Inheritance (Family and Dependants Provision) Act 1972, s 6, s 7(1)(d)

Anderson v Teboneras [1990] VicRp 47; [1990] VR 527

Blore v Lang [1960] HCA 73; (1960) 104 CLR 124

Bosch v Perpetual Trustee Co Ltd [1938] AC 463

Cooper v Dungan (1976) 50 ALJR 539

Dobra v Brennan [1999] WASC 98

Donaldson v Harvey, unreported; SCt of WA (Parker J); Library No 970304; 17 June 1997

Pead v Perpetual Trustees WA Ltd, unreported; SCt of WA (Wheeler J); Library No 990077; 19 February 1999

Re May; Lealand v New Zealand Insurance Co Ltd [1952] GLR 446

Re McGregor; McGregor v Beattie [1960] NZLR 220

Re Wright; Willis and Drinkwater [1954] NZLR 630

Stanley v Kirby, unreported; SCt of WA (Master Bredmeyer); Library No 980025; 30 January 1998

Stott v Cook (1960) 33 ALJR 447

1 MALCOLM CJ: This is an appeal against an order made by Heenan J dated 12 May 2000 which made provision for the respondents from the estate of their deceased grandmother under s 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA) ("the Act"). The appellants contend that the order should be set aside and the claim by the respondents be dismissed.

2 The relevant facts and circumstances, as well as the relevant provisions of the Act, are set out in detail in the reasons to be published by Parker J. I do not need to repeat them, except so far as is necessary for the purposes of stating my own reasons.

3 Dorothy Jean Kitson ("the deceased") died on 23 April 1997 at the age of 80. She was a widow who was the mother of three children. The eldest of these was the second appellant ("Zelda") who was born in 1938. The next eldest was Harry, who was born in 1942, but who died on 6 June 1989. The youngest was Michael who was born in 1949 and is the first appellant. Harry was survived by two children, Bradley, who was born in 1968, and Jodie, who was born in 1972. Bradley and Jodie are the respondents.

4 Harry died a month before the deceased made her will dated 6 July 1989. Upon his death his estate, appropriately described by Parker J as "very modest" passed entirely to his widow, who has since remarried. Harry had made no provision for the respondents. The deceased appointed Michael as her executor. The assets comprising the estate were as set out in the judgment of Parker J. The principal asset was a hobby farm in Maddington referred to as "the Myola property", valued at the date of death at $370,000. When added to items of personal property the total value of the estate was $446,082. The personal property included a transportable house on the Myola property valued at $30,000. The deceased left the Myola property to Michael and Zelda in equal shares. The moneys in the various accounts was bequeathed to Zelda and the will provided that the chattels and stock were to be divided equally between the two beneficiaries. No provision was made in the will for the respondents or anyone else. At the time of the hearing before Heenan J, the estate had been distributed in accordance with the provisions in the will, except the bank shares. These had not been distributed and had a current value of between $10,000 and $12,000.

5 Heenan J ordered that the will be varied by dividing the Myola property and the transportable home into 12 equal parts to be divided as follows:

6 In the context of s 6(1) of the Act, the learned Judge was required to decide two questions with respect to the claims by Jodie and Bradley: Bondelmonte v Blanckensee [1989] WAR 305 per Malcolm CJ at 307. The first is, in effect, a jurisdictional question, namely, whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance, support, education or advancement in life of the claimant. This question is to be determined as at the date of death of the deceased: Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494. If that question is to be answered in the affirmative, the court must then exercise its discretion to make such provision as it thinks fit, taking into account the relevant facts as they exist at the time of making the order: Coates v National Trustees Executors & Agency Co Ltd, supra; Dun v Dun [1957] HCA 91; (1957) 99 CLR 325 at 331 per Dixon CJ, Kitto and Taylor JJ; and Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490.

7 The provision which the court may make in relation to applications under the Act is that which a wise and just testatrix would have thought it her moral duty to make in the interests of the relevant applicants: Re Allen (Deceased); Allen v Manchester [1922] NZLR 218 at 220 per Salmond J. For the purpose of applying the test, it is to be assumed that the testatrix was fully aware of all the relevant circumstances.

8 As formulated in the High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, in the context of the equivalent provisions of the Family Provision Act 1982 (NSW), Mason CJ, Deane and McHugh JJ said at 210 - 211:

"Although the precise nature of the jurisdictional question has been the subject of some debate, the correct view is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments (White v Barron (1980) 144 CLR at 441 - 443 per Mason J; 448 - 449 per Aickin J; 456 - 457 per Wilson J; Goodman v Windeyer (1980) 144 CLR at 509 per Aickin J; Hunter v Hunter (1987) 8 NSWLR 573 at 576 per Kirby P). The evaluated character of the decision stems from the fact that the court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life.

In White v Barron [(1980) 144 CLR at 443], although Mason J held that the question does not involve the exercise of a discretion, his Honour observed:

'There is an element of the artificial in saying that it is only after jurisdiction is established that the exercise of discretion begins, for the twin tasks which face the primary judge are similar.'

In Goodman v Windeyer, Gibbs J (with whom Stephen J and Mason J agreed) expressly agreed with this comment and held that the nature of the enquiry is such that the court is called upon to exercise a discretion. Gibbs J said [(1980) 144 CLR at 502]:

'[T]he words "adequate" and "proper" are always relative. There are no fixed standards, and the court is left to form opinions upon 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 save for pain and suffering, and for loss of amenities of life.

Strictly speaking, however, the jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the judge at the date of hearing. This conclusion may have consequences in terms of what an appellant needs to demonstrate on appeal, an issue that will be considered shortly.

The decision made at the second stage, by contrast, does involve an exercise of discretion in the accepted sense (White v Barron (1980) 144 CLR at 442 per Mason J; 449 per Aickin J; 455 per Wilson J; Goodman v Windeyer (1980) 144 CLR at 501 - 502 per Gibbs J; 509 per Aickin J). This is evident from the term 'may' in s 7, and this conclusion is not affected by the fact that this section, unlike s 3 of the Testators Family Maintenance and Guardianship of Infants Act 1916 (NSW), the predecessor to the present Act, does not contain an express reference to the court's discretion to make an order for family provision. The fact that the court has a discretion under s 7 means that, as stated above, it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour (Pontifical Society for the Propogation of Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19 per Dixon CJ; Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR at 149 per Gibbs J; White v Barron (1980) 144 CLR at 442 per Mason J; Re Fulop (1987) 8 NSWLR 679 at 680 per McClelland J)."

9 In the present case, the grounds of appeal challenge the findings and conclusions of the learned trial Judge, both in relation to the jurisdictional question and in relation to the exercise of discretion in the making of the order in favour of the respondents. As to the first issue, it was contended that the learned Judge erred in finding that at the date of her death the deceased failed to make adequate provision from her estate for the proper support, education and advancement in life of the respondents and, in particular, in finding that the deceased owed a moral duty to the respondents, she had failed to make provision for all of her adult grandchildren out of her estate.

10 As Parker J has pointed out, although there are some differences between the New South Wales legislation considered by the High Court in Singer v Berghouse, supra, the differences are not significant. I agree with Parker J that, in determining whether the respondents have been left without adequate provision in all of the circumstances for their proper maintenance, support, education or advancement in life, it is necessary to consider the financial position of each applicant; the size and nature of the deceased's estate; the totality of the relationship between each applicant and the deceased; and the relationship between the deceased and other persons who have legitimate claims on her bounty. This was the approach taken by the learned trial Judge who dealt with the matter on the basis that the only persons who could have any legitimate claims on the estate of the deceased were the respondents and the appellants.

