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 daughter - Competing moral claims.

Testators Family Maintenance Act 1912 (Tas), s3(1).

Bosch v Perpetual Trustee Company Limited [1938] AC 463; Vigolo v Bostin [2005] HCA 11; (2005) 213 ALR 692, applied.

Applicant: K B Procter SC and A G Burrows-Cheng

Judgment Number: [2006] TASSC 13

ELAINE HOPE v TASMANIAN PERPETUAL TRUSTEES LIMITED

(ABN 97 009 475 629) TIMOTHY JOHN SECCULL, PAUL SECCULL,

1 The applicant's case is that the terms of the will of the testatrix are such that she has been left "without adequate provision for [her] proper maintenance and support", and therefore she is entitled to an order making further provision for herself out of the estate of the testatrix in accordance with the provisions of the Testators Family Maintenance Act 1912 ("the Act"), s3(1).

2 The testatrix was the applicant's mother. She died on 22 April 2004, aged 85 years. At the date of her death, the testatrix was a widow, her second husband, Cyril, having died on 15 November 1988. There were two children of the testatrix's first marriage, but none by her second marriage. One of those children, Christine, died from cancer in February 2000. The applicant, born on 20 October 1938, was aged 65 at the date of her mother's death. She married when she was aged 22. The second, third and fourth respondents are children of this marriage. The applicant and her husband separated in the 1970s. There was some uncertainty in the evidence about this date, but it is likely to have been in about 1977. The applicant has not remarried.

3 It is convenient to refer to the second, third and fourth respondents as the applicant's children, or individually by name. Timothy Seccull was born on 8 January 1963 and was aged 41 at the date of the testatrix's death. He is a barrister. Paul Seccull is a building contractor. He was aged 37 years at the date of the testatrix's death. Melissa Stafford (named Melissa Gill in the title to the action) was aged 36 at the date of the testatrix's death. She is employed part time selling machinery and equipment to hospitals and universities. All the applicant's children are married, have children and live in Melbourne.

4 The third respondent, Miriam Hope, is the applicant's niece, being the only child of her deceased sister, Christine. Miriam Hope was 33 years of age at the date of the death of the testatrix. She is a single parent caring for two children, one of whom has a disability. Like her cousins, she, too, lives in Melbourne.

5 There are no other persons who are entitled to make a claim pursuant to the Act, s3(1).

6 The testatrix's last will was made on 2 May 2001. She appointed the first respondent as her executor and trustee. After making provision for the payment of debts and conferring on Melissa Stafford the right to select some household and personal items as specific bequests, the testatrix divided her estate into seven equal parts. In the events that have happened, the will directed that one seventh pass to the applicant, one seventh to Miriam Hope and the remaining five sevenths to be divided equally between the applicant's children and Miriam Hope.

7 As at 31 January 2006, the testatrix's estate totalled $1,432,655.02, after adding back in an interim distribution of $250,000 that was made prior to the hearing of this application. According to the terms of the will the estate is to be distributed as follows:

8 The first question is whether a bequest to the applicant of $204,665 has left her "without adequate provision for [her] proper maintenance and support".

9 I surveyed the relevant law in Gerlach v Public Trustee 153/1997 and venture to restate part of my reasons for judgment in that case as follows:

For many years it has been settled law that proper consideration of an application made pursuant to the Act, s3, or its equivalent in other States, requires a two stage approach. The first stage is a question of fact. The second stage involves the exercise of a discretion. See McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566; White v Barron [1980] HCA 14; (1980) 144 CLR 431; Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490. The first stage involves making a finding whether the applicant has been left "without adequate provision for [her] proper maintenance and support". If this finding is made in the negative, the second step does not fall for consideration at all. In order to make the appropriate finding of fact on the first step, it is necessary to ascertain:

Of course, the moral claim of the applicant has often been considered from the other point of view, viz, the moral duty of the testator. The use of the expressions "moral claim" and "moral duty" have long been used in this context. The classical source of these expressions is a passage from a judgment of Salmond J in In re Allen (Deceased) Allen v Manchester [1922] NZLR 218 at 220 which received the imprimatur of the Privy Council in Bosch v Perpetual Trustee Company Limited [1938] AC 463 at 469:

"The Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. 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."

