being farmed used as one unit, the farm is still a relatively small operation. However, if my father's land is removed from the farm and sold, I will not be able to continue farming as my land is not a sufficient size to be profitable for the growing of cereal crops and wheat. Also my land has no services or buildings such as :

80. If I am only able to farm my land in the future, I will not be able to generate enough income from my land to pay-off the partnership liabilities to the Westpac Bank. In order to meet those liabilities I will be forced to sell the farm. The farm is only economically viable if both properties are farmed as one unit."

I accept all that evidence. The gifted lands and the Estate Lands are in my view, inseparably connected as part of one farming operation.

52 The link is also borne out by events which transpired, immediately upon James' death, when the partnership's Bank froze the partnership's bank accounts. That event left Thomas without funds to provide for his family and the running and maintenance of the Calingiri Properties and all the livestock thereon. As at the date of James' death, the partnership indebtedness to Westpac was some $273,695. In order to appease the partnership's bankers, Thomas was required to and did execute a mortgage (on 30 April 1993) by which Thomas agreed to secure the partnership's debts over his seven locations, then owned by him since 1983.

53 By the end of 1970, Maureen had completed her leaving certificate examinations. After two years of further study in Perth, she obtained a teaching qualification.

54 In October 1976, Maureen, James and Thomas purchased as tenants in common a residential property in Perth at 2 Briggs Street, Bassendean ("Briggs Street"). Initially, Maureen lived there with her young son. Her contribution to the total purchase price of $13,500 was $3,500. In 1978, she moved out and sought and received from her father and Thomas repayment of her contribution of $3,500. After 1978, James and Thomas owned Briggs Street jointly as tenants in common in equal shares.

55 Subsequently, Maureen married and took up residence in Perth with her husband, and, in due course, her four children.

56 It appears that from time to time, all members of the Brennan family utilised Briggs Street as a convenient Perth base over the years after 1976, whilst either visiting, studying or living in Perth for various reasons. Dorothy resided there for a period whilst studying for her tertiary teaching qualification. Eventually James himself took up full-time residence there, from about 1987 when he retired to Perth from Calingiri.

57 Deborah sat for her leaving examination certificate in 1972. She subsequently obtained a nursing qualification, after two years of training and study at Princess Margaret Hospital in Perth. Deborah is married to Branimar, and they now have three teenage children.

58 Dorothy successfully obtained her leaving certificate and subsequently, a teaching qualification. Dorothy lives in Kalgoorlie with her husband and children.

59 In September 1983, James made his last Will and testament. He was then aged 71. At the time, he was still living at the homestead in Calingiri with Thomas.

60 When he made his Will in 1983, James was in reasonably good health for his age (71). His three daughters by then, were all married with young families and living in Perth (or Kalgoorlie, in the case of Dorothy). Deborah continued with her career as a nurse, whilst Maureen and Dorothy continued to work as teachers. Thomas was still unmarried.

61 In about 1985, James moved residence from Calingiri to Perth. For about a year, he lived with Maureen and her family.

62 In about 1986, James moved to the residence at Briggs Street, Bassendean and lived there by himself until his death in February 1993.

63 In 1987, Thomas married his wife Gaye (they are now divorced), and they commenced to live together at the Calingiri homestead with, in due course, their two young children.

64 As I have mentioned, in about August 1983, James gifted seven Melbourne Locations which comprised part of the Calingiri Properties to Thomas. James retained the Estate Lands (Melbourne Locations 2802, 2222 and 2539). The locations gifted to Thomas constituted some 2,493 acres of the farm's total acreage of 4,100 acres (or 1,011 hectares out of 1,663 hectares).

65 The Estate Lands were essentially the more established farming areas of the Calingiri Properties. The homestead was situated upon location 2539. This gift was stated by James to Thomas at the time (as related at trial by Thomas) to be in recognition by his father of Thomas' efforts in working continually since 1970 to establish the Calingiri Properties as viable farming assets.

66 A valuation form in respect of the transfer of these 2493 acres to Thomas was tendered. The form was for the purpose of assessing gift duty associated with the transfer of these lands to Thomas. The form is written out and signed by James. It discloses a nominated market value of the gifted lands, at the time of transfer in 1983, as $244,555. The date of transfer is recorded as 22 August 1983.

67 It is significant, I think, that James' last Will and testament was executed by him on 13 September 1983, less than a month after his execution of a transfer of 2493 acres of land to Thomas. It would appear that in August and September 1983, James, then aged 71, and approaching his retirement from the Calingiri Properties to Perth, was putting his affairs in order.

68 It is also apparent, that notwithstanding this inter vivos gift in 1983 to Thomas of more than half of the area of the Calingiri Properties - that by the terms of his Will, James was clearly manifesting his then intent that upon his death, Thomas would receive the balance of the Calingiri Properties (ie the Estate Lands).

69 In affidavits filed by Thomas for the purposes of trial, there is reference to verbal discussions between himself and his father around this time and later, concerning what was to eventually happen with the balance of the Calingiri Properties retained by James ie the Estate Lands. Thomas says that his father had asked him to accept all the properties in 1983, but Thomas thought this inappropriate at that time. He told his father that he should keep some land as security for his old age. Thomas says his father then told him that he would receive the rest of the properties by the terms of his Will. Thomas was happy with such an arrangement.

