Friend v Brien & Anor

Judgment 1HIS HONOUR: This a claim for a family provision order in respect of the estate of Henry Johnson Brien who died on 6 March 2012 aged 79. The value of his estate has been estimated for probate purposes to be $1,291,832. 2On 2 March 2012, just four days before his death, the deceased made a will in which he left the bulk of his estate to his son, Lloyd Brien, a legacy to his daughter Denise Friend, and the residue of his estate to his widow, Mrs Marjorie Brien. There is a question as to whether the gifts to the deceased's son and daughter fail to which I will turn in due course. 3The deceased had been a farmer in the Cowra region. When he died the principal assets of the estate were a half interest he had as tenant in common of three properties near Cowra called Willow Park, Little Willow and Cutlers. His widow, Mrs Marjorie Brien, owns the other half shares in those properties. He and his wife carried on a farming business in partnership together. They had two children, namely, Denise, now Mrs Denise Friend, born in 1956, and their son Lloyd born in 1959. In the course of these reasons I might refer to the parties from time to time by their christian names. In doing so I will intend no disrespect. 4Denise married William John Friend in 1979. She is a school teacher by profession. She left the family farm at Willow Tree after she finished school. She attended the University of New England and then worked as a teacher until her retirement on 21 March 2012. Her husband, Mr William Friend, is a plumber by trade. They have three adult children and now live at Fountaindale on the Central Coast, having previously lived at Dubbo. Since she started attending university Denise (who is the plaintiff in these proceedings) has not lived on the family property, although she visited it from time to time. By contrast, Lloyd Brien has worked on his parents' farm and on nearby properties all his life. He left school in 1975 aged 15 and worked on his parents' farm for no wages until he married in 1983. He and his wife, Jenny, also have three adult children. Lloyd and Denise both grew up on the family property called Willow Park. 5In 1974 or 1975 Mr and Mrs Brien senior purchased a property now called Little Willow also in the Cowra region. It is a property of some 81 hectares. In 1996 they purchased a property of 75.5 hectares known as Cutlers. The properties are near but not adjacent to Willow Park. 6Lloyd Brien learnt wool classing and purchased his own first breeding cows in 1979. He purchased a property called Dallas, which adjoins Little Willow, in 1980, with money borrowed from the bank. The loan was guaranteed by his parents, but repaid by him by 1988. He has worked on his parents' farm and on his own properties all his life. He and his wife Jenny also conduct their own farming business. They bought a property called South Boundary, Billimari, in 1989 that lies between Willow Park and Dallas, Little Willow and Cutlers. They bought another property called Mubu in 2000. Although both partnerships, that is the partnership between Lloyd and his wife and between Mr and Mrs Brien senior had their own livestock, the livestock were moved between the various properties as conditions required. Farm machinery was shared. Farming was very much a joint endeavour. From early years it was made clear to Lloyd Brien that in the end he would receive Willow Park by inheritance. That was a factor in his working on the farm up to his marriage for effectively no pay except his board and keep. 7In 1987 Mr and Mrs Brien senior moved onto a second house they had built on Willow Park and Lloyd and his wife and children moved into the old family home. 8There was no falling out between Denise and her parents, but she and her husband made their own life away from her parents, whereas Lloyd and his family continued to have very close relations. This was inevitable through their working the farms together. 9By his will the deceased appointed his wife, Marjorie, and his son, Lloyd, as his executors. He made the following gifts: "3) I GIVE: a) my one-half share of my farming properties 'Willow Park', 'Little Willow' and 'Cutlers' to my son Lloyd subject to and charged with the payment by him to my daughter DENISE MARJORIE FRIEND of the sum of ONE HUNDRED AND FIFTY SEVEN THOUSAND FIVE HUNDRED DOLLARS ($157,500.00) within six (6) months of the date of my death; b) my one-half share of the farming partnership HJ & MR BRIEN to my son Lloyd including all my farming assets, stock and plant; c) all the rest and residue of my real and personal property and estate wheresoever and whatsoever UNTO my said Trustees UPON TRUST with power to sell call in and convert the same into money AND AFTER payment thereout of all my just debts funeral and testamentary expenses to HOLD the balance then remaining UPON TRUST for my wife Marjorie for her sole use and benefit absolutely." 10It is reasonable to infer that the deceased valued Little Willow and Cutlers as $315,000 and that he intended the legacy of $157,500 for his daughter to reflect half the value of those lands. 11In 1975, after Little Willow had been acquired, the deceased told Lloyd that he, Lloyd, would get the farm (meaning Willow Park) and that Denise would get half the block of land, then Little Willow. 12The deceased made a will in February 1980 in which he created a life estate for his wife, gave a half share of Little Willow and a legacy of $15,000 to Denise, and left the rest of his estate to Lloyd. It is clear he intended that Lloyd would continue to carry on the family's farming business after his death. 