11 I agree with Parker J, for the reasons his Honour has stated, that the learned trial Judge did not err in making the finding that, at the date of her grandmother's death, Jodie was in need of further provision for her proper support, education or advancement in life, if not for her proper maintenance. It follows that the learned trial Judge was not shown to have erred in finding that the jurisdictional issue should be decided in favour of Jodie.

12 I also agree with Parker J that the evidence failed to provide any basis for a finding on the jurisdictional issue that a provision was required to be made for the further education of Bradley, as the trial Judge found. The learned Judge did, however, find that, at the date of death of the deceased, Bradley had a need for provision from the estate against the possibility that he may not always be able to perform "the demanding physical work of a plasterer for long hours throughout a six day week". There was no evidence, and it was not Bradley's case at the trial that, as at the date of his grandmother's death, he suffered from any physical or other health problems which would prevent him from continuing to work as a plasterer for the remainder of his working life. In my opinion, there was no basis in the evidence for a finding that, at the date of his grandmother's death, Bradley had been left without proper provision for his maintenance, education or advancement in life.

13 I agree with Parker J that no reason has been shown to interfere with the findings made by the learned trial Judge regarding the relationship between the respondents and the deceased. I also agree with his Honour's conclusion that, as the surviving children of the deceased, Michael and Zelda had a closer relationship with the deceased than either of the respondents. As his Honour has pointed out, this was not a case in which any of the parties had a special claim by virtue of their own contribution to the building up of the estate or any particular asset of the deceased: cf Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 147 per Gibbs J.

14 In a contest between competing claims made by adult children and grandchildren of the deceased, it was, not surprisingly, contended by the appellants that, as grandchildren, the respondents had a lesser claim on the estate than the appellants did. As against that, it was contended on behalf of the respondents that they were entitled to the same claim on the estate as their father would have had, if he had survived the deceased. As Parker J has made clear, each of the appellants and the respondents had standing to make an application under s 7(1). Consequently, the issues which had to be decided under s 6(1) were the jurisdictional issue and the merits issue. Once the jurisdictional issue was decided in Jodie's favour, the only remaining issue was to determine what provision should be made out of the estate for her proper maintenance, support, education or advancement in life.

15 In this context, reference is often made to the judgment of Fullagar J in Re Sinnott [1948] VicLawRp 48; [1948] VLR 279 at 280 where a distinction was drawn between a person who was dependent on the testator, who had a prima facie claim to be supported, and an adult son, who was prima facie able to maintain and support himself. I dealt with this issue in Bondelmonte v Blanckensee, supra, at 309 - 310. It is material that Jodie was a healthy young adult, who was employed and married. While she and her husband were self-sufficient to a substantial degree, Jodie satisfied the jurisdiction test. The question then became one of determining what provision should be made for her, in the light of the competing claims on the estate of the deceased.

16 The learned trial Judge approached this issue on the basis of an assumption that, had he survived the deceased and known the true facts, the deceased would have included Harry as a one third beneficiary with Michael and Zelda. The evidence was that Harry and his children were excluded as beneficiaries of the estate because the deceased considered that "their father never paid his debts to me".

17 According to calculations made by the deceased, these debts amounted to $6,850. The learned trial Judge found that the deceased's unfavourable assessment of Harry was "not justified" and inferred that, "but for that assessment, she would have provided for the respondents in her will". In this context, I agree with Parker J that there was no foundation in the evidence that the attitude of the deceased to Harry would have changed had he survived her, and that his share would have been one third of the value of the Myola property, including the transportable house. The question was what a wise and just grandmother in the position of the deceased would have done to make "adequate" provision for Jodie, having regard to all the circumstances, including the nature of her estate, the circumstances of the family and the competing moral claims on her estate.

18 Unlike the jurisdictional issue, the question of an adequate provision had to be addressed as at the date of the hearing, rather than at the date of death. In this context, I agree with Parker J that the inadequacy of the provision in the case of Jodie is limited to her support and advancement in life. It does not extend to her maintenance or education. In these circumstances, I also agree with Parker J that, in the light of all the relevant circumstances, it would be appropriate for provision to be made for Jodie to take a one sixth share in the Myola property, including the transportable home. Finally, I agree with Parker J that the respondents' cross-appeal in relation to costs would have been dismissed, but for the need to vary the costs order as a result of the success of the appeal.

19 For these reasons, I agree with the orders proposed by Parker J.

20 KENNEDY J: I have had the advantage of reading in draft the reasons to be published by the Chief Justice and by Parker J. I am in agreement with those reasons and with the orders proposed by Parker J.

21 PARKER J: This is an appeal from a decision of Heenan J delivered on 12 May 2000 concerning a claim by the respondents under the Inheritance (Family and Dependants Provision) Act 1972 ("the Act") for a share in the estate of their deceased grandmother. As will be detailed later in these reasons Heenan J made an order varying her will to make provision for the respondents. The appellants seek the setting aside of the provision for the respondents and the dismissal of their claim. There is also a cross-appeal with respect to costs to which I will turn in due course.

22 Dorothy Jean Kitson ("the deceased") died on 23 April 1997 at the age of 80 years. She was then a widow and the mother of three children. These were the first and second appellants, Michael Arthur Kitson born 1949 and Zelda Marie Kitson, born 1938, and Harry Charles Frederick Kitson, born 1942, who predeceased her. Harry Kitson died on 6 June 1989 a month before the deceased made her will on 6 July 1989. Harry Kitson was survived by two children Jodie Marie Franks, the first respondent, born 1972 and Bradley John Kitson, the second respondent, born 1968.

23 Upon Harry Kitson's death his very modest estate passed to his wife Lynette Mary Sutcliffe, the mother of the respondents, who has since remarried. The respondents received nothing from their father's estate.

24 Section 6 and 7 of the Act are material to the application. Section 7 provides for classes of persons entitled to make a claim on an estate, and s 6 provides the criteria that must be satisfied for the Court to make an order for provision from the estate. These sections are in the following terms -

"6. Claims against estate of deceased person

(1) If any person (in this Act called 'the deceased') dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the

combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 of this Act as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.

(2) The Court in considering for the purposes of subsection (1) of this section whether the disposition of the deceased's estate effected by the law relating to intestacy, or by the combination of the deceased's will and that law, makes adequate provision for the purposes of this Act shall not be bound to assume that the law relating to intestacy makes adequate provision in all cases.

(3) The Court may attach such conditions to the order as it thinks fit, or may refuse to make an order in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order, or on any other ground which the Court thinks sufficient.

(4) In making any such order the Court may, if it thinks fit, order that the provision may consist of a lump sum or a periodical or other payment.

(1) An application for provision out of the estate of any deceased person may be made under this Act by or on behalf of all or any of the following persons --

(a) the widow or widower;

(b) a person whose marriage to the deceased has been dissolved or annulled and who at the date of the death of the deceased was receiving or entitled to receive maintenance from the deceased, whether pursuant to an order of any court, or to an agreement or otherwise;

(c) a child of the deceased living at the date of the death of the deceased, or then _en ventre sa mer_e;

(d) a grandchild of the deceased who at the time of death of the deceased was being wholly or partly maintained by the deceased or whose parent the child of the deceased had predeceased the deceased living at the date of the death of the deceased, or then _en ventre sa mer_e;

(e) a parent of the deceased, whether the relationship is determined through lawful wedlock or adoption, or otherwise, where the relationship was admitted by the deceased being of full age or established in the lifetime of the deceased;

(f) a de facto widow or widower of the deceased who at the time of the death of the deceased was being wholly or partly maintained by the deceased, who was ordinarily a member of the household of the deceased, and for whom the deceased, in the opinion of the Court, had some special moral responsibility to make provision."

