Succession - Family provision and maintenance - Failure by testator to make sufficient provision for applicant - Duty of testator - Duty to children - Adult son.

Testators Family Maintenance Act 1912 (Tas), s3.

McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566; O'Connor v Tasmanian Trustees B47/1995; Langford v Cleary (No 2) [1998] TASSC 37; (1998) 8 Tas R 52, followed.

Applicant (Gregory Peter Morse): Doolan & Brothers

Applicant (David Neil Morse): Crisp Hudson & Mann as agents for Doolan & Brothers

Judgment Number: [2003] TASSC 103

1 The applicants, who are the adult sons of the testator, seek orders that:

"... adequate provisions be made out of the Estate of ... NEIL WALTER MORSE".

2 The testator, who died on 10 March 1999, was survived by his wife Ruby Edna (born 20 June 1911) and five children, Roxie (28 November 1938), Claire (20 April 1943), Peter (24 April 1946), David (22 April 1954) and Colin (29 June 1955).

3 Neil Morse disposed of his estate by will dated 22 June 1994, appointing his youngest son, Colin, as sole executor and trustee. The terms of that will relevantly provide:

(1) A specific bequest of $2,500 to each of his sons, Peter and David.

(2) A specific bequest of $14,000 and household and personal effects to his wife, Ruby.

(3) The residue to his son, Colin, subject to a trust or condition that the bequest be:

"SUBJECT TO the right of ... Ruby ... to occupy during her widowhood the homestead situate upon [his] farming property at Railton Road Latrobe ... free of rent or any other charge whatsoever"

"Trustee keeping the ... homestead in good and habitable repair and condition."

The testator made no provision for his daughters stating in his will that it was not his intention:

"to make provision for my daughters ROXIE ... and CLAIRE ... as I consider my said daughters are in a financially sound position."

Neither Roxie nor Claire have made claims against the estate.

4 Neil Morse had lived in the Latrobe/Kentish area for all of his life. His father had conducted a family butchery in Latrobe. The land which is the primary asset of the estate was used in conjunction with that business. That land and its use, actual or intended, has been a cause of discord within the family and its present value a significant factor in these proceedings.

5 The value of the estate assessed for Probate was:

6 The specific bequests accord with the non-realty assets. The realty comprises an established farm of 154.5ha which has not been intensively developed. Some 33ha has been cleared and the remainder left as bushland. Two weatherboard houses have been erected on the land. One 30 years old, is occupied by Colin, the youngest son, and the other, built 70 years ago, by the widow. The use of the land and its undevelopment has been a cause of contention between the father and his elder sons over a long period.

7 The government land valuation of 1997 had assessed the capital value of the land as $300,000, exclusive of timber value. The equivalent market value was assessed in 1999 as approximately $325,000 and is currently $370,000. The applicants contended at the hearing that if the value of the timber is included and the property used to its full potential, the true value of the land is considerably higher. In the opinion of Mr Dennis Chester, a forestry consultant, the market value of standing timber is some $146,000, to which should be added the return from the sale of firewood, estimated to be $15,000.

8 The testator had consciously refused to have the land developed, preferring to leave much of it in its natural state. That decision had led to discord with the applicants and might explain why the testator chose to bequeath the land to his youngest son. Historically the farm had been regarded as an income producing source, portion of which ought be left untouched.

9 The applicants' case is that the enhanced value of the estate provides a cogent basis for its fair and equitable division. The respondent contends that the assumption is meaningless since environmental legislation precludes the potential development of the land in the manner suggested by the applicants. The applicants bear the onus of proof in establishing the enhanced value of the estate. Logging of the land can only be undertaken in compliance with the Forest Practices Act 1985, ss5 and 17. The land suitable for harvesting comprises some 119ha. Surveys have shown that the area is a significant conservation area. Those surveys show high habitat diversity with the presence of some 43 bird species, some of which are endemic and/or endangered. It would appear that the vulnerable species engaeus granulatis and astacopsis gouldi, inhabit the area which also contains four endangered plant species. The author of one report states:

"... the Morse block represents the most valuable intact forested habitat I have experienced between the Badgers Range and the Mersey River."

