Hunt v Delaney

Supreme Court of NSW|2005-07-29|Before: Mr J, Macready J

CATCHWORDS : Family Provision. Application under the Family Provision Act by two children of deceased. Children abandoned by mother at a young age and estate left to charities. Orders for provision by way of legacy.

PARTIES : Alfred William Hunt and Pricilla Hunt v Michael Joseph Delaney

Mr J.A. Trebeck for plaintiff COUNSEL : Ms. J. Steele for defendant

1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

57461/04 - ALFRED WILLIAM HUNT & ANOR V MICHAEL JOSEPH DELANEY - ESTATE OF NANCYE DOREEN HUNT AKA NANCY DOREEN HUNT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Nancye Doreen Hunt, who died on 6 March 2004. The deceased was survived by her three children, two of whom are the plaintiffs in this action. 2 The third child has been given notice and she makes no claim on the estate. WILL OF THE DECEASED 3 The Defendant, a solicitor who had acted for the deceased from time to time, was appointed executor under the deceased's last will dated 27 September 1991. 4 The deceased left her estate equally between the St Vincent de Paul Society and the Royal Blind Society. She made no provision for the plaintiffs and instead directed that her body be cremated privately and that the family was not to be notified of her death. ASSETS IN THE ESTATE 5 The Estate has been reduced to cash and amounts to $499,545.23. Some defendants costs have been paid and the remaining costs and fees to be paid for the defendant amount to $31,673.70. The plaintiff's costs are estimated at $37,128.98. This leaves a net distributable estate of some $430,742.55.

FAMILY HISTORY 6 The plaintiff, Alfred Hunt, was born on 18 February 1953 and his sister, Priscilla, was born 10 November 1954. Their sister, Wendy Monica Hunt, (otherwise known as Wendy Richards,) was born on 22 May 1956. By November 1956 the children had been placed under the New Zealand Department of Education Child Welfare Division for the purposes of preventative supervision. It was in 1957 that the parents of the children separated and the deceased apparently obtained custody. Not long thereafter the children were sent to live with their father's sister for some three months. They eventually came back and they were returned to the father. At this stage the deceased, the children's mother, apparently gave back custody to the father. 7 They lived with the father for sometime and on 9 January 1963 a complaint was made in the Local Magistrate's Court that the children were neglected and were living in an environment detrimental to their wellbeing. The hearing of this charge occurred in January 1963 and it became apparent from the documents presented that the children were living with their father on a dilapidated flea infested launch in Porirua Harbour; the family home was in the same squalid condition. 8 On 30 January 1963 both Alfred and Priscilla were committed to care. Alfred was then nine years and eleven months and Priscilla was eight years and two months. The children were given various foster placements over many years which were not terribly satisfactory, although Priscilla does seem to have regard and contact with the last people who she was fostered with who she treats in a sense as a mother and a father. 9 Apparently the deceased had left New Zealand by this time and in 1964 she returned to New Zealand on a visit but made no enquiry about her children. 10 The children's father died on 10 October 1968. The children attended the funeral. He left them thirty five pounds NZ. 11 In 1969 Priscilla commenced a community nursing course sometime in May or July. The deceased visited Rotorua to see the children for a period of two weekends. On the second of those weekends the deceased had a man to come and stay with her over the weekend from Friday to Sunday. He arrived with a carton of beer and apparently the children took an instant dislike to him. 12 In December 1969 the deceased wrote to Alfred suggesting he spend the Christmas Holiday with her. The Child Welfare Reports showed that this was something of a disturbance to Alfred, as the last encounter with his mother was something which didn't impress him. He was afraid of the overtures his mother was making to him and seemed confused in his loyalties and didn't know how to handle the inquiry. He certainly didn't want to see his mother again. 