25 The respondents' standing to claim under the Act arose by virtue of s 7(1)(d). Section 7(1)(d) can be divided into two limbs:

(i) a grandchild of the deceased who at the time of death of the deceased was being wholly or partly maintained by the deceased, or

(ii) a grandchild, whose parent the child of the deceased had predeceased the deceased, living at the date of the death of the deceased, or then en ventre sa mere.

26 In this instance the respondents were not being wholly or partly maintained by the deceased. They fall under the second limb. Their father had predeceased their grandmother and they were living at the time of her death.

27 The assets and liabilities of the estate of Dorothy Kitson as at the date of her death were shown to Heenan J to be:-

Transportable house situated at 21 Wildfire St Maddington

Land and building situated at 21 Wildfire Street Maddington"

28 The property at 21 Wildfire Street Maddington had been the family home and the place of living of the deceased for many years. It was known in the family as the Myola property. It was a semi-rural property and had been used by the deceased as a hobby farm. The second appellant was living with the deceased at the Myola property when the deceased died and has lived there ever since.

29 Michael Kitson was appointed executor of the will. Under the will the Myola property was left to the appellants Michael and Zelda in equal shares. The moneys in the various accounts passed to Zelda and the chattels and stock were to be divided equally between the two. No provision was made by the Will for the respondents or any other person. The estate was apparently distributed accordingly except that the bank shares have not yet been distributed and would now have a current value of $10,000 - $12,000.

The Order of Heenan J varying the Will dated 23 May 2000

1. The Will of the deceased be varied by providing that the property the whole of the land described in Certificate of Title Volume 1276 Folio 111 as Lot 1 on Diagram 22242 situated at 21 Wildfire Street Maddington in the State of Western Australia ("the Myola property") plus the transportable home situated thereon be divided into twelve equal parts and be devised as follows:

2. Unless otherwise agreed by the parties, within 42 days hereof the First Defendant or his lawful attorney do authorise a licensed auctioneer to take all steps necessary to put the Myola property including the transportable home presently situated on the property up for auction forthwith with a reserve price agreed to by all the parties

3. The costs of the parties to be taxed if not agreed and be paid from the proceeds of the auction of the Myola property. The costs of getting up and hearing of the Originating Summons be taxed as if for trial pursuant to Items 13, 14(a), (c) and (e) of the Supreme Court Scale of Costs. Each party do contribute to those costs in the following proportions:

31 There are some 19 grounds of appeal. Without losing sight of the distinct issues they raise, their general effect may be sufficiently summarised as follows: The trial Judge erred in particular in:

(i) finding that at the date of her death the deceased failed to make adequate provision from her estate for the proper support, education and advancement in life of the first and second respondents and in rewriting the will as was the effect of his orders;

(ii) finding that the deceased owed a moral duty and that there was a clear failure of a moral obligation on her part to provide for her adult grandchildren out of her estate;

(iii) providing for the first and second respondents in circumstances where:

• they were able bodied adult grandchildren with secure jobs and living with partners with secure incomes,

• they were not established to be in special need or unable to meet their day to day expenses,

• they did not live with, care for, or help their grandmother,

• they did not make any meaningful contribution to the property or build up the estate;

(iv) taking into account that the deceased made an inappropriate and unjustified and unfavourable assessment of her deceased son Harry and that but for that assessment, she would have provided for Harry's children in her Will; and

(v) finding that Harry Kitson would have been provided with a share of the deceased's estate had he survived the deceased and that the share which she would have left him should go to his children.

Section 6(1): Adequate provision for the proper maintenance, support, education and advancement in life of the first and second respondents

32 In Bondelmonte v Blanckensee [1989] WAR 305 Malcolm CJ held at 307 that, on an application under s 6(1) of the Act, two issues arise:

"The first question is whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance, support, education or advancement in life of the claimant. This is in effect a jurisdictional question, which is to be determined at the date of death of the deceased: Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494. If that question is to be answered in the affirmative, the court in exercising its discretion to make such provision as it thinks fit, must take into account the relevant facts as they exist at the time of making the order: Coates v National Trustees Executors & Agency Co Ltd (supra); Dun v Dun [1957] HCA 91; (1957) 99 CLR 325 at 331; Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490"

33 The provision which the court may make in relation to applications under the Act is that which a wise and just testatrix would have thought it her moral duty to make in the interests of the relevant applicants: Re Allen (Deceased), Allen v Manchester [1922] NZLR 218 at 220.

34 In Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 when dealing with similar provisions of the Family Provision Act 1982 (NSW) Mason CJ, Deane and McHugh JJ held at 208-210 that:

"It is clear that, under these provisions, the court is required to carry a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the 'jurisdictional question'. ... That description means no more than that the court's power to make an order in favour of an applicant ... is conditioned upon the court being satisfied of the state of affairs predicated [in s 6(1)]

...

The first question is, was the provisions (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 Ltd [1938] AC 463 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 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."

The Court then went on to consider the nature of the two-stage inquiry. Their Honours said (at 210-211)"

"Although the precise nature of the jurisdictional question has been the subject of some debate, the correct view is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments ... The evaluative character of the decision stems from the fact that the court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life.

...

The decision made at the second stage, by contrast, does involve an exercise of discretion in the accepted sense."

Although there are differences between the provisions being considered by the High Court and the provisions of the Act, in particular the Act refers only to adequate provision and avoids the distinction between an adequate and a proper provision, it is clear that the reasoning of the High Court is generally applicable to the present case.

35 It is apparent from this passage in Singer v Berghouse (supra) that consideration must be given to the following to determine whether the respondents have been left without adequate provision in all the circumstances for their proper maintenance, support, education or advancement in life :

(iii) the totality of the relationship between the applicant and the deceased, and

(iv) the relationship between the deceased and other persons who have legitimate claims on her bounty.

36 Counsel for the appellants sought to rely on observations of Master Sanderson in Randell v Randell [1999] WASC 146 with a view to a narrow approach being taken to the first jurisdictional stage. The Master said at [17]:

"Of prime concern in determining whether or not at the date of the death of the deceased adequate provision was made for the Plaintiff, there must be consideration of two questions: First, how would the Plaintiff meet her day to day expenses and, secondly, how would she be accommodated in the future."

37 It appears, however, that the narrow approach taken in Randell v Randell was a product of the facts of the particular case. The plaintiff was the widow of the deceased. Upon the death of the deceased she had an interest in assets including a motor vehicle and a home at Mandurah. She received a Veteran's pension and claimed that the pension she received was inadequate to allow her to maintain the Mandurah property and to allow her to meet her day to day needs. Therefore the case was essentially concerned with the plaintiff's need for maintenance, then and in the future. This can be distinguished from the present situation as the respondents' claim is pursued primarily on the other issues of support, education and advancement posed by s 6(1).

38 It is appropriate, therefore, to apply the considerations identified in Singer v Berghouse (supra) outlined above according to their terms and sense. This was the approach taken by the trial Judge, who proceeded on the basis that is accepted by all parties on this appeal that the only persons shown to have legitimate claims on the bounty of the deceased were the respondents and the appellants.