10 Mr Chester conceded much of the force of the environmental evidence and to the likelihood of the requirement of a conservation covenant, and in an exchange with counsel for the applicants on re-examination, stated:

"You were asked also about the overall landscape content of the Latrobe area and you were asked about the need for a landscape conservation plan and you said, 'I agree to a certain extent', and again your answer was cut short, do you remember that question and answer and what it was you wanted to say about that? ... Yes, the only thing is there in the preparation of a forest practices plan for a harvesting operation on that property there would be a requirement to do an intensive study of the landscape. In that particular landscape I would see that there wouldn't be a need for major constraint on the harvesting to conform with the requirements of the visual management system that is incorporated into the Forest Practices Code."

11 There is a likelihood that legislative provisions such as the Forest Practices Act, Threatened Species Act 1995, and the Nature Conservation Act 2002 will preclude or inhibit harvesting and little prospect of compensation (Forest Practices Act, s16).

12 The above evidence is relevant to two issues, namely the intention of the testator and the value of the estate. The applicants have not satisfied the Court to the requisite degree that the value of the estate will be enhanced by further development of the land. The value of the estate is relevant to an assessment of the respective positions of the members of the testator's family. That relevance was stated by Fullagar and Menzies JJ in Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 at 135 as:

"In such a case as this, where the applicant is a married woman with a healthy husband in satisfactory employment who supports her in reasonable comfort, her need is not for the bread and butter of life but for a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit.

13 The history of the family is one of hard work with little "cheese and jam".

14 Neil Walter Morse was born in September 1913 and his wife Ruby in June 1911. They married in 1937 and their first born son, now deceased, was born in the following year. The two girls, Roxie and Claire, were born in 1938 and 1943, respectively. The applicants were born in 1946 and 1954, and the respondent in 1955. All children were brought up on the property known as "Sherwood".

15 The testator was a hard worker, and like many of his generation, regarded himself as a patriarch in both a positive and negative sense. He was the decision-maker and expected his views to prevail. To his family he was both protective and firm. Roxie said that during her childhood the family home was a happy one but that her father, as a man of his time, both respected and protected women, whilst believing that there were certain things which they ought not do. He did not regard his wife as a "working partner" and, consistent with the terms of his will, had stated that no woman would ever inherit "Sherwood". The significance of that evidence is that it shows an affinity with the property and an intention that it, as a whole, should stay within the male line of the family. That he did not tolerate dissent was seen on occasions as unreasonable, and led to conflict, especially with his elder sons. Some of these conflicts concerned the state of the property, its use and differences with the applicants as to whether "Sherwood" should be developed or a substantial portion left in its "natural" state. There were disputes about the future of the property between father and son in 1967, 1972 - 1973, 1983 and 1985, and between the applicants and the respondent in 1983 - 1984.

16 It is not necessary to consider, in detail, the history of conflict and reconciliation, except to observe that at the time of the father's death, the family had become fractured. The respondent had returned to the farm and had assisted his parents, and the quality of his relationship with his father was, in part, enhanced by his father's personality and opinions having been tempered by age. The respondent returned to live on the property in 1986 and used the land in a manner acceptable to his father while, at the same time, earning an income and having interests outside "Sherwood". The respondent maintained the property and renovated one of the houses. He has derived but modest income from his use of the property and his own outside work. Taxation records show that his cumulative taxable income (averaged for taxation purposes) for the years 1998 - 2002 amounted to $34,149, averaged at $6,829 per year.