13 In October 1970 the deceased sent a letter to Priscilla, the only one, in fact, she probably ever wrote to her, proposing that Alfred and Priscilla leave New Zealand and join her in Sydney. In the letter, which was sent to her care of her school, she said: "Don't mention this to the Welfare Department or the people you are staying with because they don't realise how you two children want to be with me. ...if the teachers want to know who the letter is from tell them an Aunty May...". 14 Priscilla took that letter into the Child Welfare Department and obviously both the children were very upset at having got the letter. They asked the Child Welfare Department to reply saying they did not want further communication. Ultimately, of course, in due course there was further communication, particularly with Alfred and I will come back to that later. 15 Alfred left school in 1970 and worked for the Forestry Service for some seven years. Priscilla left school in 1971 and started training as a community nurse and then enlisted in the Army as a telecommunications operator, where she stayed for some nine years. 16 In a Child Welfare Department submission in May 1971 it was noted that the deceased lived in Australia and showed very little interest in either of the children having visited them only once in eight years since their committal to care. The report obviously was for the purpose of their discharge and on 31 July 1971 Alfred was discharged from the care of the Child Welfare Division and on 6 November 1972 Priscilla was discharged from care some four days before her eighteenth birthday. 17 At some stage in the seventies the deceased suffered burns to her face and body in an accident in Australia. During 1976, some two weeks before the Labour weekend, she visited Alfred, before the skin operation was performed. Apparently she looked somewhat horrific. In October 1976 there is correspondence from the Salvation Army trying to locate the children on behalf of the mother and the children did not want their addresses to be disclosed. 18 In 1978 Alfred moved to Napier and was then employed as a linesman for the Local Power Board, which occupation he has remained in until this day. 19 In November 1980 the deceased started to have her skin grafts and operations, which eventually were completed. By 1985 Priscilla obtained a night cleaning job at the Institute of Technology at Heretaunga. Apparently the deceased came to New Zealand in December 1985 to see the children but only wrote to Alfred on Christmas Day having found his name in the phone book. She had come over apparently about her great uncle's estate and was engaged obviously in her ongoing battle with her sister. It seems clear that after that contact Alfred maintained contact by telephone and by letter with his mother from then on and he would relate news to his sister and, similarly, to the deceased. 20 In 1991/92 Priscilla obtained a number of different short term jobs and returned to full time cleaning at the Institute of Technology until she was made redundant in 2001. In 1991 the deceased found out that Alfred had been having contact with the deceased's sister, which caused her some annoyance. The last will was made on 27 September 1991, as I have already indicated. 21 In 1994 Alfred had a very bad accident at work. He was at the top of a pole which apparently collapsed in a storm and he was thrown to the ground from some forty feet. He was lucky to be alive and obviously has suffered problems with his back as a result of that fall ever since. 22 In 1998 the two plaintiffs each received NZ$31,000 from their grandfather's estate. This was used by Alfred to pay off his mortgage, and Priscilla invested her money in shares. 23 In November 2000 Priscilla separated from her husband and she is currently living in a one bedroom apartment. In 2001 she obtained a job as a supermarket check out operator. 24 In October 2002 the deceased received an entitlement from her grand parents' estate. It was a large amount of cash, somewhere in the order of some $500,000 and it is this fund which creates the estate in this case. 25 In August 2003 Priscilla first received psychiatric care at the Hutt Valley Psychiatric Department. She became a patient of Dr Roy in January 2004 and was treated for depression and persecutory delusions. 26 The deceased died on 6 March 2004 and the summons was filed within time.