The use of the expressions "moral claim" and "moral duty" has been the subject of judicial criticism. See, eg, Coates v National Trustees Executors and Agency Co Ltd (1956 - [1956] HCA 23; 1957) 95 CLR 494 at 522 - 523 where Fullagar J said:

"If the result of the cases is that the expression 'breach of moral duty' has now to be regarded as a literal statement of the condition on which jurisdiction depends, then it is indeed to be regretted that any such term as 'moral duty' was ever used in connexion with testator's family maintenance. It is perhaps in any case to be regretted. No such term is used in any of the relevant statutes, and it is surely wrong to say that every order in favour of an applicant under any of the statutes has involved a moral reflection on the testator. But, however this may be, the present question is whether it necessarily follows from the numerous references in the cases to 'moral duty' that a court, in considering whether a will does or does not make adequate provision for an applicant's maintenance and support, can never look at events which could not reasonably have been anticipated by a testator. In my opinion, no such conclusion follows. To say that it does seems to me to misunderstand the purpose and significance of what may be called the 'moral duty test'. It is to turn a guide into a tyrant, a commonly convenient factual test into a rule of law. The fact that this error is constantly committed in all sorts of cases does not make it any the less an error."

See also Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 158 - 159; Goodman v Windeyer (supra) at 504 - 505. Despite the critics, "moral claim" and "moral duty" have underpinned the determination of the question of whether the applicant has been left without proper maintenance and support and have been responsible for fixing death as the time at which the Court has to ascertain whether the terms of the will or the intestacy have so left the applicant. See, eg, Coates v National Trustees Executors and Agency Co Ltd (supra); Delacour v Waddington [1953] HCA 64; (1953) 89 CLR 117. However, it is to be noted that the Act, s3(1), does not mention either "moral claim" or "moral duty". Cf Family Provision Act 1982 (NSW) s23(b)(ii).

In his book Family Provision after Death, Mr Dickey says at 78:

"This use of the term 'moral' has been criticized on the ground that it misleadingly suggests that personal moral qualities are involved. The term 'moral' is, however, too well established in the vocabulary of the law of family provision to be eschewed now."

The learned author has been proved wrong. The majority judgment in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209 referred to part of the passage from the judgment of Salmond J in In re Allen (Deceased), Allen v Manchester (supra) that I have cited above and said:

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

Their Honours then cite by way of footnote, Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (supra); Goodman v Windeyer (supra) to which I have referred.

The above obiter dicta has caused quite some consternation. In Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24, Kirby P (as he then was) referred at some length to Murphy J's judgments in Hughes and Goodman and expressed the view at 29 that the risk of using expressions such as "moral duty" was that they were likely to import notions of morality such as "disqualifying conduct, personal conduct, sexual acts, drinking habits etc". He dismissed the suggestion that the passage in Singer that I have just set out was a mere slip or inadvertence. Handley JA wrote a learned judgment declining to follow the obiter dicta passage in Singer. Sheller JA wrote an equally learned judgment and took the opposite view. Handley JA at 35 rhetorically asked how the Court was going to discharge its duty to ascertain what provision ought to have been made in the absence of any antecedent legal duty. He said, "[t]he only possible yardstick, apart from the idiosyncratic views of each judicial officer, is that of moral duty and parliament used this very concept in s 23(b)(ii)." Sheller JA had no difficulty answering his learned brother's question. He simply cited the following passage from the majority judgment in Singer at 209 - 210:

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co [1938] AC at 476. The determination of the first stage in the two-stage process 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 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. The determination of the second stage, should it arise, 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 applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder [1951] HCA 44; (1951) 82 CLR 645, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

In Neihoff v Neihoff [1995] VicRp 61; [1995] 2 VR 356, Eames J found it unnecessary on the facts before him to determine whether he should abandon the moral duty test or apply it, for this was a case involving a special claim by an adult son. However, in Collicoat and Others v MacMillan and Another, Victorian Supreme Court, Unreported 30 October 1995, Ormiston J referred to the passage I have set out from the majority judgment in Singer and said:

"With the very greatest of respect, I find it remarkable that in this area of the law (or in any other) a long-accepted and flexible test based on justice, wisdom and moral obligation should no longer find acceptance. What is more remarkable, likewise with respect, is that the basis for the observation (which appears from footnote 14 on the same page) are two judgments of Murphy, J which appear to me to misconceive the nature of the moral obligation described in the authorities."