The Financial Position of Jodie Marie Franks

39 The trial Judge's findings in relation to the financial position of the first respondent include the following. She completed year 12 at high school and since then has worked full-time as a carer at Swan Cottage Homes and was earning $750 a fortnight at the time of her grandmother's death. In 1996 when she was 24 years old she left her mother's house and went to live with Mr Franks whom she married a month after her grandmother's death. They lived in his house.

40 Early in 1997 Mr Franks left his long-standing employment with Telstra to take up business as a landscape gardener. As this business was being established his earnings from it at the time of the grandmother's death were meagre although he did work as an employed gardener one day a week to supplement the business earnings. Following their marriage in May 1997, Mr Franks transferred a half interest in his house to the first respondent in September 1997, although this interest was subject to a mortgage, the repayments being some $300 per month.

41 At the time of her grandmother's death the first respondent's only substantial asset was a car worth about $2000 which she traded in on a new car in June 1997. She borrowed the balance of some $ 20 000 for the new car.

42 At the time of the trial before Heenan J the first respondent was earning some $815 per fortnight or $1,766 per calendar month in the same employment. Her husband's business had apparently run at a loss of some $7,500 in the last year. The monthly expenses for the household totalled $2,324 which exceeded the first respondent's income by some $558. She and her husband had not had a holiday since their honeymoon and they had been unable to reduce the principal owing on their house. Although she wanted to have a family their financial circumstances had caused her to keep working. The first respondent's assets were a joint interest in their home of which the market value was approximately $108,000 and on which some $53,000 was owing, a joint interest with her husband in 1200 Telstra shares, her 1997 Ford Laser which was valued at about $18,000 on which $15,600 was owing, and a saving's account with a credit balance of some $1,710. Her husband owned a 1993 Holden Rodeo with a market value of some $15,650 and the landscaping business. He still worked in an employed capacity one day per week. It was his Honour's finding that the fluctuating nature of Mr Frank's employment made it difficult to ascertain his net income.

43 His Honour's findings were summarised in the following way:

"Thus, although at the time of her grandmother's death she was an adult in gainful employment, in good health and about to be married, her financial situation was modest indeed and her future far from assured. Since then she has acquired a new car and a half share in a home, but she has large debts with uncertain prospects of being able to repay them in the foreseeable future. In my opinion, when her grandmother died Jody had a clear need for provision from the estate."

44 Later in his reasons his Honour described the first respondent as "struggling" at the time of her grandmother's death whilst the financial position of the second respondents and the appellants was "comfortable". His Honour then went on to conclude -

" ... a wise and just grandmother in the position of the testatrix at the time of her death would have taken the view that her granddaughter Jody (sic Jodie) and, to a lesser extent, her grandson Bradley were in need of further provision for their proper support, education or advancement in life, if not for their proper maintenance."

His Honour found therefore that adequate provision had not been made. This reference to maintenance does not constitute, in my view, a finding which excluded maintenance as a relevant consideration but his Honour did not base his decision on a demonstrated inadequacy of provision for maintenance. Given that at the time of her grandmother's death the first respondent was an adult in full-time employment who had, with her then partner now husband, managed to cope financially over the year or so they had lived together, there was reason why his Honour would see the strained financial circumstances of the first respondent as more readily warranting provision for support or advancement in life, rather than maintenance. In this context maintenance is more naturally a provision for the supply of the necessaries of life whereas on the evidence the more obvious need of the first respondent, albeit as an adult at the time of her grandmother's death, was for some provision for the purpose of establishing or advancing her in life. As to "advancement in life" I note Taylor v Taylor (1875) LR 20 Eq 155, Luke v Quinton [1973] 1 NSWLR 111 and In the Estate of Puckridge (1978) 20 SASR 72 at 77.

45 While his Honour did refer to education in the passage quoted above, that was in a context in which his Honour was dealing with both respondents and made reference to the four issues identified in s 6(1). His reasons do not otherwise refer to the question whether there was need for provision for Jodie Frank's education. The evidence at trial was that to advance in her career as a carer she would need to study and sit for the TEE, or pass the examination required as a mature-age entrant, in either case to gain entry to a tertiary institution to study nursing. A nursing qualification would take her work as a carer onto a higher plain. This issue only emerged in cross-examination and it had not been advanced as part of her evidence in support of her claim. The evidence did not indicate that the first respondent had made plans to pursue such a course or had ever attempted to do so. The reference to education in the passage quoted earlier may well be explained by the place of education as one of the four issues posed by the provision. I prefer to approach this appeal on the basis that it was not demonstrated that adequate provision was not made for Jodie Frank's education.

46 It is my respectful view that his Honour has not been shown otherwise to have overlooked or misunderstood any material aspect of the evidence in reaching the findings quoted earlier or to have failed to apply the relevant principles. The appellant's submissions that the first respondent, with her then partner, was "well able to meet her expenses, in secure accommodation, with secure income, well able to work, in possession of assets, in no different situation from her friends and contemporaries and well placed financially", both fails fairly to reflect the evidence and its significance to the issue whether adequate provision had been made in the will.

The Financial Position of the Second Respondent

47 Bradley Kitson married his wife Kathryn Kitson on 18 March 1995. They have two sons. Bradley is a qualified plasterer. At the time of his grandmother's death he and his wife derived an annual income of about $45,000 from their partnership in his plastering business 'Majestic Plasterers'. Kathryn Kitson received a net wage of approximately $15,500 from her employment in her father's business. Further during the year proceeding the death of the deceased she received a dividend of $4,000 from one of her father's two companies.

48 Their assets at the date of death of the deceased included :

(i) joint ownership of a home in Whiteman Street Thornlie worth approximately $107,000 but subject to a substantial mortgage;

(ii) a 1989 Toyota Land Cruiser valued at $13,000 with finance owing to the same sum;

(iii) a Ford Falcon Sedan valued at approximately $9,000;

(iv) Kathryn Kitson and her brother each had a half share in a property at Huntingdale which was rented out; the property had an approximate value of $100,000 and was subject to a mortgage of $76,000; and

(v) Kathryn Kitson owned a fifth share in her father's paving business with a book value of $100,000 although she had not paid for it and her loan account stood at $42,000; the true value of this share was regarded by his Honour as problematical.

49 The trial Judge noted his findings in relation to the financial position of Bradley Kitson at the time of his grandmother's death in the following terms:

"On the evidence available it is difficult to obtain a clear picture of Bradley's true financial position when his grandmother died, but I am satisfied that he and his wife were comfortably off. Between them they were receiving two substantial incomes, they had a well established home and, as well as two motor vehicles, they were the owners of one business and Mrs Kitson had a fifth share in another business."

50 His Honour further found that since the death of the deceased "their situation has continued to improve." In November 1997 they sold their existing house and purchased a more expensive one. The house at Huntingdale had been sold with a $5,000 capital return to Mrs Kitson.

(i) A matrimonial home at Maddington with a market value of approximately $150,000 which is subject to a mortgage of debt of approximately $122,000;

(ii) A 1989 Toyota Land Cruiser with a current value of approximately $10,000 which is subject to a debt for finance of approximately $7,000;

(iv) 2 trailers valued at $200 and $700 respectively;

(v) Tools of trade with a value of approximately $850;

(vi) A joint savings account with a credit balance of $20.12;

(vii) A cheque account at National Australia Bank with a debit balance of $22.24;

(viii) Mrs Kitson continued to have the interest noted earlier in her father's business.