70 Notwithstanding the 1983 transfer of properties to Thomas, he and his father continued their farming partnership, and in fact did so right up until James' death in February 1993.

71 Whilst the partnership was an equal one in law, it is clear that James (then aged 74) from about 1985 had effectively retired from actively working the land and that it was Thomas who carried the burden of operating the whole farming operation at Calingiri after that time. James was naturally still interested in the affairs of the farms, but effectively, once James moved to Perth, the management of the farming operations at Calingiri was conducted solely by Thomas. But Thomas had effectively controlled the Calingiri Properties and the farming operations thereon for some time prior to James' retirement to Perth, in any event. James visited the Calingiri Properties from time to time after 1985, and Thomas regularly visited Perth and consulted his father about various matters. As I have said, the two always remained close and that was so even after James retired to Perth.

72 As appeared to be the norm, no rent was paid by the partnership to either James or Thomas for the continued use of the Calingiri Properties by the partnership after James moved to Perth.

73 I find that James promised Thomas in 1983 that Thomas would receive the balance of the Calingiri Properties by the terms of his Will. Further, I find, that Thomas relied on that promise and, after 1983, acting upon a legitimate expectation, created and encouraged by James, that he would, upon James' death, inherit the remaining Calingiri Properties ie the Estate Lands. There would be an obvious detriment to Thomas, who conducted his life upon that expectation between 1983 and 1993, if that expectation had not been met by his father.

74 The terms of James' Will of course, perfected Thomas' expectation, honouring James' promise to his son concerning the Estate Lands. But had the Will not done so, Thomas may have pursued an equitable claim to the Estate Lands, raising in effect, a claim of proprietary estoppel, to enforce through equity the promises his father had made to him and upon which he relied to his detriment, see Dillwyn v Llewellyn [1862] EngR 908; (1862) 45 ER 1285, Plimmer v Wellington Corporation (1984) 9 App Cas 669, Inwards v Baker [1965] EWCA Civ 4; (1965) 2 QB 29 and Ward v Kirkland (1967) 1 Ch 194 especially at 235C to 249D. It was of course not necessary for Thomas to seek equitable relief because his father's promise was in fact honoured by the terms of his Will. Nevertheless, such equitable considerations impact to an extent upon the particular issue raised by Deborah's present application under s 6(1) of the Act - seeking to alter the terms of James' Will.

75 In 1990, James received $100,000 as lottery winnings. He made a gift to each of his daughters of $1,000 at the time. It also seems that some of the proceeds were spent making limited improvements to the residence at Briggs Street, Bassendean. At the date of James' death there existed a $50,000 term deposit account with the Westpac Banking Corporation in Northam in the amount of $50,000 and this sum is accepted as representing the balance of his 1990 lottery winnings.

76 James' Will having been made in 1983, was not adjusted subsequent to his lottery win in 1990.

77 Mr Morcombe the valuer, produced a report at trial which indicated a value for the Estate Lands in mid 1998 as being about $600,000. Such evidence was barely challenged. However, as I have mentioned, further attempts were made to elicit Mr Morcombe's interpretation of a blown-up aerial photograph of the Calingiri Properties (inter alia) taken in 1963 (Exhibit 1A and Exhibit 1B). Mr Morcombe had studied those aerial photographs of the Calingiri Properties and it was sought to lead from him his interpretation of certain features of the aerial photographs in relation to the issue as to the extent of the clearing at the time of these Calingiri Properties. Apparently, the purpose behind his interpretation of these aerial photographs, was for the plaintiff to discredit or down-play the impact to Thomas' evidence that after 1970, he had been responsible for clearing a substantial part of virgin land on the Calingiri Properties.

78 I do not summarise Mr Morcombe's evidence to any degree. It is sufficient to say that I thought that the whole attempted interpretation exercise was non-expert in character, fraught with vague terminology problems and inherently unreliable. In essence, the exercise sought to undermine evidence by Thomas that he had personally cleared the amount of virgin bushland on the Calingiri Properties after 1970, as he claimed.

79 The interpretive opinion evidence from Mr Morecombe was objected to, on the basis that whilst Mr Morecombe was obviously a competent rural property valuer, he was not a qualified surveyor, and nor was he shown, at least to my satisfaction, to have a recognised professional expertise extending to reliable interpretation of aerial photographs for this purpose at hand. The 'expert' evidence from Mr Morecombe on this issue was only admitted provisionally by me, with a final ruling to be delivered in these reasons. During the course of the trial I had indicated to counsel for the plaintiff, my provisional concerns about the admissibility of this aspect of Mr Morcombe's evidence. At the time, I made the following observation to counsel for the plaintiff:

"(T95) I must say, Mr Frichot, that if I was required to rule at the moment, I would be deeply troubled by the fact that we have got an overlay of two distinct aerial photographs in fairly ad hoc fashion, the consequence being that Mr Morcombe, who I accept has considerable experience in valuing rural properties and in the course of that considerable experience looks at aerial photographs from time to time, has been asked to embark upon an exercise of estimation, essentially, and doing the best that he can from the 1963 photographs he had made an estimate of a group of properties in terms of the land that was uncleared. It doesn't strike me as being the best evidence of what was cleared or uncleared. It sounds inherently unreliable where you don't have a single photograph and you have an overlay, but Mr Stone had put the matter on the basis that he will cross-examine and I will be required to rule, but I have to tell you at this stage that I am troubled, very troubled, by whether this actually is admissible."

