MACKINNON, Roy McLean v MACKINNON, Ian McLean

Succession - Family provision and maintenance - Failure by testator to make sufficient provision for applicant - Whether applicant left with insufficient provision - Claims by children - Claim by adult son - Lack of contact with testatrix for last seven years - Financial assistance during lifetime - Illness and reduced earning capacity.

Testator's Family Maintenance Act 1912 (Tas), s3(1).

First and Second Respondents: Douglas & Collins

Judgment ID Number: [2002] TASSC 3

IN THE MATTER OF THE ESTATE OF ARMINELL JUDITH REYNELL MACKINNON; ROY MCLEAN MACKINNON v IAN MCLEAN MACKINNON, DIANNE PATRICIA MACKINNON and GEORGINA CAROLINE MACKINNON

1 The applicant, Roy McLean MacKinnon, has applied under the Testator's Family Maintenance Act 1912 ("the Act") for provision out of the estate of his mother, Arminell Judith Reynell MacKinnon ("the testatrix"), who died at Launceston on 12 May 1998, aged 71 years. The respondents were appointed by her will to be her executors and trustees, but only the first and second respondents proved the will. The probate order, dated 10 August 1998, reserved to the third respondent power and authority to apply for and obtain probate at any time thereafter. She has not done so. She was not represented by counsel and took no part at the hearing of the application.

2 By the Act, s3(1), it is provided that if a person dies, whether testate or intestate, and in terms of his or her will or as a result of intestacy any person by whom or on whose behalf application for provision out of the estate may be made under the Act is left without adequate provision for his or her proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of that person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate for all or any of the persons by whom or on whose behalf such an application may be made. Under s3A it is provided that applications made be made by or on behalf of (inter alia) the children of the deceased.

3 By s8(1) the Court or judge may refuse any such application if the character or conduct of any person by or on behalf of whom the application is made is such as in the opinion of the Court or judge should disentitle him or her to the benefit of any provision under the Act. Counsel for the first and second respondents disavowed any claim that there was disentitling conduct on the part of the applicant.

4 The testatrix was married on 10 March 1948 to Allan McLean MacKinnon, who was born on 16 May 1923. There were three children of the marriage, the first respondent Ian McLean MacKinnon, who was born on 5 June 1949, David McLean MacKinnon, who was born on 31 March 1951, and the applicant, Roy McLean MacKinnon, who was born on 16 September 1952. The husband of the testatrix died at Launceston on 29 November 1991.

5 The late Allan MacKinnon was a member of a farming family who lived on a farm called Vaucluse at Conara. In about 1929 the family acquired a neighbouring farm, Glen Esk. Following World War 2 he farmed Glen Esk, initially in partnership with his mother. He then purchased the property from her. The main house was derelict but following his marriage to the testatrix in 1948, they did it up and resided in it from 1951. Each of the three sons was raised there. For at least some of their primary education, each attended Scotch College in Launceston as a weekly boarder, returning home each weekend. Their secondary education was as full boarders at Geelong Grammar in Victoria. I presume they returned home to the farm each school holidays.

6 The oldest son, Ian, left school at the end of 1966 aged 17 years and returned home to live and work there as a farmer, apart from about six months spent overseas. David also came home to live and work, although he attended an agricultural college for some time and he also travelled overseas at a time coinciding with his older brother's trip. The applicant, Roy, gave evidence that he was a poor student academically, although not for want of trying. He also returned to the farm to live and work upon leaving Geelong Grammar at the end of 1969, aged 17 years. For a year or so he lived in Launceston and studied unsuccessfully for matriculation, with the ambition of becoming a land valuer. Apart from that year, he lived at Glen Esk and worked on the farm.

7 It was the ambition of their father, and I presume it was shared by the testatrix, that sufficient farming land would be acquired to enable each son to have a property of his own. In 1961 trusts were established for each of them. Over the years a number of properties were acquired in addition to Glen Esk. They were Avon Park which had an area of about 352 hectares at Conara, Snaresbrook of about 1,232 acres between Conara and Campbell Town, Winburn of about 1,372 acres at Nile and Uplands of about 10,500 acres of relatively poor quality land at Deddington. There were a number of family partnerships that operated the family businesses on the properties. For example, in 1961, into the "A McL MacKinnon & Sons" partnership of Mr and Mrs MacKinnon each of the sons was admitted with a one seventh interest. At that time it farmed Glen Esk and Uplands. In 1964 the "Glen Esk Company" partnership was formed by the trustees of the trusts for the sons, to farm Snaresbrook. There was also an Avon Park partnership. It is unnecessary for me to fully detail the partnership arrangements with respect to each property and the farming of them.