17 In 1988, the testator suffered a heart attack and developed emphysema. His health deteriorated in the early 1990s and during that time he and his wife were helped by the respondent and their daughter Claire. By this time the fracture within the family was all but complete. The applicants made little contact and the intensity of feeling was such that neither applicant felt able to attend the father's funeral. It was during this period that the testator discussed bequeathing "Sherwood" to the respondent and not the applicants, while Claire would be able to live in one of the houses. Neil Morse made a new will, which is the subject of these proceedings, in June 1994. The terms of the will and the evidence of the respondent and the daughters, accepted by the Court, support the finding that the intention of the testator was:

(1) to make provision for his wife during her lifetime while preserving the integrity of the land;

(2) to make no provision for his daughters since they were "in a financially sound position";

(3) to bequeath "Sherwood" as a whole property with a desire that its ownership continue within the family line in a state which accorded with his own treatment of it;

(4) not to bequeath the realty or portion thereof to Peter or David;

(5) that Colin was the preferred male heir because of a concurrence of views in the future use of the land, the assistance provided by the youngest son, and the distance which existed between a father and his two elder sons.

Nothing which subsequently occurred gives reason to alter those conclusions. The testator re-entered hospital in 1995 and 1998 and died in March of the following year. Relations between the applicants and their mother have remained strained, and practically non-existent since the death.

18 The intention of a testator, if found to be fair and soundly based, forms a cogent basis for not interfering with the terms of the will. This Court is not entitled to rewrite the terms of the will in accordance with its own ideas of fairness and justice (Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1978 - 1979) 142 CLR 134; Cooper v Dungan (1975 - 1976) 9 ALR 93). The purpose of the Testators Family Maintenance Act 1912 is to modify a testamentary disposition if it fails to make proper and adequate provisions for the support of his or her spouse and children, having regard to factors which include moral obligation, means and deserts of members of the family and the amount of the estate available for distribution (Bosch v Perpetual Trustee Co Ltd [1938] AC 463). The applicants have the onus of satisfying a court on the balance of probabilities of the justification for the claim (Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (supra)).

19 Peter Morse was born in 1946. He had worked in the family butchery business and helped with the maintenance of "Sherwood", both before and after leaving school at the age of 14. As the eldest son, he had an expectation of future patrimony. He suffered a back injury in 1961, the circumstances and extent of which are disputed. Following a disagreement with his father, he left the farm in 1967, returning in 1972. However, following further disputation between father and son over the intended use of the land, he again left and moved to Latrobe. In 1983, his father invited him to return and make use of the land during his own semi-retirement at the age of 70. However, there were further differences over the planting of a "cash crop", complicated by tensions between Peter and the respondent, and Peter quit the property for the last time in 1985.

20 His claim is primarily moral, based on his contribution to the family and his current state of health. He is afflicted with rheumatoid arthritis, the origin of which is disputed. Peter played football at a senior level and has doubtless suffered injury. But his medical records belie his claim that the injury originated in 1961 through an accident suffered in the course of farm work. His evidence ought be evaluated as being influenced by historic grievance and continued antipathy.

21 The applicant is employed as the operations manager at Caltas in Devonport. He regards himself as "reasonably financially secure". His affidavit did not disclose all of his employment package which includes salary of some $45,000, a work vehicle, and telephone. He is married with three adult, non-dependent, children. He owns a house and land at Spreyton valued in August 1996 at $70,000. He has three superannuation policies with an expected return at age 55 of $105,000. Whilst his health might deteriorate, the prognosis is not one of disablement.