52 There were two issues alive at trial, and which are raised again on appeal, relevant to the credibility of the second respondent and his wife and to their true financial position. There was a failure to disclose in the affidavit evidence of Kathryn Kitson her interest in her father's business. This she sought to explain in cross-examination on the basis that she had not yet paid for the shares, the loan account, and her opinion that there really was no true goodwill to the business. Secondly, the second respondent in an affidavit sworn in April 1998 disclosed a monthly surplus of their combined incomes over their combined expenses of about $600, whereas in an application for finance made about six months earlier he had suggested there was a surplus of useable funds of $2,150 each month. It was his Honour's view that differences in the language and precise subject matter of the affidavit and the finance application meant that like was not being compared with like. To the extent that there were inaccuracies in some matters his Honour saw it as difficult to conclude whether these were attributable to the solicitor or to the second respondent and his wife Kathryn Kitson. For reasons which will appear it is unnecessary to give detailed consideration to these matters. I will proceed for present purposes on the assumption which favours the second respondent that his Honour was correct in the view that he took that neither of these matters provided reason for findings of fact adverse to the second respondent on the jurisdictional issue.

53 The second respondent left school at the age of 15. After working in a variety of semi-skilled or unskilled occupations he turned to plastering. Since 1992 he has carried on his own business, with Kathryn Kitson, as a plastering contractor. He has not undertaken any form of further formal education and the evidence did not reveal he had any specific plans to do so or that further education or training was required for his business and work as a plasterer. The second respondent did observe in evidence that he was a pretty uneducated person and suggested that in virtue of this there ought to be some provision made from the estate for his further education but this issue was taken no further. The principal concern of the second respondent, with respect to education was, however, that he desired some provision from the estate to assist with the education of his two children. In this respect the older of the children is now attending a private school. The education of persons identified in s 6(1) of the Act, however, is confined to persons "mentioned in section 7 of this Act as being persons by whom or on whose behalf an application may be made." It is not submitted that a claim is open to the children of the second respondent under s 7 and in my view his Honour was correct it not giving further consideration to the educational needs of the second respondent's children.

54 With respect to the second respondent's own education the evidence fails to provide any adequate basis for finding that provision was required for the further education of the second respondent. It is apparent that were it not for this application the second respondent had no plan or need to undertake further studies. His Honour made a brief reference to the evidence relating to this issue but apart from the one passage quoted earlier which dealt jointly with both respondents his Honour made no finding as to the need for provision for the second respondent's education. In my view, the evidence at trial could not support a finding that inadequate provision had been made for the second respondent's education.

55 The express finding of his Honour that at the time of the death of the deceased the second respondent and his wife were comfortably off, and the findings as to their personal and financial circumstances which have been mentioned, tell strongly against the efforts of the second respondent to demonstrate that there was a failure in the will of his grandmother to make adequate provision for his proper maintenance, support or advancement in life. He and his wife were adults and they had become well established in life. For the reasons given failure to make adequate provision for the education of the second respondent has not been established. In the reasons for decision of the trial Judge, however, his Honour went on to say:

"Of course the soundness of their financial situation always has depended a great deal upon his being able to perform the demanding physical work of a plasterer for long hours throughout a six day week. To that extent he also had a need for provision from his grandmother's estate when she died and the need persists."

It is on this basis that his Honour was persuaded in respect of the second respondent, that the 'jurisdictional issue had been satisfied. In my respectful view there is difficulty in accepting that it was open to his Honour to find that provision from the estate was necessary.

56 It was not the effect of the evidence, and it was not the second respondent's case, that at the time of his grandmother's death the second respondent experienced any particular or general health problems which affected his capacity to work as a plasterer or which gave rise to any concern that he might not be able to continue to do so during his foreseeable working life. It may be accepted for present purposes and it was the effect of evidence of the second respondent that, like many occupations, the work of a plasterer is physically demanding and that injury or ill health might affect the capacity of the second respondent to continue with work of that nature. But in the circumstances of this case, and in the absence of any clear reason to regard the second respondent's health as suspect or to foresee that he would not be able to continue with the ordinary and well established pattern of his working life, the mere possibility of future injury or ill health does not provide adequate foundation, in my respectful view, for a finding that provision from the estate was required against the possibility that the second respondent might not in the future be able to continue to perform the demanding physical work of a plasterer.

57 The financial positions of the appellants Zelda and Michael Kitson were also the subject of findings by the trial Judge. These are not disputed on appeal. The following extracts from his Honour's reasons are sufficient for present purposes -

"The defendant Zelda Jean Kitson is 61 years old. After working for 42 years as an employee of Telstra, she retired in December 1997. At the time of her mother's death she owned the property at Kenwick and a holiday unit at Rockingham which she values at approximately $100,000 and $65,000 respectively. She had a motor vehicle worth $5,000, shares worth $6,630 and $25,310 in bank accounts. Her salary from Telstra was $40,683 gross per year from which she received $495.25 net per week. Upon her retirement she received a lump sum payment of $90,000. Presently she has an annual income of about $35,000, including $424.84 net per week by way of superannuation. Her real estate is unencumbered. Because the Kenwick house is old, she has not rented it. She acknowledges that her situation is 'comfortable'. Her health is good and she expects to live for a further 20 years or so.

The defendant Michael Arthur Kitson is almost 51 years old. He was married during the early 1970's. He has two children, both boys, the older born on 5 April 1977 and the other on 28 August 1993. A fitter and joiner by trade he is now a science lecturer at a tertiary institution, a position which, it seems, he had held for the past 12 years or more. He intends to retire at the age of 60 years. When his mother died he and his wife were the joint owners of their home at Murdoch, his half share being worth $120,000. He had other assets worth about $13,000 as well as a superannuation entitlement. His annual salary was $48,881 in respect of which he received $630 net per week. He owed $3 500 on a personal loan. Since then his annual salary has increased to $51,150 from which he receives $648 net per week. The value of his assets has increased by more than $11,000 and his personal loan has been reduced to $2,000. His wife and younger son are almost entirely dependant upon him. David, his older son, is unemployed, living at home and, although receiving some form of social security payment, is still partially dependant upon him. If he were to retire at 60 years of age Michael would be entitled to a lump sum of about $220,000 to $250,000 by way of superannuation. However, as he has pointed out in par 9 of his affidavit of 6 November 1998, he has less than 10 years working life ahead of him whereas each of the plaintiffs has about 30 years or more."

58 While the estate is not extensive, as the decision reached by Heenan J demonstrates, it was adequate to allow provision to be made from the estate in favour of each of the respondents without substantially depleting the provision for each of the appellants or disturbing the particular provisions intended by the deceased for the second appellant. There is no question in this case of having to choose between competing needs. As his Honour found the size and nature of the estate was not a factor which required the exclusion of the respondents.

The Relationship of the Respondents and the Deceased

59 As the trial Judge observed the relationship between the respondents and their grandmother was the subject of a good deal of conflicting evidence and the grounds of appeal and the submissions of the parties on this appeal seek to re-agitate a number of those factual issues.

60 While the evidence of the respondents identified assistance they had provided over the years to their grandmother in the running of her farm, and their social contact with her, it is fair to say that for the most part it is the effect of their evidence that this occurred in their younger years and before the death of their father Harry Kitson in 1989. It was the evidence of the first respondent that after her father's death she offered to provide assistance to her grandmother and the second appellant should the need arise but this was only taken up on one occasion. There was dispute as to this evidence. On the evidence of the respondents, after their father's death both respondents remained on good terms with their grandmother but essentially the first respondent mostly visited her on family occasions and the main contact of the second respondent and his wife was by telephone at about monthly intervals although he did call to see her from time to time. It seems that neither respondent visited her when she was in hospital in the period immediately before her death. The general effect of the respondent's evidence is disputed by the appellants although they do accept that the second respondent visited the deceased more often that the first respondent.