80 Having reflected on the matter since, the provisional concerns which I expressed at first hearing this evidence, subsist unabated. I am not satisfied as to the reliability of Mr Morcombe's attempted interpretation of the aerial photographs. At the end, it seems to me that the whole exercise was highly ad hoc, and fraught with inherent interpretative difficulties, such as for instance, whether parts of the land were to be characterised as cleared or partly cleared, identification of regrowth after initial clearing, and whether the aerial photographs depicted land possibly only suitable for grazing, as distinct from sustaining the planting of a cereal crop. Another problem which emerged was the impossibility of identifying from the air the presence of poisonous plants on the land, thereby rendering what might otherwise appear from the air to be a relatively clear site, to being once wholly unsuitable for the safe carrying of live stock. It also emerged at trial that the Land Titles Office of WA will not certify the reliability of these large scale 'blow-ups' of their aerial photographs - these being the very photographs sought to be used as the basis of Mr Morcombe's interpretive evidence. Accordingly, I do not accept the admissibility of this aspect of Mr Morcombe's evidence.

81 But even if I had admitted such evidence, I would, in any event have found it of only marginal weight. I far prefer the reliability of the direct evidence of persons on the ground who live and work such properties as part of their daily lives. Thomas and to a lesser extent his cousin Mervyn Brennan, could relate from their own personal knowledge and experiences at ground level, the extent at different times, of the cleared or uncleared character of parts of the Calingiri Properties after 1969/1970. In this regard, I am of course alive to the personal interest of Thomas in this case, and hence to a consequent need for considerable caution, by reason of that in relation to a bland unqualified acceptance of his evidence about such issues. Accepting that a cautious approach is called for, nevertheless I evaluated Thomas' evidence relating his personal efforts on this issue of land clearing to be detailed, consistent and ultimately the most reliable evidence.

82 In the course of the trial, there was also an attempt by the plaintiff to introduce into evidence a document dated 18 May 1971 (MFI 133A) from the Rural & Industries Bank of Western Australia to Mr J W Brennan by a Mr R O Dean an Inspector (Agency) for the truth of its contents. The subject of the correspondence to Mr J W Brennan concerned his application for $2,000 in emergency relief to assist in the cropping of 550 acres of wheat and 600 acres of barley. The security for the proposed loan was a registered crop lien over crops to be sown. Annexed to that letter, as part of the proposed tender, was a copy of an application form for rural emergency carry-on finance. The copy form contains 'blanks' for the insertion of information which has been partly filled in. It was not established who actually filled out the accompanying form. The purpose of the proposed tender by the plaintiff was presumably to establish that as at May 1971, at least 1,050 acres of the Calingiri Properties had been cleared to an extent of being capable of being planted with wheat and barley crops.

83 I admit to evidence the letter of 18 May 1991 from the R & I Bank to Mr J W Brennan, but not the accompanying application form. I am not satisfied that the accompanying form (which was not identified as having emerged from any party's discovery), could safely be relied upon as either a final document (as distinct from being a draft) or that its inserted content was necessarily correctly stated. The authorship or source of the inserted information remained unproven, and the photocopy form provided was also somewhat illegible.

84 The letter to Mr J W Brennan is admitted on the basis of s 79C of the Evidence Act. However, even accepting the admissibility of the letter in its own right, such would merely establish that the Bank had received an application for funding, foreshadowing a proposed cropping of 550 acres of wheat and 600 acres of barley on the Melbourne Locations which comprised the Calingiri Properties, as at 18 May 1971. The Calingiri Properties themselves then comprised some 4,100 acres, so this would leave approximately three-quarters of the farm unaccounted for, as to its arable state or otherwise. Moreover, it also needs to be said that an application to a Bank which foreshadows a proposed planting of certain acreages of cereal crops, does not thereby prove that any actual planting of land with wheat and barley to that extent, ever occurred.

(a) the most direct, detailed and convincing evidence at trial as to the state of clearing of the Calingiri Properties from time to time, was that given by Thomas; and

(b) there is scope for uncertainty in the whole issue of assessing the arability or otherwise of farming lands. Land that is suitable for the grazing of livestock may, for various reasons be unsuitable for planting with a cereal crop. There is room for a characterisation debate about the cleared status of land or otherwise - ie was the land entirely cleared, partially cleared, or regrown or the like. The issue is far from a black and white one. The existence or otherwise of poisonous plants, rocks and stumps complicates the issue further, so that in the end the exercise does not distil to a straightforward issue of just identifying land as either cleared or uncleared. One could classify land for instance, as possibly suitable for the grazing of some stock, but otherwise requiring a good deal more clearing work in relation to removal of scrub, rocks, tree stumps or the like, prior to being suitable for viable planting with a grain crop. The regrowth of bush on partly cleared land only lightly cropped, is also a complicating issue.