In Grey v Harrison [1997] 2 VR 359 Tadgell JA with whose comments Charles JA agreed, was moved to write at 360 with respect to the majority obiter dictum in Singer:

"Some would respectfully think it unfortunate that a court of last resort should have chosen to pass so enigmatically upon the very well-known, frequently endorsed and often applied statement of Salmond J, now of some 75 years standing."

So far as I am aware, the passage from the majority judgment in Singer has only been referred to once in this jurisdiction and on that occasion the learned judge found it unnecessary to pass comment on it. See O'Connor v Tasmanian Trustees Ltd B47/1995 at 7.

10 Since writing the foregoing paragraphs, Singer has been referred to on a number of occasions in this Court but the issue raised by the joint judgment concerning references to "moral duty" or "moral obligation" has not been discussed at any length. In In re MacKinnon [2002] TASSC 3, Crawford J said, at par60, that he tended to the view that such expressions "may assist a judge in a particular case, although they are not defining terms which are used in the Act".

11 In 2005, the High Court revisited the role of "moral claim" and "moral duty" (if any) in the Testators Family Maintenance legislation in Vigolo v Bostin [2005] HCA 11; (2005) 213 ALR 692. This case concerned the Inheritance (Family and Dependants Provision) Act 1972 (WA). The terms of s6(1) of that Act are relevantly indistinguishable from the provisions of the Act, s3(1). All the members of the court in Vigolo confirmed that the subsection required the court to undertake a two-stage enquiry. The first involved a fact-finding exercise and the second, the exercise of a judicial discretion. The latter was dependent upon the former being found in favour of the applicant. With respect to the first question, all the members of the court in Vigolo affirmed the following statement from Singer v Berghouse at 209 - 210:

"The first question is, was the provision (if any) made for the applicant 'inadequate for [his or her] proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co ([1938] AC at 476). The determination of the first stage in the two-stage process 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 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."

12 Each of the judgments in Vigolo spent considerable time debating the relevance of expressions such as "moral duty" and "moral obligation" in the construction and application of the Testators Family Maintenance legislation. In result, I think it is fair to say that Mr Dickey's view, referred to in par13 of these reasons, that such expressions are "too well established in the vocabulary of the law of family provisions to be eschewed now" has proved to be correct after all.

13 In Vigolo, Gleeson CJ shared that view quite strongly. At 698 his Honour expressly disagreed with the doubts expressed by Mason CJ, Deanne and McHugh JJ in Singer at 209, that the reference by Salmond J in Allen v Manchester (1920) 141 NZLR 218 at 222 to "moral claim" provided useful assistance to an elucidation of the statutory provisions. However, Gleeson CJ went on to say, also at 698:

"I add, however, that it is one thing to seek assistance in elucidating statutory provisions, and another to substitute judicial exposition of statutory purpose for the legislative text. Their Honours went on to describe references to 'moral obligations' as a gloss on the statutory text. If, by that, they meant that such references are not to be used as a substitute for the text, I agree. If they meant that such references are never of use as part of an exposition of legislative purpose, then I regret that I am unable to agree. (A detailed examination of this aspect of Singer v Berghouse appears in the judgment of Ormiston J in Collicoat v McMillan [1999] 3 VR 803 at 815-821.)"

14 The learned Chief Justice summed up his view with respect to such expressions as "moral claim" and "moral duty" at 700, as follows:

"In explaining the purpose of testator's family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description 'moral'. As McLachlin J pointed out in the Supreme Court of Canada, that is the way in which courts have traditionally described them. Attempts to misapply judicial authority, whatever form they take, can be identified and resisted. There is no occasion to reject the insights contained in such authority."