8 As was the custom on Tasmanian family run farms, all members of the family worked long hours on the various farming properties. Each of the sons drew a modest wage. Although drawings were made on occasions for other purposes, much of the income was applied for the farming businesses, one of the ultimate objects being to increase the assets for the eventual benefit of all members of the family, in particular the sons.

9 It was the intention of Mr and Mrs MacKinnon not to divide the farming businesses and properties among their sons until later, but the decision to do so was accelerated by events which occurred in about 1975. The cause is disputed by the applicant and the first respondent, who were the only witnesses. The applicant's evidence was that it arose because their father did not approve of David's intended wife, Kate, and insisted on the division being brought forward. The first respondent's evidence was that it arose because David and the applicant insisted on the division taking place. I suspect that the true reason was more complex than either version. It is impossible for me to determine what it was and I do not see that such a determination will assist me to decide upon the merits of the application. The first respondent sided with his parents. The applicant sided with David. A deep division occurred within the family which had drastic consequences so far as relationships were concerned. The division was widened by the insistence of David and the applicant that their mother fully account to them for her overdrawn partnership drawings account, whereas the parents and the first respondent did not consider it fair that she should have to do so.

10 The late Mr MacKinnon meticulously ensured that in the division of the farms and the businesses, each son received an equal share. In 1976 deeds of dissolution of partnership were entered into dissolving the partnerships as from 1 January 1976. Although a deed partitioning real estate between the three sons was not entered into until 22 February 1979, the partition was expressed to be effective from 1 January 1976 in so far as possible, and in practice the division was considered by all parties to have taken place as at that date. For the purposes of the division, real estate was treated as having existing Government valuations, which I gather were less than true valuations. Each son received a farm. The first respondent received Snaresbrook, David received Uplands and the applicant received Winburn. Stock, plant and equipment was also divided. Equality was achieved with transfers of cash. The applicant's net receipts were of Winburn, the most recent Government valuation for which was for $115,000, the property being subject to mortgages for $80,000; over 3000 sheep and about 300 cattle worth approximately $43,000; a share portfolio worth about $9,000; a life insurance policy; and sundry furniture and effects. The evidence was inadequate for the purposes of assessing the true value of the property he received in the division, although his subsequent sale of Winburn in 1979, about which I will say more shortly, assists to understand the value of what he had been provided by his parents. He and David formed a partnership called the Winburn Pastoral Company and ran their two farms together. The farms complemented each other for the running of livestock. The partnership also leased a grazing property at Evandale, called Spring Plain.

11 Sadly, the family division was so deep that apart from one business meeting the applicant did not talk to his parents again until 1980. It appears probable that David never spoke to his parents after 1976. He subsequently moved to Victoria to live. The applicant married his wife, Jane, in March 1976. Two letters written by her to his mother in April 1976, cause me to infer that at that time he was determined not to have contact with his parents. On the other hand, the first respondent maintained a good relationship with them.

12 At the time of the property division, the applicant was aged 23 years. It was his evidence that he was significantly disadvantaged in that he lacked appropriate skills and training and farm management experience. However, to what extent that may have caused detriment to him at that time was not revealed by the evidence. He and David continued to operate their farms in partnership until 31 March 1979.

13 In January 1979, the applicant sold Winburn for $320,000. After discharging mortgages, he cleared about $240,000. He retained ownership of his livestock. There was no evidence with regard to plant and equipment. I observe that for a 26-year-old, his assets at that time were relatively substantial and effectively were acquired from his parents. In February 1979 he acquired a fee farm property of 701 acres called Green Slopes at Frankford for $135,000. He paid about $102,000 and the balance of about $33,000 remained owing under the fee farm arrangement. He placed his Winburn livestock on the property. In about April 1979 he commenced to undertake substantial improvements to it and by the end of 1979 he had expended about $155,000. At a cost of about $70,000 he renovated and extended the existing house. He purchased additional machinery, developed an on-farm water supply, commenced the redevelopment of pastures and carried out fencing and building repairs. Towards the end of 1979 he purchased another property, Hillside, of 450 acres at Holwell, about 15 minutes away. The purchase price was $125,000. It was financed substantially by borrowed money on mortgages.

The applicant's resumption of his relationship with his parents

14 In about October 1980, the applicant's wife, Jane, contacted the first respondent's wife, Dianne (the second respondent), and asked for advice as to how they might be able to resume their relationship with the testatrix and her husband. The first respondent suggested that the applicant write a letter to his father, which he did. Thereafter he was on good terms with his parents until 1991. There was frequent and regular contact between them. His evidence was that the relationship was warm and generous, from both sides.