(c) This issue was raised by the plaintiff in an attempt to lessen the perceived significance of Thomas' statements in his affidavits, to the effect that he had worked very hard after 1970, particularly by clearing considerable amounts of uncleared land on the Calingiri Properties and thereby building up the value of the Calingiri Properties as an asset. Accepting that there is room for debate about the characterisation of cleared grazing and farming lands, partially or lightly cleared land needing more clearing work, and further issues such as regrowth over initially cleared but under-used land, the undeniable fact of the matter remains, that Thomas on any view (from age 15 onwards) wholeheartedly devoted his life to working on and to improving these farming lands. In my view, it should not be necessary to pick over in minute detail some 23 year's work (1970-1993) to assess whether Thomas' efforts converted already partially cleared grazing lands to completely cleared lands or the like. The terminology of land clearing is vague enough in its own right. The undeniable and essentially unchallenged fact is that, it was the young Thomas, not James, who was the person physically capable of carrying out the demanding physical work required on a daily basis to convert the Calingiri Properties from a marginal farming proposition of 1970, to the vastly more improved and well established farming operation of 1993 and today. It is plain on any view that the overwhelming burden of the physical work fell upon Thomas, and that he was the person largely responsible by a devoted commitment over his whole working life for enhancing and establishing the Calingiri Properties after 1970. It is not contended, for instance, that James' daughters caused or were responsible for the improvements to the Calingiri Properties after 1970.

J. Deborah's Circumstances vis-a-vis s 6(1) Inheritance Act

86 Power to make an order in favour of an applicant under s 6(1) is conditioned upon a court first being satisfied at the first stage, that the disposition of the deceased's estate as effected by his Will, or by the law relating to intestacy or both, is not such as to make adequate provision from the estate for the proper maintenance, support, education or advancement in life of the applicant, see Singer v Berghouse (supra) and also Steytler J in Grainger v The Public Trustee & Ors, unreported; SCt of WA; Library No 950670; 6 December 1995.

87 Counsel for Deborah accepts that she has obtained a private education to Leaving Certificate standard, a professional nursing qualification and (with her husband) was entirely self-supporting as at the time of James' death in February 1993. Deborah was then approaching 39 years of age and had three children. She neither looked to, nor depended on her father for any financial support or assistance prior to his death. She had not lived on the Calingiri Properties since 1973 when she moved to Perth to pursue her nursing vocation. In terms of potentially relevant qualifying criteria under s 6(1) of the Act, she would have presented to her father at all times between 1983 to 1993, as being well catered for, in terms of her maintenance, support and education. Hence, the only seemingly relevant remaining criterion under s 6(1) of the Act looming as potentially applicable to Deborah, would be that of James making adequate provision for her proper "advancement in life".

88 Deborah was born on 29 April 1954. Accordingly she was almost 39 years of age at the time of her father's death in 1993.

89 Deborah had boarded and studied at St Gertrude's Convent, New Norcia when undertaking her primary and secondary education. As a boarder at St Gertrude's she sat for her Leaving Examination in 1971. After her mother left the farm in 1968, Deborah says that she and her sisters returned home to the farm at weekends and on school holidays, where she helped with the household duties such as cleaning, washing and cooking for the family as well as for workmen. She says she also assisted with some farm duties such as mustering sheep and feeding.

90 During 1972, she transferred to a new school, St Joachim's in Victoria Park, Perth, to re-sit some Leaving Examination subjects which she had failed in 1971, so as to qualify her for a career in nursing. She successfully completed those Leaving subjects by the end of 1972. She remained at Calingiri until April 1973 when she commenced her full-time nursing training at Princess Margaret Hospital in Perth. She was financially supported by her father during the period of her studies in Perth. She infrequently returned to the farm, during breaks in her nursing course.

91 Deborah became engaged in 1975 to Branimar Dobra and married in 1976. Deborah and Branimar are the parents of three children, who were as at the date of James' death in February 1993 then aged 14, 12 and 9 respectively.

92 Deborah says that she received from her father during his lifetime, payment towards her wedding celebration - a sewing machine as a wedding gift, and a gift of $1,000 from her father's lottery winnings in 1990.

93 At the time of her father's death in February 1993, she and her husband, Branimar jointly owned an attractive double-storey house in Edgewater, a unit in a property trust (known as the Burns Beach Property Trust) valued at some $42,000, two vehicles (being a 1987 Mazda VS sedan and a 1991 LandCruiser stationwagon) together worth about $56,000, a 4.5 metre boat and various shares as investments. Their joint liabilities including car, housing and investment loans amounted to $106,000. Thus, in 1993, they enjoyed a joint surplus, as between them, of assets over liabilities, of approximately $210,000.

94 By her affidavit of 10 July 1996, Deborah deposes as to her contact with her father as follows:

"When my husband was assigned to Carnamah we moved there and our visits (ie to the farm) became less regular because my two oldest children both suffered from car sickness and I was pregnant with my third child. However we did still visit my father at the farm and I still remained in regular telephone contact with my father."

