The testator died on 22 November 1989. By his last will dated 25 May 1988 and the codicil thereto dated 24 June 1988, he appointed Perpetual Trustees Queensland Limited and his older son, Walter John Colburn Mayne, to be his executors, gave each of his daughters, Anne Colburn Campbell and Judith Colburn Moloney the sum of $150,000.00, and devised his residuary estate after payment of his debts, funeral and testamentary expenses to his older son ("the appellant"). The testator had left his second wife $10,000.00 in his will, but revoked that bequest by the codicil. Further, the respondent was expressly excluded from sharing in the testator's estate by his will, clause 6 of which was as follows:

"6. I HEREBY DECLARE that I have not provided for my son, William Stewart Colburn Mayne because by reason of the dissolution of the family partnership of Mayne and Sons and my acquisition of his shares in the Mayne Cattle Company I am convinced that my said son has already received a full share of the family assets and therefore is not entitled to any portion of my remaining estate which is required to provide my wife my daughters and my son, Walter John Colburn Mayne with an inheritance and also to reimburse my said son for practical management of my interest in pastoral pursuits and as a co-executor of my estate."

The deceased's estate was substantial. The parties were content not to have precise findings made but accepted that its nett value at the date of the testator's death was between $1,659,751.00 and $1,704.0000.00 before payment of the legacies to the two daughters which reduced it by $300,000.00. As the at the date of trial, after payment of the legacies to the daughters, the parties were agreed that the amount available for distribution to the appellant as residuary beneficiary in accordance with the will was between $1,333,000.00 and $1,391,000.00 on one view and, on another view, between $1,485,000.00 and $1,534,000.00.

The testator, who was 81 or 82 years of age when he died, had established a successful cattle breeding business in the Texas area. By the mid-1930's, he owned properties known as "Mauro" and "Old Bebo" and leased another nearby property, "Hurford". He also owned a stock and station agency in Texas, which was an important source of income. In about 1950, he purchased another property, "Stanhope".

The appellant was born on 15 July, 1929, and was educated to Junior (year 10) standard. He then worked as a jackeroo on other properties before returning to work on the testator's properties.

The respondent was born on 28 April, 1936, and left school when he was about 17 years of age, after which he worked for a pastoral company in Brisbane for about 2 years until he returned to the family properties in the mid-1950's.

At about the same time, a partnership was formed between the testator, the appellant and the respondent with respect to some aspects of their business activities. The testator controlled the partnership and its dealings, but the profits were divided between the appellant and the respondent. When the partnership was terminated, accumulated profits and a bank loan were used to purchase "Hurford" in the names of the appellant and the respondent, although the appellant's half share was subsequently transferred to the respondent in return for a debit entry in the appellant's favour in the relevant financial accounts.

In the mid-1950's, the testator purchased another property near Texas known as "Gibraltar", which the trial judge considered "the show piece of the testator's properties". The testator and his then wife lived on "Gibraltar" until the appellant's marriage in 1966, following which "Gibraltar" became the residence of the appellant and his family.

In 1958, a partnership "W.H.C. Mayne and Sons" was formed. The members of the partnership were the testator, his then wife, and the respondent. The partnership agreement recited that the testator owned "Gibraltar", "Old Bebo" and "Stanhope" and the respondent owned "Hurford", and provided that the partnership intended to carry on livestock dealing, breeding, grazing, farming etc.. According to the partnership agreement, the capital property and nett income belonged to the partners in equal one-third shares. However, the testator was the managing partner with effective control over the partnership affairs.

The appellant was admitted as a partner in 1962, acquiring a one-sixth interest from each of the testator and the testator's then wife. Thereafter, each of the testator and his then wife held a one-sixth interest and each of the appellant and the respondent held a one-third interest in the partnership. However, the testator remained managing partner with full control.

From a date which the trial judge was unable to identify, there also existed a company, Mayne Cattle Co. Pty. Ltd., which owned properties known as "Middle Creek", "Trigamon North" and "Bedwell Downs". The testator was the permanent governing director of the company and the holder of one 7% non-cumulative preference share. There were only three other shares issued, an "A" class ordinary one dollar share held by the testator's then wife, a "B" class ordinary one dollar share held by the appellant and a "C" class ordinary one dollar share held by the respondent.