15 It was the applicant's evidence that he did not do well as a farmer. He regards himself as being inadequate and poorly trained in that regard. In 1983 he sold Hillside and discharged all of his mortgage liabilities, including on Green Slopes. He was then clear of debt. In 1984 he obtained a bank loan of $10,000 and developed a 3 acre strawberry farm on Green Slopes, establishing a packing shed and cool room, strawberry beds and a watering system. Between November 1985 and February 1986 there was unseasonal heavy rain which destroyed much of the strawberry crop. The same thing happened the following year and he gave up the strawberry venture. Between September 1985 and 1987 he earned what he described as a modest income as a part-time commission agent for AMP Society. In mid-1986 he spent $12,000 on the purchase of sawmill equipment to utilise timber on Green Slopes.

16 Presumably because his farming business was not very successful, he sold Green Slopes in December 1987 for $300,000 to APPM Forest Products, retaining ownership of the home and 30 acres surrounding it. He also retained the sawmill site and grazing rights until plantation development by APPM. His evidence was that the sale enabled him to reduce (I presume he meant repay) all of his debts. In cross-examination he accepted that he was left with about $260,000 together with the house and 30 acres and he had retained the site where his sawmill was, and my understanding is that he also retained some sheep which he was able to continue to run on the property he had sold.

17 In 1988, when he was aged 35 years, the applicant went into partnership with a man for timber production. They acquired various plant and equipment, including a loader, and commenced operating a sawmill. The operations were a financial disaster and the sawmill was closed down in November 1990. He and his wife were insolvent. He accepted in cross-examination that he had lost about $400,000 in a three year period. I suspect the amount was greater than that, for the line of questioning did not take into account financial assistance provided by his mother-in-law, which he described in a letter to his mother of 18 February 1995 as a considerable amount of money.

18 In a desperate financial position, he went to his parents and disclosed the substance of his predicament. In 1989 they had moved their place of residence from Glen Esk to a house at 135 High Street in Launceston which the testatrix had acquired in 1988. They asked for detail and offered substantial financial assistance. On various dates and in various amounts between December 1990 and about May 1991 they paid to the applicant or his creditors a total of about $160,000, of which over $90,000 was contributed by his mother and the balance by his father. At the same time, he commenced to liquidate his remaining assets, in particular by selling his stock, plant and machinery, applying the proceeds to debt reduction. It was his intention to sell his house and surrounding 30 acres of land for the same purpose.

19 Presumably he and his parents recognised that a sale of the real estate might take some time, whereas creditors were pressing. In return for what they had already advanced and promised to advance, he undertook to mortgage it to his parents. The memorandum of mortgage was dated 20 March 1991 and registered two days later. The principal sum secured by the mortgage was expressed as $206,000 of which $154,000 had already been advanced and the remaining $52,000 was intended to be advanced, the overall total to come from both of his parents in equal shares. The principal sum was to be repaid on demand. Interest was payable at the rate of 10 per centum per annum. A term of the mortgage was that the applicant would have the right to sell the secured real estate for $170,000 without reference to his parents, but if he proposed to sell for a lower amount he was required to obtain their consent. There was no evidence explaining why the parties expected that a further $52,000 would be advanced by his parents following the date of the mortgage. In May 1991 he put up for sale his house and its surrounding land by auction, but received no bids.

20 Evidence was given by the applicant that on 28 June 1991 his parents informed him that they would no longer provide immediate financial support and they suggested that he enter an arrangement under the Bankruptcy Act 1966. His mother informed him that they would provide further assistance to pay out his creditors in full pursuant to such an arrangement. His father demanded that he consult an insolvency specialist, which he did in early July. What caused his parents to do those things was not explained by the applicant, but it is clear to me that he was offended. The evidence gives rise to speculation that his parents perceived that greater debts than had originally been anticipated were becoming apparent. However, in a draft letter to the applicant's mother-in-law which his father prepared immediately before his death on 29 November 1991, his father asserted as at least one of the causes a refusal by the applicant to allow his parents to pay out the leases on a car and utility used by him and his wife, and a decision by him to instead sell the vehicles and acquire in their place an inferior station wagon on hire purchase with interest of 22 per cent being payable. It was the applicant's somewhat vague evidence that "I suffered further financial set backs between July and September 1991 which included demands for payment by APPM and repossession of assets of the sawmilling partnership". During that time he continued to sell assets for the purpose of debt reduction. At some point of time his mother-in-law, Mrs Tucker, made a gift of money, but there was no evidence of the amount or date of payment. Eventually he was able to avoid being declared bankrupt or entering into an arrangement with his creditors who, except for the mortgage liability to his parents, were all paid.

