(See also per Maxwell J at 326.)
35 The context of this statement was the rejection of a submission that perjury committed by the plaintiff in her application for provision disentitled her from relief.
36 In Price v Roberts (23 September 1992, Court of Appeal, unreported) Clarke JA, with whom Handley JA agreed, said (at 6):
" It cannot be doubted that the character and conduct spoken of are related to the purposes of the Act but I do not think that there should be an inflexible approach to the application of s 9(3)(b) of the Act nor should the field of inquiry be limited by the terms of the illustrations given by the judges in Gilbert . ...
Because the statutory provision is expressed in such general terms I do not think that there should be any qualification upon the character or conduct taken into account except insofar as it must be borne in mind that it must be relevant to the purposes of the Act. "
37 In Price v Roberts, the plaintiff was the deceased's daughter for whom no provision was made by the will and for whom in ordinary circumstances, provision would have been required. But the plaintiff had been convicted of murdering her husband. Clarke JA said (at pp 7-8):
" The appellant had been convicted of a very serious crime and although the deceased was not, in the strict sense, a victim of that crime the evidence supported two conclusions. First, that the deceased's attitude to the appellant changed following the conviction and, secondly, that the need which the appellant established was contributed to in a significant way, if not caused by, her own criminal conduct.
In these circumstances I do not think that it can be said that the Master was wrong when he concluded that sensible members of the community would not have felt that in the circumstances the appellant should have been provided for in the will. "
38 Here also, the plaintiff's criminal conduct affected the deceased. She felt that she was shunned and was embarrassed by the publicity.
39 Moreover, the plaintiff's present impecuniosity is the direct result of the confiscation of his property by United States authorities. That confiscation is the direct result of his crimes. That is so even if, as the plaintiff said, the property confiscated was not the proceeds of crime.
40 A criminal record is not as such a bar to a claim under the Act. A good example is Hoadley v Hoadley (17 February 1987, Young J, unreported). There, Young J (as his Honour then was) made an order for provision in favour of an adult child who had spent 20 years in prison, where his Honour considered there would be good prospects of rehabilitation which an order for provision would promote.
41 In this case it was submitted that the plaintiff, having served his sentence, had paid his debt to society for his crimes and should not be further punished by being deprived of any part of the estate to which he otherwise had a proper claim under the Act. It was also submitted that the plaintiff was contrite and acknowledged his wrong-doing. As to the latter, it is true that the plaintiff acknowledged his criminal conduct. He could hardly have done otherwise. I do not regard that as an act of contrition. It is only partly true to say that the plaintiff has paid his debt to society. He admits having engaged in unspecified criminal conduct during the 1980s involving the drug trade for which he has not been tried and convicted. Nonetheless, he is not to be punished for that by now being denied provision.
42 In my view, the plaintiff's submission mischaracterises the true question. It would not be further punishment for the plaintiff for him not to receive provision from the estate. Rather, that would be a recognition that his conduct, when considered with all other factors, is such that he does not have a legitimate claim on the deceased's testamentary bounty. Refusing his claim under the Act means that he is not relieved from the financial predicament to which his own crimes have brought him. In that sense, to deny him a claim under the Act means that there is no mitigation of the punishment entailed by the forfeiture of his property. However, punishment, or mitigation of punishment, is not a relevant consideration. Rather the question is whether his character and conduct, when considered with all the other relevant circumstances, is such that, considering matters as they presently stand, no provision need be made for his proper maintenance or advancement in life out of the estate.
43 The deceased was well able to judge the relative desserts of her children. The defendant had substantial claims on her as she recognised. The plaintiff's character and conduct, the fact that his financial needs are due to his own fault, the shame his conduct brought on the deceased and the family, and the very slight contact he had with his mother during his adult life, indicate that he does not have a legitimate claim on his mother's property. That is so notwithstanding his impecuniosity, his health problems and his belated care for his mother at the very end of her life. I do not think sensible members of the community would feel that in circumstances the plaintiff should have been provided for in the will even had the testatrix known of the plaintiff's current financial circumstances and his current state of health.
44 The defendant did not press for an order for mesne profits pursuant to the cross-summons. The defendant said that the benefit that the plaintiff has had in being able to live rent-free in the property since his mother's death was a reason for concluding that he was not entitled to further provision.
45 For these reasons I order that the summons be dismissed and that paragraph 3 of the cross-summons be dismissed. I order that the plaintiff pay the defendant's costs of the proceedings. Exhibits may be returned after 28 days.