22 David Morse was born in 1955. He left school at 14½ and has no further educational qualifications. He moved to Western Australia at the age of 18 and was successful in gaining employment in industries using heavy machinery. He married Donna in 1977 and the couple have one child, born in 1977. In 1983 - 1984, the father and son discussed his return on the basis that he take over the conduct of the farm, with some expectation that he would inherit. He did so in 1984, leaving gainful employment. However, the arrangement broke down with some acrimony and in 1985, the applicant left to work with the Merseylea Pastoral Company. He commenced work for Holymans as a driver in 1998. He remains in good health. His income for the year 2000 was approximately $44,000. He and his wife own their own home, subject to a mortgage of some $40,000. While Donna has suffered illness, she is able to work. The son, Neil, is undertaking work experience. The plaintiff's claim is put on both a moral basis and one of the needs of his wife and adult son. The financial problems caused through her illness in 1987 have been overcome. Donna has been employed for four months as the manager of a coffee shop, earning approximately $600 per week. She had been in receipt of seasonal earnings derived from a nursery business over the preceding three years.

23 The applicant had been estranged from his father for some years previous to death and has remained distant from his mother and three siblings. Whilst at some stage he might have had an expectation of inheritance, partially raised by his father's words, such does not constitute, in its own right, the basis of moral entitlement.

24 The applicants, as adult sons, must establish either the equivalent of moral equity through past contribution or worth or need at the relevant time. In considering a claim by an adult daughter, Fullagar J in Re Sinnott [1948] VicLawRp 48; [1948] VLR 279 said, at 280:

"No special principle is to be applied in the case of an adult son. But the approach of the Court must be different. In the case of a widow or an infant child, the Court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported. But an adult son is, I think, prima facie able to 'maintain and support' himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act."

25 Whilst familial, cultural and economic changes have lessened the gender difference, the primary considerations of need for maintenance, determined in accordance with the specific circumstances of the individual child, remains of paramount importance. As Dixon CJ and Williams J said in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 576:

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

"The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd) (1938) AC 463; (1938) 38 SR (NSW) 176 the word 'proper' in this collocation of words is of considerable importance. It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."

26 Whilst an adult son might not be "one of a special case", prima facie disentitled to the benefits of the Act, (Hunter v Hunter (1987) 8 NSWLR 573; Kleinig v Neal (No 2) (1981) 2 NSWLR 532), evidence of his maturity, capacity and accumulation of assets often associated with age, might preclude the discharge of the requisite onus of proof for entitlement. In O'Connor v Tasmanian Trustees B47/1995, Crawford J said, at 6:

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."

The term "special need", as used, does not mean automatic categorisation, but simply that absence destitution, disability and the like, some other factor of circumstance "unspecified" must be shown by evidence before entitlement. My own approach has been stated in Langford v Cleary (No 2) [1998] TASSC 37; (1998) 8 Tas R 52, in the following passage at 56:

"The legislation was intended (inter alia) to make provision for children dependent upon their parent. An adult descendant who had made his or her way in life could hardly expect to have recourse to the legislation simply because a sibling has received greater benefit. A disabled or disadvantaged child could expect benefit because a caring and fair parent could be expected to make provision for a child rendered disadvantaged by reason of incapacity, misfortune, chosen relationship and the like, irrespective of age. Entitlement would be more readily assumed if the caring parent was unaware of the circumstances of the child. In cases where the parent had disinherited a child by reason of prejudice (eg, marriage to a person of a different religion or race), the law ought pay regard to a notion of 'just parent' but it is not required to make a similar assumption where the claimed need is based solely on 'economic circumstance'. The approach has historically been based on the characterisation of the term 'adult son', although it should now be considered by reference to the term 'adult child'. There is a divergence of approach between the Victorian and New South Wales courts in relation to the issue of whether the characteristics pertaining to an adult child are pertinent to the responsibility of a 'just and responsible parent'. In Hunter v Hunter (1987) 8 NSWLR 573, Kirby P stated at 580:

'The notion that an able-bodied adult son is in a special class, prima facie disentitled to the benefits of the Act, dies hard in this field of jurisprudence: see Re Fuller (1917) 17 SR (NSW) 348; 34 WN 136; Re Sherrard (1938) 55 WN (NSW) 38 and McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566. It is evident, in terms, in the judgment of Barwick CJ in Hughes (ibid at 139):

"... He was an able-bodied adult able to fend for himself. For my part, the fact that he had long trespassed on the indulgence of his parents gave him no claim on their continuing bounty."

