2. Mrs Meystrik died at Launceston a widow aged 73 years. She was born on 16 July 1920. She married Ulrick Meystrik who was born on 12 February 1919 and died on 4 July 1980 aged 61 years. She was German and he Czechoslovakian. They came to Australia from Europe in about 1944 and settled in Launceston. The applicant was the only child of the marriage, being born on 30 August 1958 at Launceston. At her mother's death she was aged 35 years.

3. Mr and Mrs Meystrik purchased the house and land at 370 Bass Highway prior to the applicant's birth, borrowing money on mortgage to do that. The loan was repaid over a period of years. Mr Meystrik earned income as a chef at the Launceston Hotel and St Vincent's Hospital and was also employed at Patons and Baldwins (later called Coats Patons). Mrs Meystrik worked as a cleaner at the Launceston General Hospital and later worked at Coats Patons. Mr Meystrik suffered a shrapnel injury in World War II. As a result his memory deteriorated and when the applicant was aged about 10 years, he was forced to give up work and thereafter remained at home. Mrs Meystrik continued to work at Coats Patons for another three years or so until she also gave up work. Therefore, by about 1971, when the applicant was aged about 13 years, Mrs and Mrs Meystrik had retired. Thereafter they lived at 370 Bass Highway until their respective deaths and were supported by social security. The applicant has resided at the family home for all her life apart from a period of eight to ten months in 1979.

4. Gradually Mr Meystrik's memory continued to deteriorate. Towards the end of his life he was unable to take basic messages or to do any maintenance work although he was able to do some gardening. Mrs Meystrik was assisted by the applicant in painting the house and gardening while Mr Meystrik was alive.

5. The applicant attended a high school to grade 10. She left school when she was aged 16, I presume in 1974. She worked for about three months as a shop assistant and thereafter on and off as a waitress until about 1979 when she went to Victoria and worked as a nanny. However, after eight to ten months she became homesick and returned to live with her parents. She was 21 years of age. She then did part-time waitressing work. When Mr Meystrik died in July 1980 ownership of his half share of the family home and his interest in the household contents passed to Mrs Meystrik. Shortly after his death the applicant met Stephen Eroll O'Connor.

6. On 5 March 1983 the applicant married Mr O'Connor. They lived in a caravan on her mother's property until they separated on 19 April 1988. They were divorced on 25 August 1989. Jamie was the only child of their marriage. He was born on 1 February 1984. Up until his birth the applicant worked as a waitress and for five years sold Avon products. Her husband's income was as a bakery driver and milk round delivery driver supplemented by casual income from mechanical work and some unemployment benefits. Until their separation they paid one half of the electricity bill for Mrs Meystrik's property and helped with various accounts, including rates and insurance. They lived in the caravan but sometimes ate with Mrs Meystrik in the house or in the caravan. After the birth of the applicant's first child she spent most of the days in the house with her mother and son. Mrs Meystrik was firm in her views, and one of them was that she did not like the applicant's husband. At some time she told the applicant's friend, Mrs Medwin, that she hated and despised him. However there was no friction. Indeed at one time the applicant and her husband were considering taking the caravan away to live at Port Sorell but Mrs Meystrik did not want that because she was concerned if something happened to her the applicant would be too far away to help. During the applicant's marriage she and her husband acquired the caravan and a few other possessions and her husband purchased a truck and a car. When they separated she kept the car and he kept the caravan and truck. They shared their other minor possessions. They had no savings. Mrs Meystrik was happy about the separation and told the applicant "I told you so, I didn't like him." The applicant and her son moved into the house and thereafter lived with her mother until Mrs Meystrik's death six years later. Mr O'Connor has become a bankrupt. He pays nothing to the applicant for her or her son's maintenance and provides no other form of support.

7. After the death of Mr Meystrik in 1980, Mrs Meystrik was particularly unwell. She became withdrawn and inactive. From that time she suffered from angina which caused her to have shortness of breath, and she continued to suffer from long standing high blood pressure. For a period of about two years after her husband's death, she attempted to help the applicant with household chores but was limited in her capacity to assisting to peel vegetables for cooking, some dusting and vacuuming and a little hand washing. Otherwise her activities during that period were mainly confined to watching television. The applicant took her into the city of Launceston about once a month. She would collect her pension, pay the odd account, window shop, purchase an occasional present or put something on layby, and the like, until the applicant collected her about an hour later and took her home. She was unable to remain in the city any longer because she would feel dizzy and short of breath from exertion. Once home she would take a tablet for her angina and rest, either in a chair or in bed. It would take about half to one hour before she recovered enough to be able to move freely about the house. In that two year period the only other occasions upon which Mrs Meystrik left the house were to visit a friend about twice a year and to visit Mr Meystrik's grave three times a year.

