Higgins v Higgins & Anor

PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - JURISDICTION AND GENERALLY - GENERALLY - strike-out application - whether r 171 of the Uniform Civil Procedure Rules 1999 (Qld) applies to applications

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN - claim by adult son - prima facie case - where application based upon lack of recognition of work on partnership farm

Statutory Instruments Act 1992 (Qld), s 12

Succession Act 1981 (Qld), s 40, s 41

Supreme Court Act 1991 (Qld), s 118D, s 118E, s 134

Uniform Civil Procedure Rules 1999 (Qld), r 8, r 171, r 658

Practice Direction No. 8 of 2001 - Family Provision Applications

In re Allen; Allen v Manchester (1921) 41 NZLR 218, followed

Dey v Victorian Railways Commissioners (1949) 78 CLR 62, cited

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, applied

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

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

Re Marstella [1989] 1 Qd R 638, distinguished

Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, followed

In re Sinnott [1948] VicLawRp 48; [1948] VLR 279, cited

Re State Public Services Federation; ex parte Attorney-General (WA) [1993] HCA 30; (1993) 178 CLR 249, cited

Vigolo v Bostin (2005) 213 ALR 692; [2005] HCA 11, followed

Mr D G Mullins SC for the applicant (respondent to originating application)

Mr J O'Neill for the respondent (applicant on the originating application)

McCullough Robertson for the applicant (respondent to originating application)

O'Reilly Lillicrap for the respondent (applicant on the originating application)

[1] Malcolm George Andrew Higgins ("Malcolm"), one of two adult sons of Olga Lorraine Higgins ("the testatrix"), filed an originating application on 12 November 2004 for orders that adequate provision be made for his proper maintenance and support out of the estate of his late mother pursuant to Part IV of the Succession Act 1981.

[2] His brother, Douglas Graham Higgins ("Douglas") one of the two executors of the estate (the other is Bruce Fraser Graham, a solicitor) by application filed 23 March 2005 seeks to have the originating application summarily dismissed on the ground that it discloses no reasonable cause of action.

[3] The testatrix died on 11 May 2004. Probate issued on 21 July 2004 to the two named executors in the will. The will was executed on 5 December 1991.

No question is raised as to its validity. The testatrix was married to Frank Higgins ("Frank") who died in 2000. They had two sons, Douglas and Malcolm. Both are married - Douglas to Kaye and Malcolm to Lee. Douglas has three adult children - Jason, Allana and Sean. Malcolm has two children - Luke and Joshua. He does not say if they are adults but it may be inferred that they are from references in his affidavit.

•

gave her china cabinet and contents and certain jewellery to her granddaughter Allana;

•

gave to Douglas and Kaye any principal place of dwelling and its contents that she might have at the date of her death;

•

gave 50 per cent of the residue to Douglas and Kaye;

•

gave 25 per cent of the residue to her grandchildren Jason, Allana and Sean as tenants-in-common in equal shares; and

•

gave the remaining 25 per cent of the residue to her grandchildren Luke and Joshua as tenants-in-common in equal shares.

"I HAVE specifically not made provision for my son MALCOLM GEORGE ANDREW HIGGINS because he has been well provided for during my lifetime in that he has appropriated to himself various of my assets as well as the income derived from the farm situated at 266 Gardener Road, Rochedale, notwithstanding that the farm is owned equally by myself, DOUGLAS GRAHAM HIGGINS and the said MALCOLM GEORGE ANDREW HIGGINS. I DIRECT that any of my machinery or vehicles which are in the possession of the said MALCOLM GEORGE ANDREW HIGGINS at the time of my death be retrieved and be distributed pursuant to the terms of this my Will."

In all other material before the court the spelling of the street is "Gardner" Road not "Gardener". The correct spelling is "Gardner". Nothing turns on it.

[5] Malcolm deposes that none of the allegations in the testatrix's will about him are true.

[6] The testatrix's estate comprises her residence at the time of death at 418 Mains Road, Robertson with an estimated current market value of $480,000; a one-third share entitlement to the proceeds of sale of 303 Rochedale Road, Rochedale and 266 Gardner Road, Rochedale amounting to $1.357 million; and sundry chattels.