15 With respect to the usefulness of expressions such as "moral duty" and "moral claim", Callinan and Heydon JJ took the same view as Gleeson CJ, albeit not as wholeheartedly. After referring to the doubts expressed by the majority judgment in Singer to which I have referred, their Honours said, at 719:

"We would not be reluctant, at least in some cases, to use the expressions 'moral duty' and 'moral obligation', and to apply the concepts underlying them, which include the idea of 'moral claims'. It seems to us that there are several material indications in the Act that moral considerations may be relevant. But before we refer to those indications we should make it clear that a moral claim cannot be a claim founded upon considerations not contemplated by the Act. Nor can it be a claim based simply upon the fact of a preference shown by a testator in his will for another or others, although there may be cases in which disparities in dispositions may be relevant."

"For many years therefore several justices of this Court have found it convenient and generally useful to resort to the concepts of a moral duty and a moral claim in deciding both whether, and how much provision should be made to a claimant under the Act. In our respectful opinion they have not been wrong to do so. These are not concepts alien to, or in any way outside, the language of s 6 of the Act."

16 The remaining members of the court in Vigolo, Gummow and Hayne JJ, referred to the doubts expressed by the joint judgment in Singer and their Honours' statement, at 209, that "moral duty" or "moral obligation" may well be understood as amounting to a gloss on the statutory language and said, at 710:

"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 [1956] HCA 23; (1956) 95 CLR 494 at 512, that is to say, of a paraphrase which is apt to mislead."

17 Gummow and Hayne JJ summed up their view on the use of these impugned expressions, at 711:

"'Moral duty' may often have been used as a convenient shorthand expression intended to do no more than invite attention to the questions presented by the relevant legislation (Collicoat v McMillan [1999] 3 VR 803 at 818 per Ormiston J). Its use, however, has led to reference being made to the 'moral claims' of those who seek further provision and that is an expression which is liable to being misunderstood (Collicoat v McMillan [1999] 3 VR 803 at 818-819 per Ormiston J) just as its progenitor 'moral duty' may mislead. It is therefore better to forgo any convenience that these shorthand expressions may offer in favour of adherence to the relevant statutory language. In Permanent Trustee Co Ltd v Fraser ((1995) 36 NSWLR 24 at 29, 46 respectively; cf at 36 per Handley JA and Collicoat v McMillan [1999] 3 VR 803 at 815-820 per Ormiston J), Kirby P and Sheller JA correctly indicated that what was said in the joint judgment in Singer should henceforth provide an appropriate guide to the construction and operation of the family provision legislation."

18 Perhaps it might be said that the majority in Vigolo has settled the consternation that apparently arose from the comments in the joint judgment in Singer with respect to the usefulness of references to "moral claim" and "moral duty". Perhaps it might also be said that the controversy was a lot of fuss over very little, for the words of the statute are plain. They do not include the word "moral". However, it is a word that helps elucidate the statutory purpose of the legislation and, accordingly, with respect to those who have a different view, it seems to me that no objection can be taken to its use.

Was the applicant left without adequate provision for her proper maintenance and support?

19 The relationship between the testatrix and the applicant and the relationship between the applicant and her children was not close. When the applicant separated from her husband in about 1977, her children were aged about 14, 11 and 10. The applicant and Melissa gave evidence that the two boys stayed with their father, but Melissa went with her mother. However, after about six months, Melissa went to live with her father and her two brothers. The evidence given by Tim conflicts with this in that he states that both Paul and Melissa went to live with their mother and then returned to live with their father and himself after about six months. This difference in the evidence is immaterial, for it is common ground that since very shortly after the separation none of the applicant's children have lived with her, except Melissa, who stayed with her mother for a short period when she was in her last year at secondary school. Generally speaking, until about 10 years ago, there was very limited contact between the applicant and her children since the separation in 1977.

20 The applicant, her children and her former husband, were all living in Melbourne at the time of the separation. After the separation, the applicant commenced work in that city as a real estate sales person. She also bought houses, renovated them and sold them at a profit. After about a year, the applicant moved to Brisbane where she continued to earn an income buying, renovating and selling houses. The applicant has led a peripatetic lifestyle, rarely staying in one place for more than a few months. She worked as an interior designer, renovator and real estate sales person. She has lived in Brisbane, Noosa, Nowra and other places in eastern Australia. She went to America and studied at a university associated with a religious sect known as the Church of the White Brotherhood. There, she studied history, art, religion, music and food. She has also been to Europe and France on an agricultural exchange to study biodynamic agriculture. It appears that the applicant has an interest in what might be called an alternative lifestyle, acupuncture, homeopathic medicines, permaculture and biodynamic agriculture.