"I worked in aged care off and on over the past 17 years and enjoy my work. I have worked at Homes of Peace (Inglewood) for 20 months, Little Sisters of the Poor for 18 months, and then St Luke's Nursing Home for about 6 to 8 months and currently work at Hamersley Nursing Home where I have been for 9 years. ..."

95 In considering the application of s 6(1) of the Act, the two stage process to which I have already referred is to be embarked upon. A court's power to make an order in favour of an applicant under s 6(1) is at first conditioned upon the court being initially first satisfied that the disposition of James' Estate, as affected by his Will, was not such as to make adequate provision, from the estate, for the proper maintenance, support, education or advancement in life of Deborah. Only if that question is answered in the affirmative, will the second stage of the s 6(1) process require the court to decide what provision ought to be made out of James' Estate for Deborah. The second stage will be answered by reference to the state of all the evidence, assessed as at the date of trial.

96 I find that there is very little if anything, in Deborah's three affidavits sworn and tendered in these proceedings, which suggests the existence of a close relationship between herself and her father. She moved away from the Calingiri farm permanently in about 1973. Her visits to Calingiri to see her family thereafter, were quite sporadic. That does not imply any criticism of Deborah as a person. She was obviously busily occupied with her nursing career, her husband and from time to time the heavy demands of three young children. She does not suggest that she ever made any financial contribution to her father, nor towards the Calingiri Properties whilst he was still living at Calingiri, or indeed in the period that he lived at Briggs Street, Bassendean, between 1987 and 1993. Whilst Deborah no doubt cared about her father, I do not find from the evidence as a whole, the existence of a close relationship between them. Putting it shortly, Deborah had grown up, moved away and assumed new and demanding responsibilities which included her career, her husband and her three children. It is not suggested that Deborah assisted or performed housework for or maintained her elderly father while he was at Briggs Street, Bassendean. Whilst she communicated with her father from time to time by telephone, and no doubt saw him occasionally at family gatherings, my impression of their whole relationship, from the evidence, is one of separation.

97 In 1993, Deborah held her professional qualification as a nurse, she lived comfortably at Edgewater an outer northern suburb of Perth, with her husband and her three children. She did not look after or attend to her father in any practical way, nor did she contribute financially to his circumstances. Nor was she expected to by James. There was no relationship of dependency by either upon the other. It is not contended by Deborah that she made any contribution towards the acquisition, maintenance or enhancement of any of the assets which ultimately comprised James' Estate.

K. The Size, Nature and Content of James' Estate

98 The substantial asset of James' Estate comprised the three farming locations at Calingiri, these being Melbourne Locations 2802, 2222 and 2539 ("the Estate Lands"). Together these pieces of land generated a probate value of $320,000 in February 1993. James also owned another small piece of property (Calingiri Lot 41) valued at $2,000.

99 James' Estate also contained three other apparently significant assets. These were:

(a) An assessed probate value for James' interest in the farming partnership in which he participated with Thomas (the partnership traded as G W & T P Brennan) as at February 1993. This father and son farming partnership had, since 1974, farmed the Estate Lands together with the other Calingiri Properties. However, the properties were not partnership assets. The assessed probate value of Thomas' interest in the partnership, as at the date of his death, was some $28,137.

But the figure of $28,137 is I find, somewhat deceptive in character. The proceeds of sale from the annual wheat crop had only just been received by the partnership in February 1993. A truer indication of the financial well-being of this partnership is gathered, I believe, from a comprehensive review of the state of the accounts of the partnership over several years.

On 30 June 1992, the state of the proprietors' funds in the partnership was James $60,203 (in debit), and Thomas $109,405 (in debit). As at 30 June 1993, the partnership accounts for Thomas and what became the estate of James, showed that the estate of James was in debit to the extent of $53,686, whilst Thomas' account was in debit by $122,923. As at 30 June 1992, the partnership showed an excess liabilities over assets of $169,608. As at 30 June 1993, there was an excess of liabilities over assets in the partnership between Thomas and the Estate of James of $176,609. As at 30 June 1992, partnership debts amounted to $295,742, as against total assets of $126,134. As at 30 June 1993, partnership liabilities (ie the partnership of Thomas with the estate of James) amounted to $316,000, against total assets worth $139,000.

Partnership accounts for the final year ended 30 June 1991, disclose a deficiency in proprietors' funds of $143,898. At that date liabilities were $291,172, comprising essentially the current overdraft borrowings and further non-current borrowings from Westpac Banking Corporation. The position was similar in the financial year ended 30 June 1990, with a deficiency in proprietors' funds representing an excess of liabilities over assets of $82,737.

A review of the trading history of the partnership discloses a net profit of $28,464 for the financial year ended 30 June 1990, a net loss of $37,051 for the financial year ended 30 June 1991, a net loss of $5,525 for the financial year ended 30 June 1992 and a net loss (for Thomas now with the estate of James) of $62,374, for the financial year ended 30 June 1993.

In essence therefore, the proprietors' funds figure of $28,137 ascribed by the accounts as an asset of James in respect of his interest in the partnership as at 14 February 1993, does not, in my view upon proper analysis, reflect a holding by James of a readily disposable asset of any such value. The figure is largely attributable to the fact that an atypical set of farming accounts was necessarily prepared for the partnership, as at the date of James' death, that date being coincidentally proximate to receipt by the partnership of the proceeds of sale of the 1992/1993 annual partnership wheat crop ($102,334).

