Supreme Court of WA|2005-09-22

Hall & Anor v Philip Roland Wilson as Executor of the estate of Anthony Lawrence Patrick Duffy (Dec) & Anor [2005] WASC 207 (22 September 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HALL & ANOR -v- PHILIP ROLAND WILSON as Executor of the estate of ANTHONY LAWRENCE PATRICK DUFFY (Dec) & ANOR [2005] WASC 207

PHILIP ROLAND WILSON as Executor of the estate of ANTHONY LAWRENCE PATRICK DUFFY (Dec)

Succession - Application by adult children under Inheritance (Family and Dependants Provision) Act for provision from estate of father - Sole beneficiary of Will was mother of plaintiffs - Testator and beneficiary divorced 12 years earlier - Whether provision should be made for plaintiffs from estate - Turns on own facts

Bondelmonte v Blanckensee [1989] WAR 305

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

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

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

Kitson v Franks [2001] WASCA 134

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

Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201

Hunter v Hunter (1987) 8 NSWLR 573

Ibrahim v Dos Remedios [2005] NSWSC 202

Roberts v Roberts (1992) 9 WAR 549

Vigolo v Boston [2005] HCA 11

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

1 MASTER NEWNES: I have before me applications under s 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA) by the daughter and son of the testator, each of whom seeks an order that increased provision be made for them from the Will of their late father, Anthony Lawrence Patrick Duffy (the "testator").

2 The testator died on 16 August 2003 and letters of administration with the Will attached were granted to the first defendant, as attorney for the named executors. The first plaintiff is the daughter of the testator and the second plaintiff is the son of the testator. The second defendant is the former wife of the testator. The second defendant is the sole beneficiary under the testator's Will.

3 The circumstances of this case are somewhat unusual. The testator and the second defendant were married on 27 February 1961. In March 1962 the testator executed a Will, appointing his then brother-in-law and his brother-in-law's wife as his executors and trustees, and leaving the whole of his estate to the second defendant.

4 The second plaintiff was born of the marriage on 23 August 1961 and the first plaintiff on 16 October 1965. The testator and the second defendant were divorced on 15 November 1991, at which stage the second plaintiff was 30 years of age, and the first plaintiff was 26 years of age. Although the evidence was not entirely consistent, I am satisfied that the testator and the second defendant did not part on good terms and, following the divorce, there was an acrimonious dispute as to the distribution of the matrimonial property between the testator and the second defendant.

5 Following contested proceedings in the Family Court, on 17 February 1993 orders were made as to the distribution of the property. The effect of those orders was that the principal asset of the testator and the second defendant, a property in Mundijong, was to be subdivided with the deceased to take the northern portion consisting of 13.3 hectares (with improvements, including two houses on it) and the second defendant to take the southern portion of 12.5 hectares. The second defendant was to pay the deceased the sum of $5,925 and the deceased was to assume a debt of $45,000 owing to a third party. Orders were also made in respect of the division of certain motor vehicles and chattels.

6 On 12 March 1994 the second defendant married Kevin Warnes, to whom she remains married and with whom she is residing.

7 The second defendant sold her portion of the Mundijong property after the property settlement. The deceased remained living in the former matrimonial home on his portion of it, known as "Oldbury". The first plaintiff and her husband had constructed a house close by on Oldbury, in which they lived.

8 The evidence as to the state of relations between the testator and the second defendant following their divorce was not entirely consistent, but I am satisfied that each went their separate way and the relationship between them was not cordial. It seems that the only contact between the testator and the second defendant over the following 12 years was inadvertent contact on several occasions at the Fremantle Golf Club, where the deceased worked in the course of his employment with the Fremantle City Council and the second defendant played golf. Although the second plaintiff appeared to suggest in his evidence that the contact represented some degree of reconciliation between the testator and the second defendant, I am satisfied the contact was neither expected nor welcomed by either. Indeed, in her evidence the second defendant said that when she "bumped into" the testator she "got a fright". It seems they merely exchanged brief civilities.

9 The testator died unexpectedly on 16 August 2003. His last Will had been made on 14 March 1962. Under the Will, the whole of his estate after payment of his debts and testamentary expenses, was left to the second defendant.

