The applicant widow and the testator were married in 1947. There were six children of the marriage. One pre-deceased the testator. The marriage lasted for fifteen years. The family was never well off financially. For six years of the marriage the testator served in the Royal Australian Navy. The widow was fully occupied looking after the home and bringing up six children. In 1962, the testator and his family were living in a rented Housing Commission home in West Heidelberg, Melbourne. He was then working as a milk delivery driver. Furnishings in the house were described by the widow as sparse and there was no money saved, but the widow said that there were no debts. The widow denied that prior 1962 there had been disharmony in her marriage but did admit to what she described as "confusions". The widow gave evidence that the testator disappeared for a short period early in 1962 and then re-appeared at home, having apparently been charged with some criminal offence. Within a few days of his return, the testator left again, never to return. It is not possible to make a finding with respect to the cause of the breakdown of the marriage. The only finding open on the evidence is that the parties separated in 1962 and there has been no contact between the testator and the applicant widow since that date.

On 21 May 1962, in a court of petty sessions, the applicant widow obtained a maintenance order against the testator in favour of herself and her children. As the testator's whereabouts were then unknown, that order was not enforced. I find, however, that the principal purpose of then seeking the order was to enable the widow to obtain a Commonwealth benefit and to secure the transfer of the Heidelberg home from joint names to her name alone.

From the affidavit evidence of Mrs Stocks I find that the testator came straight to Tasmania after leaving Melbourne. He obtained worked in an apple processing shed at Port Huon. There he met Mrs Stocks, a mother of five children, living separately from her husband. I accept Mrs Stocks' evidence that she and the testator "started going out together" and in 1963 they commenced living in the same house. At that time, Mrs Stocks' children were being cared for by relatives. Shortly after moving into a house with the testator, Mrs Stocks was reunited with her children. Thereafter, the testator, Mrs Stocks and her children all lived together in various houses until 1989 when they moved to Primrose Sands. They remained in that house until the testator died six years later. The testator had regular employment of a manual nature until 1984 when he became too ill to work. He suffered from emphysema which got progressively worse until he died. With respect to her relationship with the testator, Mrs Stocks deposed:

"9 My relationship with Mr Gerlach, since the time we commenced living in the home in Lower Jordan Hill Road in 1962, has been as follows: a We shared a home but not the same bed. We had separate bedrooms. From time to time we would sleep together. We went out together. Mr Gerlach paid board up to the point that he died. Neither of us considered that we were in a marriage like relationship. b Mr Gerlach was a father figure to the children of my marriage and the father to Gregory. ... 14 After moving from Lutana to Primrose Sands Mr Gerlach continued paying, out of his separate pension, a sum to me on account of board. I also collected and continue to collect monies from both Gregory and Wayne and these are used for household expenses. 15 (a) As I have never been married to nor in a marriage-like relationship with Mr Gerlach I do not consider that I am entitled in any way to any of his property nor do I seek any. (b) I am aware that de facto spouses are able to make a claim, but I was never the de facto spouse of Mr Gerlach."

The beneficiary, Gregory Thomas Stocks, was born on 5 May 1974, so he was just 21 years old when the testator died. I find that the testator was Gregory Thomas Stocks' father and Mrs Mavis Stocks is his mother. Although the former fact was in issue at the commencement of the hearing, the evidence in favour of the finding I have made was overwhelming and in closing addresses counsel for the applicants conceded that the finding was appropriate.

So why did the deceased describe his son, the sole beneficiary of his estate, as "my friend" in his will? The reason became apparent from the oral evidence of Mrs Stocks, given in cross-examination. When Mrs Stocks was re-united with her five children, she became the recipient of a Commonwealth benefit. She believed that if she disclosed that she and the testator were living as man and wife, the continuity of payment of that benefit would be put in jeopardy. Having once been deserted by her husband and unable to maintain her children, Mrs Stocks was more than anxious to ensure that nothing was said or done that might put at risk the security she had obtained by becoming the recipient of a Commonwealth benefit. Further, Mrs Stocks thought it would be unfair to expect the testator to maintain five children of whom he was not the father. This is why she described her relationship with the testator as she did in her affidavit and this is why the testator described his son in his will as his friend. I find, contrary to the affidavit of Mrs Stocks, that from 1963 until the date of his death, the testator and Mrs Stocks lived as man and wife. I find that the testator and Mrs Stocks brought up the latter's five children and their son in a family atmosphere.