21 It was his evidence that from about the time of the establishment of the mortgage to his parents in March 1991, his relationship with them deteriorated. He said that "from that point things turned completely and they started to get more uncomfortable for everyone and we really didn't know why". His evidence was that he still had regular contact with his parents until 28 June 1991, the day upon which they declined to provide further financial assistance for the time being. Thereafter the frequency of their contact declined, he said. His evidence did not explain how infrequent it became prior to the death of his father on 29 November 1991. In his draft letter to Mrs Tucker immediately before his death on 29 November 1991, the applicant's father had this to say on the subject:

"We have constantly striven to keep them out of court proceedings but have had little acknowledgement of our efforts over the year. Arminell hasn't seen the children since the middle of May. From mid October to when Arminell phoned them the last week of November we hadn't seen or heard from either Roy or Jane. I know not why.

I could relate many many issues that have taken place during the past 12 months in which their attitudes have been to say the least most extraordinary under the circumstances - little remorse has been shown and thank yous are a scarce commodity."

22 By November 1991, the applicant's wife and children were still living on the property at Frankford. He was baching and working at Rushy Lagoon, a considerable distance away in North-East Tasmania. Shortly prior to his father's death on 29 November 1991, the testatrix telephoned the applicant's wife, Jane, and invited them all to enjoy Christmas Day with them at their home at 135 High Street. According to the applicant's evidence, Jane talked to his mother on the telephone, accepted the invitation and told her where he was working and what he was doing. That evidence supports what was raised by his father in his draft letter to Mrs Tucker, that there had been a break-down in the previously warm relationship between the applicant and his parents and that contact between them was rare.

The events following the death of Allan MacKinnon

23 The applicant was not immediately informed of his father's death. I accept the evidence of the first respondent that the deceased had given instructions that his remains were to be cremated as soon as possible after his death, that the only persons to attend the cremation were to be his widow, the first respondent and his wife and children, that no-one else including the applicant was to be informed of his death until after the cremation and that there was to be no advertisement in newspapers until after that event and no condolences or flowers.

24 It was the evidence of the first respondent that their father died in bed, beside the testatrix, in their High Street house, and that she was in shock and made it quite clear that she did not want to see anyone, including the applicant. The first respondent described her as being helpless and in a terrible state, not able to cope with anything. "All you could do was hold her", he said. On being informed of his father's death, the applicant asked the first respondent if he could visit their mother. The response was that she had said that she did not want to see anyone for a considerable time. It was made clear to the applicant that he ought not visit her. Nevertheless, he wanted to see her, understandably, and on the following day on his way to Rushy Lagoon, he called at her house at 135 High Street. She was not there. Unknown to him, she had been taken to the first respondent's home to be cared for. He left flowers and a card from his children. Over the next 6½ years, until the death of the testatrix on 12 May 1998, he did not speak with his mother. Plainly he was so offended by the events following his father's death that he determined to terminate his relationship with her. It is impossible for me to understand with any clarity the causes and effects, and justifications, if any, that existed concerning the familial relationships.

25 The testatrix subsequently attempted to contact the applicant to confirm arrangements for Christmas Day, for she expected that he and his family would come to her home. She was unable to make contact by telephone and so wrote to them. On 18 December 1991 the applicant's wife, Jane, responded with a formal letter stating, "we are unable to attend 135 High Street for Christmas Day, due to unexpected events".

26 By his will, the applicant's father in substance left his estate to the testatrix for life and the remainder to the first respondent absolutely. The first respondent was given the option of leasing Glen Esk from the estate during his mother's lifetime. The testator declared in his will, which was dated 20 September 1988, "that I have not made provisions for my sons the said David McLean MacKinnon and the said Roy McLean MacKinnon or their children other than those herein contained because I consider I have made substantial and adequate provisions and benefactions for the said David McLean MacKinnon and the said Roy McLean MacKinnon in my lifetime". That was expressed before the applicant became insolvent and received further financial assistance from his parents.

27 In about early 1992 his wife and children joined him at Rushy Lagoon. He had worked there since about 30 October 1991. The Frankford property had been on the market since at least May 1991 but had proved difficult to sell. Once he and his family had moved out, the property was vacant. The executors and trustees of the will of the late Allan MacKinnon were the testatrix and the first respondent. In July 1992 they demanded from the applicant that he repay the principal monies and interest owing under the mortgage he had provided to his parents as security for their financial assistance. The demand was not complied with and a notice of intention to sell was served upon him. It was his evidence that he thought that what precipitated the decision to force a sale under the mortgage was his failure to keep the property insured, which he described as a mistake on his part and not deliberate. In an affidavit, the first respondent said that he and his mother ascertained in February 1992 that the applicant had allowed the insurance cover to expire in August 1991, without informing them or his father prior to his death, and they arranged and paid for the cover until the property was sold. He added that the house was a significant part of the value of the property and not insuring it was a breach of the mortgage. Unhappy differences continued to arise between the applicant on the one hand and the testatrix and the first respondent on the other. One day, I presume in the second half of 1992, he called into the Frankford property and found his mother, his brother and his eldest daughter, and his mother's employee tidying up the property ready for sale. Such were his feelings of embitterment that he took photographs of them doing so. He did not speak to any of them. He left the property and thereafter did not see his mother again nor have any contact with her apart from a letter he wrote to her on 18 February 1995, to which I will refer in more detail later.