ELIGIBILITY 27 Both the plaintiffs are eligible persons. In applications under the Family Provision Act the High Court in Singer v Berghouse (1984) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:- "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 Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or 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 where there we no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors".

THE SITUATION IN LIFE OF ALFRED HUNT 28 Alfred is fifty seven, married with three adult children who live at home but apparently do not pay board. He has a home in Napier New Zealand, which is unencumbered, and valued at $170,000. He has savings of $900, a 1989 car, superannuation of some $5,400 and a boat which he purchased in 2002 for $29,000. He has a loan outstanding on the purchase of the boat of $10.039. His base salary is NZ$39,691. Last year, because of a large amount of overtime due to freak storms, he earned a gross income of NZ$55,397. His wife, Robynn, is a part time orchard worker. In the year ended 31 March 2004 her taxable income was NZ$8,434 and she has no other assets. He, like the other plaintiff, was, for the purposes of these proceedings, examined by a psychiatrist Dr Barry-Walsh. In Dr Barry-Walsh's opinion, Alfred does not suffer from any psychiatric illness, although the history is suggestive of some mood symptoms and at times intrusive experiences and memories over the years which seem directly attributable to his upbringing. Not only had he been significantly affected by his childhood experiences, which have shaped his personality, but he has had episodes of distress and unhappiness, that, although self limiting, have nevertheless troubled him throughout his life. Even though he does not suffer from a psychiatric condition, developmental experiences such as his are known to leave individuals vulnerable to later psychiatric disturbance and may produce significant impairment in personality functioning. 29 Alfred's career path after leaving school had been fairly stable and consistent. He worked in the Forest Service for seven years and then moved to Napier, as I have indicated, and was employed by the Local Power Board ever since. His future with the Board is, however, uncertain. The Board is now part of an aggregation of power boards, known as Unison. Various aspects of Unison's activities have been outsourced to private contractors with employees made redundant. He works in the Service Group, which responds to power failures. There is currently a proposal being considered by Unison to put the work of this group out to private contract as well. This is consistent with statements made in the company's annual report which has been released. If he is made redundant he will try and obtain a position with a contractor, but he is uncertain whether he will be successful, given his age, lack of formal qualification and the back symptoms he continued to suffer from following his accident at work. 30 That accident, as I have said, involved a serious fall from a power pole. He receives chiropractic treatment, on average two sessions a year, each of twelve consultations. Most of the cost is covered by the Community Service but he has to pay a top up difference. That need continues and certainly shows the problem is not going away. A prospective private employer may not view him as a good investment employee-wise. This is particularly so because he is becoming deaf and this may become a safety issue in his employment. He is checked each year and his deafness is quite apparent. Obviously in his job when he is at the top of a pole he needs to be able to hear instructions shouted to him from the ground. 31 Alfred did not contribute to the estate of the deceased and he received nothing from his mother. He received NZ$31,000 from his grandfather's estate, which he used to pay the mortgage. THE POSITION IN LIFE OF PRISCILLA CLOTHIER 32 Priscilla is fifty-one years of age and is now single with no dependant children. She left school in fifth form before obtaining her leaving certificate. The Departmental file indicates that scholastically she is not very bright but has tried hard. Her school reports indicate she is not academically minded. As I have mentioned, after a short time of community nursing she enlisted in the Army, where she stayed for nine years. She met her husband in the Air Force and they were married after she became pregnant with their first child. Together they purchased a house, but in November 2000 she and her husband separated. She has two adult children, a daughter and a son. The daughter is in her last year of teacher training and at present lives in Hamilton. Her son is a labourer and lives with his father. 33 Priscilla's income is less than NZ$25,000. Before her separation she held mainly cleaning positions until she was made redundant in 2001. Not long after that she obtained her present position. After separation she obtained a one bedroom Council apartment. She recently completed her separation agreement and has received approximately NZ$100,000 and a further instalment of NZ$4,000. Even though her husband is obliged to pay her another NZ$20,000 it is a real question whether she might actually receive this sum. Her cash reserves are now approximately NZ$160,000. I have already mentioned that she got NZ$31,000 from her grandfather's estate from which she purchased shares. They have been sold and the proceeds are included in the sum I have mentioned. 34 In August 2003 Priscilla was first seen at the Hutt Valley Hospital psychiatric department, where she was treated for depression and persecutory delusions. In the opinion of Dr Barry-Walsh, her current mental health is characterised by a persisting disorder of moods with residual psychotic symptoms. The most likely diagnosis is psychotic depression. She will continue to suffer psychiatric symptoms for most of her life and will, therefore, require ongoing active psychiatric treatment. That, of course, is free in New Zealand. However, her treatment will include prescription medication and psychological intervention to deal with underlying issues in her personality. The ongoing cost of Priscilla's current medication is NZ$360 per annum and the cost of forty psychological sessions was about NZ$5,200. 35 It is necessary to look at the relationship between the plaintiffs and their mother. 36 In the chronology I have recounted some of the circumstances of the children's early life and their abandonment by their mother. The documents from the Child Welfare Department do not indicate when the deceased left New Zealand for Australia, but while the plaintiffs were children there is evidence of only one face to face contact between the deceased and both plaintiffs together after 1957. This visit is documented in the Child Welfare Department file, and was not a success. The visit was, as I have said, made in mid-1969 when, over two weekends, the deceased spent some time with her children on a visit to Rotorua. On the second weekend the deceased had a man to stay from Friday to Sunday who neither Priscilla nor Alfred liked. He arrived with a carton of beer. At that stage Alfred was sixteen and Priscilla fifteen. 37 The actions of the deceased to re-establish contact with the children were described in submissions as clumsy and lacking insight. They plainly were and were grossly insensitive. In December 1969 the deceased wrote to Alfred and I have already dealt with the reaction that had on Alfred. He was confused and he did not know where his loyalties were. 38 In October 1970 the deceased wrote to Priscilla care of her school proposing the children leave New Zealand and join her in Sydney. It is to be remembered that at this stage Priscilla was only sixteen. The letter was sent to the school obviously to avoid it being seen either by the Child Welfare Department or the foster parents. I have already set out what the letter contained and the fact that the children took it to the Child Welfare Department and asked they have no further communication. 39 The children were discharged from care, as I have said, in 1971 and 1972 and in 1976 there was contact with Alfred but no contact with Priscilla. She stayed apparently with Alfred and his soon to be wife for one night before catching a bus to Palmerston the next morning. It is absolutely clear from the Departmental file that Alfred was the deceased's favourite. All correspondence, apart from one letter, was addressed to Alfred. He produced a number of cards that indicated correspondence over a number of years. It is clear that in the 1980s and 1990s he was in contact with his mother both by telephone and cards and was the source of relaying information to Priscilla and vice versa. 40 Section 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person "it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made to be made for the maintenance, education or advancement in life of the eligible person." 41 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows: "This conclusion directly raises the question of whether the word 'ought' in s 7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator's Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts.