10 Against that background I turn to the circumstances of the respective parties to these proceedings.

11 The first plaintiff finished year 12 at school in 1982. From then until about 1987 she worked as a stable hand for various employers and from 1987 to 1989 she worked on a production line making video cassettes. In March 1988, at the age of 23, the first plaintiff married Alan Hall and did not continue in paid employment after ceasing on the production line in 1989. The first plaintiff had her first child in 1992 and subsequently had two more children. The first plaintiff and her husband separated in 2001. The children continued to live with the first plaintiff and are currently aged 7, 10 and 12 years. Following the separation, the first plaintiff says her only income was a single parents' pension and maintenance from her husband in the sum of $360 per fortnight.

12 In May 2003, the first plaintiff entered into a de facto relationship with Roman Stoffel and her entitlement to a single parenting payment ceased.

13 The first plaintiff says that in May 2003, with the assistance of the testator, she commenced a business agisting horses and training endurance horses on the Oldbury property. The first plaintiff says that during 2003, with Mr Stoffel's assistance, she made a number of improvements to the property, including constructing a firebreak, a new concrete wash down area for the horses, an exercise round yard and establishing extensive reticulation on the property. The first plaintiff says that to assist in the business the testator bought a gooseneck trailer and a Mazda T3500 dual cab truck to tow it. The first plaintiff says that the business did not make a profit in the relatively short period in which it operated. The business came to an end when she left the Oldbury property in July 2004 to travel to Queensland. I will come back to those circumstances in due course.

14 The first plaintiff says that, following her parents' separation in August 1990, she and her father lived in separate houses on the Oldbury property. The houses were some 100 metres or so apart and the deceased spent most of his daylight hours at the first plaintiff's house, returning to his own house only to sleep. The first plaintiff says that she washed, cooked, cleaned and acted as a companion to the testator after her parents separated. The first plaintiff says the kitchen in her father's house was in such a poor state that it was not usable and the house generally was in a state of disrepair. At the date of the deceased's death, the first plaintiff and her husband had separated, and the first plaintiff and Mr Stoffel were living in a de facto relationship in the first plaintiff's house on Oldbury with the first plaintiff's three children.

15 The first plaintiff describes her relationship with her father as "extremely close". They shared a love of horses, particularly endurance horses, and of horse training. The testator was the vice-president of the WA Endurance Riders' Association.

16 It seems that the first plaintiff was with the testator at the time of his death on 16 August 2003, and she refers in her affidavit to attempting to resuscitate him until the ambulance arrived. The first plaintiff describes her father's death as sudden and unexpected.

17 The relationship between the first plaintiff and the second defendant has been, at best, poor since 1993. The first plaintiff says that following an incident, on which the first plaintiff did not elaborate, she severed all contact with the second defendant in early 1993, and has had nothing to do with her since. The first plaintiff says she has had some contact with Mr Warnes, with whom she appears to have a good relationship, but I accept that her contact with the second plaintiff has been no more than minimal.

18 The second plaintiff left home in 1979 to travel to England, where he stayed with an uncle for six months before returning home. He then lived with his parents until he was about 22 years of age; that is, until about 1983. There is no evidence as to the nature of the second plaintiff's employment when he left his parents' property, but he says that between about 1987 and 1996 he constructed a large ocean-going yacht on a portion of the property. The extent to which he visited the property over that period and subsequent to it, and the extent of his contact and relationship with the testator, was in issue between the plaintiffs. The first plaintiff says the second plaintiff simply came to the property to work on the yacht and had little to do with the testator, even on those occasions. The first plaintiff says that after the yacht was moved in 1996 the second plaintiff had nothing to do with the testator.

19 The second plaintiff, however, says that he and testator enjoyed a normal father/son relationship. As he put it, "[w]e had some very good times as well as some bad times." The second plaintiff says that after leaving home he continually visited the property, whether it was to bring his son to visit or because he kept a racing car at the property in connection with his then hobby of car racing. He says that from 1987 he spent a large amount of time at the property working on the yacht and the testator helped a great deal with this. After the yacht was removed and his parents divorced, the second plaintiff says he visited the property less frequently, but he saw his father more in Fremantle where the testator was working. The second plaintiff says that while he was building the yacht he would be at the property at least three to four times per fortnight.

20 The second plaintiff says that he and his mother, the second defendant, have "a great relationship". He says they try to get together on birthdays, Mothers Day, Christmas and other festivities, go out for meals and go to each others houses, as well as playing golf together and often speaking on the telephone.