(b) Another significant asset in James' Estate (putting aside sundry items) is the amount of $50,000 held in the term deposit account with Westpac Banking Corporation at Northam amounting to $50,000. It is not in dispute that this term deposit account represented the remaining proceeds of the $100,000 lottery win by James in 1990 to which I have earlier referred.

(c) The remaining significant asset in James' Estate was his one-half undivided equal share as a tenant in common with his son Thomas, in the residential property at Briggs Street, Bassendean. This property was valued at $74,000 at the date of James' death, so that James' estate's one-half interest therein was valued at $37,000 at February 1993.

100 Putting aside the Estate Lands and the somewhat notional value of (a), being the farming partnership interest calculated as at the date of his death, James' Estate held items (b) and (c) above - which I will refer to as the non-farming assets. Their value was $87,000 in aggregate.

101 Liabilities of James' Estate essentially were his funeral and memorial expenses amounting to approximately $7,800.

L. Consideration of the Applicability of section 6(1) Inheritance Act : First Stage

102 In Grainger v The Public Trustee, Steytler J (reasons, p12) said:

"It seems that essentially, the determination of the first stage requires an answer to the question whether the provisions made, in this case ... is inadequate for what, in all of the circumstances, what was the proper level of maintenance, support or advancement appropriate for the plaintiff having regard, inter alia, to her financial position, the size and nature of the deceased's estate, the totality of the relationship between the plaintiff and the deceased, the relationship between the deceased and his two children and the financial circumstances of those children (cf Singer v Berghouse, supra, at 210).

This question is strictly one of fact although it does involve the exercise of value judgments (Singer v Berghouse, supra, 210-211, White v Barron [1980] HCA 14; (1980) 144 CLR 431 at 441-3, per Mason J, pp448-449, per Aickin J, pp456-457, per Wilson J).

The question is to be determined by reference to circumstances as they existed at the date of the death of the deceased although advantage may be taken of hindsight so long as the subsequent occurrences fall within the range of reasonable foresight (Coates v National Trustees Executor & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494 at 508 and White v Barron, supra, at 441)."

103 There was nothing said by Deborah in any of her affidavits to indicate that she had ever told her father, while he was alive, of any particular need or any expectation on her part that he might cater for in his Will. Nor does it appear that James ever did or said anything that would have given rise to an expectation in Deborah of receiving a significant, or for that matter, any bequest under his Will. The $20,000 which she received from his estate was not an insubstantial amount of money.

104 A great deal of Deborah's cross-examination and re-examination during the course of trial concerned the financial affairs of herself and her husband. In summary, it emerged from Deborah that her husband Branimar, as a bank manager, was naturally enough, the person, who as between them had the responsibility and thus better knowledge of their somewhat changing and complicated financial dealings and investments. When comprehensively cross-examined by Mr Stone, Deborah was unable to satisfactorily answer a good number of questions about the nature of their joint financial affairs. Furthermore, there was a considerable disparity between her limited capacity to answer questions about these matters in cross-examination, as contrasted to a period immediately after a luncheon adjournment when she came to be re-examined. The extent of the disparity between her capacity to answer questions as between her evidence in cross-examination and her re-examination, was such that I felt it necessary to grant leave to Mr Stone to further cross-examine her after the completion of her initial re-examination. At the end of the day however, very little turns upon Deborah's credibility as a witness. The essential point which emerges at the end of her evidence is that she and her husband's financial circumstances are more than comfortable.

105 It may have been that Deborah was in some physical discomfort due to back pain when she gave her evidence at trial. This may have affected her concentration (see Transcript page 85). It appears that she was injured in a motor vehicle accident sometime after her father's death. She has commenced proceedings in the District Court in connection with this accident and it emerged that she is now claiming at least $539,000 in damages. The Motor Vehicle Insurance Trust has admitted liability. The car accident occurred in March 1996. Liability was admitted by the Trust in June 1996. The Trust has made an offer to settle, with Deborah, in the region of $114,000 coupled with an amount she has already received (approximately $70,000). Deborah has rejected that offer.

106 But this injury occurred well after the death of James, and it is not suggested that her injury is a matter that should have been foreseen by James prior to his death. In that respect is as equally as unforeseen as an event as the diagnosis of Crohn's disease which has been made in respect of Thomas after his father's death. Neither condition is to be taken into account for the purposes of these proceedings, as in my view both fall outside the range of reasonable foresight on the part of James. Moreover, it seems that, liability now being admitted by the Trust, that Deborah will eventually receive, from the Trust, either through litigation or by settlement, a sum which should adequately compensate her for her loss and damage arising out of the accident. The effect however of the accident, in terms of the physical injuries which she sustained, has been to prevent her from continuing in the workplace as a nurse.