21 During the years between the applicant's separation from her husband in about 1977, and the death of her stepfather in 1988, contact between her and the testatrix was very limited. There were some telephone conversations and if the testatrix and her husband were visiting a city such as Melbourne or Brisbane when the applicant was there renovating a property, the testatrix would see her. The applicant's evidence was that the testatrix and her husband would stay at a hotel, but call on the applicant at the property she was then renovating. They might then have dinner together and perhaps go to see a show at a theatre. The contact between the applicant and the testatrix increased after 1988. However, the applicant gave evidence of a visit that her mother made when the applicant was living in Berry, southern New South Wales, and working in Nowra. The two of them spent about two days in Sydney together and then about a week in Berry. The applicant said that her mother stayed in a hotel because she did not have room for her at her house. There was a big argument between the two of them at the end of the visit because the applicant had a migraine and could not drive her mother to the airport. They did not speak to each other for about two years after that.

22 The applicant's evidence of the chronology of events was far from clear, but at some stage during the late 1980s, she took a job as a housemistress at a school in Sydney. She remained in this position for two or three years.

23 In about 1990, contact by way of phone calls and exchanges of letters between the testatrix and the applicant resumed. At the end of 1990, the applicant broke her wrist. In her oral evidence the applicant said that she subsequently suffered a viral infection, which led to her contracting chronic fatigue syndrome. She said that the testatrix failed to understand her illness saying, "Nonsense - I've never heard of it".

24 The applicant said that in 1993 she developed what she called chemical sensitivity and had to resign her position as housemistress. She went to Queensland intending to work in a restaurant that a friend of hers had bought, but was too ill to do that. Instead she went to live and work on an organic farm in return for free board. She did not stay there long as she developed a sensitivity to "lots of fungus" and "lots of breakdown mould", so she moved on to a permaculture village in the hinterland of the Sunshine Coast of Queensland.

25 Thereafter the applicant moved very frequently from place to place, staying in caravan parks, with friends, and in rented houses. She said that she was forced to move all the time because of her chemical sensitivity.

26 There was no expert opinion evidence about the applicant's illnesses and I have some reservations about her evidence in this respect. However, these reservations are of little moment, as Mr Williams, counsel for the applicant's children, and Mr Hudson, counsel for Miriam Hope, accepted that as the applicant was 65 years of age at the date of the death of the testatrix and then suffering from ill-health to some extent, neither the testatrix nor the hypothetical wise and just testator would have regarded the applicant as then having any significant earning capacity.

27 The fact is that the applicant has not worked, or virtually not worked, since 1993. At some time thereafter she commenced to receive a disability pension and since 2002, has been in receipt of an age pension.

28 At Christmas time 1994, or 1995, the applicant came to Tasmania for about two weeks and stayed with the testatrix. Thereafter contact between the applicant and the testatrix, both face to face and by telephone, became more frequent. The testatrix was injured in a car accident in January 1996. The applicant was then in Hobart and attended to her mother. At that time, the applicant learnt that the testatrix had a brain tumour. It was apparently detected in 1991, but the testatrix did not want to do anything about it. In 1998, the applicant was with the testatrix in Melbourne when the latter came over to visit the applicant's sister, who was in hospital. About this time, the testatrix began to show signs of early Alzheimer's disease, a disability that continued to worsen until the time of her death. From about 1999 until the testatrix's death, the applicant visited the testatrix in Hobart and elsewhere quite frequently. Not unexpectedly, having regard to the testatrix's condition, argument between them was not infrequent.

29 At the end of 2002, the applicant went to stay with a friend at Devonport and after four months moved to a rented shack at Boat Harbour. While living there she saw a house for sale at Wynyard. The applicant thought she could renovate it and make some money. Melissa Stafford's husband joined with the applicant in this project. He provided the money and the applicant managed and supervised the renovations.

