68 The financial statements of the Company for the year ending 30 June 1992 (Ex B) recorded a debt to the plaintiff for a loan of $96,442.55. There is nothing in those financial statements describing the nature of that loan, however it probably relates to the plaintiff's "accumulated wages" (tr 199). There is nothing in the financial statements to suggest that there was any debt owed by the plaintiff to the Company in the amount of $247,000 or at all. The 1991 financial statements of the company record $5,000 for that and the previous year for superannuation for the plaintiff. The 1992 financial statements do not include any amount for superannuation for the plaintiff for that year, although they do record $5,000 for superannuation each for the defendant and Barry.
69 There is a mortgage recorded in the 1992 financial statements as a non-current liability in the amount of $230,000 that appears to relate to the property Tumella (tr 234). Even if this amount were taken into account in working out the plaintiff's "share" of the Company/Partnership assets, he would only have been liable for one third of that figure, $76,666. Taking that figure into account and adjusting it against the $247,000 results in an amount of $170,334.
70 I am satisfied that at the time of the termination of the Partnership the plaintiff received less than the "share" intended for him by the deceased. He received $730,000 less in land value. He was entitled to the benefit of the amounts of $170,334 and $96,442 or assets to those values and an amount of $51,970 or assets to that value to better reflect his share of the livestock plant and equipment. I am satisfied that the assets that the plaintiff received were $1,048,746 ($730,000 plus $170,334 plus $96,442 plus $51,970) less in value than the "share" intended for him by the deceased at the time of the termination of the Partnership. However this amount needs to be considered in light of the fact that the plaintiff was able to continue the business of the Hannaford Horse Stud in his own right. There is no evidence of the value of the Horse Stud but it is clear that the plaintiff and his family have built it up to a point where, as the plaintiff admitted in cross-examination, it is a "viable operation".
71 As the plaintiff did not receive the intended "share" at the time of the termination of the Partnership the deceased was under a misapprehension at the time she made her Will. I am satisfied that if the deceased had understood at the time she made her Will, that the plaintiff received less than his "share" at the time of the termination of the Partnership, she would have made provision for him in recognition that the did not receive that share. This conclusion is supported by the previous wills made by the deceased in which provision was made for her three sons to share equally in her estate. It was only in 1992 that this provision changed.
Provision for the plaintiff out of estate
72 There was no provision for the plaintiff out of the deceased's estate. The deceased appointed the defendant as the Governing Director of the Company on her death in the knowledge that she had not issued any further shares in the Company and in the knowledge that the defendant and Barry were equal shareholders of the Company.
73 The fact that the deceased was under a misapprehension at the time that she made her Will does not automatically result in a finding that the provision was inadequate for the proper maintenance, education and advancement in life of the plaintiff. However it is clear that the deceased intended that the plaintiff's proper maintenance, education and advancement would be catered for in the distribution in 1992.
74 In Delaforce v Simpson-Cook [2010] NSWCA 84 Handley AJA, with whom Allsop P and Giles JA agreed, said that with "net assets of $2.5 million" the applicant in that case had no need for provision for her maintenance, education or advancement in life": at [98]. Although qualifying this statement by saying that if the applicant "did have such a need the order did not address it", it might appear that the Court was expressing the view that if one has net assets of $2.5 million there is no demonstrable need for provision under the Act. I do not read the judgment to preclude an order being made under the Act in all cases in which there may be net assets of $2.5 million. Much will depend upon the facts of each case including the financial burdens that may be placed upon an applicant in the future by reason, for example, of an expected inability to work and an absence of any superannuation benefits or a fund to assist in supporting the applicant and his or her family in the future. Circumstances may vary dramatically from case to case. For instance, in Delaforce the property in question was in the inner west of Sydney and not used for the generation of income. In the present case, Inverness is a rural property used to generate income and exposed to the vagaries of the weather including severe drought.
75 As outlined earlier, the plaintiff's net assets amount to $1,701,866. However his capacity to service the loans will depend in part upon his capacity to continue working. That is at some risk having regard to the unchallenged medical evidence in relation to his capacity to work. Although the plaintiff is not presently in a precarious financial position, his capacity to develop his property into a more viable operation undoubtedly depends upon a capacity to borrow and purchase additional land. In commenting upon how the plaintiff could expand his operations in this regard the defendant gave evidence that he would have to either borrow the money to buy land or agist cattle (tr 206). The cost of agistment itself is very high. For instance in the year ending 30 June 2009 the Company recorded income from "Cattle Trading" at $1,605,795 with an agistment expense of $581,657. With expenses at $57,797 over income, the plaintiff's present position is that to expand the business he would have to apply for further borrowings and to make ends meet he would have to sell some cattle and/or horses.
76 In those circumstances although the net assets may appear high, as was the case in Delaforce v Simpson-Cook, the relative position of the plaintiff and the special circumstances of this case in relation to the testator's misapprehension, satisfies me that the provision made for the plaintiff was inadequate for his proper maintenance, education and advancement in life. Accordingly I am satisfied that an order for provision should be made in the plaintiff's favour.