28 In the latter part of 1992 the first respondent and the testatrix spent many days with workmen putting the house and garden in order in preparation for the sale. Disputes arose concerning the enforcement of the mortgage but they were resolved by a deed of release dated 1 December 1992. No doubt the dispute exacerbated bad feelings. By the deed the testatrix and Allan MacKinnon's estate released the applicant from all further liability under the mortgage and agreed to accept the proceeds of the future sale of the property upon an exercise of the mortgagees' power of sale, in full and final satisfaction of his liability. Two formal valuations of the property were obtained in September 1992, one for $114,000 and the other for $120,000. Those values were not achieved at the mortgagee's sale in February 1993, when the property sold for $95,000, almost two years after it was first placed on the market. Presumably in proportion to the advances they had made to the applicant, 43 per cent of the proceeds of sale were paid to the estate of Allan MacKinnon and 57 per cent was paid to the testatrix. Between them they did not recover approximately $70,000 of the capital that had been advanced.

29 For a time, the applicant continued to live and work at Rushy Lagoon, following which he managed a property at Ouse. According to one of his affidavits, in June 1993 he was diagnosed as suffering from valvacular heart disease and was medically advised that he should stop physical labour and that he could no longer continue as a farm manager or labourer. He and his wife decided to move with their children to live in Adelaide, South Australia, which they did in December 1993. In summary, he expressed their reasons for doing so as being that his wife's mother and sister lived there, they had a good relationship with them and his mother-in-law had provided them with financial assistance; that he could see no further relationship with his own family; that he thought it might be easier to obtain a sedentary form of employment in Adelaide; that they perceived there were greater educational opportunities for the children outside Tasmania; and that he was not prepared to have heart surgery performed in Tasmania.

30 Once they had moved to Adelaide, he was unemployed. His income was a mix of unemployment and disability benefits. He considered that they were surviving on a shoestring budget, their average weekly income amounting to about $458.25. His heart condition gradually worsened. He was placed on a public hospital waiting list for an aortic heart valve implant, the operation being performed in February 1995. Although basically it was successful he has been left with a number of side effects. The time it took him to recover from the operation was lengthy, extending until December 1995. In the meantime his wife studied at TAFE to update her child care skills and ultimately received a diploma of social science, with a view to working if he could not do so. She studied part-time and worked part-time at a child care centre.

31 The applicant wrote to his mother on 18 February 1995. It was the only communication between them after his father's death in November 1991 and before her death on 12 May 1998. It gave news of him and his family. He related the successes, educational arrangements and experiences of his children, information that a grandmother would be pleased to hear about. He explained that he and Jane had not been able to secure long term work during 1995, and that he suffered from a steadily worsening heart condition which had reached a critical stage, resulting in him being put on a waiting list for surgery. (His letter must have predated the surgery by a few days only.) He advised that even if the operation was successful it would be difficult for him to obtain a full-time job, although he noted that there might be some government programs for which he would be eligible and he might be retrained for some worthwhile occupation. The last 3½ pages of the letter were informative. However, the first 2½ pages concerned the unhappy events of 1991 to 1993, and were not written in conciliatory terms, and he concluded the letter by stating that he did not require a reply. She did not make one. There is no reason to think that she received any further information concerning him and his family prior to her death.

The applicant's situation at the death of the testatrix

32 By December 1995 he felt well enough to start applying for employment. He had been advised by his cardiologist not to undertake physical work. In March 1996 he secured full-time employment with an Adelaide book and stationery firm. He was first employed as a trainee sales person. His evidence was that "financially we were slightly better off and our weekly income was approximately $560".

33 In August 1996 he fell ill with a severe depression and continuing anxiety problems. He had regular visits to specialists. He withdrew from employment for two months and "our weekly income fell to approximately $430 per week". He returned to work in October 1996 and was still in full-time employment when the testatrix died on 12 May 1998. His evidence was that he was earning approximately the same weekly income (I presume he meant $560), "but it may have been slightly more than $560 per week for CPI increases". On the date of the death of the testatrix, his wife was not employed. Whether she was looking for employment was not revealed by the evidence. His assets, when his mother died were:

Half interest (his wife owning the other half) in 8 Western Avenue in Adelaide (purchased in about February 1998 for $154,000 with a mortgage of about $84,000 and a gift from his mother-in-law of $70,000)

Half interest in furniture (his wife owning the other half)

36 She may also have had an interest in some form of insurance policy with AMP, for which $1,200 per year was being paid.