107 I reiterate that the sole basis for a court interfering with a testator's Will by reason of s 6(1) can only be upon the basis of non-fulfilment, by the testator, of specific statutory criteria. For Deborah, the only potentially applicable criteria under s 6(1) that could seem to arise in favour of her claim, is the duty to provide for her proper 'advancement in life' - a term of broad import. Yet James would have observed his daughter in 1993 ostensibly enjoying a comfortable, busy and secure urban life in Perth. In contrast, he would necessarily have viewed his son Thomas as less well educated and less financially secure, Thomas being exposed to all the seasonal risks associated with a farming life such as dependence upon the rainfall, grain prices, land values, interest rates on borrowings etc. Moreover, Thomas' historical ability to earn an income was linked to his continued working of the Calingiri Properties, where Thomas had spent his entire working life.

108 In assessing the assets of James' Estate, I would because of their rural character immediately quarantine off the Estate Lands, as well as the nominated value of the interest of James in the farming partnership with Thomas. James' daughters were never involved with the farm or the partnership, after they moved away to Perth, obtained their tertiary qualifications, married, and had children. Furthermore, James had promised Thomas the Estate Lands. Whilst Thomas had chosen his way of life as a farmer, that decision had been somewhat thrust upon him, by the difficult circumstances concerning James' ill health that had prevailed when Thomas was a boy of 15. Thomas has obtained no formal or professional qualifications, unlike his sisters. His whole livelihood and existence is based upon his capacity to derive an income from the Calingiri Properties, as he has been doing with varying success since 1970.

109 My observations as to James' choice of a rural life, in contrast to the urban existence of his sisters should not raise connotations of gender bias, see Young v Young (supra) per Malcolm CJ p32. In Young v Young (supra), the Chief Justice said at reasons p33:

"The present case does not involve any questions relating to sexual discrimination. Had the sexes been reversed in the present case and the daughters had done what Gregory had done and he had been treated in the way that they were, the approach would be the same."

Each case will be determined according to its own particular facts. If hypothetically, Deborah or any of her sisters had instead chosen the rural lifestyle, and Thomas had followed the urban existence, the material considerations should, and would in the end be no different by reason of the gender reversal.

110 From James' perspective, Deborah, in 1993, lived in a comfortable double-storey urban dwelling in Perth. Both she and her husband were securely employed (he as a bank manager, she as a nursing sister) and they were busily engaged in raising a young family of three children. So much would have appeared to be the case to James at the hypothetical moment before his death, had he then thought about Deborah's immediate and long term future needs, her aspirations, her security and her advancement in life. Deborah was busily occupied, in an apparently satisfying occupation as a nurse, and raising three children. Trappings of material success and security were observable to a concerned, but aging testator such as James in respect of Deborah. So far as Deborah was concerned, James would have detected no apparent sign of need, insecurity or vulnerability concerning her long-term future. If anything, her future would only have looked likely to have only become even more secure, as her children grew, completed their educations and eventually ceased to be dependant upon their parents.

111 In essence therefore, I conclude as to Thomas and Deborah's respective positions:

1. In 1993, Deborah was mature, able bodied and well capable of supporting herself. She was in no evident need of maintenance or support from her father.

2. In a time of evident financial difficulty, James had (with the assistance of Thomas) provided Deborah with a tertiary education in nursing and thus a means of supporting herself for the future. James, with some financial assistance from Thomas, had provided the funds for Deborah to achieve her nursing qualification.

3. In 1993, Deborah was enjoying a secure and comfortable lifestyle with her husband, in a two-storey house in Edgewater, two not inexpensive cars, joint ownership of an investment property, other joint investments with her husband and a joint net equity approaching some $200,000.

4. There was no particularly close relationship between Deborah and her late father. This is not a criticism of Deborah, but there is an obvious contrast to the close bond that existed between Thomas and his father throughout James' life.

5. Deborah, on her own case, does not contend that she made any contribution to the acquisition of assets which comprised James' Estate as at the date of his death.

6. Thomas in 1993 whilst able bodied, had no professional or trade qualification. Working of the Calingiri Properties, through the farming partnership, was the only basis upon which he derived his income.

7. The receipt by Thomas of the gifted lands in 1983 was entirely justified by reference to his 13 years (to that point) of hard work and the many improvements, essentially made by Thomas, to those lands.

8. The Calingiri Properties had always been worked as one farming unit, and James would, in all likelihood, have transferred all the farming properties, by an inter vivos disposition to Thomas in 1983, had Thomas not persuaded him to retain some land as security for his old age. James had repeated his offer to transfer the Estate Lands to Thomas again in 1990, but Thomas had again declined for like reasons.

9. The lands received by Thomas in 1983, without the Estate Lands do not by themselves provide Thomas with a self supporting base sufficient for him to continue a viable farming operation.

10. It was largely Thomas' efforts from 1970 onwards that resulted in James' Estate ultimately holding the valuable farming assets that it did (ie referring to the Estate Lands and the partnership interest).

112 Essentially, Deborah's whole case is that there is such a vast numerical disparity between the $20,000 left to her (and to each of her two sisters), contrasted to the value of the residue of James' Estate to be received by her brother, that her father failed in his duty as a testator towards her in respect of her advancement in life.

113 Putting farm assets aside, the balance of James' Estate amounted to, (after allowing $7,000 for liabilities, which I consider should be set-off against his non farming assets) approximately $80,000. Weighing up the factual circumstances to which I have earlier referred, including particularly the size of the estate and the respective claims of the members of the testator's family, after considering all this evidence, I find no basis for a cognisable claim by Deborah to alter the terms of her father's Will.