61 His honour dealt with this issue in the following way:

"The relationship between the plaintiffs and their grandmother was the subject of a good deal of conflicting evidence, but I am left with the impression that there was nothing extraordinary about it. I am satisfied that from time to time they helped their father with some of the work which he did on the Myola property. After he died they visited the property much less frequently, although they saw their grandmother occasionally. It does not seem that they helped or supported her to any great extent, but on the other hand there does not appear to have been any breach in their relationship with her or ill feeling by her towards them. Certainly the evidence does not suggest that there was anything about their character or conduct such as to disentitle either of them to the benefit or an order (see s 6(3) of the Act)."

62 It has not been shown in my view that his Honour's findings fail to reflect the evidence in a balanced manner or overlook any material aspect of it.

The Relationship of the Appellants and the Deceased

63 There is no serious issue taken with the findings of his Honour. The first appellant's evidence indicates that he performed a number of maintenance jobs on the deceased's farm and that he usually visited the deceased and the deceased usually visited his home every week. The deceased attended family social occasions at his home. His Honour's finding was:

"The evidence shows that throughout his mother's life Michael saw her on a regular basis and, although Zelda mainly provided the assistance which she required, he helped out on occasions. His relationship with the testatrix, although not as close as that of Zelda, was much closer than that of the plaintiffs, particularly after Harry's death."

64 The second appellant has never married. She lived with the deceased on the Myola property until 1975 when she purchased and moved to another property about a mile form the Myola property. Even though they lived apart from 1975 the second appellant saw her almost every evening when they shared a meal, she helped regularly with maintenance work around the Myola property and she went on holidays with the deceased. In November/December 1994 the second appellant moved back to the Myola property to live with her mother and still lives there. His Honour's finding was that:

"Zelda's relationship with the testatrix was particularly close. She was her mother's main support and, in addition to living with and helping her on the Myola property, she accompanied her on holidays which included trips to New Zealand and Tasmania, travelling around Australia and touring the Canning Stock Route."

65 Thus the position was shown to be that as her surviving children the appellants had a stronger relationship with the testatrix than her grandchildren the respondents, with the relationship between the second appellant Zelda and the deceased being particularly close. Further the appellants clearly provided closer and more constant companionship to the deceased and greater assistance in connection with the Myola property than the respondents. This is not a case, however, where any of the parties may be considered as having in any sense a special claim by virtue of their contribution to the building up of the estate or of any particular asset of the deceased, cf Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 147.

66 The submissions canvassed, albeit briefly, two issues arising as the respondents are grandchildren. The first, is whether, as grandchildren rather than children, the respondents should rank less favourably than the appellants. The contrary was also advanced, viz that as grandchildren of a deceased child of the testator, the grandchildren should in effect "stand in the shoes" of their father and rank with his brother and sister, the appellants. It seems to me that each of these approaches would distort the statutory scheme. As the respondents are among those entitled to claim under s 7(1) they have standing. It is not the purpose or effect of s 7(1), however, to make any provision as to the order in which those with standing might rank. If a person has standing and applies for provision out of the estate, it is s 6 which determines whether the application should succeed. This applies the same test to all applicants including children and grandchildren viz whether adequate provision has not been made for the applicant's maintenance, support, education or advancement in life. If so, it is for the court "at its discretion" to order "such provision as the Court thinks fit" be made for that purpose.

67 Of course, as a matter of fact, in determining what will often be the difficult question whether adequate provision has been made, it may be a relevant factor in a particular case that an applicant is a grandchild rather than a child of the testator. Whether that is so, and if so what that relevance will be will depend, however, more upon the particular circumstances than the actual relationship of grandchild or child. For example an orphaned, young grandchild left without any substantial means of support is likely to be able to satisfy the jurisdictional test whereas an adult child established in a profession may not. On the other hand an adult child with a mental deficiency is more likely to be able to satisfy the jurisdictional test than a healthy adult grandchild.

68 The second issue has been considered in many cases over the years. The respondent's are each adults. There is a notion that it may be assumed or presumed, at least on a prima facie basis, that a healthy adult is capable or making his or her own way in life so as not to require further financial assistance. Observations of Fullagar J in Re Sinnott [1948] VicLawRp 48; [1948] VLR 279 are often referred to in this respect. His Honour said at 280:

"No special principle is to be applied in the case of an adult son. But the approach of the 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."

69 This issue and a number of relevant authorities were discussed in Bondelmonte v Blanckensee [1989] WAR 305 at 309-310 per Malcolm CJ. I would respectfully agree with the Chief Justice that it is not apparent that in the passage just cited from Re Sinnot, Fullagar J was intending to lay down a rule of law or any principle, and the passage should be seen in the context of the facts of that case. I would not be minded to apply any distinct test involving any notion of special need or special claim simply because the present respondents are adults. That each is a healthy adult, and at the relevant time was in employment and living and sharing financial resources with a spouse or partner remain material facts to be weighed when deciding whether each respondent had demonstrated that adequate provision had not been made for them in the will of the deceased. As Dixon CJ and Williams J said in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 576:

"The broad proposition that an able-bodied son able to maintain himself in the future exactly as he has done in the past cannot hope to succeed in an application made under the Act cannot be sustained. Each case must depend on its own circumstances. The claim of such a son may well have to be relegated to a low order of priority where there are competing claims, such as those of a widow or unmarried daughters, and the estate is of insufficient value to meet them all."

70 I would add, however, as in Bondelmonte v Blanckensee, if some "special need" is required it was in my view open to his Honour to regard the circumstances of the first respondent identified in these reasons as demonstrating sufficiently the existence of such a special need.

71 The issue of child or grandchild may also be a relevant consideration, if the jurisdictional test has been satisfied, when it comes to the exercise of discretion as to what provision should be made especially when there are competing claims and there is insufficient in the estate to satisfy all of them. As has been observed by King CJ the relative remoteness of the relationship of grandchildren is a factor to be taken into account in determining what would be adequate provision for their advancement in life; In the Estate of Puckridge (1978) 20 SASR 72 at 77. That discretion is considered later in these reasons.

72 It is in light of the considerations which have been canvassed so far in these reasons that the first issue, the jurisdictional question, must be determined.

73 It is apparent that of the four persons to be considered, neither of the appellants had any pressing financial need. Each were of quite mature years and soundly established in their financial affairs. Each of them had, however, been on excellent terms with the deceased and had offered her a good deal of personal and practical support over the years and to her death. In the case of the second appellant Zelda Kitson her relationship with the deceased was particularly close.

74 As the trial Judge had found the relationship between the deceased and the respondents was less close, particularly over more recent years since the death of their father. In part this is not so surprising or out of keeping with the relationship of grandparent and adult grandchildren, particularly over the early adult years when the grandchildren were seeking to make their own lives and in circumstances where the appellants, particularly the second appellant, were readily on hand as children to provide assistance and companionship to the deceased. Significantly, as his Honour found, there was no falling out between either of the respondents and the deceased. Whatever was the truth of the financial dealings between the deceased and Harry Kitson, the respondents were not a party to those dealings and they did not reflect on the respondents.

75 The financial circumstances of the respondents were noticeably different from those of the appellants as has been detailed earlier in these reasons. As between the first and second respondent there was however a material disparity in financial circumstances. The first respondent, as the younger sister, was very much still in the process of trying to establish herself, whereas the second respondent had reached a relatively stable position in which he and his wife were, with care, managing their financial affairs satisfactorily, although obviously they would have liked to be more financially secure and comfortable.