[7] Malcolm's assets and liabilities as at November 2004 are listed in Annexure B to his affidavit. They comprise

One third ownership of 266 Gardner Road, Rochedale and 303 Rochedale Road, Rochedale.

13/30 Powell Street, Coolangatta (Unit - 1/2 share)

Toyota Landcruiser (1998), New Holland Tractor & Farm Machinery (1/2 share)

Suncorp Metway (redraw facility for farm operations)

[8] Malcolm has not indicated his present sources of income as required by Practice Direction No 8 of 2001 nor who holds the other half share in the properties although Douglas deposes that most likely it is his wife, Lee. Nor has he deposed to any present difficulty in meeting his liabilities from his own exertion and resources, nor does he do so with respect to any possible future contingencies. His application appears to be not upon financial need but a claim upon the testatrix's estate arising out of lack of recognition of the work he and his wife have done on his parents' farm and other family farming property much of it without wages.

[9] Mr D Mullins SC for Douglas submitted that Malcolm's claim is so weak that it ought to be struck out before the assets of the estate are further eroded by embarking on mediation and, if unsuccessful, a hearing. Mr O'Neill for Malcolm contends that such an application is inconsistent with the purpose and spirit of Practice Direction No. 8 of 2001 - Family Provision Applications. That Practice Direction is lengthy and need not be set out in its entirety. Its objects are to reduce cost and delay by making information available at the earliest practicable date so that a realistic assessment of prospects can be made by all the parties; to encourage the early consensual resolution of such applications; and to minimise the number of court appearances. Clause 7 of the Practice Direction provides, relevantly, that the applicant must serve with the originating application a supporting affidavit(s) which must

"(a) show a prima facie case that the applicant is a person who is entitled to apply, that adequate provision has not been made and that the applicant is otherwise entitled to bring the application,

(b) provide details of the applicant's assets and liabilities and sources of income,

(k) contain such other material as may be necessary to support the application."

[10] The applicant must include a draft directions order in the form in the schedule with appropriate variations with the originating application and affidavit(s) which contains a dispute resolution plan designed to exhaust the prospects of consensual resolution of the application, clause 8.

[11] Within 14 days of service of the originating application, affidavit(s) and draft directions order the respondent must sign and return the draft directions order or advise any alternative proposal. When the draft directions are settled between the parties the applicant is required to file the order in the Registry and it is operative from that date. If the parties are unable to agree the terms of directions either party may list the originating application before an applications judge, clause 9(d).

[12] Whilst the Practice Direction contains many of the provisions found in Practice Direction No 7 of 1982, it seeks to avoid the practice of treating the return date of an originating summons (as it was then) for provision under Part IV of the Succession Act as a directions hearing. Instead, the present Practice Direction requires the parties to regulate that step themselves and, indeed, where possible to conclude the matter consensually without returning to court. Under the previous regime if the respondent wished to argue, for example, that the applicant was not a person entitled to claim under ss 40 or 41, or that an extension of time ought not be granted, or that the estate was entirely distributed, or some other preliminary point it would usually be heard and determined at that preliminary stage, see the discussion in Re Marstella [1989] 1 Qd R 638. Furthermore an application for provision was required to show a prima facie case.

[13] A practice direction has uncertain status in legislative terms. It is expressly not subordinate legislation and therefore does not have the same status as rules of court, Supreme Court Act 1991, s 118D(1) and Statutory Instruments Act 1992, s 12. Nonetheless practice directions are authorised to be made by the head of jurisdiction, Supreme Court Act 1991 s 118D(2) and further, the court may, in its inherent jurisdiction to control its own proceedings, give appropriate directions, Supreme Court Act 1991, s 118E. Clearly practice directions must be followed and carried out by parties. However, I see nothing in Practice Direction No 8 or its objects which would support a submission that an application to strike out may not be brought prior to the exhaustion of the prospects of a consensual resolution which is the position taken by Mr O'Neill.