It is my opinion that Helsham CJ in Equity, in his approach to the claim of the appellant, adopted this now discarded categorisation. There is no warrant for it in the Act. It limits, in an unnecessary and artificial way, the consideration of all of the circumstances of the case. It frustrates the object of the statute. It diverts attention from the focus which the Act requires upon the proved needs of the applicant and a comparison of those needs with the provision made by the will.'

That view followed the analysis at 579 by Kirby P of the judgment of Gibbs J in Hughes v National Trustees, Executors and Agency Company of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, but was rejected by Orminston J in Anderson v Teboneras and Another [1990] VicRp 47; [1990] VR 527, when he stated at 538:

'For myself I can see no basis for the assertion by Kirby P in Hunter v Hunter (1987) 8 NSWLR 573, at p 579 that Gibbs J in this passage had "discouraged acceptance of this line of authority". In the light of Gibbs J's earlier statement that more recent cases had confirmed Fullagar J's views, a passage not referred to in Kirby P's judgment, there can be no doubt that those carefully expressed views now have the endorsement of the majority in Hughes' Case, omitting for present purposes Murphy J's judgment based upon a curious view as to what constitutes a "moral claim": see at pp 158-60, especially the last paragraph on p 159.'

A problem which arises from stare decisis is one of extension by logic. A doctrine originally stated to meet the needs for a particular circumstance is, once accepted, extended by incremental shifts, to encompass a circumstance different, on any conceptual approach, to the original case. (See In Re Sinnott [1948] VicLawRp 48; [1948] VLR 279, The Pontifical Society for the Propagation of the Faith and Anor v Scales [1962] HCA 19; (1962) 107 CLR 9, McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, Hughes v National Trustees, Executors and Agency Company of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134). With respect to either of the above positions, one can say that whilst each may justify the making of a particular award or order, neither should be elevated in its own right to a statement of principle. The principle remains that of a statutory remedy available to a person, vulnerable and disadvantaged, who would be entitled to receive from a parent, judged by the standard prevailing at the time of determination, benefit commensurate with the detriment occasioned by disadvantage. An adult child, unable to establish that he or she comes within that characterisation, should bear a high burden in establishing entitlement under the legislation and ought show special need (O'Connor v Tasmanian Trustees Limited Serial No B47/1995). In the circumstances of this case, the age of the applicant is a significant factor in the determination of the first question affecting entitlement (see generally Grey v Harrison [1997] 2 VR 359)."

(1) Whether at the date of death the testator as a just parent judged by community standards, had a moral responsibility to make provision for a child.

(2) If so, whether such child at the time of hearing could establish by reason of subjective circumstance entitlement for appropriate maintenance, support, education and advancement.

28 Much of the evidence led on the hearing of the applications concerned historic disputation and division and competing claims of accuracy of recall and correct interpretation of those events. That the testator was not an "easy father" is readily accepted. That he brooked no opposition can explain the resentment of his older sons. But he was entitled, on his journey through life, to hold to his values and opinions. He worked for the land to remain his, through his line, and kept in accordance with his own treatment of it. Much of the evidence was directed towards the redress of historic "wrongs", not to moral entitlement. Neither applicant had contributed to the property sufficient to establish moral equity. Neither son sacrificed his own life to an extent deserving of repayment by a just parent. Both applicants were estranged from their father for many years before his death and did little over the last 10 years to enhance a parent's well-being. The respondent was regarded by the testator as a suitable farmer and enjoyed his father's trust. He had cared for his parents in their declining years and maintained the property. His own income was and remains limited and he has three young dependent children.

29 Neither applicant has shown needy circumstances. Both are in good employment and have assets. Neither has a disability which could blight their future. Each has made his way through life without disaster or special hardship. Neither has established entitlement.