(a) It has not been shown, in my view, that his Honour erred in his finding as to the jurisdictional question that adequate provision had not been made in the deceased's will with respect to the first respondent; it was properly open to his Honour to reach the conclusion that the first respondent Jodie Franks had satisfied the jurisdictional issue.

(b) It cannot be said, however, in my respectful view, that the second respondent Bradley Kitson had established that at the time of his grandmother's death there was a "need for provision from his grandmother's estate" as found by the trial Judge.

77 With respect to the second respondent it appears to me that the objective facts of the second respondent's well established and stable manner of living, business interests and financial circumstances when his grandmother died, even leaving aside any interest of his wife in her father's business, precluded a finding in the circumstances of this case that there was a failure to make adequate provision for the second respondent. There is nothing in the other circumstances of the case to justify any other view. In my view the jurisdictional issue had not been established by the second respondent.

78 That being so, no question arises as to what provision ought to be made for the second respondent. The appeal should succeed with respect to the orders made to enable the second respondent to share in the estate. These orders should be set aside.

It is a useful starting point to bear in mind the observations of Salmond J in Re Allen (Deceased), Allen v Manchester (supra) at 220 which remain of significant value in the context of legislation such as the Act:

"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."

79 It is also material to bear in mind that the Act is not intended to authorise the Court in effect to rewrite a will because the Court might do a better or fairer job than the testatrix. As Dixon CJ said in Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19:

"All authorities agree that it was never meant that the Court should rewrite the Will of a Testator. Nor was it ever intended that the freedom of testamentary disposition should be encroached upon that a Testator's decisions expressed in his Will have only prima facie effect, the real dispositive power being vested in the Court."

80 And as Malcolm CJ observed in Young v Young, unreported; SCt of WA; Library No 7626; 26 April 1989:

"It appears to be accepted that a cautionary approach is called for in relation to invoking provision such as s 6(1). One of the reasons for this is the inevitable fact that the application proceeds without the capacity of the Testator or Testatrix to participate with the consequence that there is a danger that the entire picture may not fully emerge through the evidence presented at trial."

"Bearing in mind the value of the estate and the comparatively modest needs of her own children she should have left the plaintiffs the share she would have left for their father had he not pre-deceased her. That share, I believe, would have been not less than one-third of the Myola property. For present purposes at least, I regard the transportable house as being part of that property.

After taking into account the present situation of the parties to these proceedings, I am satisfied that Jody (sic Jodie) has a much greater need than her brother for provision from the estate. I have decided that the appropriate provision for her is one-quarter and for Bradley one-twelfth of the Myola property, leaving the remaining two-thirds of that property to the defendants in equal shares and not disturbing the other provisions which the testatrix made for the defendants in her will."

81 This reasoning assumes that had he survived the deceased would have left to her son Harry, the father of the respondents, not less than a one third share in the Myola property. The reasons do not reveal why his Honour was persuaded that had Harry survived he would have been included in the will, and, in that event, that his share would have been at least a third of the principal asset.

82 The evidence and his Honour's findings indicate that during his life Harry Kitson had a reasonably good relationship with his mother, providing occasional assistance with the farm and maintaining regular contact. The deceased would regularly visit him and his family at their house usually on a Saturday after shopping. However, as his Honour found "by the time of his death the testatrix was not pleased with Harry."

83 The reasons detail issues concerning financial dealings between the deceased and Harry Kitson, as to which there was a good deal of conflicting evidence from witnesses such as the second appellant Zelda Kitson and Harry Kitson's widow, now Mrs Sutcliffe. This evidence was particularly directed to a handwritten note of the deceased which is in evidence and which was found by the second appellant in 1998 after the death of the deceased. It purported to be addressed "To whom it may concern" and to explain "why Harry's family are left out of my will.". It suggests "Harry had his part of the Myola road property when he was alive, that being ..."; there are noted some five items:

84 The gist of the note seems to be that the deceased had paid for these items for Harry except the steer as to which the note is somewhat confusing, but the effect may well be that Harry Kitson kept the proceeds of the sale of her steer. The notes goes on to say "Harry's family are not mentioned in my will as their father never paid his debts to me."

85 There is no reason to go into detail of the evidence about these matters. It led his Honour to conclude:

"I find that (the deceased's) unfavourable assessment of Harry was not justified and infer that, but for that assessment, she would have provided for his children in her will."

"Finally, the moneys which the testatrix claimed she had given Harry could not reasonably have been regarded as enough to constitute "his part". As she described it in the note, of the Myola property."

87 Of course, had Harry Kitson survived his mother, she would have been entitled to exclude him entirely from her will or to make some provision for him quite different from that made for the other children. Subject only to the possibility, in that event, of an application by Harry Kitson for provision from her estate, which would have to be determined on the same principles as the present applications, it cannot be said in my respectful view that the evidence supports a finding that the deceased would have included any provision for Harry Kitson in her will. His Honour's finding that by the time of his death the deceased was not pleased with Harry is well supported by the evidence. This led it seems to the absence from the will of any provision for Harry's children. The evidence does not, however, suggest reasons why the deceased's view of Harry would have been different had he lived to survive her. The deceased's views that Harry Kitson had had his share, and that he had not repaid his debts to her, may or may not have been unjustified or unfair or unreasonable, but, even if they were, there is no reason found by his Honour or demonstrated by the evidence why they would change had Harry Kitson survived. In my respectful view, insofar as it is relevant, the probabilities were against any provision being made for Harry Kitson in the will of the deceased, let alone his sharing equally with his sister and brother. As his Honour's reasoning relevantly proceeds on the assumption that Harry Kitson would have shared in his mother's estate had he survived her, and that his share would have been not less that one third of the Myola property, the conclusions reached by his Honour from that reasoning must be reconsidered.

88 The second issue for decision requires an objective assessment of what a wise and just grandmother in the position of the deceased would have done to make adequate provision for the first respondent, having regard inter alia to the nature of her estate, the family circumstances and the competing moral claims with which she was faced.

89 While it may be quite common today for testators to share their estates equally between their children (in the absence of provision for a spouse) and, in that case, to provide for a deceased child's children to share equally the share their parent would have taken had the parent survived the testator, that is but one view of an appropriate disposition in such a situation. Other dispositions are commonly made and, of course, specific circumstances may well persuade a testator to a quite different course. It cannot be said, therefore, that a wise and just grandmother would necessarily take the view that there should be such a disposition. Importantly, the Act requires determination of what should be done by way of an "adequate" provision in terms of s 6(1). That is to be determined as at the date of decision, not the date of the will or the death. Further, this issue is now to be considered in the changed circumstances, as indicated, that only the first respondent Jodie Franks has satisfied the jurisdictional issue.

90 For good reason an appellate court would normally hesitate before seeking to interfere with the exercise of discretion by a trial Judge, particularly over an issue as difficult as this, cf Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 212. In the present case, however, the difficulty in the reasoning of his Honour identified above appears to have had a direct bearing on the exercise of this discretion in that his Honour reasoned from the assumption that Harry Kitson's share would have been not less than one-third of the Myola property, to the conclusion that a one-third share of the Myola property should be divided between the respondents.

91 When the circumstances of the first respondent are assessed at the date of decision, the inadequacy of provision does not extend to her maintenance or education and is limited to her support and advancement in life. She is now a married woman in stable, full-time, but not well paid employment. It is the uncertainties of her husband's business venture that has much to do with her need for adequate provision, especially if she is to be able to look forward to having children with modest financial security.