As I have already found, there was no contact at all between the testator and the applicant widow after 1962. There was also very little contact between the testator and the children of his marriage. In 1975, the testator's third child, Rosalie, came to Tasmania, obtained employment and made some limited contact with her father. There was also some limited contact between the applicant daughter and the testator. I am unable to make a precise finding about the extent of this contact. The applicant daughter deposed in her affidavit:

"5 I had no contact with him prior to the mid 1970's. Since the mid 1970's he sometimes contacted me at Christmas and on birthdays but he never answered my letters."

"d As to paragraph 5 [of the applicant daughter's affidavit] I do not know what occurred prior to the 1970's. I deny that there was minimal contact between the deceased father and Marlene. She came to stay with us a couple of times that I can recall. My father also spoke with her by phone every couple of months and corresponded with her a couple of times each year."

The beneficiary was not cross-examined about this matter at all. However, on any view of the matter, the contact between the testator and the applicant daughter after the former left home in 1962 was minimal. In essence, the testator severed relations with his family when he left them in 1962 and started a new life in Hobart with a new family in 1963.

The applicant widow described herself as having always been "a battler". Since 1962 she has lived on a Commonwealth benefit. She said in cross-examination that after she obtained Social Security benefits in 1962, the circumstances in which she and the children lived were much the same as they had always been during her marriage.

The applicant widow remained in the former matrimonial home for about three years after the testator left. Together with her children, she then went to live with her mother in a house that her mother was renting. The widow's mother died in 1969 and the evidence does not disclose where the widow went after her mother's death, but she did say, and I accept, that for the last fourteen years she has lived with a 42 year old unmarried daughter in a house owned by this daughter. Just the two of them live in this house. The daughter is in secure employment and the applicant widow said that she expects to remain there until her death. She helps her daughter pay off the mortgage. Her only income is a Social Security age pension of about $382 per fortnight. Apart from some furniture and savings of about $2,000, the applicant widow has no assets. Her health is indifferent and she is on a waiting list to undergo an operation on her bunions. She will also have to have an operation for cataracts on her eyes, but she is not sure when the latter operation ought to be done. The applicant widow is able to live within her means and her future home is secure. She said that she would like some money out of the estate to pay for the operations she will have to undergo, but she said that she had no idea of the cost of them.

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

- the needs of the applicant; - the size of the estate; - the claims of others; - the moral claim of the applicant.

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

"The Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances."

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

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

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

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

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

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

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

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

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

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co [1938] AC at 476. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder [1951] HCA 44; (1951) 82 CLR 645, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

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

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

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

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

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

It must be noted that unlike the Testators Family Maintenance Act, s3(1) (Tas), the Family Provision Act 1982, s7 (NSW) requires the Court to answer the first question as at the date the order is made, not at date of death. This of course puts strain on the validity of the proposition that the Court has to consider what the wise testator would have done for the Act requires such testator to take into account events that occur after his or her death!

With respect, I think that there is a great deal to be said for the observations of the third member of the Victorian Court of Appeal in Grey v Harrison (supra), Callaway JA, when he said at 366 that "[i]t may well be that too much has been read into the dictum and that ultimately it is intended only as a warning against departing too far from the language of the statute." For my part, I see very little difference between the test as expounded by Salmond J in In re Allen (supra) and that propounded obiter dicta by the High Court in Singer. After all, Salmond J's wise and just testator, sitting in his armchair, was always just as hypothetical as that ubiquitous passenger sitting in his seat on the Clapham omnibus. Just as the reasonable person's perspective is used as the yardstick to measure the conduct of a defendant in a negligence case, so is the conduct of a wise and just, rather than fond and foolish testator, used as a yardstick to measure the conduct of the deceased in a Testators Family Maintenance Act case.