13Some time later he told Lloyd that he wanted all of the land to be kept together and he would be changing his will and that Lloyd would have to compensate Denise for the land. That is what his will made shortly before his death provided for. 14I have said that the estate was valued for probate purposes at $1,291,832. That was made up in the following way. 15The deceased's half interest in Little Willow and Cutlers has been valued at $310,000. This is supported by valuations as representing half of the entire market value of those properties. His half interest in Willow Park has been valued at $780,000, again representing half the market value of that property. His interest in the assets of his partnership with his wife was valued at $131,842. These assets all passed to Lloyd under the will, but the deceased's half interest in Little Willow and Cutlers is charged with payments of the legacy to Denise. The deceased's other assets that passed under his will that form the residue of his estate consisted of money in the bank, a small loan to the partnership, shares and three life policies; having a total value of about $70,000. 16Mrs Marjorie Brien is entitled to the residuary estate but it bears the primary burden of funeral, testamentary and administrative expenses. Leaving aside the cost of these proceedings, funeral expenses and costs of probate and the like total some $21,000 giving a net residuary estate valued at about $50,000 subject to the costs of these proceedings. 17The deceased owned other assets as a joint tenant that passed to his widow by survivorship, consisting for the most part of term deposits with the bank. The value of those assets is approximately $398,000. 18The plaintiff, Denise, claims that the will does not make adequate provision for her maintenance and advancement in life. She has not received the legacy of $157,500. The executors were advised not to distribute any of the estate because of threatened Court proceedings. 19On 19 June 2012 Denise's solicitors wrote to the solicitors for the executors advising that the plaintiff had instructed them that she wished to commence proceedings under family provision section of the Succession Act 2006 (NSW) for provision out of the estate. The solicitors noted that the plaintiff was to be provided with details of the assets of the estate and said that further instructions would be sought once the details were received, but in the meantime they sought the executors' confirmation that the estate would not be distributed until either the plaintiff's claim was settled, or by order of the Court. The solicitors for the executors gave that confirmation and advised that distribution would not proceed without prior notice. 20The proceedings were commenced on 4 March 2013. The only relief sought is an order for provision out of the estate. On 19 September 2013, that is, a little over six months after the deceased's death (sic), the plaintiff's solicitors again wrote to the executor's solicitor noting that: "Our client has not received any amount of the charge (or benefit) referred to in cl 3(a) of the will. As an interim measure and without admission by either party our client suggests the defendant [sic] transfers Cutlers property or Little Willow property to Lloyd Friend in accordance with the will. Further, our client receive part or all of the charge of $157,500". There was no response to that letter. 21Counsel for the plaintiff submitted that because the land owned by the deceased had not been transferred to Lloyd Brien and because the sum of $157,500 had not been paid to Denise Friend within six months of death the gift of the land in cl 3(a), that is, Willow Park, Little Willow and Cutlers, wholly failed. 22No authorities were cited to support this contention and the position was asserted rather than explained. I understood the plaintiff to submit that the gift of the three farming properties to Lloyd in cl 3(a) of the will was subject to a condition that Lloyd pay $157,500 to his sister within six months of the testator's death, that on the failure of that condition the gift failed and the properties passed into the residuary estate pursuant to s 31 of the Succession Act. I do not agree with that submission. 23In Jacobs Law of Trust in Australia, 7th ed at [231], the learned authors with reference to authority say: "A true condition is one which if a condition precedent will prevent the transferee from taking the property until fulfilled or one which, if a condition subsequent, would result in the forfeiture of the property if it is not performed. Where the condition is that the transferee of the property should pay a sum of money to a third party, the Court is more likely to construe this as either a trust or an equitable charge. The reason is that if it were construed as a condition in the strict sense, then if the donee refused to perform the condition and refused to take the property on that condition not only would he donee's interest be lost but also the third part would take no benefit". 24The learned authors cite Re Oliver (1890) 62 LT 533 (at 535) that: "If it was held that the devise must be construed as importing a condition and nothing else, the person entitled to receive the payments would lose the payments because if the payments were not made within a given time, the heir of the testator would enter and take the estate, and take it free. It was to get over that objection that it has been said that generally the right construction is to hold that the devise creates a trust and not a condition. It has been termed a trust without any particular regard to the language, a legal effect being given so as to enable the person entitled to get the payments. It is upon that class of cases to which I have referred only in general terms that the argument has been based that here the devise is not a condition, and is therefore a trust. But it is equally plain for ordinary purposes that the effect of the devise is to create a charge, and not a trust". 25In Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417, Dixon J said at 419: "Whenever a gift is made to one person beneficially, subject to his paying money to another, the provision takes effect as a charge, notwithstanding that words of condition are used, unless an intention clearly appears that it should operate by way of condition. The second object of the disposition thus obtains proprietary and not merely personal rights, and is not left in danger of losing the intended benefit through the donee's electing to reject the gift with its attendant condition, rather than to accept it cum onere". 