[14] In Re Marstella an application for provision under Part IV of the Succession Act was dismissed at the directions hearing. McPherson J (as his Honour then was) concluded that this could be done pursuant to RSC22 r 31 (striking out as disclosing no cause of action) or RSC22 r 28 (on a point of law). But this depended upon the meaning of "pleading" which, as defined in the Judicature Act 1876, included a summons, and "action", as meaning a civil proceeding commenced by a writ "or in such other manner as may be prescribed by Rules of Court", which included a summons. The definition of "pleading" in the Supreme Court Act 1991 reproduces the definition in the Judicature Act. However the definition of "pleading" in Schedule 4 - the dictionary - to the Uniform Civil Procedure Rules ("UCPR") means, for a plaintiff, "a concise statement in a claim of the material facts ..." and for a defendant, "the defence stated in a notice of intention to defend or a defence." It includes "an affidavit ordered to stand as a pleading".

[15] Rule 171(2) of the UCPR provides that a court may at any stage of the proceedings strike out a pleading on any of the bases set out in r 171(1)(a)-(e) including that a pleading discloses no reasonable cause of action. Although the UCPR are subordinate legislation, s 134 of the Supreme Court Act 1991 provides that they prevail over the provisions of the Supreme Court Act 1995 to the extent of any inconsistency. It seems plain that the jurisdiction of the court to apply the striking out rule to an application as occurred in Re Marstella in respect of an originating summons is not available. Nonetheless, the court may at any stage of a proceeding (which includes a process started by an application, r 8) make any order, including a judgment, that the nature of the case requires, r 658. Furthermore, there is nothing in the UCPR to displace the inherent jurisdiction of the court which includes the power to dispose of the proceeding summarily, General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125.

[16] The often quoted statement of Barwick CJ in General Steel at 129 referring with approval to observations by Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 continues to provide guidance as to the proper approach to an application to dismiss proceedings summarily. After extracting some expressions from the authorities his Honour said at 129

"As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court ... the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J (as he then was) sums up a number of authorities in Dey v Victorian Railways Commissioners where he says: 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. ... But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.' Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."

[17] It is necessary, then, to turn to the case which Malcolm presents to ascertain whether it is one which can be said to be futile so that it ought to be dismissed summarily. Malcolm, Douglas and their parents purchased property at 266 Gardner Road, Rochedale in 1966 for the purpose of a family farming venture ("the farming partnership"). The purchase price was $23,000 of which Malcolm deposes he contributed approximately $8,000. It is his belief that the parents paid the balance purchase price including Douglas' share. The parents were then farming land at Sunnybank.

[18] In the first year Malcolm and his father farmed the property with a crop of potatoes the sale proceeds of which were used for improvements to the property.

Douglas worked elsewhere for wages during the week and worked on the farm, according to Malcolm, over some weekends. The testatrix did not work on this farm. Neither Malcolm nor his father received wages. Malcolm deposes that he traded his Ford Zephyr sedan for a Ford D300 truck for the farm and the cost was shown in the books of the farm as a loan due to him. Malcolm also owned a Holden truck used on the farm although it was apparently shown in the farm books as a farm asset. He deposes that he was never paid by the farming partners for the use of his truck.

[19] In 1970 Malcolm married and moved with his wife into a house on the Gardner Road property. In that year his wife worked outside the farm and her wages provided their living expenses. The 1969/70 tax returns show a loss distributed equally between the farming partners. From December 1970 Malcolm deposes that his wife worked full time on the farm but did not receive any wages. Malcolm also assisted his parents on their farm at Sunnybank. He gives no information about how long his parents had farmed this property. It seems they leased extra farming land next door to their Sunnybank property. From about mid 1970 Malcolm deposes that Douglas worked on the Gardner Road farm until a further property was purchased at 303 Rochedale Road, Rochedale for the sum of $60,000. It is likely that it was adjoining land. The deposit for that property was provided from profits from the Gardner Road farm and a mortgage taken out for the balance secured over the new property and the Gardner Road farm. At about this time Douglas married and he and his wife moved into a house on the Rochedale Road farm. The wives assisted their husbands and Frank to plant and harvest crops on both properties.