21 It is, in my view, clear that the second plaintiff's relationship with his mother was much closer than his relationship with his father. That is evident both from the way he described those different relationships in his evidence and from the nature of the contact he had with the testator and the second defendant respectively. It is evident that his contact with the second defendant was much more frequent and consistent. In that connection, in his affidavit the second plaintiff says that when his parents divorced "the house [they] occupied including the kitchen was in perfect condition so my father must have let it deteriorate". That would suggest that since 1991, the second plaintiff has not been inside the house in which his father lived between 1991 and his death in 2003.

22 The much more distant relationship with the testator is also reflected in the events surrounding the second plaintiff's marriage in 2002. The first plaintiff says that neither she nor the testator were invited to the wedding and only learned of it later. The second plaintiff says he sent invitations to both his father and the first plaintiff "but neither showed up". The second plaintiff does not suggest that this occasioned him any surprise, or that he made prompt inquiries as to why, in particular, the testator had not attended. He simply says that when he spoke to the first plaintiff in February 2003 he told her that she and the testator had been sent an invitation.

23 The financial position of the first plaintiff at the time of the testator's death can be briefly stated. At that time, the first plaintiff owned no real property and was receiving the sum of $360 per fortnight from her husband as maintenance for the children and a family allowance payment from Centrelink. The first plaintiff's business was not trading at a profit and was simply covering expenses. Her furniture and personal effects were valued at no more than $8500 and she owned a 1989 Falcon sedan, which she has estimated was worth no more than $2000. She had very recently entered into the de facto relationship with Mr Stoffel and her single parenting payment had ceased as a result.

24 There was no direct evidence as to the financial position at that time of Mr Stoffel, but I think it is to be inferred from the evidence as a whole that he did not have substantial assets. Mr Stoffel at that time operated a glazing business as a sole trader, without any employees.

25 Following the testator's death, the first plaintiff, Mr Stoffel and the first plaintiff's children remained on the property until July 2004. In early 2004, the first plaintiff purchased a house on a five-acre lot in a small town in rural Queensland. The purchase price was $55,000, of which $33,000 was borrowed from Liberty Financial Pty Ltd on a first mortgage security and the balance of $22,000 was borrowed from Mr Stoffel on an unsecured basis. The first plaintiff said that Mr Stoffel in turn had borrowed the funds by way of a personal loan.

26 The first plaintiff, Mr Stoffel and the children left Oldbury on 11 July 2004 and drove to Queensland with the first plaintiff's children. They have been living on the Queensland property since. The first plaintiff says that her Falcon sedan was damaged beyond repair while being transported to Queensland and she has replaced it with a 1985 Falcon station wagon which she purchased for $500. The first plaintiff also has the Mazda T3500 and the gooseneck trailer, which she accepted in payment of a debt of $22,000 owed to her by the estate of the testator.

27 In an affidavit sworn on 25 November 2004, the first plaintiff says that her financial position remains substantially unchanged, her only source of income being maintenance payments of $320 a fortnight from her former husband. In evidence at the hearing the first plaintiff said she received approximately $188 per fortnight from Centrelink and $292 per fortnight from her former husband by way of maintenance for the children. In cross-examination, the first plaintiff conceded that in her affidavit of 25 November 2004 she had omitted to include reference to the payments received from Centrelink. She said that Mr Stoffel also contributed to household expenses. The first plaintiff was unsure of Mr Stoffell's current income but believed it was in the order of $460 to $480 per week.

28 I should say that the first plaintiff was cross-examined on the contents of the application form lodged with Liberty Financial Pty Ltd to obtain the loan to purchase the Queensland property. The application form had been completed by a mortgage broker who had arranged the loan on the first plaintiff's behalf. In that form, which was signed by the first plaintiff, her furniture and personal effects were stated to be worth $35,000, the plant and equipment of the first plaintiff's business was said to be worth $100,000 and the first plaintiff's annual income was said to be $50,000. The first plaintiff was said to have superannuation of $3000 and a bank deposit of $19,000. The form also appeared to show the first plaintiff as the owner of Oldbury, which was ascribed a value of $540,000.