The trial judge found that neither the appellant nor the respondent paid for his interest in the partnership or the company, but both worked for the benefit of the partnership and the company, with some interruption, for many years. It was held that, up until 1983, their respective contributions were equal but that, from 1983 the respondent played no part and the appellant "virtually managed the family entities in which he and his father were interested". Both also played a part in the operations of the family stock and station agency but it seems from his Honour's findings that the appellant had a more significant role than the respondent.

In 1968, the testator inherited another property "Guee".

In about 1979 and again in 1981, the appellant and the respondent discussed their dissatisfaction with the existing arrangements. The appellant was by then in his early 50's and the respondent in his mid-40's, and, according to the trial judge, neither enjoyed a close relationship with the testator, whom he described as a "successful businessman who liked to keep and did in fact keep tight control". In broad terms, while the appellant and the respondent expected to inherit the properties in due course, they wished for more authority and increased remuneration in the meantime. Although initially both supported a proposal that each would retire from the partnership, the appellant ultimately decided not to do so and, as the trial judge put it, "sided with the testator".

Late in 1981, there was a meeting between the testator, his then wife, the appellant, the respondent, and a solicitor and an accountant. Part of the meeting involved an extraordinary general meeting of Mayne Cattle Co. Pty. Ltd., during which the rights attached to the testator's share in the company were altered so that he became entitled to 20% of the surplus assets in the company on a winding up.

Further, an agreement was signed between the testator, his then wife, the appellant and the respondent. The agreement provided for:

(a) Sale by auction of stock owned by the partnership and depastured at "Gibraltar" and sale of partnership plant and horses situated at "Gibraltar";

(b) The winding up of the partnership as soon as possible after sale of that stock and plant;

(c) Arrangements for separate sales by auction of "Trigamon" and "Middle Creek", with the appellant having options to purchase each of those properties if bidding did not reach a specified price;

(d) Arrangements for the sale of stock on properties other than "Gibraltar"; and

(e) Winding up of Mayne Cattle Co. Pty. Ltd. on completion of the sale of "Trigamon".

Provision was also made entitling any of the parties to the agreement to bid for any of the stock and plant at "Gibraltar" when such stock and plant were sold. An Angus stud herd which produced prize winning cattle had been built up at "Gibraltar" and, at the auction when the "Gibraltar" stock were sold, the testator brought 58 stud cows with 22 stud heifer calves and 11 stud bull calves at foot and 2 stud sires and the respondent purchased 20 Angus stud cows and calves.

Further arrangements were made in August 1983. It was recorded that the partnership of W.H.C. Mayne and Sons had been dissolved as at 30 June 1983, and three interdependent contracts were entered into between the testator and the respondent. By one such contract, the respondent sold to the testator his one "C" ordinary one dollar share in Mayne Cattle Co. Pty. Ltd. for $360,000.00, in another the testator sold to the respondent and his wife "Gibraltar" unstocked and excluding plant and other specified items for $240,000.00, and in the third the testator sold to the respondent and his wife "Old Bebo" unstocked and excluding plant and other specified items for $120,000.00.

The net result was that the respondent no longer was a member of the partnership of W.H.C. Mayne and Sons or a shareholder in Mayne Cattle Co. Pty. Ltd., but had three properties, "Hurford", "Old Bebo" and "Gibraltar". "Hurford" and "Old Bebo" were sold in 1988 for about $700,000.00, but the respondent and his wife retained "Gibraltar", and, in January, 1989, purchased another nearby property, "Mundoey", for $140,000.00.

After the dissolution of the W.H.C. Mayne and Sons partnership, the appellant and the testator formed a new partnership and continued as shareholders in the company, Mayne Cattle Co. Pty. Ltd.. From time to time, there were disputes between the respondent and his father and brother, but these seem to have been resolved by the mid-1980's. While the respondent visited his father at premises where he lived, the testator never returned to "Gibraltar" after August 1983 although he had previously been a regular visitor there. However, the trial judge found that the respondent's conduct towards the testator remained filial at all times and that the respondent was not guilty of conduct which disentitled him to an order under the Act.

The trial judge formed a more favourable view of the respondent than the appellant, preferred the respondent's version where there were inconsistencies in their testimony and was generally impressed with the respondent's skills in improving the properties owned by himself and his wife and building up an Angus cattle stud herd on "Gibraltar". He traced in some detail various borrowings and other activities engaged in by the respondent which it is unnecessary to repeat. In summary, he appears to have concluded that the proceeds of sale of "Hurford" and "Old Bebo" in 1988 were expended in paying off borrowings, purchasing "Mundoey" and plant and equipment, and paying associated expenses and commission.