26Here, the will expressly states that the properties the subject of the gift to Lloyd are subject to and charged with the payment of $157,500 to Denise. This is a clear case of the creation of a charge and not a conditional gift which would fail on failure to make the payment in time. 27The consequence is that the plaintiff is entitled to the legacy of $157,500 under the will. She is also entitled to interest pursuant to s 84A of the Probate and Administration Act 1898. Because the will provides for the legacy to have been paid six months after death and the legacy was not paid then, interest is to be calculated from six months after death. 28Interest is payable at a rate that is two per cent above the cash rate "last published by the Reserve Bank of Australia before 1 January in the calendar year in which interest begins to accrue" (s 84A(3)). The cash rate last published before 1 January 2012 was 4.25 per cent. Hence, interest is payable at the rate of 6.25 per cent from 7 September 2012. Interest that has accrued to date amounts to $16,235.45 and interest continues to accrue at $26.97 per day. 29Thus, the value, considered today, of the provision in favour of the plaintiff under the will is $173,735.45. Is that provision inadequate for the plaintiff's proper maintenance and advancement in life? 30Section 60 of the Succession Act lists a wide range of matters that the Court "may have regard to" in answering that question. Addressing those matters so far as is relevant does not provide any real tangible assistance in making the evaluative, or almost intuitive, judgment that needs to be made to answer that question. 31What maintenance and advancement in life is "proper" depends upon all of the circumstances of the case and is a question on which minds can legitimately differ. The assessment is to be made having regard 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, the relationship between the deceased and other persons who have legitimate claims upon the deceased's bounty and the effect on others of making an order for provision. (See generally Singer v Berghouse (1994) 181 CLR 201 at 210.) 32In Kelly v Deluchi [2012] NSWSC 841 and other cases, Hallen J has helpfully summarised a number of the principles that have been articulated in a wide variety of cases. Amongst those principles that are particularly relevant to the present case are: "[125] In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia. ... (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181] and [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]." 33Also relevant in this case is: "(h) Although some may hold the view that equality between children requires that 'adequate provision' not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the court's determination of an applicant's case." 34It is not the function of a court in determining whether to make a Family Provision Order to make what it considers to be a fair and equitable distribution of the estate (Gorton v Parks (1989) 17 NSWLR 1 at 6). The testator's freedom of testamentary disposition is to be interfered with only insofar as that may be necessary to make adequate provision for an eligible applicant's proper maintenance, education or advancement in life. 35In Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 (quoted in Kelly v Deluchi at 121) Kelly J said that: "In performing its task of determining whether adequate provision has been made for proper maintenance and support the Court must have due regard to the will of the testator and interfere only to the minimum extent necessary to make such adequate provision". 36I think there is a further principle that is apposite in this case. In Stott v Cook (1960) 33 ALJR 447, Taylor J, albeit in a dissenting judgment, said (at 453-454): "There is in my opinion no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings for the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a court by a few pages of affidavits sworn after his death in which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics ..." 37In Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, I said (at [127]): "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will." 38I turn then to consider the plaintiff's financial circumstances. She and her husband own their house in Fountaindale estimated to be worth $670,000. It is subject to a mortgage to Westpac of $105,000. The plaintiff has given various estimates of the value of the contents of the house. On 28 February 2013 she estimated the household contents to be of a value of $200,000 and on 15 April 2014 she estimated their value to be $50,000. The contents are insured at a replacement cost of $374,950. The replacement cost was initially calculated by the plaintiff at $300,000. 39The plaintiff and her husband have $23,000 outstanding to the credit of the mortgage offset account and a joint savings account of $1000. The plaintiff owns two motor vehicles and has a small ownership of public company shares to a value of a little over six and a half thousand dollars. 40The plaintiff owes $37,411 on a loan taken out to acquire a motor vehicle and she has what I take to be a credit card debt of $12,000. In her statement of assets and liabilities it is not clear whether what is referred to as the debt is in fact the limit of her credit card, but I infer from her affidavit and from the absence of cross-examination on the topic that the card is at its limit of $12,000 and the plaintiff is making monthly payments off the card. 41The plaintiff retired as a teacher in March 2012. She is entitled to a pension for life indexed to the CPI. That currently provides her with $2017 per fortnight after tax and after payment of private health insurance. The private health insurance covers herself, her husband and her younger son. After her retirement, she obtained casual employment as a teacher from which she earned $18,000 in the financial year ended 30 June 2013. She has obtained casual employment subsequently, although not immediately currently. There is no certainty about her prospects of continuing to obtain casual employment. Her income last financial year was about $73,000. In the same financial year her husband's share of profit from his plumbing business was approximately $46,700. 