After approximately two years the new farm was paid off and the testatrix started working on it. Malcolm and Douglas' wives did not receive wages for their work on the farms. The farming partners split the profits equally at the end of each year.

[20] Eventually Douglas took over farming the Rochedale Road farm and Malcolm took over the Gardner Road farm. Their wives continued to work on the farms.

At the end of the 1979/80 financial year Frank retired and looked after the five grandchildren and from that time Malcolm deposes that the wives were paid wages for their work. He deposes that Douglas' wife stopped working for a year and someone outside was employed in her place.

[21] In 1980 Malcolm and his wife went to the Barrier Reef, presumably on an extended holiday, and for part of that time the testatrix was with them. Malcolm deposes that the 1980/81 tax return for the farm shows wages of $6,500 being allocated to Douglas and $2,500 to the testatrix. Malcolm deposes that this was the only time that any of the farming partners received wages for work done on the farm.

[22] In 1981 a piece of land was subdivided off the Gardner Road farm on which a new house was built for Malcolm and his family. According to Malcolm, the land was valued and an appropriate adjustment made in the partnership books showing a debit to his advance account and a credit to the other partners' accounts. Malcolm deposes that his account went from a credit of $11,100 to $4,441 whilst Frank's account showed a credit of $14,769 being accrued wages and money due to him for the purchase of machinery. In the financial year 1982/83 the farming partners changed accountants and the funds owed to Douglas, Malcolm and the testatrix, according to Malcolm, "disappeared from the accounts".

[23] In 1993 Malcolm and Douglas' wives took jobs on other farms to receive better wages although Malcolm deposes that his wife still helped with work on the Gardner Road farm. By this time the parents were elderly, Frank being 85 and the testatrix 75 years and were unable to work. In later years it seems Malcolm and Douglas took over the farm expenses including rates, insurance and maintenance. Malcolm makes no further reference to the Sunnybank farm operated by his parents. A Hino truck was purchased, presumably by the farming partnership and kept at the Gardner Road farm as a farm asset. Malcolm deposes that he used the truck for marketing the produce from both the Gardner Road and Rochedale Road farms and it was available for Douglas to use as he wished. Malcolm deposes that he spent his own time and money repairing the truck. After Douglas had purchased his own trailer Malcolm took over the expenses of running the truck including registration and insurance. He deposes that in 2004 he was obliged to spend several thousand dollars on major repairs to the vehicle.

[24] When Frank died in 2000 Malcolm became aware that the Gardner Road and Rochedale Road farms were held by the farming partners as joint tenants and not as tenants-in-common in equal shares as Malcolm, at least, had thought. Malcolm, Douglas and the testatrix subsequently became tenants-in-common in equal shares.

[25] Malcolm deposes that the testatrix confirmed to him after Frank had died that she and Frank had arranged their affairs so that each had left his or her estate to the other and following the death of the survivor the assets would be left in equal shares to Douglas and Malcolm in recognition of the work which each had contributed to the farms and in recognition that for many years Malcolm had not received wages for his work on the Sunnybank farm, the adjacent leased farm and the partnership farms at Gardner Road and Rochedale Road.

[26] Malcolm contests the testatrix's statement in her will that he had been well provided for whilst she was alive and that he had appropriated to himself various of her assets. He points to the years working without wages; his payment for the subdivision at 266 Gardner Road, Rochedale at an arm's length valuation with appropriate adjustments being made to the farm accounts. He deposes to an informal agreement amongst the farming partners that he would farm the Gardner Road property and Douglas the Rochedale Road property and in due course he received no income from the Rochedale Road farm and retained the income from the Gardner Road farm. He and Douglas drew wages after the testatrix retired.

He believes that the testatrix when referring to property taken by him must have been referring to a Lamborghini tractor which she had purchased well in the past. According to Malcolm she wanted him to buy the tractor but he did not have sufficient funds. Malcolm accepts that he has had the tractor on his farm but has paid all the repair, maintenance and running costs for the tractor and for the Hino truck and says that Douglas had the benefit of a shed paid for by the parents located on the Rochedale Road farm.