29 The first plaintiff said that the bank deposit referred to in the form was part of the money Mr Stoffel had borrowed to lend to her for the purchase of the Queensland property. She said she had told the broker that she had earned $40,000 before expenses from the business. The first plaintiff was adamant that she had told him she did not own Oldbury. She said she had not given him the other figures to which I have referred and that those figures were not correct. The first plaintiff said she had answered the questions he asked her correctly and had then signed the form where he indicated, without reading it.

30 I accept the first plaintiff's explanation of the contents of the form. How or why the broker came to insert the incorrect figures is not otherwise material. It is, in my view, plainly the case that they did not, and do not, accurately set out the first plaintiff's financial circumstances.

31 The second plaintiff's financial position was and is rather better than the first plaintiff's. The second plaintiff has worked for some years for Alcoa as a plant operator. He has two adult children, one of whom is now 22 years of age and the other now 24 years of age.

32 In an affidavit sworn on 14 July 2004, the second plaintiff said his income was $60,000 per annum and his wife's income as a settlement clerk was $31,000 per annum. The second plaintiff owns two properties, one in Cooloongup and one in Shoalwater. The second plaintiff said the properties had a combined value of approximately $200,000 and an amount of some $137,000 was owing to the Commonwealth Bank, secured by mortgages. In cross-examination the second plaintiff acknowledged that the values were based on bank valuations carried out several years previously and were therefore not current. The second plaintiff also had a half-share in a yacht, the value of that share being said to be approximately $50,000 and he had a motor vehicle worth about $5000. The second plaintiff had savings of approximately $3300. According to the second plaintiff, the Shoalwater property had been empty since January 2004 and the Cooloongup property was occupied by one of his sons who was not paying rent because of his financial circumstances.

33 The second plaintiff lives in a house owned his wife in Cooloongup which, in his affidavit of 14 July 2004, he said was valued at approximately $110,000. An amount of $120,000 was owing to the Commonwealth Bank, secured by a mortgage and there was a further private mortgage to his wife's parents in the sum of $30,000.

34 The second plaintiff provided in his affidavit a list of his principal items of expenditure, totalling $69,044. Those figures included a total of $12,600 for entertainment, sport and leisure, and a further $5000 for running the yacht.

35 In an affidavit sworn on 24 August 2005, the second plaintiff says his gross income for the financial year ended 30 June 2005 was $69,906 and his net income after tax was $50,328. The second plaintiff has provided a further list of expenditure totalling $74,790. The same provision is made for entertainment, sport, leisure and the yacht. The second plaintiff does not say what his wife's income was for that period. It emerged in cross-examination that the second plaintiff's wife owns two motor vehicles but there was no other evidence as to her assets, apart from her Cooloongup house.

36 The second plaintiff says he helps out his adult children financially from time to time when need arises. His youngest son lives in the second plaintiff's Cooloongup property for which he pays a reduced rent of $100 per week. It also emerged in evidence that the Shoalwater property had been let for the past 12 months for $115 per week.

37 The second plaintiff also acknowledged in evidence that he had not brought to account his superannuation entitlements, which he said "would not be more than $100,000".

38 The second defendant has dealt with her circumstances in affidavits of 29 July 2004 and 2 August 2005. The second defendant says she was made redundant from her employment as a laboratory assistant at Alcoa in 1995. At the hearing, the second defendant said she was unable to obtain gainful employment because of her age, health and lack of formal qualifications. At the time of the hearing, the second defendant was 62 years of age.

39 The second defendant's statement of her financial position as at 29 July 2004 showed total net assets of $240,910 and liabilities of $5395, including $5000 for legal costs, apparently in relation to this action. Her principal asset was a half share in a unit in Melville Parade, Como, that 50 per cent interest being ascribed a value of $150,000. The assets also included savings of approximately $65,000, being a half share in deposits by the second defendant and her husband in financial institutions totalling some $130,000, a half share in furniture and chattels of a total value of some $20,000 and a 1996 Honda motor vehicle valued at $8000. The second defendant also had an amount of some $7000 in a superannuation fund.

40 According to the second defendant, for the financial year ended 30 June 2004 her husband received an allocated pension totalling $23,180. The second defendant says that the pension reduces each year by about 15 per cent, so that by April 2006 she and her husband will be reliant in part of government pensions for their livelihood. I should say that the financial position of Mr Warne did not clearly emerge in the evidence.