8. From 1982 Mrs Meystrik's health declined further and her angina worsened. She eventually became unable to continue with her regular trips to the city and her main excursions from her home were to visit her friend twice a year and her husband's grave twice a year. Gradually she became more and more dependent on the applicant who by 1990 undertook all household chores including gardening. About the only activities Mrs Meystrik could perform were showering and going to the toilet. From 1988 her knees deteriorated with arthritis. Both knees were badly affected and in about March 1993 she underwent a left knee replacement. She was due to have a replacement of the other knee at the time of her death. From about 1991 she was often forced to use crutches, particularly during winter. On the rare occasions when Mrs Meystrik left the house during the last five or six years before her death the applicant drove her. Her health was very poor. She fell and fractured her left wrist in about 1992 and the injury did not fully recover. In 1991 an operation was performed to have fluid drained from her brain. Subsequently she could hardly leave the house because cold air caused her headache. Close to the end of her life she was extremely slow moving and unable to cross a road or get in and out of a bath without assistance.

9. The applicant's friend, Mrs Medwin, said she was also a close friend of Mrs Meystrik. She met the family shortly before Mr Meystrik's death and visited the Meystrik home many times until Mrs Meystrik's death. Her evidence supported many of the facts I have stated. She described Mrs Meystrik over the last few years of her life as sitting in a chair with a blanket over her knees, often half asleep, or watching television or chatting, and often complaining about her ailments.

10. Since separating from her husband in April 1988 the applicant has largely been dependent on a social security pension. Immediately following the separation she worked part-time for about six months as a pizza delivery driver and in about 1992 did cleaning work part-time for about twelve months, stopping due to her pregnancy with her second child, about whom I will refer in more detail later. Her income from those jobs was only small. From the separation until Mrs Meystrik's death she paid one-half of all household expenses including food and groceries, insurance, rates and land tax. She also paid for maintenance and repair of the house and its contents. For example she paid for the repair of the washing machine, shared with her mother the cost of repairing the refrigerator and paid a plumber for some work.

11. In about 1985 the applicant painted three bedrooms in the house and installed ceiling tiles in two of them, the expenses costing her about $400. In the twelve months before Mrs Meystrik's death the applicant repainted two of the bedrooms (used by her and her son), the hallway and lounge and renewed the ceiling tiles in the two bedrooms. She met the expenses of that work.

12. In 1990 the applicant became friendly with a man and on 31 May 1993 gave birth to his son, Hayden Jessie Malcolm Sharp. At present she cares for her two sons in the house at 370 Bass Highway. Hayden was twelve months old when Mrs Meystrik died.

13. Why Mrs Meystrik left her entire estate to the applicant's first son and made no provision for the applicant or Hayden is a mystery. Mr Meystrik's will left everything he owned to Mrs Meystrik or, if she predeceased him, to the applicant. After the applicant was divorced from Mr O'Connor in 1989 Mrs Meystrik had a will leaving everything she owned to the applicant or, if she predeceased, to her children. However that will was replaced by her last will, which was prepared by the respondent and executed on 23 October 1991, about 2_ years before her death and well before Hayden's birth in May 1993. It left the entire estate to Jamie, or if he predeceased the testatrix or did not live to the age of 21 years then to the applicant, with a gift over in the event of her not surviving the testatrix to the Royal Society for the Prevention of Cruelty to Animals, Northern Tasmanian Division. No provision for Hayden's benefit was made, but of course he was not born when the will was executed. The will contained a power to apply capital and income for the maintenance education or otherwise for the benefit in life of any beneficiary. Mrs Meystrik told the applicant nothing about her last will. The applicant took her to the city on the day of its making and left her there and was unaware that her mother visited the respondent. Prior to Mrs Meystrik's death she told the applicant that everything would be hers to do with what she liked and that she would not have to worry about anything. It therefore came as a shock to the applicant when she learned that the entire estate had been left to her elder child. Mrs Meystrik had shown that she loved the child. She and the boy were very close. Mrs Medwin described the deceased cuddling the boy, reading books to him and buying him presents. She mentioned to Mrs Medwin on one occasion that she did not want the applicant's husband, Stephen O'Connor, to get the house. She said that she had left everything to the applicant but was frightened that if something happened to the applicant, Mr O'Connor would get everything. It may be that Mrs Meystrik made her last will because of concern arising out of the applicant's friendship with Hayden's father, but that possibility must remain speculation.