[27] Malcolm concedes that the testatrix assisted him to purchase a racing yacht but she became upset about its use and it was sold. He deposes that he repaid her the amount of money that she put into its purchase "even though I made a loss on the sale of the boat". He says his mother believed he had made a profit which he did not share with her.

[28] Malcolm refers to "another motor vehicle" which Frank had purchased for him and which he had used for a number of years but ultimately sold and gave the proceeds to Frank. He thinks his father did not tell his mother of this and she was under a mistaken belief that the car had been given away to a family member.

[29] Malcolm maintains that it was only through his efforts and those of his wife that his parents' estates were as valuable as they were. He complains that he contributed to a greater degree than Douglas who had worked outside the farming partnership in the first few years. He deposes that he was always told by his parents that although he did not receive wages he would be rewarded by receiving a half share in their estate and he continued to work relying on those promises. He does not suggest what he might have done in the absence of the promises, for example, sell out of the partnership and work elsewhere for greater benefit.

[30] Malcolm deposes that he and his wife had good relations with his parents, helped look after their house and garden in their later years as well as taking them away for weekends, on outings and paying for the insurance and registration of the testatrix's car.

[31] Douglas has not joined issue with Malcolm about Malcolm's contribution to their parents' estate. To a large extent he has merely confirmed the assets of the estate, exhibited the contracts of sale for the farm hands and other formal matters.

[32] At first consideration Malcolm's prospects look exceedingly poor. He is, so far as he reveals, an able-bodied man of unstated age who has assets of over $2 million and, added to those of his wife (it may be inferred) they are considerably more.

The farming land has been sold but whether Malcolm has retired from remunerative employment is not revealed. Neither does he say how he meets his living expenses but it is clearly not financial need which has prompted this application. His children have been generously provided for by the testatrix.

[33] Section 41(1) of the Succession Act provides

"If any person (the "deceased person") dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person's spouse, child or dependent, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependent, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant."

[34] The general structure of family provision legislation, as it still tends to be described, in all the Australian States is similar. The High Court has recently affirmed that an application for such provision is a two-stage process, Vigolo v Bostin (2005) 213 ALR 692; [2005] HCA 11, decision of 9 March 2005, agreeing with the approach in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201. The first stage calls for a determination of whether the applicant has been left without adequate provision for his proper maintenance and support. The second stage arises only if that determination is made in favour of the applicant and requires the court to decide what provision ought to be made.

[35] The first stage is described as "the jurisdictional question", Singer v Berghouse at 209 per Mason CJ, Deane and McHugh JJ and the starting point must always be the legislation. The court is required to determine not antecedent rights of the applicant but whether adequate provision for proper maintenance and support has been made by the deceased by will or intestacy. There are numerous decisions as to the appropriate approach to these and similar expressions because they are expressions of value and will depend for their content on the attitudes of the community when the court is seized of the matter as much as an appreciation of previous relevant decisions. Much has been written about the "gloss" of expressions such as "moral duty" in seeking to give meaning to the words used in the statute. The cases are reviewed extensively in Singer v Berghouse and Vigolo v Bostin and need not be considered again here.

[36] The statement by Salmon J in In re Allen; Allen v Manchester (1921) 41 NZLR 218 at 220-1 has long been accepted in Australia as the correct approach.

"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 interests of his widow and children had he been fully aware of all the relevant circumstances".

Mason CJ, Deane and McHugh JJ said at 209 in Singer v Berghouse

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

Gummow and Hayne JJ in Vigolo v Bostin explained this passage at para 70

"It is apparent that their Honours were not using the term 'gloss' in its milder sense of an epexegetical comment or explanation. Rather, they were using it in the same sense as Williams J had done in Coates, that is to say, of a paraphrase which is apt to mislead."