Unfortunately, the respondent's financial position at material times was not demonstrated with desirable clarity. No evidence was produced of the respondents' financial position as at the date of the testator's death, and the value of his assets and the extent of his liabilities at the time of the trial in April 1992 was not plainly established. Further, apparently comparable findings made by the trial judge seem to have been made on different bases.

After referring to an affidavit sworn by the respondent on 17 August 1990 stating that, at 26 July 1990, the value of the assets of his partnership with his wife was $959,750.00 and their liabilities were $161,375.89, his Honour said:

"If one accepts these figures it appears that [the respondent's] nett worth in July 1990 was some $400,000.00 subject to adjustment of internal accounts within the partnership with his wife."

Later, after referring to other figures concerning the financial position of the partnership between the respondent and his wife at different times, his Honour said:

"[The respondent's] nett asset position as at 30 June, 1991 as disclosed in his affidavit sworn on 27 April, 1992 and exhibits thereto shows his partnership interest to be then worth $498,518 and that he had no other assets of any significance ... . If Mr. Penberthy's valuation of livestock is accepted [the respondent's] nett asset worth to date is some $510,000.00 ... ."

The nett value of the respondent's assets arrived at by the trial judge as at 26 July 1990 ($400,000.00) seems to have been calculated by simply deducting the total of the external liabilities from the value of the assets of the partnership between the respondent and his wife and dividing by two, "subject to adjustment of internal accounts within the partnership ... ". A substantially different amount might have been arrived at had such an adjustment been made. A large amount ($460,138.60) was owed to the respondent by his partnership with his wife and recorded as an "Advance a/c" in the partnership balance sheets. However, according to a letter dated 23 April 1992 from the respondent's accountants to his solicitors, the respondent's advance account with the partnership was taken into account to produce the figure of $498,518.00 accepted by the trial judge as the value of the respondent's interest in the partnership as at 30 June 1991, and it was this figure which formed the basis of the trial judge's finding that $510,000.00 was the respondent's "nett asset worth to date".

Despite some unsatisfactory features, it is appropriate in the circumstances for this Court to proceed on the basis of the findings made by the trial judge on this issue. Significantly, there was no challenge made to these findings by the appellant.

There was a similar lack of clarity concerning the income of the partnership between the respondent and his wife and with respect to its external liabilities (which of course were taken into account in determining the nett value of the respondent's share in the partnership).

In broad terms, the last available balance sheet for the partnership between the respondent and his wife showed external liabilities of about $220,000.00 as at 30 June, 1991.

Apart from a reference to the 1989 nett profit of the partnership between the respondent and his wife and a discussion of components in that nett profit which were unusual or likely to be available only intermittently, the trial judge made no findings concerning the income of the partnership between the respondent and his wife. The figures produced for the 1988, 1990 and 1991 financial years showed losses of less than $20,000.00 for 1988 and 1990 and profits of $61,204.00 and $23,998.74 respectively in 1989 and 1991. There was some debate concerning the reliability of these figures and what had been taken into account in their calculation, but overall it seems that the partnership between the respondent and his wife did not regularly produce a large income. In an affidavit sworn on 27 April, 1992, the respondent described the partnership operations as "marginal" because of their small size and a lack of funds for expansion.

That affidavit concluded with the following paragraphs 12 and 13:

"12. I am aged 56 years. I enjoy reasonable health apart from a limitation with my back. I have no ability however to advance and improve my position. I know no other life or occupation than that of a farmer and grazier. I have no other funds available for retirement and the generation of income for my wife and myself depends on my continued ability to work and run the property. If my health failed I would not be able to support myself and my family.

13. Of my three adult children one namely my son Ben is still requiring support from me. After leaving school he was employed on the land but has now chosen to attend an Agricultural College at Orange in New South Wales and I expect to support him there to the extent of approximately $10,000.00 per annum for two years. Beyond that assistance I cannot hope to provide for him on our own farm since my wife and I will need all of the assets available to us for our retirement. I still provide some support for my two daughters."