42The plaintiff's counsel accepted that the plaintiff has a secure albeit modest income. Counsel submitted that her financial needs were such that she required provision which was sufficient to discharge her debts to undertake necessary repairs and renovations to her house, and to provide a buffer or contingency for the vicissitudes of life. A provision to which the plaintiff is entitled under the will would be more than sufficient to discharge all of her debts, but not also to provide for the cost of all repairs and renovations to the house which the plaintiff says should be carried out or to provide a buffer for vicissitudes. 43In respect of the repairs and renovations, the plaintiff has obtained quotes totalling $71,686 for the demolition and replacement of an outdoor deck with new materials and stainless steel ($44,800) retiling and renovation of the bathroom and en-suite ($19,600) and laying of new carpet and recarpeting ($7,286). There was no suggestion that the house is not liveable as it is, although no doubt the suggested renovations would be a desirable improvement. 44The plaintiff and her husband are in reasonably good health. As I have said, Mr Friend works as a plumber. The plumbing business is variable. He is in partnership with his brother who has recently suffered from ill health but has since resumed working. He has superannuation of $128,000. On the plaintiff's death he will be entitled to a portion of her pension. In short, with the legacy provided for by the will, the plaintiff and her husband would be in a position where they had reasonable but not generous income but one which includes a pension that would be indexed to the CPI and which will continue for the whole of the plaintiff's life. They have their own home, which, with the legacy, would be free of mortgage debt, and the legacy will provide funds to discharge the balance of the plaintiff's debts and leave some money left over. They would then have their existing savings of some $24,000. 45I have said that after Denise left Willow Park, having left school, she did not move again to Willow Park. Nonetheless, contact with her parents was maintained. When the deceased was admitted to hospital in November 2011 in Sydney, the plaintiff visited him with her mother frequently and after he was discharged, she continued to visit her parents, she said every seven to 10 days up to her father's death. There is nothing that might be characterised as disentitling conduct in this case. 46Mrs Brien Senior lives in the new house in Willow Park. Her current income is modest. It comes from what was the partnership with her husband, the physical work for which is now being undertaken by her son. It is about $400 per week, which is less than her expenditure. Nonetheless, she succeeded by survivorship to term deposits and other cash resources to a value of about $400,000 and she has cash resources of about half a million dollars. 47Mrs Brien is 81, almost 82, and her resources are quite adequate for her current needs and for future contingencies. If an order for provision were made out of her share of the estate, which is only about $50,000 leaving aside the question of costs, it would not occasion any significant financial detriment to her. 48It is not suggested that there is any notional estate in this case, but it is on the cards that if an order for provision were made the burden of which was to be borne by Lloyd out of his share of the estate, and if Lloyd could not otherwise meet that provision, his mother could make funds available to him for him to do so. 49Lloyd has acquired three blocks of land on which he and his wife carry on their farming business with the assistance of his children in addition to making use of the lands of his parents. The three blocks of land acquired by Lloyd and his wife also are used for the farming operations of Mr Brien senior and before his death Mr Brien senior. 50The three blocks of land in question are grazing blocks. There are no improvements on the south boundary property or Mubu, nor on Dallas, other than bore water from an adjoining block. Dallas is used mainly as a cropping block for cattle feed. The cattle run on these blocks. There are no houses on the blocks. 51Lloyd Brien estimates the value of the three blocks to be about $860,000. The financial statements for the partnership between Lloyd Brien and his wife show that that farming partnership made an operating profit of $68,342 in the financial year ended 30 June 2012 and $167,842 in the financial year ended 30 June 2013. 52Much of the farm machinery, buildings and fences, requires either repair, replacement or renovation. This includes the Willow block house on which Lloyd and his family live. He and his wife have no superannuation. Nonetheless, they earn a good income from their farming operations and he has been able to acquire the three blocks in question and repay the moneys borrowed for that purpose within about seven years of their acquisition. 53In an affidavit made on 4 October 2013 Lloyd Brien deposed that the National Australia Bank had approved loans of $157,500 and $92,500 in addition to an existing overdraft facility. The impression from the affidavit is that these loans were sought and obtained in order to provide the funds that would be needed to pay the legacy in favour of the plaintiff of $157,500 and to pay the costs of these proceedings. 