[37] Gleeson CJ in Vigolo v Bostin thought "moral duty" a useful way to express the value judgments which must necessary be made in considering applications under this legislation. Callinan and Heydon JJ thought that it was not wrong to use this expression or similar not being a concept alien to the language of the legislation. Gummow and Hayne JJ agreed with the majority judgment in Singer v Berghouse that such expressions should be eschewed. In truth there seems to be little to choose between the approaches. All judges agree that the words of the statute must govern the approach of the court. Whether expressions such as "moral duty" assist may be very much a question of inclination because all recognise that value judgments will be made. The observations of Gibbs J in Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 502 were referred to with approval by Mason CJ, Deane and McHugh JJ in Singer v Berghouse at 211

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

"It is clear from this passage that his Honour was conveying that the primary judge was in essence making a value judgment in much the same way as a primary judge makes a sound discretionary judgment in personal injury cases when he or she assesses the quantum of damages for pain and suffering, and for loss of the amenities of life."

"The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) 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."

[38] All the judges in Vigolo v Bostin accepted that the totality of the relationship between an applicant and the deceased was of particular importance. Callinan and Heydon JJ in Vigolo v Bostin speaking of the appropriate approach to the task said at para 122

"We do not therefore think that the questions which the Court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend on all the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means and competing claims of all the potential beneficiaries must be taken into account and weighed with all the other relevant factors."

[39] Observations have been made about an application by an able-bodied adult son in earlier cases. Fullagher J in In re Sinnott [1948] VicLawRp 48; [1948] VLR 279 said at 280

"No special principle is to be applied in the case of an adult son but the approach of a court must be different. In the case of a widow or an infant child, the Court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported but an adult son is, I think, prima facie able to 'maintain and support' himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act."

That statement was approved in Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 147.

[40] Mr Mullins submitted that Malcolm's application bears a striking resemblance to the facts in Vigolo v Bostin which was an application by an adult son for provision out of his father's estate. He failed at first instance and on both appeals.

[41] The appellant was the eldest of five children. His father died leaving an estate worth almost $2 million. The testator made no provision for the appellant or for his (the testator's) wife. His estate was divided equally between his four other children. The appellant was aged 40 at the time of his father's death and he and his wife owned assets worth in excess of $2 million. Three of his siblings had net assets jointly with their spouses of approximately $200,000 and the fourth of $70,000.

In the early 1960's the testator and his wife commenced farming on a conditional purchase property in Western Australia. About a decade later they bought two adjoining properties. A decade later in 1981 the conditional purchase property was converted to freehold land and registered in the name of the testator. The appellant left school aged 16 in 1973 and worked on the properties with his parents.

A few years later he took a part time job as well. In 1978 when he was 21 he had saved money and told his father that he wanted to buy his own farm. The testator persuaded him to buy jointly with his parents a particular farm property which they did and all three of them became partners in the business conducted on the two farming properties. The testator promised the appellant than when he died the principal farm would be inherited by him. The partnership was continued over the next 15 years and the testator's promise was repeated several times. In 1988 the assets and liabilities of the partnership were transferred to a company in which the three former partners were equal shareholders.

[42] Over time the appellant bought other assets including another farming property.

It appears that this accumulation of personal assets outside the family business partnership was resented by the testator and led to a dispute and the break up of the business relationship. The terms upon which the appellant and his parents divided their assets were contained in a deed of settlement in 1993. The appellant withdrew from the company and the company property and other jointly owned assets were distributed between the appellant, his father and mother on an agreed basis.

The appellant's mother made a gift to him of the value of her interest in the original farm property but, as part of the settlement the appellant was required to purchase the testator's interest in the farm at market value. At trial it was found specifically that the appellant was adequately and proportionately compensated for his contributions to the farming business and, compared to with his siblings, the opportunities he was given by his parents were to his significant financial advantage.

[43] Gleeson CJ concluded that when regard was had to the size of the testator's estate, the age and financial circumstances of the appellant and the comparative situation of the appellant's siblings and their claims on the testator's bounty it was impossible to conclude that the testator left the appellant without adequate provision for his proper maintenance and advancement. His Honour noted at para 37,

"The finding that the appellant was adequately compensated for his contribution to the family farming business and, indeed advantaged by comparison with his siblings is significant."