The appellant's "assets income and financial commitments" were also analysed. The trial judge concluded that the nett value of the appellant's assets at the date of the testator's death was $620,000.00, that the current nett worth of his assets was $1,040,000.00 and that the appellant's wife also had nett assets in excess of $200,000.00 ($228,978.73 as at 30 June, 1991). No specific figure was attributed to the value of the respondent's wife's estate, which seemed substantially to depend on the value of her interest in her partnership with the respondent. Again, the findings made by the trial judge were not challenged.

Although he accepted that the testator owed the appellant "a greater moral duty" than he owed the respondent, substantially on the basis of the appellant's efforts in the family's business operations since 1983, the trial judge considered that clause 6 of the will "clearly indicates confusion in the testator's mind ...". His Honour elaborated on this by stating that the appellant had not been given "Gibraltar" and "Old Bebo" in 1983 but had provided "full and valuable consideration", and further that, from the reference in clause 6 to reimbursing the appellant for practical management of the testator's interests, "it seems that the testator was completely overlooking [the respondent's] contribution from 1956 to 1983 to building up the testator's estate." Because of the matters to which he referred, his Honour gave "no weight to clause 6 in deciding the jurisdictional question and deciding the provision to be made."

After a discussion of the authorities concerning applications under the Act by able bodied, adult sons, his Honour said:

"If it is necessary for [the respondent] to show a special claim - and I do not believe that is so - nevertheless I would find that [the respondent] does have a special claim in that he has contributed to building up the testator's estate ..."

"I find that at the date of the testator's death [the respondent] was in a situation of special vulnerability in that if for any reason he was unable to continue to work "Gibraltar" and "Mundoey", his and his wife's business would probably collapse and his son Ben may not complete his education. The testator must have known or should have foreseen when he made his will that successful graziers in the Texas area were subject to the vagaries of the weather and further that [the respondent's] son Ben had not completed his education.

In my opinion, a consideration of all the circumstances as they existed at the date of the testator's death clearly shows that the testator failed to make adequate provision for the proper maintenance and support of [the respondent] and that a wise and just father would have made some provision for [the respondent]. [The respondent] is entitled to an order."

Although doubtful of some aspects of the reasoning of the trial judge, for example, his approach to clause 6 of the will and the emphasis which he gave to the possibility of a recurrence of the respondent's back problem and to the financial burden associated with the respondent's son completing his education, no sufficient basis is shown for overruling the decision by the trial judge that the testator had not made adequate provision from his estate for the proper maintenance and support of the respondent.

The remaining question, which called for a discretionary judgment by the trial judge, concerned the amount which should be ordered to be paid to the respondent out of the testator's estate.

His Honour proceeded to quote again part of an extract from the judgment of Adam J. in re Buckland (deceased) [1966] VicRp 58; (1966) VR 404 at p.415 which he had earlier set out at greater length. The longer passage which he quoted is as follows:

"I consider the proper conclusion to be drawn from the authorities is that the Court's jurisdiction, whatever the size of the estate, is limited by the claimant's need for maintenance and support; but that the maintenance and support to which he or she may for this purpose be treated as needing is that appropriate to his or her station or condition in life. For a child, particularly a dependent daughter of an exceptionally wealthy father, the standard of maintenance may justly be set high ensuring a degree of comfort and freedom from anxiety for the future which for those not so circumstanced might well seem somewhat extravagant, but it should fairly come within the conception of maintenance and support. The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance."

After noting that the testator's estate "is a large one", the trial judge continued:

"There were it seems no superior moral claims upon the testator's bounty. I infer that from the fact that neither of the two daughters nor the widow has sought to join in the present application. I do not overlook the fact [the respondent] had major back surgery in 1965 although his back appears not to have caused trouble since. In an estate of the size of the testator's, the contingency of [the respondent's] prior back problem returning and interfering with his working capacity - he is the mainspring of the success of his pastoral pursuits - is one I am entitled to and do take into account.

I am entitled to determine what provision should be made for [the respondent] taking facts as they now exist such facts being reasonably foreseeable by the testator. The nett estate of the testator available for distribution is some $1.534 million and that figure relies on Mr Penberthy's valuations which I accept.

[The appellant] has a nett worth of some $1.040 million. His wife a nett worth of some $229,000.00 as well as a capacity (which she has used and continues to use) to earn income as a nurse. She is not dependent on [the appellant] as Judith is on [the respondent].