114 Essentially, her case is that there is a considerable disparity in value as between what her brother Thomas received, and what she received under the terms of her father's Will. But a financial disparity by itself is not enough, to my mind, to meet what has been referred to as the first stage of the applicable test. The core question is: was the provision made for Deborah adequate for her proper maintenance, education, support or advance in life? Initially then, there must be an assessment as to whether the provision of $20,000 made for Deborah, was in the circumstances adequate and proper, having regard to all factors. It is only if a testator or testatrix is found to have not met the requirements of the Act in respect of a child in relation to maintenance, support, education or advancement in life that a court may then justifiably intervene to vary the terms of the Will. Here, the key issue pressed by Deborah, as I have said, is the adequacy of the provision for Deborah's advancement in life.

115 In all the circumstances, I am far from persuaded that a bequest of $20,000 to Deborah in her secure and well settled circumstances as of February 1993, was a disposition by James which failed to meet the standards of a wise and just testator expected by law.

116 I think it fair to observe that the basic philosophical approach of Deborah's claim seemed to be premised upon a starting point that her brother Thomas had been overgenerously treated, compared to her. That starting premise, to my mind, is erroneous. The correct perspective, in my view, is to pose the question asked by s 6(1) of the Act as to whether adequate provision was made for Deborah by James from his estate for her proper advancement in life, given her overall circumstances at the time of James' death? If that question is answered in the affirmative, as I think it must be, then the question of how other members of the family are treated, whilst relevant, essentially diminishes in overall significance. In my view, the threshold question must be answered in the negative and Deborah's case fundamentally fails at that point.

117 Although not specifically put as a submission by Deborah's counsel, I have not overlooked a potential argument in her favour to the effect that the disposition effected by James' Will of 1983 may have been adequate when made, but required some later adjustment to take account of James' lottery win of $100,000 in 1990. As I have said earlier, it seems that a gift of $1,000 was made to each of James' daughters at the time, some money was spent on improving Briggs Street, and a balance of $50,000 eventually found its way into a term deposit at the Westpac Bank in Northam. But the essential question remains whether James has adequately provided for (in this case) Deborah's proper advancement in life. Once that question is answered in the affirmative, as I think it must be, then that is the end of the matter and a testator is free to dispose of his estate as he sees fit.

118 My conclusion renders it strictly unnecessary for me to embark upon any further consideration as to what provision should have been made for Deborah, had the first stage question been answered in Deborah's favour. But had I been of a different view, I should say briefly that I would still proceed from a basis that a wise and just testator in the position of James in 1993, would not have considered it appropriate to put up for sale or to set in train, steps that could lead to the sale or further mortgaging of the Estate Lands to the potential detriment of Thomas. Thomas had been promised these properties by his father in 1983 and again in 1990. He had acted upon those promises and conducted his life accordingly.

119 Upon that basis then, I would still quarantine off from any claim by Deborah, the Estate Lands and also the nominated value of James' interest in the farming partnership as at the date of his death. (For reasons already expressed, that figure is questionable, in terms of it being regarded as any reliable representation as to the existence of an readily realisable asset of such value in the partnership).

120 That leaves, essentially, James' half interest in Briggs Street, Bassendean and the $50,000 term deposit (representing the balance of what James had retained from his lottery winnings of 1990).

121 The temporal focus of the second stage process requires a financial assessment to be made as at the date of trial in 1999, rather than as at the date of James' death. I need to take account of the fact that each of James' daughters has already received a $20,000 bequest from James' Estate. A valuation report tendered at trial indicated that Briggs Street had increased in value to some $130,000, as at 20 July 1998. Thus, the value of James' Estate's one-half interest in Briggs Street at trial, is accordingly, close to $65,000. The value of the non-farming assets of James' Estate, assessed as at the date of trial, would thus amount to $115,000 (ie $50,000 plus $65,000).

122 Whilst Thomas received the Estate Lands under James' Will, recognition of the sometimes illiquid character of farming lands as a realisable asset, coupled with the general economic uncertainties of farming, and the fact that Thomas was likely (as in fact he did) to be forced to assume sole responsibility to the partnership's bankers for all partnership debts, dictates, in my view, the result that a wise and just testator in the position of James would have divided his remaining non-farming assets equally as between each of his four children. Rounding the figure of $115,000 to $116,000, would result in an equal bequest of $29,000 to each of his four children.

123 Accordingly, had I been of a different view as to the first stage issue, I would have only awarded (based upon the value of James' non-farming assets as at the date of trial) a sum of $9,000 (ie $29,000 less the $20,000 already received) to Deborah.

124 Finally, in response to a submission by counsel for Deborah, I observe that I see nothing in the decision of the Full Court in Roberts v Roberts (1992) 9 WAR 549 to support his submission that a claimant such as Maureen who has settled her case, could nevertheless seek or be granted a variation in her favour "on the back" of a claim by her sister.

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

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Judgment (201 paragraphs)

Dobra & Anor v Brennan & Ors [1999] WASC 98 (23 July 1999)

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Cases Cited (12)