14. The applicant received no gifts of any consequence from her parents. She was of course maintained and supported by them as a child and was allowed to live in their house when an adult. That was also to their advantage, particularly for Mrs Meystrik over the last fourteen years of her life, because over that period she was dependent on the applicant's support and assistance.

15. At the time of Mrs Meystrik's death the applicant's income was a supporting parent pension, the family allowance and maintenance for Hayden paid by his father. That is still the position, the pension amounting to $332 per fortnight, the family allowance $197 per fortnight and the maintenance $40 per fortnight, a total of $569 per fortnight. Hayden's father sometimes provides items for him, for example he provided a cot and a pram. The applicant's only assets are a 1976 station wagon worth about $600 and household furniture and effects worth about $1,000. She has no cash savings or other assets of consequence. Her assets were the same at the time of her mother's death. Also at that time she owed approximately $316 on a loan from a finance company which she repaid at the rate of $96 per month. Mrs Meystrik also owed the finance company about $460 and that loan was guaranteed by the applicant. There were no funds in Mrs Meystrik's estate to pay it out and the applicant was therefore obliged to reduce her mother's debt at the rate of $10 per fortnight until 15 September 1994. On that day she obtained from another finance company a new loan of $2,000 with which she discharged the earlier loans to her and her mother and paid rates and land tax due with respect to 370 Bass Highway, and sundry household accounts she owed at the time.

16. The applicant gave evidence of her expenses which were current at the time of the hearing. I will not detail them. It is sufficient to say that she and her two children live in relative poverty. Having regard to her income she is able to save nothing. She owes a service station about $200. Her current personal loan amounts to $2,500 with interest. She rents her washing machine. At the time of the hearing only one plate on her stove worked. She had placed on layby a small pressure cooker which she intended to use in place of an oven. Most of her cooking was done in a frypan and a set of grillers. A wood-fired heater was inoperable without repairs, which she could not afford, and she therefore used an electric heater.

17. The only asset of the estate of Mrs Meystrik was the house and land at 370 Bass Highway valued at $96,000. Household contents had no realisable value. The funeral expenses amounted to $2,313 and there were no funds in the estate to pay them. At the time of the hearing the estate was indebted to the respondent for inter alia the following expenses and accounts which had been paid by the respondent:

House insurance 305.10

Prospect Vale Newsagency 510.05

Northern Electrical Services 30.50

Telecom 226.15

Probate fee 100.00

Death Certificate Fee 25.00

Electricity 256.00

18. The respondent has debited the estate account with a capital administration fee of $1,280. That is about one-third of the standard fee for administration of such an estate, and the balance will be determined upon finalisation of the estate. As at 10 August 1995 the respondent's estate account was in debit in the total sum of $5,186.85.

19. A valuation report reveals that 370 Bass Highway is a fairly large residential allotment containing 2,074 square metres. It has enough land area for three separate allotments. It is of timber frame construction, clad externally with weatherboard on the walls and galvanised iron on the roof. Accommodation comprises a lounge, kitchen, four bedrooms and bathroom, the gross floor size being 108.6 square metres. The house is in need of maintenance work, including renovation of the kitchen and bathroom facilities, to restore it to an acceptable level of accommodation. Other improvements include a weatherboard garage, some old sheds of no value, a rotary clothes hoist plus boundary fencing and some concrete paving. The valuer described the dwelling as quite sound and one which could be renovated to provide a satisfactory standard of accommodation "although some substantial sums of money will need to be spent to achieve this." Two blocks of land could be surveyed off and sold. The value of the land at about the time of Mrs Meystrik's death was $50,000 and the value of the improvements $46,000, a total market value of $96,000. I presume that if two blocks of land are surveyed off and sold they will realise approximately $15,000 each.