His Honour concluded that the testator's promise relating to the original farming property had to be considered in the light of the dissolution of the financial relationship between the appellant and his parents and agreed at arms length on proper commercial terms. Any grievance on the part of the appellant did not amount to a claim that demanded testamentary recognition by the testator. Similarly, the other members of the court emphasised the attention required by the legislation to the whole of the circumstances which included not only the efforts of the appellant in building up the family assets over many years but the effect of the breakdown of the substratum of the family relationships upon which had depended the continuation of the representations made to the appellant by his father which were changed fundamentally by the entry into the deed of settlement.

[44] Returning to Malcolm's application; when the testatrix executed her will on

5 December 2001 after the death of her husband in 2000 family expectations had changed significantly. The three farming partners had entered into two contracts on 1 November 2001 to sell the two farm properties at Gardner Road and Rochedale Road for $2,270,000 and $1,802,000 respectively. They were interdependent contracts and subject to subdivisional planning approval. The contracts were not finally completed until 28 February 2005 although an earlier completion date was contemplated with the potential for extensions due to the vagaries of the planning approval process. What might have been a natural and proper expectation when the two properties were being farmed that each son would, in effect, be left half of the surviving parent's partnership's share so that each would have a farm must have ceased when the contracts were executed. Each partner stood to make a significant profit from the surrender of the farms for subdivision. There was then, on the material, no attempt to bring the partnership accounts to bear on the distribution of the purchase moneys. If it continues to matter, Malcolm has obtained one third of the proceeds of sale for his original one-third contribution to the purchase price of the Gardner Road property which, in effect, became his. The grievances which he expresses about who of himself or Douglas contributed more hours in the early few years to the Gardner Road farm or whether his wife or Douglas' wife made a greater contribution are insignificant in the overall picture of decades of working the farm. Those properties provided a livelihood to the sons and their families.

Malcolm concedes that Frank purchased machinery for the farm and worked without taking out wages. Frank, no doubt, gave farming and marketing advice to his sons. He looked after the grandchildren to free the parents to earn further income. Malcolm subdivided land from the Gardner Road farm on which he built his residence which he still retains, presumably with his wife. He values his 1/2 share at $150,000. The debit in his partnership account for the land has disappeared with the equal split of the purchase moneys. These are all matters to put in the counter-balance against Malcolm's complaints. An application under Part IV of the Succession Act is not a taking of accounts such as might occur as a consequence of finding a trust of some kind.

[45] A prima facie case was described by McHugh J in Re State Public Services Federation; ex parte Attorney-General (WA) [1993] HCA 30; (1993) 178 CLR 249 at 303 thus

"... the raising of a prima facie case means that, in the absence of further evidence, there is evidence upon which the tribunal of fact can, but not must, find for the party raising the prima facie case."

[46] Malcolm must be assumed to have "put his best foot forward" evidentially when he brought his originating application. He has not indicated through his counsel or by affidavit that there is further material which he wishes to have the opportunity of adducing. In December 2004 the executors' solicitors sought further material in proper form of his sources of income as required by the Practice Direction to no avail. It may be inferred that this information would not enhance his application. Whether the testatrix misunderstood the matters to which Malcolm has drawn attention is not of significance to the application. She must be taken to have been aware of his very comfortable financial circumstances. She provided for all of her grandchildren equally in her will and generously. She was conscious of the changed circumstances brought about by the contracts to sell the farm lands. No doubt Malcolm had and continues to have a sense of grievance that the testatrix did not provide for him in the same way as she provided for Douglas in her will.

That is not the purpose of what is, after all, intrusive legislation into the freedom of a deceased person to dispose of his or her estate as he or she desires whether by will or by intestacy. The intrusion is justified if the deceased person fails to make

"... adequate provision ... for the proper maintenance and support ... of the deceased person's ... child". I cannot conclude that that the testatrix failed in that relevant sense.

[47] In that circumstance Malcolm's application is bound to fail and the application to dismiss the originating application should be granted.

2. Dismiss the originating application in which Malcolm George Andrew Higgins seeks orders pursuant to Part IV of the Succession Act 1981.