[The respondent] has a nett worth of some $510,000.00. His wife's assets are tied up with [the respondent's] but she does not have the earning capacity of [the appellant's] wife. [The respondent] still has to pay to complete Ben's education - Ben will attend an Agricultural College at Orange for two years and this will cost [the respondent] some $10,000 per annum. The cost to [the respondent] of completing Ben's education is one of the contingencies I take into account in deciding what provision should be made for [the respondent].

The provision for [the respondent] should not be equal to [the appellant's] interest in the estate. Since 1983 [the appellant] has managed pastoral pursuits which included those in which the testator had a financial interest. Mr Wilson has urged that I should consider the relative degrees of "loyalty" of [the respondent] and [the appellant]. I do not regard "loyalty" as being a substantial issue in this case. While it is true that [the respondent], instigated steps which resulted in the 1983 dissolution and thereafter went his own way, [the appellant] who I thought was the weaker character of the two men, continued with his father who was an inactive partner for several years before his death. In effect [the appellant] threw his lot in with the testator, worked for his father (as well as himself) for some years and probably reasonably expected to be rewarded in the will.

I am conscious that I must not rewrite the will but must place myself "in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just rather than a fond and foolish ... father." (Bosch's case at pp.478-9).

In my view the provision which should be made for [the respondent] is $550,000.00 which amount is to bear interest at 6% per annum from today. I have adopted an interest rate because the testator in his will expressly provided for interest from date of his death on the daughters legacies. I see no reason why [the respondent] should not receive interest from today. After all, had the testator made adequate provision for [the respondent] in his will, [the respondent] would have paid or received that provision probably some time ago."

This is a troubling passage from which it does not clearly emerge what matters influenced the trial judge on how he arrived at the substantial sum of $550,000.00 which, coincidently perhaps, is almost exactly one-third of the nett value of the testator's estate at the date of his death before payment of the legacies to the testator's daughters, and similarly close to, but somewhat more than, one-third of the nett value of the testator's estate at the time of trial after payment of those legacies.

The discussion of the respective financial positions of the appellant and the respondent and the comparison of their respective moral claims on the testator make it difficult to avoid the conclusion that the trial judge's discretion miscarried. The Court has no power to make what it considers a fair distribution of a testator's estate among his family. The superior financial position and his relative lack of need do not justify an increase in what may be ordered in favour of the respondent, which is limited to the amount which is adequate for his proper maintenance and support.

In the circumstances of this case, taking into account the external liabilities of the partnership between the respondent and his wife, the cost of education for their son, the fluctuations in their income and the vagaries and vicissitudes which affect those engaged in rural pursuits, we consider that the sum of $300,000.00 should be substituted for the figure of $550,000.00 ordered by the trial judge.

It follows that the appeal should be allowed. In all the circumstances, we consider it appropriate to allow each party to bear its own costs of the appeal.

PERPETUAL TRUSTEES QUEENSLAND LIMITED and WALTER JOHN COLBURN MAYNE (as executors of the estate of WALTER HERBERT COLBURN MAYNE (deceased))

MINUTE OF ORDER: Appeal allowed. The figure of $300,000.00 is substituted for the figure of $550,000.00 ordered by the Trial Judge. Each party is to bear its own costs of the appeal.

CATCHWORDS: Testator's family maintenance. Appeal.

Appeal from order that testator's son be paid $850,000.00 - whether any basis shown for overruling decision that inadequate provision made for respondent - whether discretion nevertheless miscarried in considering competing moral claims and respective financial position.

Counsel: P. Keane Q.C. with him A.M. Wilson for the Appellants

J.D. Muir Q.C. with him A. Hall-Brown for the Respondent

Solicitors: Messrs. McCullough Robertson for the Appellants

PERPETUAL TRUSTEES QUEENSLAND LIMITED and WALTER JOHN COLBURN MAYNE (as executors of the estate of WALTER HERBERT COLBURN MAYNE (deceased))

Judgment delivered on the 19th day of November, 1992.

Reasons for judgment by the President and Mr Justice de Jersey jointly, Mr Justice Pincus separately. All concurring as to the order.

THE FIGURE OF $300,000.00 IS SUBSTITUTED FOR THE FIGURE OF $550,000.00 ORDERED BY THE TRIAL JUDGE.

EACH PARTY IS TO BEAR ITS OWN COSTS OF THE APPEAL.