It seems plain from the comparison of the two Acts, and particularly from s 3 of the 1916 Act and s 7 and s 9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose.

The Act draws a distinction between the eligible persons referred to in par (a) and par (b) on the one hand and par (c) and par (d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased person spoken of in s 3 of the 1916 Act and s 7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased.

In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin JJ both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that 'many cases suggest that an applicant must show a moral claim ...', he went on to say that this was a gloss on the Act that was unwarranted and inconsistent with the language of the legislative scheme.

It seems to me that the introduction into s 7 of the present Act of the word 'ought' in replacement of the words from s 3 of the 1916 Act 'as the Court thinks fit' shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word 'ought' seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par (c) and par (d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par (a) and par (b) although it is unnecessary to decide that in this case." 42 Meagher JA (NSWLR at 57) agreed with Priestley JA. 43 Meagher JA had previously expressed a view in Hughes v Hughes Court of Appeal unreported 6 June 1989 (an adult daughter case) that the duty arose to make provision as established in that case as follows: "Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right, but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be." (Emphasis added) 44 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes. 45 In Benney v Jones, Mahoney JA at 560 said: "Whether an order should be made raises (as it has been described) the moral or normative question. That questions remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1

Where the applicant is a member of the deceased's family, as referred to in the earlier paragraphs of s 6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear." 46 In Gorton v Parks (1989) 17 NSWLR 1 at 7 ff, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, his Honour noted: "It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation." 47 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales' case) (1962) 107 CLR 9. Scales' case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18): "The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. ... In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator's death." 48 At 17 NSWLR 1 at 9-10, Bryson J sought to distinguish Scales' case. He said: "Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; ... Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962." 49 Bryson J in any event distinguished Scales' case (p 11) on the basis that on the facts before him the plaintiffs: "In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relations. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. ..." 50 In Walker v Walker (unreported 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton's case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows: "In Singer's case, a widow who had been married less than one year to a sixty-eight year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at p 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that 'we doubt 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'. They then say '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." 51 Young J also observed: "In Fraser's case, Kirby P at p 29 said that 'I do not consider that it would be safe for this court, or other courts in this State, to disregard the obiter dicta in Singer v Berghouse concerning 'moral duty.' However, his Honour's decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law 'either by the observations of the majority in Singer or by the High Court's reference, in the footnote to what Murphy J said earlier (p 27).' Handley JA thought that the dicta in the High court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words 'moral claim' in decisions under this Act. Sheller JA again did not consider that the High Court's suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p 42, 'the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant's case but not alone sufficiently to justify an order in the claimant's favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order." 52 The concerns expressed about any change in the law as a result of Singer v Berghouse were recently put to rest in the High Court in Vigolo v Bostin [2005] HCA 11 at 25, 74-75 and 121. 53 In Walker v Walker, (p 27) Young J noted: "It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between. The important matter is not fault but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff. Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. ..." 54 In this case there was a clear abandonment of the children by the deceased. There was one inappropriate attempt to re-establish contact with both of them and I think the children's reaction was quite natural and understandable. Notwithstanding all this there was still intermittent contact with Alfred from time to time. Priscilla had no further contact with her mother which is not surprising since her mother seems to have made it quite clear to her that Alfred was the favourite. 55 Given her circumstances in her years of bringing up a family I do not think she could be expected to try and re-establish a relationship with her mother in Australia. 56 Although the lack of contact has to be taken into account I do not see that the children are responsible for this lack of contact. 57 It is necessary to consider the circumstances of anyone else having a claim on the bounty of the deceased. The only persons, of course, are the beneficiaries. There is evidence of one contact with the St Vincent De Paul Society when the deceased apparently received a hand-out on one occasion when she was living in declining years in very difficult circumstances. Sometimes in these cases one sees evidence of the contact that a deceased may have had with a charity but none is put forward and no evidence is put forward as to the charity's needs in a sense of depending upon donations. There is no doubt that the charities are worthy but there was obviously, apart from one I have mentioned, no contact which might lead to some duty on the deceased to provide for the charities. 