Application of the Law to the Applicant Widow's Claim

In considering whether the applicant widow has been left without adequate provision for her maintenance and support, it must not be forgotten that she is the testator's widow, that they did live together for fifteen years, although for nearly half of this period the testator was away from home on service in the Navy for not inconsiderable periods. The widow did bring up all the children of the marriage, no doubt an extremely difficult task for her alone and with her sole source of income a Commonwealth benefit. On the other hand, had the testator not left home in 1962, his capacity to generate income was such that bringing up the children would have still been a financial burden. In addition to these matters, it is appropriate to have regard to the length of time the parties have been separated and the course their lives have taken over that time. See Re Adams, deceased [1967] VicRp 115; [1967] VR 881 at 883; Re Clissold (deceased) [1970] 2 NSWR 619; Re Cutts, deceased [1969] VicRp 31; [1969] VR 254 at 256.

The reality of the situation is that as the years passed and the children left home, the applicant widow regarded her marriage to the testator as a closed chapter. Although she said in evidence that she was open to a suggestion that they become reconciled, I doubt if she ever gave it any serious thought. The applicant widow made little effort to contact the testator shortly after she obtained the maintenance order and none at all as the years passed. Thirty-three years is a long time. Although the applicant widow never entered into a relationship with another man, I find that she regarded the testator as having left her life entirely and she was content to accept that position and lead her own life quite independent of him. The estate is extremely small. The beneficiary had a legitimate claim upon the deceased's bounty, as did the applicant daughter to whose case I shall refer shortly. The applicant widow is living in more or less the same financial circumstances as she has lived all her life, before marriage and after marriage, both before and after the testator left her. Although she could spend some money on non-emergency surgery if she had it, such surgery will eventually be carried out in the public hospital system at no cost to the widow. In all these circumstances I have reached the conclusion that by his will, the testator has not left the applicant widow without adequate provision for her maintenance and support.

Application of the Law to the Applicant Daughter's Claim

The position of the applicant daughter is different. The applicant daughter deposed that at the time she swore her affidavit on 15 July 1996, she was 49 years of age. She is divorced with four grown-up children. With respect to her present circumstances, she deposed:

"My health is poor and I am 75% incapacitated. I have had operations on my right hand and I suffer from arthritis. The arthritis is unable to be treated because of the condition of my kidneys and I suffer from high blood pressure. I have a therapy machine for my hand which costs approximately $200 per annum. I received [sic] an invalid pension of $415.10 per fortnight which includes rent assistance. I have a bank account of $2.70 and furniture valued at approximately $3,000. I pay approximately $90 per week in rent."

None of that evidence was challenged. I have already referred to the evidence concerning the contact between the applicant daughter and the testator over the years. The beneficiary lives in the Primrose Sands home with his mother and a step-brother. He is in good health and I infer from the evidence, of average intelligence. At the present time, in common with so many other young people in this State, he is experiencing difficulty in finding permanent employment. At the time he swore his affidavit he was unemployed, but at the date of the hearing he had employment as a labourer in a fish factory. He has no dependants nor any plans to get married, although he does have a girlfriend. I accept his evidence that there was a close and loving relationship between him and the testator and that relationship alone is sufficient to justify a substantial claim to the testator's bounty. However, in terms of competing needs, those of the applicant daughter are far greater than his. I find that the applicant daughter has been left without adequate provision for her maintenance and support and that in all the circumstances, particularly the size of the estate, it is appropriate that the whole of it be shared equally between the two of them.

Accordingly, the claim of the applicant widow is dismissed but there will be an order that proper provision be made for the applicant daughter by providing her with one half of the net estate after payment of all duties, costs and expenses.