54Lloyd Brien deposed that he had doubts about the financial prudence of taking out the loans which had been approved due to the uncertainty of future farm income and the costs which he said would need to be incurred in order to replace farming vehicles and other plant and equipment and to carry out repairs or replacements to machinery sheds and the like. 55Although not referred to in that affidavit, Lloyd Brien had been able to put aside some $112,254 in four bank accounts described as "farm management deposit accounts" towards payment of the legacy in favour of his sister. That information and financial statements up to the year ended 30 June 2013 were only provided by Lloyd Brien a couple of days ago. The failure to disclose the information in relation to the four farm deposit management accounts in his affidavit of 4 October 2013 and in a later affidavit sworn earlier in April 2014, is to be deplored. It has been frequently said that executors have a duty to the Court to provide relevant financial information, and in the circumstances of this case that relevant financial information includes the financial information about Lloyd Brien's personal circumstances and that of his wife. 56Lloyd Brien deposed that making provision for Denise, and I infer making any further provision for Denise than is already provided for under the will, would have ongoing adverse consequences for him and his family and for his mother if there needed to be either a sale of any of the land or a sale of cattle that permanently reduced the size of the herd. That would be so. 57But on the other hand it appears from the loans that have been approved from the National Australia Bank that at least some further provision over and above the $173,000 to which the plaintiff is already entitled could be provided at Lloyd Brien's expense utilising those loans. Whilst this would no doubt impose some financial burden on him it would not be a financial burden that would amount to hardship. Thus far Lloyd Brien has done well. He has a more secure financial position than his sister. 58But the question remains whether provision made for the plaintiff under the will is less than adequate for her proper maintenance and advancement in life. That question is not to be answered by asking whether it would be fairer if the deceased had left more money under his will for his daughter, so as to equalise his children's financial positions or to bring them into closer equilibrium. The deceased thought that the disposition of his estate provided adequate provision for his daughter's proper maintenance and advancement in life. I infer that he did so from the apparently careful consideration the deceased gave as to how his estate should be disposed of and his determination that his daughter should receive a monetary sum to the equivalent of half the value of the additional lands. 59What maintenance and advancement in life for the plaintiff is proper involves an evaluative judgment having regard to all of the circumstances, including family dynamics, on which minds can legitimately differ. In this case an important part of those circumstances is the very close relationship the deceased and his wife maintained with their son and their son's family through the conduct of the farming ventures and through their working day by day together. That is in contrast with the deceased's relationship with his daughter who, for good reason and with her father's approval and, no doubt, to his pride, established her own independent career and family life. But circumstances put a distance between the deceased and his daughter and her family, but not between him and his son and his son's family. How that should translate into a father's moral obligation to provide for his children is a question on which minds can legitimately differ. 60If the deceased had made no provision for his daughter, I think it might still reasonably be argued that because the plaintiff had established her own life with her husband and children and was reasonably provided for with a secure, albeit modest, income for life and that she and her husband had their own home, that the deceased had no moral obligation to make provision for her. Others would be of the view that in those circumstances a wise and just testator would make some provision for his daughter because the burden of such provision could be made without real hardship, even in an amount of something more $157,500. However, I think the provision sought of an additional $230,000 would impose some financial hardship on Lloyd, unless that burden was shared with his mother. 61The deceased thought that $157,500 was the right provision. I think considerable weight should be given to that in recognition of the better position in which the deceased was placed to take into account all of the circumstances and all of the family dynamics in determining what provision for the plaintiff's proper maintenance in life would be adequate. 62To remodel the will because the judge thought that some additional provision would be fairer, would pay no more than lip service, or not even that, to respecting a capable testator's judgment where it appears that a reasonable judgment has been made. I do not think that the circumstances of the plaintiff's retirement after her father's death is a significant or material change in circumstances, having regard to the pension which she has and the casual employment which she has enjoyed, at least to date. 63In my view, where there is a range in which views may legitimately differ as to what provision is adequate for proper maintenance and advancement in life and where the deceased has apparently conscientiously made a judgment about how his estate should be disposed of that falls within such a range, and where the circumstances have not materially changed between the time of the making of the will and the court's considering the position, a court should not substitute its judgment for that of the testator to determine that the provision made was inadequate. 64I am not satisfied that the provision made by the will was less than what is adequate for the plaintiff's proper maintenance and advancement in life. 65For these reasons, I order that the summons be dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 May 2014