58 It is necessary to see how the plaintiffs say they have been left without adequate and proper provision for their education, maintenance and advancement in life. 59 Alfred's need is for a fund to provide some protection against the possibility of losing his job between now and the age of at least sixty-five. Having regard to his health issues and the real chances of there being a change in his employment prospects I think there is a very strong likelihood that Alfred will not be able to maintain his present employment. He is only semi-skilled and would have to buy a business such as a lawn mowing business or a sports store, or even start a fishing venture. He would need start up capital for ventures like this if he is going to obtain some employment. He also needs a contingency fund to enable a sum to be invested in order to supplement the pension for the period in his life after his retirement. This is because he has been on such a low salary he is unable to put aside much money for his retirement and apparently this is something which is necessary to New Zealand. He needs to repay the loan of NZ$10,000-odd and obviously he will have to replace his car at some time. He has ongoing needs for chiropractic treatment to his back and the cost of hearing aids and financial advice. 60 Priscilla has considerable need for provision. She needs to acquire a home and the evidence is it will cost her approximately NZ$175,000. She has almost enough to purchase it now. I will assume that she will purchase a two bedroom place which would be appropriate for her so that her children can come and stay with her. This will take all her cash resources. She does not have the skills to ever earn more than a low wage and she has no superannuation. She has a need to provide protection against the possibility of unemployment. In that regard she has indicated she would like to be a courier driver. The capital required for such a venture is usually only the acquisition of a van and some start up capital. Like her brother she needs a fund to provide relief from the hardship of surviving only on the pension after she qualifies for it, whenever that might be. 61 Reference was made in submissions to Shearer v The Public Trustee and Hawke v The Public Trustee, Young J, (unreported NSWSC 29 March 1998), where his Honour had this to say: "The community's attitude is not to be judged by a feeling as to whether it is morally wrong for a person to leave property otherwise than to her spouse or children. One must really look at the obligations to provide for persons who have some dependants. Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case with children, and as far as I am aware it has never been said by any court that it is an obligation that the community expects that a mother will leave her children in a position where the child has a house of his or her own." 62 However, we are not in this case concerned to provide homes. Priscilla can do that almost from her own resources. What we are concerned with in this case are two children living in minimal circumstances. They are fifty-one and fifty-two and have at least another fourteen years to go before retirement. They both have substantial problems and they are at real risk in their employment over that period. They have absolutely nothing behind them. They are in a situation where their mother should have provided for them in a substantial way from what was for the deceased a very large estate. 63 The question of what is an appropriate provision in respect of a large estate is dealt with by Young J in Anasson v Phillips (4 March 1988) where he said the following: "... with a very large estate ... there is a great temptation on a court to be over generous with other people's money. This is especially so when the court can see that plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way as the application has to be determined in accordance with legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes and there is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the court has no power to re-write the will, but can only adjust things in substitution for the testatrix, in such a way as to fulfil her moral duty.

If the estate is a large one, the court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate, competition between claimant and claimant and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular the lifestyle that has been enjoyed by the plaintiffs, because they have been associated with a wealthy testatrix is a relevant factor. These principles all, I think, flow from cases such as Re Buckland (1966) VR 404, especially at page 412." 64 There is no real competition for the deceased's estate as the evidence discloses only minimum contact with the charities. In these circumstances, the same as in a large estate, there can be a more liberal assessment of the moral duty that is owed to be reflected in what is proper provision for the plaintiff. 65 In the circumstances the orders that I make are as follows: 1. The plaintiff, Alfred William Hunt, receive a legacy out of the estate of the deceased in the sum of $150,000. 2. The plaintiff, Priscilla Clothier, receive a legacy out of the estate of the deceased in the sum of $200,000. 3. Interest is to run on the legacies at a rate provided for under the Wills, Probate and Administration Act if not paid within one month from today's date on from that date. 4. The plaintiffs' costs on a party/party basis and the defendant's costs on an indemnity basis will be retained out of the estate of the deceased. 5. I order the exhibits be returned.

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Judgment (18 paragraphs)

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Cases Cited (11)