30 In 2003, the applicant fell ill with septicaemia. The testatrix visited her in hospital. On discharge from hospital, the applicant was confined to bed for three months. The testatrix visited her on three occasions during this period. In 2003, the applicant arranged for the testatrix to move into an aged care facility.

31 I find that between about 1977 and 1988, there was very little contact between the testatrix and the applicant. After 1988, there was increasing contact, both in person and by telephone, except for a period of two years following the testatrix's visit to Berry. In the last eight years or so of the testatrix's life, the contact between her and the applicant might be described as fairly regular. I find that during this time the applicant did whatever she could to assist her mother with the injuries that she sustained from time to time, and her Alzheimer's disease.

32 After the renovation of the Wynyard property was complete, Melissa Stafford's husband suggested to the applicant that she might like to live in it herself, paying $80 per week rent. However, the applicant wanted to get a capital return from the property and it was sold after the death of the testatrix. The applicant received $22,000 from the sale.

33 Tim Seccull said that when he and his siblings were children there was frequent holiday contact with the testatrix and her husband, but after his parents' separation he only saw the testatrix on about four occasions. There was also some infrequent contact by telephone.

34 Tim Seccull's annual taxable income is in the vicinity of $200,000. He lives with his wife in a house owned by her which is worth between $800,000 and $900,000, but is subject to a mortgage of about $534,000. Between him and his wife they have about $350,000 worth of shares and own two cars. His wife is a teacher and earns about $50,000 per year.

35 Paul Seccull's contact with the testatrix was even less than that of his brother. He said after her husband died in 1988, he had contact with her only once. Although Paul Seccull's wife now works part-time as a dental nurse, she was not employed in the year that the testatrix died. Paul Seccull's evidence was that in the tax year ended 2004, his construction company earned a taxable income of $88,755. However, it only distributed $26,578 to him and he declared a taxable income of only $7,300. How that state of affairs came about was not satisfactorily explained by the evidence. Paul Seccull also owns two shares in two syndicates in racehorses. His wife owns a house that he described as "heavily mortgaged". The assets of Paul Seccull and his wife exceed their liabilities by only $63,000.

36 Melissa Stafford said that over the last 10 years, she became much closer to the applicant. She said that during that decade the applicant lived with her for several periods of time. Of the three children, Melissa was the closest to the testatrix. She spoke to her on the telephone about once a month. She visited her in Hobart on two occasions and saw her when she travelled to Melbourne. Melissa sent the testatrix flowers for some of her birthdays and the latter sometimes sent Melissa a card on her birthday.

37 Melissa Stafford's husband is a fireman. They both work, and in addition to their salaries, have an income of approximately $1,260 per week from rental properties before payment of tax and outgoings. Between them, Melissa Stafford and her husband own assets with a net value of almost $1.5m.

38 Miriam Hope deposed that as a child she and her mother came to Tasmania on many occasions to visit the testatrix. She deposed that after she left home, there were many phone calls, cards, photos and letters that passed between her and the testatrix. Following the birth of her son in 1990, Miriam Hope saw the testatrix when the latter travelled to Melbourne. The testatrix was particularly fond of Miriam's son and sent him books and other gifts. Although there was a brief period of coolness between Miriam and the testatrix following the death of Miriam's mother, regular phone contact resumed, particularly after Miriam became pregnant with her second child. This contact continued until about a year before the testatrix's death.

39 Miriam Hope and her partner live separately. Miriam currently lives in the jointly owned home. Her equity in that property is between $50,000 and $62,500. Her son suffers from congenital hypothyroidism. Miriam Hope's income comprises a social security benefit of approximately $1,058.72 per month, plus a disability carer's allowance of $92.40 per fortnight. She also has a casual job as a bookkeeper, which earns her about $3,640 per year. Child maintenance payments are made to her in the sum of $112 per month. She pays the mortgage instalments and other outgoings on the jointly owned home.

40 At the date of the testatrix's death, the applicant's capital comprised only $147 in the bank and an equity in the Wynyard property worth $22,000. She has since received the $22,000 from the sale of the Wynyard property and $50,000 from the interim distribution of the testatrix's estate. Her income is the age pension in the sum of approximately $510 per fortnight. There was virtually no evidence from the applicant about the cost of satisfying her past or future needs. She did say that she would like to buy a house in Melbourne when this litigation was over so that she could be close to her children and grandchildren.