41 The second defendant's income for the financial year ended 30 June 2004 was said to be $18,079, of which $11,590 was a half share in her husband's pension and the balance was income from the superannuation fund and her share of interest on their joint savings. The second defendant said her personal expenditure for the year was $25,153. Although various items of expenditure are given in very precise figures, no indication of how they have been calculated is provided. They include furniture purchases of $4408 and what are described as "miscellaneous items" in an amount of $7357. No income or expenditure figures for the second defendant or her husband were provided for the financial year ended 30 June 2005.

42 The second defendant denied in cross-examination that the Melville Parade property, which has river views, was worth substantially more than $300,000, but acknowledged that it might now have a value of $350,000, making her half-share worth $175,000. That would give the second defendant net assets of some $260,000.

43 The substantial asset of the estate is the Oldbury property. That was valued for probate purposes at $385,000 and, with various chattels, made up total assets of the estate of $423,118.37. The estate had debts in an amount of $45,000. Subsequently, the first plaintiff has claimed an amount of $7,522.03 from the estate, being the sum of $1925 for funeral expenses for the testator and the balance being money spent in connection with the Oldbury property.

44 In February 2004, the executor arranged for an independent valuation of the property. The valuer assessed its value as being $540,000.

45 It appears that no subsequent valuation has been obtained, but the expenses of the estate have increased substantially. The first defendant has rendered accounts for legal fees totalling $85,207.85 and I was informed that there is a further amount of $7500, which has yet to be billed, for the period to 25 August 2005. The first defendant has not indicated whether he will separately charge an administration fee. There is also to be taken into account the costs of these proceedings.

46 On an application of this nature the Court is required to carry out the two-stage process described by the High Court in Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 208 - 210. The first stage calls for a determination of whether the applicants have been left without adequate provision for their proper maintenance, education and advancement in life. The second stage, which only arises if that determination is made in favour of the applicants, requires the Court to decide what provision ought to be made out of the testator's estate for the applicants.

47 The determination of the first stage 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, education and advancement in life appropriate for the applicants having regard, amongst other things, to the applicants' financial position, the size and nature of the testator's estate, the totality of the relationship between the applicants and the testator and other persons who have legitimate claims upon his bounty.

48 The determination of the second stage 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 applicants. There may, however, be some circumstances in which a Court could refuse to make an order notwithstanding that the applicants are found to have been left without adequate provision for proper maintenance.

49 The High Court said that the first question is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decision stems from the fact that the court must determine whether the applicants have been left without adequate provision for their proper maintenance, education and advancement in life. The decision made at the second stage, by contrast, does involve an exercise of discretion in the accepted sense.

50 In Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, Dixon J said (at 19):

"It has often been pointed out that very important words in the statute are 'adequate provision of 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 on 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."

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

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

52 I accept the submissions on behalf of the plaintiffs that a claim by an adult under the Act does not involve different criteria. In Kitson v Franks [2001] WASCA 134, Parker J at [69] concluded that no distinct test is to be applied involving any notion of special need or special claim simply because a claimant is an adult. Such factors are merely to be weighed in determining whether adequate provision has been made for such a claimant in the Will of the deceased. In that case, Malcolm CJ considered that if "special need" was indeed required, it existed not only because the claimant was on a pension and without significant assets, but also because she was contributing to the maintenance and support of two of her children and her aged mother. See also Bondelmonte v Blanckensee [1989] WAR 305 per Malcolm CJ at 309 - 10.

53 Whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance, support, education or advancement in the life of the claimant, is to be determined as at the date of death of the deceased: Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494. If that question is answered in the affirmative, the Court must then exercise its discretion to make such provision as it thinks fit, taking into account the relevant facts as they exist at the time of making the order: Bondelmonte v Blanckensee (supra) per Malcolm CJ at 307.

54 It is, of course, well established that, in exercising its powers under the Act, the Court is not entitled to rewrite the Will to accord with its own views of fairness or justice: Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 146. The freedom of testamentary disposition should not be so encroached upon that the testamentary wishes of the deceased as expressed in the Will are to have only prima facie effect, the real dispositive power being vested in the Court: Pontifical Society for the Propagation of the Faith v Scales (supra).