38 Annual expenses of the family included home mortgage payments (principal and interest) of $8,500, water and land rates of $1,360, power of $1,200 and Jane's AMP policy premiums of $1,200. With a weekly income of about $560 there is no doubt that it was fully expended on basic living expenses, with nothing over for luxuries.

39 Their children and their respective ages and dates of birth were, Edward, 16, 12 April 1981; George, 13, 25 June 1984; Alexander, 9, 8 July 1988 and Charlotte, 7, 1 August 1990. Presumably all four children were attending school. According to the applicant's affidavit, costs, fees and charges associated with schooling amounted to about $2,000 per year.

40 The applicant was aged 45 years. His wife, Jane, was also aged 45 years, being born on 11 August 1952.

41 By her last will made on 22 September 1997, the testatrix left all of her estate to the first respondent, Ian McLean MacKinnon. She declared, "that I have made no provision for my sons the said David McLean Mackinnon [sic] and the said Roy McLean Mackinnon because my late husband Allan McLean Mackinnon made substantial and adequate provisions and benefactions for the said David McLean Mackinnon and the said Roy McLean Mackinnon during his lifetime." It might be thought surprising that she did not also refer to the provisions and benefactions she had made to the applicant. I presume it was because the source of her financial well-being had primarily been her husband.

42 After administration, including realisation of assets, the net value of the estate of the testatrix was $273,839.61. A claim under the Act was also made against her estate by the second son, David McLean MacKinnon. It was settled by an agreement reached in September 2001, shortly before the hearing of this application, upon the basis that the claimant be paid $30,000 out of the estate together with costs, which counsel for the respondents expressed in his closing address as unlikely to exceed $5,000 for each party, that is to say no more than $10,000 in total.

The first respondent's financial position at the death of the testatrix

43 The first respondent, Ian, proved to be a successful farmer, resulting in a build up of his assets over the years. His financial position also benefited substantially because he maintained a close relationship with his parents, something that the applicant was unable to achieve, as I have explained.

44 In terms of value, the first respondent received the same as his brothers in the 1976 division of property. He has owned and farmed Snaresbrook ever since. In 1978 he expanded its operations by purchasing a 700 acre property called Davidstone. In 1980 his father asked him to manage Glen Esk. His father said that he was getting older and finding it harder to manage. By then he was 57 years old and had suffered a heart attack in 1977. Early in 1981, the applicant and his wife moved into a cottage on Glen Esk and he commenced management of that property. He continued to run Snaresbrook. Together with his father they worked, planned and managed Glen Esk. As manager he received no wage. He and his wife mainly relied on Snaresbrook for income, although at times his father gave them money to buy things. The income generated by Glen Esk went to his parents. His evidence was that managing Glen Esk was a full-time position. He employed a man to run Snaresbrook and he and his wife were compelled to borrow heavily to pay their expenses. In October 1984 his father suffered a second heart attack. Thereafter the first respondent took primary responsibility for the farming operations on Glen Esk.

45 On 1 July 1985, his father sold him half of his half interest (that is, a quarter interest) in A McL MacKinnon & Sons, the partnership which operated Glen Esk, for $112,225.76. The testatrix owned the other half interest in the partnership. That year Avon Park, which was mortgaged for its full value, was sold to a trustee on trust for the first respondent's children, but leased back to the first respondent.

46 The health of the late Mr MacKinnon deteriorated between 1985 and 1989 and he and the testatrix moved into Launceston to live in 1989. The first respondent and his wife and children moved into the main house on Glen Esk, paying his parents for the curtains, carpets and other fittings. On 1 July 1989, the late Mr MacKinnon sold his remaining quarter interest in A McL MacKinnon & Sons to the first respondent and a new partnership was entered into by the first respondent and the testatrix called I M MacKinnon & Co. The testatrix had a half interest, but played almost no part in management. Although he still played an active role in the running of Glen Esk, the late Mr MacKinnon was semi-retired.

47 There was uncertainty in the first respondent's evidence concerning the extent to which he paid for his purchase of a half interest in A McL MacKinnon & Sons. At one point he was prepared to accept that the share may have been given to him by the late Mr MacKinnon. At another point he was insistent that he fully paid for the share. His vagueness no doubt arose from his dependence on his accountants and legal advisers. I find that he paid for at least some of it, accepting his evidence that he sold all the shares he owned in various companies, to enable him to do so.