PERPETUAL TRUSTEES QUEENSLAND LIMITED and WALTER JOHN COLBURN MAYNE

(as Executors of the Estate of WALTER HERBERT COLBURN MAYNE (deceased)) Appellants

I have read the reasons of Fitzgerald P. and de Jersey J. which contain a full explanation of the facts which were before the trial judge. For my purposes, it is unnecessary to discuss in detail aspects of the trial judge's reasons other than those with which I have had difficulty.

The appellants argued, in effect, that the judge should have given no weight to a back condition which the respondent mentioned. The judge took into account as a circumstance in favour of granting relief the contingency of the respondent's "prior back problem returning and interfering with his working capacity".

In my opinion, there was no sufficient evidence to justify his Honour's attaching significance to that matter. The respondent had major back surgery in 1965 - a fusion operation. He said that the fusion limited (to an unstated extent) his physical activity and ability, but the respondent did not suggest that he had ever lost a day's work because of his back, nor did he say that any deterioration in the condition of his back had been noticed since 1965, nor was there evidence that there was a risk that trouble he then had would be likely to recur. In my respectful opinion, the judge's reliance on this part of the respondent's case in support of the claim on his father's estate was an error.

Then, I respectfully disagree with the judge's view that the respondent's position at the date of death was one of "special vulnerability"; there was no evidence to support that finding. His Honour said:

"I find that at the date of the testator's death Bill was in a situation of special vulnerability in that if for any reason he was unable to continue to work 'Gibraltar' and 'Mundoey', his and his wife's business would probably collapse and his son Ben may not complete his education".

By the use of the word "collapse" his Honour perhaps wished to convey that if the respondent became unable to work, presumably because of illness, then the properties could not be run. The implication may be that it would not be practicable, in those circumstances, to engage a manager, and there would have to be a sale.

There was no evidence that there was anything wrong with the respondent's health or that he had any ground to apprehend an early deterioration in his ability to work his property. His Honour was particularly concerned, it appears, about the respondent's desire to educate his son Ben, who was to attend a tertiary college for two years at a cost of $10,000 per annum. It seems evident that there was enough money to educate Ben. The judge made no finding as to the state of the respondent's assets at the date of death, but made such a finding with regard to July 1990; the testator's death occurred on 22 November 1989. His Honour did not suggest that the position had changed significantly between November 1989 and July 1990 and as at the latter date, the finding was that the respondent's net worth was "some $400,000 subject to adjustment of internal accounts within the partnership with his wife".

The precise adjustment his Honour had in mind does not appear, but the reference to an adjustment seems to have been based upon a letter of 23 April 1992 from a firm of accountants, from which it appears that the books showed that the respondent had advanced to the partnership, as at 30 June 1991, the sum of $460,139. The necessary adjustment then would take the respondent's interest in the partnership to a value of about $630,000, his wife's interest being about $170,000. If one adds the amount ordered to the figure of $630,000 the result is $1,180,000.

The respondent is a middle-aged man and, on the judge's findings, competent, hard-working and well regarded in his field. His income in the few years before the death was not satisfactorily proved, but seems to have been low. He had at the date of death assets of fairly substantial value and only one child who was dependent on him, in the sense explained above. The testator was not, in my opinion, obliged to treat the respondent as especially vulnerable financially, or likely to encounter financial disaster. It is true that the respondent's grazing business was subject to the likelihood of fluctuation caused by varying weather conditions and prices; but there are few businesses, rural or otherwise, which are not susceptible to downturns.

If the judge's conclusion as to need can be supported, it can only, in my opinion, be on the basis that the respondent required money to enhance his financial position generally and to provide for a more comfortable life on retirement. The judge found the respondent's assets to be worth about $510,000 as at February 1992 and the result of the order, if it stands, is to increase the value of his assets to a figure of over $1m. It should be added that the judge appears to have accepted that there was a substantial decline in the value of the respondent's assets from July 1990 to February 1992.

The judge was not justified, in my opinion, in acting, as he apparently did, on the basis that special need was shown; the question remains whether there was a "special claim": In Re Sinnott [1948] VicLawRp 48; [1948] V.L.R. 279 at p.280.

Further reference is made below to factual matters bearing upon the propriety of the judge's order. It is convenient now to mention two authorities in which the question of a claim by an adult child has been considered; there are, of course, others in that class.