55 I accept that the first plaintiff enjoyed a close relationship with the testator after her parents separated and that she provided many of his day to day needs in the nature of washing, cooking, cleaning and general companionship. The first plaintiff in turn was dependant on the testator for the use of Oldbury on which her house was built and on which her own horses and those associated with her business were run. Their common interest in endurance horses and horse training was also obviously a bond between them. It is a further indication of that relationship that in April 1998 the deceased nominated the first plaintiff as the sole beneficiary of his Local Government superannuation plan. In fact, the second plaintiff submitted a claim for a share of the proceeds of that fund after the deceased's death. The trustees ultimately paid the proceeds, a total amount of some $28,000, to the plaintiffs equally.

56 The second plaintiff, by comparison, had a more distant relationship and his contact with the testator was neither regular nor frequent. In evidence, the second plaintiff accepted that the first plaintiff was closer to their father than he was. The second plaintiff was clearly much closer to his mother, the second defendant.

57 I am satisfied that, as at the testator's death, the first plaintiff's financial position was precarious. She owned no real property and had no significant savings. The first plaintiff had three primary school aged children, for whose maintenance she was receiving an amount of $360 per fortnight from her former husband, and she was receiving a family allowance payment from Centrelink. The first plaintiff had no formal qualifications and, apart from her activities in relation to the care and training of horses, no particular skills or work experience. She was at that time endeavouring to establish a horse training business, which I accept was not then profitable. Whether it was likely to be profitable is a moot question. It is, however, notable that at that stage the business was being run at Oldbury, so the first plaintiff did not have rental or mortgage costs to meet.

58 Shortly before the testator's death, the first plaintiff had entered into the de facto relationship with Mr Stoffel. There is no direct evidence as to Mr Stoffel's earnings or assets at that stage, but from the evidence as a whole it appears they are unlikely to have been substantial.

59 The first plaintiff's business came to an end when she left Oldbury in July 2004. It is apparent that the first plaintiff moved to Queensland with expectations that she would be able to establish a similar horse training business there and to obtain the business of a substantial Queensland horse owner. Those expectations have not been realised. I accept that since moving to Queensland the first plaintiff has not found it possible to carry on the horse training business and that she has not been engaged in any paid work. It is a matter for conjecture whether it will be possible in the future to re-establish the business.

60 Mr Stoffel's business expectations have also not been fulfilled, in part at least, it seems, because in Queensland his glazing business required him to be away from home for up to weeks at a time. Shortly before the hearing, Mr Stoffel gave up the business and took a job at a piggery close to home so that he could return home each night. The first plaintiff says that Mr Stoffel receives something in the order of $460 to $480 per week in that employment.

61 At the time of the testator's death, the second plaintiff's position was much more financially secure. He was earning approximately $60,000 per annum and sharing household expenses with his wife, who earned $31,000 per annum. The second plaintiff had no dependants, although he provided occasional assistance to his two adult children. He had two investment properties, on each of which a significant sum was owing, and an interest in a substantial yacht. He lived in a house owned by his wife, albeit it was encumbered by a substantial mortgage. The second plaintiff's expenses indicate that he enjoyed considerable social and recreational activities.

62 The second plaintiff was not, however, wealthy and there was relatively little by way of ready resources to meet any significant contingencies that might occur. His relative financial position has not substantially changed since that time, although it is likely to have improved to some degree with the general increase in property prices.

63 The position of the second defendant is somewhat more problematical. The second defendant has apparently not worked since 1995. It seems that her husband, Mr Warnes, has also not worked since he was made redundant by the Commonwealth Bank in 1994. It is not clear why neither sought paid employment following their redundancies. The second defendant was at that stage 51 years of age. It was not suggested that she was impaired by ill health and there is no evidence that she would have been unable to find work then if she had sought it.

64 At the hearing, the second defendant referred to her ill health as the reason she was not now working, but was vague as to the nature of that ill health and it was not supported by any medical evidence. It apparently has not prevented her from playing golf regularly over the years.

65 It was not suggested by the second defendant that she had any claim on the testator's estate beyond the consequence of what she described in evidence as the testator having been "very silly" in failing to make a new Will after their divorce. It was not contended, for instance, that the second defendant had received less than an appropriate portion of the matrimonial property following the divorce. Nor was it suggested that the second defendant had had any involvement in the testator's life or affairs since the divorce. The only contact between the testator and the second defendant had been the few occasions they had unexpectedly bumped into each other at the Fremantle Golf Club. Since 1991, the testator and the second defendant had gone their separate ways and lived quite separate lives.