48 I stated earlier that upon the death of the late Mr MacKinnon on 29 November 1991, in substance he left his estate to the testatrix for life and the remainder to the first respondent absolutely. His estate was sworn for probate purposes as having a net value of $1,840,000, which included the real estate of Glen Esk at a value of $1,725,000. In addition he left about $160,000 worth of shares in interstate companies, bringing the total net value of his estate to about $2,000,000. At some time during the remaining life of the testatrix, the first respondent allowed some of the shares to be sold and the proceeds used for her benefit. The evidence did not disclose the value of the shares, the ownership of which eventually passed to the first respondent on the date of death of the testatrix.

49 Following the death of the late Mr MacKinnon in 1991, the first respondent continued to farm Glen Esk and according to one of his affidavits, to share the income with his mother under the I M MacKinnon & Co partnership agreement. I am somewhat dubious about that last assertion, for later in the same affidavit he revealed the taxable income of the partnership for the period of almost seven years until the death of the testatrix on 12 May 1998, and in only three of those years was there a profit. Overall, there was a loss totalling $59,966. However, throughout that period she received from the partnership $32,000 per annum rent with respect to Glen Esk. He and his wife cared for her. He cut the lawns at her Launceston property each week and provided a gardener and did all other jobs she required. The partnership paid for repairs to and painting of her house. At one point of time she fell ill and lived at Glen Esk for a time. She subsequently suffered from a terminal disease and again lived at Glen Esk where he and his wife cared for her until she died, aged 71, on 12 May 1998. In 1997 the first respondent built a unit for her to live in. She moved into it in December 1997 and so her residence there was only for a few months at the most.

50 Although there was some evidence of the assets, liabilities, income and expenses of the first respondent, there was little confining the information to the date of the death of the testatrix. Some of the evidence was contained in his affidavit which he swore on 6 April 1990 and which contained estimated values of some assets as at that date. His oral evidence contained further estimated values. In stating his position, I will presume that there was little change between the death of the testatrix on 12 May 1998 and the date of hearing. Excluding his entitlement under her will, but including his remainder interest in his father's estate to which he became entitled in possession upon her death, and doing the best I can with the evidence, his assets at that time appear to have included the following (although I suspect the list is not complete):

Mortgages of the real estate may have secured debts totalling up to $400,000, but some of the mortgage liabilities included a fluctuating bank overdraft and a business debt on Snaresbrook and may have been offset, at least to some extent, by business assets, the real value of which there was no evidence. I find that the first respondent's net assets after liabilities were well in excess of $2,000,000 at the date of the death of the testatrix, excluding his interest under her will. I also note that in about 1998 he purchased in the names of his children, a holiday home at Coles Bay for about $140,000, which his family uses.

51 The taxable incomes of the first respondent for the years to 30 June 1995, 1996, 1997 and 1998 were respectively $16,928, $58,059, $59,848 and $62,643, an average of $49,370 per year.

52 There was little evidence of the assets and liabilities of his wife, the second respondent, at the date of death of the testatrix. She was a partner with him in the Glen Esk Company and I M MacKinnon & Co. She was a Lloyds name. Copies of her income tax returns reveal her taxable income for the years to 30 June 1994, 1995, 1996, 1997 and 1998 were respectively $24,552, $27,079, $46,370, $147,377 and $187,527, an average of $86,581 per year. She has worked as a nursing sister for much of their marriage, until about 1979 and since about 1987. Her annual income varies each year, mainly because of the considerable fluctuation in her annual profit (or loss) from Lloyds.

53 The first and second respondents married in 1975. They have three daughters, Georgina born 4 October 1978, Anna born 15 October 1980 and Caroline born 17 December 1981. It seems likely that at the date of death of the testatrix Georgina was at university and dependent on her parents. (The evidence was that she has since finished at university and is no longer dependent.) The other daughters were probably still attending school in 1998. (The evidence was that at the time of the hearing one was at university and the other at "college", and both were dependent on their parents.)

Whether the applicant was left without adequate provision for his proper maintenance and support thereafter

54 The first question to be decided is whether in the terms of the Act, s3(1), the applicant was "left without adequate provision for his proper maintenance and support". It is a question of fact. If it is answered in favour of the applicant, the onus being on him, the second question is what provision, if any, ought to be made out of the estate of the testatrix for the applicant. The second question involves the exercise of a discretion. Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208; White v Barron [1980] HCA 14; (1980) 144 CLR 431; Gerlach v Public Trustee unreported 153/1997 at 4. Generally speaking, the first question, whether the applicant was left without adequate provision for his proper maintenance and support, is to be determined at the date of death of the testatrix and not at the date of the application or the hearing. However, in addition to the circumstances existing at the date of death, I may have regard to the circumstances which could reasonably be foreseen at that time. Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494.