41 Counsel for the respondents pressed me with the argument that the lack of evidence from the applicant with respect to the costs of meeting her needs at the date of the testatrix's death, and the likely costs of meeting her needs thereafter, meant that she had not satisfied the onus cast upon her to show that she had been left without adequate means of support. However, I can confidently say that an income of approximately $510 per fortnight will provide the applicant with nothing more than the very barest of essentials for living. It is insufficient for her to acquire any capital and insufficient for her to travel, to take holidays, and the like.

42 Ascertaining whether the applicant has been left without adequate means of support "involves a value judgment by the Court" per Aickin J in White v Barron [1980] HCA 14; (1980) 144 CLR 431 at 449. It is a judgment that has to be undertaken from a general view of the relevant facts. The relevant facts in this case include the size of the estate (Bosch (supra) at 478), the age, health and prospects of the applicant and the age, health and financial position and prospects of the respondents. I find that the applicant is in poor health and without prospects of earning income, except for, perhaps, occasional modest sums. I find that all the applicant's children are able to earn good incomes and two of them have acquired substantial capital sums. Obviously, Miriam Hope's position is much worse and her prospects for earning a substantial income in the future are not good.

43 The testatrix had a moral duty to provide adequate maintenance for the applicant. She was the testatrix's only surviving daughter, a relationship closer than that between the testatrix and her grandchildren. As the testatrix's other daughter predeceased her, and as the latter's only child lives in difficult financial circumstances, in my view the obligation owed by the testatrix to Miriam Hope was on a par to that owed to the applicant.

44 It was not contended by counsel for the respondents that there had been any disentitling conduct by the applicant.

45 The questions that requires careful consideration are whether the bequest to the applicant of one seventh of the estate ($204,665) is sufficiently large to discharge the duty the testatrix owed the applicant, and whether lack of detailed evidence of the applicant's needs in excess of that sum has put the applicant in a position where she has not established that she has been left without adequate means of support.

46 One approach to this issue is to have regard to the life expectancy table for females published in Luntz, Assessment of Damages for Personal Injury and Death, 4th edn at 705, which shows that at the date of the testatrix's death, the applicant's life expectancy was 20 years. $200,000, invested for 20 years at 5 per cent and 3 per cent compound interest, is the equivalent of an income of $600 and $508 per fortnight respectively. After making allowance for a reduction in pension by reason of income of $600 and $508 per fortnight, as directed by the Social Security Act 1991 (Cth), s1064, et seq, the testatrix's bequest and the applicant's pension together would amount to $955.60 and $864.40 per fortnight, respectively, over the statistical expected life of the applicant.

47 The foregoing approach increases the applicant's recurrent income, but only to an amount less than the minimum wage. It does not provide the applicant with a capital sum, nor sufficient means to acquire a reasonable capital sum. It would be insufficient to enable the applicant to satisfy her expressed wish to buy a house and live in Melbourne, the reasonableness of which was not challenged at all in cross-examination.

48 I am satisfied on balance, that having regard particularly to:

* the applicant's age, financial position, earning capacity and needs;

* the age, financial position and earning capacity of each of the applicant's children;

* the competing moral claims of the applicant and those children arising out of their blood relationship; and

that the applicant has been left without adequate provision for her maintenance and support.

49 In exercising the discretion to ascertain what "proper provision" should be made for the applicant out of the estate, I conclude that Miriam Hope is, as I have said, in a different position from that of the applicant's children. The bequests to her comprise nine-twenty-eighths of the estate and should remain unaffected by the need to make provision for the applicant. It is appropriate that the burden of making proper provision for the applicant should be borne by the bequests to the applicant's children. Having regard to all the factors canvassed earlier in these reasons for judgment, proper provision for the applicant would be a capital sum also equal to nine-twenty-eighths of the testatrix's estate which would leave ten-twenty-eighths of the testatrix's estate to be divided equally between the applicant's three children. The bequests to Miriam Hope equalling nine-twenty-eighths of the testatrix's estate would remain unaffected.

50 I will hear counsel further as to the most efficacious way of making orders accordingly.