20. Subject to satisfactory financial arrangements being made the respondent is prepared to allow the applicant to remain living in the house with Jamie until he grows up. He will attain the age of 18 years on 1 February 2002, that is to say in a little over six years time. Although he will not be entitled to the estate until the age of 21 years her continued use of the house might thereafter depend on whether he continued to live there and wanted her with him. However the respondent cannot allow the present state of affairs to simply continue for there are no funds in the estate to allow it. Therefore, if the respondent is to continue to administer the estate in accordance with the terms of the will, its general manager says that it will be necessary to obtain funds to pay the accrued estate expenses and ongoing maintenance costs and outgoings for any property being lived in by the applicant with her children. According to Mr Preece that could be done in one of three ways:

(a) by selling the house and all of the land and purchasing

another property in which Jamie could live with his mother

and brother, for such price as would allow a balance capital

fund to cover expenses;

(b) by selling part of the land, by subdivision, to

establish a capital fund which would enable money to be

spent on improving the house and the payment of ongoing

maintenance costs and outgoings;

(c) by entering into an arrangement with the applicant for

her to fund all of the outstanding estate expenses and the

ongoing maintenance costs and outgoings.

If either of the first two alternatives were adopted, Mr Preece says that some arrangement would be made with the applicant for her to pay an amount, perhaps nominal, to enable her to continue to live in the property rent free, possibly with some contribution towards outgoings. I note that the third alternative is plainly not a possibility. Her poor financial position and lack of borrowing capacity will prevent her entering into such an arrangement.

21. The applicant seeks an order that will have the effect of the entire estate passing to her. She wishes to continue residing in the house and for sentimental reasons does not wish to sell any of the land. She intends to continue raising Jamie and Hayden in the home. Her desire is to improve it by renovating the lounge, kitchen and bathroom. The renovations to the lounge will include knocking out a wall to put in a free-standing heater in place of the currently unusable heater. Some friends will assist her with the work. She will also acquire a new stove. She has made enquiries of a credit union and a bank and has ascertained that, using the house and land as security, she could borrow what she needs. Probably $18,000 at the most will be required to carry out the necessary renovations, pay whatever must be paid to the respondent and pay for the costs of this application. She believes that she could afford the loan repayments. It seems to me that it would be more sensible for her to subdivide and sell off one block of land rather than incur such a loan, although her desire to retain all of the land is understandable. It has been used by her and her family for all her life. Her thoughts for the future include supplementing her income by going back to part-time cleaning work once Hayden is of school age.

22. The first question which is raised by the application is, in the terms of the Testator's Family Maintenance Act 1912, s3(1), whether the applicant was "left without adequate provision for (her) proper maintenance and support" after the testatrix's death. If so I may, in my discretion, order that such provision as I, having regard to all the circumstances of the case, think proper shall be made out of the estate for the applicant. No question arises in this case under s8(1) concerning disentitling character or conduct of the applicant. A judge "may intervene and override so far as may be necessary the provisions of the will where the estate has been disposed of in such a way as to leave the applicant without adequate provision for (her) proper maintenance". Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494 per Williams J at 513. What is "adequate" must be relative not only to the applicant's needs but to her own capacity and resources for meeting them. The judge is given not only a discretion as to the nature and amount of the provision which may be directed but, even more importantly, a discretion as to making a provision at all. Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 per Dixon CJ at 19. It was not intended by the legislation that judges should simply re-write the will of the testator, nor that the freedom of testamentary disposition should be so encroached upon that the decisions expressed in the will have only a prima facie effect, the real dispositive power being vested in the Court. Op cit.

23. The age of an applicant is material and if a child is mature, able-bodied and capable of self support the need of maintenance or support may not arise. According to Fullagar J in Re Sinnott [1948] VicLawRp 48; (1948) VLR 279 at 280 an "adult son" (the principle in many cases will equally apply to an adult daughter) "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". In some cases a special claim may be found to exist because the applicant has contributed to building up the testator's estate or has helped in other ways. In other cases there may be a special need such as an inability to obtain employment or earn an adequate income, or the applicant may have a number of dependants who rely on him or her for support which cannot adequately be provided from available resources. All the circumstances must be taken into account, "that is ... all the facts that existed at the date of the death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts". Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1978-1979) 143 CLR 134 per Gibbs J at 148.