55 I find that the applicant was left by the testatrix without adequate provision for his proper maintenance and support. At the date of death his needs were considerable. If it had not been for the generosity of Mrs Tucker he would have had almost no assets. By virtue only of her generosity he and his wife owned a home, although subject to a mortgage for possibly over half its value. It is likely that they are liable to make mortgage payments of capital and interest for another 16 years or so, until he is about 66 years of age. His income was a low one, about $560 each week, which I have no doubt was significantly below average earnings in this country. His health was poor, because of his heart condition, and he had recently suffered from depression. His future earning capacity was plainly not a sound one. Loss of employment was likely to cause considerable hardship for him and his family. Alternative employment would not readily have been available. Further illness or injury would have had the same effect. That has in fact been exemplified by events which have taken place. Only two days after the death of the testatrix he suffered a back injury at work which has had significant effects. He has since suffered from depression and anxiety and continues to suffer from the effects of his heart condition. He has not been able to work since he resigned in September 1999. At the time of the hearing his income was only $580 per week from Work Cover in South Australia. There is every likelihood that he will not be able to work again.

56 At the date of death of the testatrix, the applicant had four children who were fully dependent on him. His wife was not in employment and was also dependent on him. However, by the time of the hearing she was employed in a permanent part-time position at a child care centre earning an average of $475 gross per week.

57 Compared to the testatrix and her late husband, and to the first respondent and his family, the standard of living of the applicant and his family since 1990 has been very poor and relative to them he and his family have had to endure financial hardship.

58 When having regard to the question whether, by failing to provide for the applicant, the testatrix left him with an inadequate provision of proper maintenance and support, I have considered the level of support he enjoyed during the lifetimes of both parents. Between them they provided him with a sound financial settlement when he was only 23 years of age. His brothers received the same, of course. True it is that the favoured son, the first respondent, had sufficient ability and application to use that settlement to his advantage and to build up his assets, whereas the applicant failed to do so and lost everything. But I am not persuaded that he deserves to be condemned for that. Because it happened he came to be in need. With the assistance of generous provisions from his parents and Mrs Tucker, he was able to avoid bankruptcy. His parents' assistance in making those provisions for him at that desperate time should also be taken into account. But the fact is that he lost everything he owned and was in poor health, and he was plainly in need of maintenance and support at the time of the death of the testatrix. The level of his need was substantial whereas the first respondent, without his inheritance from the testatrix, was relatively wealthy, in receipt of a sound income and married to a woman who also enjoyed a significant income, and yet their mother left the entirety of her estate to the first respondent, who also inherited the entirety of their father's considerable estate, after her life interest.

59 I have not overlooked that the first respondent helped to support his parents from about 1980 until the death of the survivor of them in 1998. His relationship with them was mutually a warm and fond one. The applicant provided no similar support and for the last six or seven years of the life of the testatrix had virtually no communication with her. Regard may be had to that circumstance, but as was conceded by the first and second respondents, there was no disentitling conduct on his part which counts against him.

60 In Gerlach v Public Trustee unreported 153/1997 Underwood J reviewed authorities which questioned the traditional use of expressions such as "moral claim" and "moral duty". I tend to the view that such expressions may assist a judge in a particular case, although they are not defining terms which are used in the Act. Adopting the words of the Privy Council in Bosch v Perpetual Trustee Coy Ltd [1938] AC 463 at 469, I have concluded that a just and wise mother would have thought it her moral duty to provide for the applicant in her will if she had been fully aware of all his relevant circumstances.

61 Having regard to the closeness of the relationship between the testatrix and the first respondent and his family and the assistance he provided her and her husband over the years, and the fact that the testatrix had a virtually non-existent relationship with the applicant over the last seven years or so of her life, I am not persuaded that the testatrix should have left him more than the first respondent or that she should have divided her estate equally as between them. I conclude that an adequate and proper provision out of the estate for him is a sum of money which will enable him to substantially reduce the outstanding mortgage liability on his home, so that he and his family may have better security for the future at a time in his life when it is unlikely that he will ever work again. The probabilities are that instead he will need to rely for financial support on Work Cover or social security, apart from the modest income his wife may be able to contribute.

62 The applicant's evidence was that on 30 June 2001 the outstanding capital secured by the mortgage was $72,641.76. I determine that it is appropriate to order that out of the estate of the testatrix he be paid $50,000, which will provide him with considerable financial relief. It will have virtually no affect on the standard of living enjoyed by the first and second respondents. In fixing the sum of $50,000 I have particularly had regard to the financial assistance given to the applicant by the testatrix in 1991, to the extent that after selling the Frankford property, she was out of pocket by at least $40,000, and no doubt more if interest or lost income on what was advanced was to be taken into account. Pursuant to s9(2) I will direct that a certified copy of the order be made upon the probate of the will of the testatrix.