66 While the second defendant is not affluent, her financial circumstances are nowhere near as modest, nor the demands upon them as great, as those of the first plaintiff. The second defendant has no dependants. She and her husband own their own home and have significant savings. In the circumstances, I do not consider the second defendant has the same claim upon the testator's estate as the plaintiffs.

67 On the material before me, I am satisfied the testator did not make adequate provision for the first plaintiff. I am also satisfied that, to a much lesser extent, the testator also failed to make adequate provision for the second plaintiff.

68 It is therefore necessary to turn to the second question, namely, what would be adequate and proper provision in the light of the circumstances as they now exist.

69 Although the first defendant's legal costs owing by the estate are subject to taxation, it is, I think, reasonable to expect that, based on the 2004 valuation of the property, the net amount of the estate will be in the order of $300,000. That was the amount suggested by counsel for the second defendant and I accept, based on the possibly slightly outdated valuation of the property, that that is a reasonable estimate. The estate might therefore be described in current times as a relatively modest estate.

70 It is, I think, of particular importance in this case to emphasise that the task of the Court is not to distribute the estate in accordance with its own notions of fairness. Nor is it is not to the point that a beneficiary, or in this case the sole beneficiary, of the Will might be regarded as receiving a windfall that could not have been intended by the testator. The power of the Court to alter the Will is not to remedy what appears to be an unintended outcome or to give effect to what it believes the testator would have intended had he turned his mind to the matter. The Court must limit its disturbance of a testator's Will to that which is necessary to give effect to the purposes of the Act and to no more: Pontifical Society for the Propagation of the Faith v Scales (supra) at 19. The Will should be altered only so far as the testator has failed to make proper and adequate provision for a particular plaintiff or plaintiffs. It is not, of course, necessary for the second defendant to justify her claim to the estate beyond the terms of the Will, although her circumstances are relevant to the claims of the plaintiffs.

71 In my view, the first plaintiff's needs are substantial. Her income is very modest, she has responsibility for the upbringing of her three quite young children, with some financial assistance from her former husband, she has no significant assets, and she has no provision for her future or for any contingencies. Until 1994 her home was the house that she had constructed with her former husband on the testator's land. The house which she has recently purchased is modest by any standard, and her motor vehicle is old and inevitably of questionable reliability and longevity. Her ability to generate a significant income is limited by her lack of formal qualifications and her family responsibilities. Her partner, Mr Stoffel, I accept, does not have substantial assets of his own and is earning a very modest income.

72 The second plaintiff is substantially better placed. He is not, however, wealthy and while he has significant assets, he also has significant debts. He is, however, in well-paid employment and his position is substantially better than that of the first plaintiff.

73 As I have said, I do not consider that the second defendant has the same claim on the estate as the plaintiffs. The second defendant went her own way after her divorce from the testator in 1991. She received approximately half of the matrimonial property in 1993 following a property settlement in the Family Court and she has made a new life with Mr Warnes, whom she married in 1994. Although the second defendant is not affluent, she and her husband own their own home and have significant savings.

74 In my view, a proper provision for the first plaintiff would be an amount equal to 80 per cent of the net value of the estate. On the basis of the valuation to which I have referred, that would be an amount of some $240,000. That would enable the first plaintiff to discharge her indebtedness in relation to the Queensland property, to purchase a suitable modern motor vehicle and to have a sum left over to invest to provide a modest supplement to her income and a provision for any contingencies.

75 I consider the remaining 20 per cent of the estate should pass to the second plaintiff. That would enable him to reduce the mortgage debts he currently has and to provide him with additional provision for the contingencies of life.

76 The size of the estate does not, in my view, enable any amount to be left to pass to the second defendant under the terms of the Will. The plaintiffs have greater call on the estate for their proper maintenance than the claim of the second defendant on the estate, and once reasonable provision is made for the plaintiffs, the estate will be exhausted.

77 I will hear the parties on the form of orders that should be made and on the question of costs.

Hall & Anor v Philip Roland Wilson as Executor of the estate of Anthony Lawrence Patrick Duffy

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Judgment (99 paragraphs)

Hall & Anor v Philip Roland Wilson as Executor of the estate of Anthony Lawrence Patrick Duffy (Dec) & Anor [2005] WASC 207 (22 September 2005)

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Cases Cited (8)