24. The general principles applicable to applications such as this were reconsidered by the High Court in Singer v Berghouse (No 2) [1994] HCA 40; (1994) 68 ALJR 653. Mason CJ, Deane and McHugh JJ at 657 said that the first question under the Act (whether the applicant is left without adequate provision for his or her proper maintenance and support) "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.

25. There is ample authority for the proposition that the Act is designed to enforce the moral obligation of a testator to use his or her testamentary powers for the purpose of making proper and adequate provision after death for the support of the members of the family having regard to the means of the deceased and to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon the estate, and that the provision which a court may properly make in default of testamentary provision is that which a wise and just testator would have thought moral duty required to be made if fully aware of all the relevant circumstances. In Re Allen (deceased), Allen v Manchester (1922) NZLR 218 at 220; Bosch v Perpetual Trustee Co Ltd (1938) AC 463 at 478-479; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1978-1979) 143 CLR 134 at 146. However in Singer v Berghouse (No 2) [1994] HCA 40; (1994) 68 ALJR 653 at 657 Mason CJ, Deane and McHugh JJ expressed doubt that much useful assistance could be found in that proposition and thought that references to "moral duty" or "moral obligation" may well amount to a gloss on the statutory language. In this case the applicability of the proposition will not affect the result.

26. I have unhesitatingly concluded that by her will Mrs Meystrik left the applicant without adequate provision for her proper maintenance and support. She was the only child of the testatrix, unemployed and virtually without assets with the responsibility of supporting and maintaining two children who were respectively aged 10 years and 11 months at the time of the death of the testatrix. She relied solely on social security to maintain herself and Jamie and received only limited financial assistance for Hayden. Plainly the provision of a home was very much needed by her, not only for herself but for the upbringing of both her children. The provision of the home for her will indirectly be a real benefit to both of the testatrix's grandchildren, Jamie and Hayden. Of course if the will is left as it is Jamie will be provided with a home and for a limited time the applicant and Hayden will share in his enjoyment of it. However after about eight years from the death of the testatrix the applicant and Hayden will largely be at the mercy of Jamie, who may well be placed in a difficult and embarrassing situation having to determine whether to request the respondent to eject his mother and young brother from their home. After eleven years he could do that himself. The applicant was justly entitled to expect that her mother would leave the home to her and not to one only of her children. She helped maintain it and supported and assisted the testatrix for many years prior to her death. She also helped with support and assistance for her father, who jointly owned the home.

27. The applicant has no training for employment and it is likely, having regard to her age, that cleaning work is all she will be able to obtain in the future. In all probability, unless she marries a man who is self-supporting, she is likely to be dependent on social security benefits for the rest of her life, supplemented by an income from part-time or casual cleaning work. She will have the sole responsibility for the maintenance of Jamie and much of it for Hayden.

28. This is an appropriate case for the making of an order that the entire estate pass to the applicant. Plainly she will continue to maintain and support Jamie as she has until now. He will not lose his home while a child. He will have adequate and proper arrangements for his maintenance and support until reaching adulthood. It is right and proper that his mother should continue to have the home in which she and her parents lived for so many years as her home for so long as she wishes and that he should expect to wait for a fair inheritance from his mother later in his life.

29. The estate is a relatively small one and in those circumstances the applicant should have the entirety of it. Money will need to be expended on renovating the house and providing much needed domestic equipment and in paying the respondent what is now due and will fall due with respect to the estate. It seems to me that it would be wise for the applicant to have a block surveyed off and sold to raise the necessary funds. She will then be left with the house and a larger than average block of land upon which she can continue to live and raise her two children, with the security of a house and the opportunity of selling off another block of land in the future if she requires further funds. She may of course choose instead to borrow needed funds using the real estate as security.

30. For these reasons it will be ordered that provision be made for the applicant out of the estate and that the estate be distributed as if, in lieu of cl3 of the will of the deceased, the following provision appeared:

"I give devise and bequeath the whole of my estate both real

and personal to my Trustee upon trust for my daughter

Maryann Dorothy O'Connor absolutely".