The first is Hughes v. National Trustees, Executors and Agency Company of Australasia Limited [1979] HCA 2; (1979) 143 C.L.R. 134, in which there was discussion of the kind of special need or special claim which must be shown to justify intervention in favour of an adult son. In the judgment of Gibbs J., with whom Mason and Aickin JJ. agreed, his Honour mentions examples of special claims that might suffice: contribution to building up the estate, physical or mental infirmity, suffering "financial disaster", inability to obtain employment and inability to support dependants (147). The second case is Anderson v. Teboneras [1990] VicRp 47; [1990] V.R. 527, in which the continuing authority of Re Sinnott (above) was emphasized. After referring to Hughes' case and others, Ormiston J. mentioned the principle that the Court is not entitled to rewrite the will in accordance with its own ideas of fairness and justice and added:

"Without recapitulating all that has been said on the application of the section, it is not difficult to see why, 'in the case of an adult son, who has received an education and is well able to earn his living, the father's moral obligation can probably in most cases be regarded as discharged, and a wise and just testator may well feel himself at liberty (to use the words of Sir John Salmond) "to do what he likes with his own"' as Fullagar J. later expressed in Re Sinnott, at p.281" (539).

If the passage just quoted is applied, then there must be a serious question whether the respondent is entitled to relief. There was no suggestion in the evidence that he had, in the years before his father's death, been unable adequately to provide for himself and his dependants, nor did it seem at all likely that he would be unable to do so in the future. A view consistent with the spirit of the passage quoted above is that only in an unusual case will a child in such a position be able to obtain relief. That is, in my opinion, supported to some extent by the examples given by Gibbs J. of the type of evidence which might support an adult son's claim; in general, those examples are of circumstances rendering the son unable properly to support himself and his dependants.

Here, it is my opinion that there are only two matters which can be argued to be able to be relied on to support the existence of a special claim. The first is that, as the judge found, the respondent contributed to the building up of the assets. It must be said that the basis of the finding is not absolutely clear. As was pointed out by counsel for the appellants, when the respondent became his father's partner, he did not buy his share; the implication was that the share was a gift. The judge must have taken the view that during the time when the respondent worked with the testator, his contributions to the testator's wealth were of greater value than their cost. When one is dealing with such a long history as in the present case, it will often be inherently difficult to determine by close analysis whether, on balance, the child has gained more from the mutual financial relationship than has the parent. Here, it appears that the child came into partnership with his father having nothing and left with assets of significant value. Nevertheless, in my opinion, it would be wrong to act on the basis that the judge's finding that there was a contribution to his father's estate is insupportable. It was a view his Honour formed on the whole of the evidence which, although not easily able to be supported by precise reasoning or figures, was open and should not be disturbed.

The second and lesser basis of the special claim is that, as was pointed out more than once during the hearing, the respondent and his wife apparently owed substantial sums at the date of death. There is no precise finding to that effect, but the judge seems to have accepted that the respondent and his wife together owed over $160,000 in July 1990, some seven months after the death. In my opinion, such a debt could not, in the circumstances of this case, constitute or support the existence of a special claim. There is no evidence that the respondent and his wife were being pressed for payment, nor did the debt appear to be excessive in relation to the then value of their assets; it was about one-sixth of that value.

Although, for the reasons I have explained, I am in respectful disagreement with the judge's opinion that the respondent's claim could be based on special financial vulnerability or supported by his having had a spinal fusion operation, I think the finding with respect to building up the estate justifies the view that there was a moral claim which the testator should have recognised.

It appears to me, however, that in the circumstances it is necessary for the Court to form its own opinion as to the proper level of relief. The judge, as I think, overstated the strength of the applicant's claim and may have taken into account in his favour matters which were, at best, of marginal relevance; for example, his Honour seems to have formed the opinion that the respondent is a man of more attractive character than his brother.

On the finding as to building up the testator's estate, the respondent had a claim, but one of more modest dimensions than was assessed below. The sum of $300,000 mentioned in the reasons of the President and de Jersey J. would take the value of the respondent's assets, as at February 1992, to over $800,000. I am in agreement with the order their Honours propose.

PERPETUAL TRUSTEES QUEENSLAND LIMITED and WALTER JOHN COLBURN MAYNE

(as Executors of the Estate of WALTER HERBERT COLBURN MAYNE (deceased)) Appellants

Counsel: P. Keane Q.C., with him A.M. Wilson for the Appellants

J. Muir Q.C., with him Ms A. Hall-Brown for the Respondents

Solicitors: McCullough Robertson for the Appellants