92 In these circumstances it appears to me that a provision for the first respondent of one-sixth, rather than one-quarter, of the Myola property including the transportable home situated on it would commend itself an adequate provision given the nature and size of the estate. This would appear sufficient to satisfy the sense of moral obligation which a wise and just grandmother would have felt for a young adult granddaughter, whose father (whatever his shortcomings) had predeceased her and whose mother had remarried, and who was struggling as she sought with her partner to establish herself in life. Such a provision would still allow ample scope for effect to be given to the particular affection and sense of moral obligation which the deceased felt toward the appellants.

93 For the reasons given earlier, however, in my view no provision should be made from the estate for the second respondent.

94 Subject to any submission the parties may wish to advance there is no apparent need to disturb the general tenor of the Orders made by his Honour for the sale of the Myola property and the division of the proceeds, save that time should now run from the date of the Order on this Appeal and the matter of costs must be reconsidered.

95 His Honour ordered that if not agreed the taxed costs of the parties be paid from the proceeds of the sale of the Myola property, each party contributing to those costs in the proportion in which they were to share in the proceeds of the sale of the Myola property. The respondents contend on appeal that this order reduced the value of their interests in the Myola property significantly but protected the specific cash bequest to the second appellant.

96 Obviously, the decision as to the merits of the appeal will require fresh consideration by this court of the question of costs below in any event. It is to be observed, however, that costs are a matter in which the exercise of discretion by the trial Judge is not disturbed without strong reason.

97 The submissions for the respondents fail to have adequate regard to the effect of the decision by which they are to share in the main asset of the deceased, the Myola property, rather than it being divided equally between the appellants. It was well open to his Honour to be persuaded that he should leave undisturbed the gifts in particular of the deceased's moneys in her banking accounts and her chattels and stock in view of the relationships with her of the appellants during her lifetime and, as a consequence, to be persuaded that those gifts should be isolated from the effect of costs.

98 Were it not for the need to reconsider costs because of the change to the substantive orders made by the trial Judge I would not disturb his orders for the costs of the trial. In my view it is appropriate to vary his orders as to costs only to provide that the second respondent should bear his own costs of the action and to provide that the contribution of the appellants and the first respondent to the taxed costs to be paid from the sale of the Myola property should be in the proportions by which those parties are now to share in the proceeds of that sale.

(b) vary par 1 of the Order of Heenan J so that the division to be effected be two parts to the first plaintiff (the first respondent in this appeal) and five parts for each of the defendants (the appellants), there being no provision for the second plaintiff (the second respondent);

(c) vary par 2 so that the 42 days runs from the date of this decision and to omit the second plaintiff (the second respondent) from the parties;

(d) vary par 3 so that the contribution of the first plaintiff (the first respondent in this appeal) is two twelfth parts, and the contribution of each of the defendants (the appellants in this appeal) be five twelfth parts and to exclude the second plaintiff (the second respondent) from the parties dealt with by the paragraph; and

(e) vary the order of Heenan J by adding as par 4 an order that the second plaintiff (the second respondent) pay his own costs of the action.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KITSON & ANOR -v- FRANKS & ANOR [2001] WASCA 134 (S)

Bath v Perpetual Trustees WA Ltd & Ors [2000] WASC 255

Boykett v Boykett & Anor, unreported; SCt of WA (Murray J); Library No 970735; 22 December 1997

Browne v Macaulay & Ors [1999] WASC 217

Dobb v Hacket & Ors (1993) 10 WAR 532

Ingamells v West Australian Trustees Limited & Anor, unreported; SCt of WA (White J); Library No 920022; 11 February 1992

1 JUDGMENT OF THE COURT: When the decision on the appeal was delivered the question of costs, both of the appeal and the trial before Heenan J, was reserved. The parties were given leave to file further submissions which have now been received. These reasons state briefly the basis on which we have decided to make the orders as to costs set out at the end of these reasons.

2 In respect of the costs on the appeal and cross-appeal we note that the parties, other than the second respondent, were and remain entitled to share in the estate. This remains undistributed. In our view it is appropriate in the circumstances of this case that their costs be paid from the estate.

3 While, by virtue of the decision on appeal, the second respondent is no longer to share in the estate, he was successful at trial so that at the time he incurred the costs of the appeal and cross-appeal he was entitled to share in the estate and his conduct in resisting the appeal may not properly be regarded as unreasonable. In these circumstances we are persuaded that it is appropriate that his costs of the appeal and cross-appeal should also be paid from the estate.

4 In the particular circumstances of this case, essentially for reasons outlined by Parker J in the decision on appeal at [97], the costs of the appeal and cross-appeal should be paid out of the proceeds of the sale of the Myola property.

5 With respect to the costs of the trial we are of the view that the approach indicated in the reasons of Parker J in the decision on appeal at [99(d) and (e)] remains appropriate. In view of the outcome of the appeal the second respondent (second plaintiff) was a claimant who was not a beneficiary but who had standing to bring the application. He failed, however, to satisfy the first or jurisdictional requirement of the statute. In this respect, we note that the awarding of costs in applications of this nature may be significantly influenced by the particular circumstances of the case and there is no fixed rule. Walsh & Anor v O'Sullivan & Anor, unreported; SCt of WA (Owen J); Library No 960629; 30 October 1996 does not establish or reflect a general rule as was submitted for the second respondent (second plaintiff). That case was different from the present in a number of respects. In particular the plaintiffs were beneficiaries and the issue was whether the provisions made for them in the will were adequate. That is not the present case. In these circumstances it is our view that the second respondent (second plaintiff) should meet his own costs of the trial, but should not be required to pay the costs of any other party.

6 We are not persuaded there is reason to vary the orders of Heenan J as to the costs of the trial either to make specific provision as to the costs of the executor or to order that taxation be on a practitioner and client basis. Nor would such orders be appropriate on the appeal and cross-appeal.

7 The second respondent (second plaintiff) sought an order under the Suitors Fund Act 1964 s 10(1). This provision requires that the appeal succeed on a question of law. In our view that requirement is not satisfied in this case.

8 The following orders are made in respect of the costs of the appeal and cross-appeal and in variance of the orders for costs made at trial.

1. The parties to the appeal and cross-appeal to have their costs, to be taxed if not agreed, to be paid from the proceeds of the sale of the Myola property.

2. The order of Heenan J dated 23 May 2000 be varied so that:

"3. The costs of the first plaintiff and the defendants, to be taxed if not agreed, be paid from the proceeds of the sale of the Myola property. The costs of getting up and hearing of the originating summons be taxed as if for trial pursuant to items 13, 14(a), (c) and (e) of the Supreme Court Scale of Costs. The first plaintiff and the defendants do contribute to those costs in the following proportions:

"4. The second plaintiff pay his own costs of the action."

• Background
• The relevant provisions in the Act.
• The Deceased's Estate
• The Will dated 6 July 1989
• The Order of Heenan J varying the Will dated 23 May 2000
• Grounds of Appeal
• Section 6(1): Adequate provision for the proper maintenance, support, education and advancement in life of the first and second respondents
• The Financial Position of Jodie Marie Franks
• The Financial Position of the Second Respondent
• Education of Bradley John Kitson
• Adequacy of provision for Bradley John Kitson
• The Financial Positions of the Appellants
• The Size and Nature of the Estate
• The Relationship of the Respondents and the Deceased
• The Relationship of the Appellants and the Deceased
• Claims by adult grandchildren
• The first issue - Jurisdiction
• The second issue : Proper provision
• The Cross Appeal
• Result
• Orders in respect of costs