Council for the Respondent: Mr C.H. Francis QC and Mr R.B. Phillips

1. I concur in the reasons for judgment that are to be published by Callaway JA. I would add some observations about the tentatively- expressed obiter dictum in the majority judgment of the High Court in Singer v. Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209 that Callaway JA has set out.

2. Some would respectfully think it unfortunate that a court of last resort should have chosen to pass so enigmatically upon the very well- known, frequently-endorsed and often-applied statement of Salmond J, now of some 75 years' standing. Singer v. Berghouse, an appeal from the New South Wales Court of Appeal and decided on 14 September 1994, was concerned with a jurisdiction conferred by the Family Provision Act 1982 of New South Wales. In a special list of appeals heard towards the end of 1994, dealing with that legislation and one old case under the preceding testators family maintenance legislation, the New South Wales Court of Appeal was understandably directed to, and evidently much exercised by, the High Court's obiter dictum. In McKenna v. Solomon & Ors, unreported, 9 December 1994, Kirby, P. considered it in some detail. His Honour recognised that it was obiter, and he regarded the effect of the words with which it was hedged "to go no further than to warn against any diversion of the attention of the decision-maker from the actual language of the Act." His Honour further observed that "... it could not have been the intention of the High Court to expunge the notion of 'moral obligation' altogether from this area of the law......". His Honour referred to s.23(b)(ii) of the Family Provision Act 1982, which refers to the deceased's having had "a moral obligation to make adequate provision", etc. Nevertheless, his Honour concluded that - "... in the light of the warning of the High Court in Singer (against glossing the statute) it would be wise if references to 'moral duty' and 'moral obligation' fell out of this lexicon. They should be replaced, where appropriate, by phrases actually used by Parliament in the Act."

3. The other two members of the court in McKenna v. Solomon, Handley and Sheller, B.A., found it unnecessary in that case to consider the status and effect of the obiter dictum of the majority of the High Court in Singer v. Berghouse.

4. Upon the appeal in Permanent Trustee Co. Ltd. v. Fraser (1995) 36 NSWLR 24 argument was heard before the same judges on the same day as that in McKenna v. Solomon but judgment was reserved for some four months. Kirby, P. repeated verbatim most of what he had said in McKenna v. Solomon about Singer v. Berghouse and each of the other two members of the Court then took the opportunity to consider the matter. What happened was summarised in this way by Priestley JA in Massingham v. Massingham, unreported, New South Wales Court of Appeal, 27 June 1996 - "... this court discussed the impact of this comment (by the majority in the High Court in Singer v. Berghouse) upon the long standing practice in New South Wales, based on a continuous chain of High Court and other authority, of using the notion of 'moral duty' for the exact purpose for which, in Singer, it was said not to be useful ... All the members of this court in Fraser were of opinion that the comment in Singer doubting the usefulness of the 'moral duty' concept in cases like the present was an obiter dictum. Kirby P nevertheless was of opinion that it should be treated by courts in this State as binding. Sheller JA likewise thought that Singer was an 'an authoritative restatement (of) the approach that should be taken by the Court' ... Handley JA dissented from the views of the other two."

5. The dissenting view of Handley JA in Fraser was, if I may say so, powerful and persuasive. I respectfully agree with it and with the commentary of Ormiston JA to the same effect in Collicoat v. McMillan, unreported, 30 October 1995. Priestley JA continued in Massingham thus - "It might be possible to distinguish the present case from Fraser on the basis that Fraser was decided on the Family Provision Act 1982, whereas the present case concerns an application made under the older and now repealed Testators Family Maintenance Act. However, no distinction of this kind appears to have been made either in Singer or Fraser. In view of what the majority said in Fraser, it seems that the appropriate course for this court to take is to regard itself as bound to follow it so long as it stands."

6. Mahoney, P. and Meagher JA agreed with Priestley JA, although the learned President added some observations of his own.

7. We are fortunately not in the position in this State of being bound to follow a decision of this Court in which, by a majority of two to one, a dictum of the High Court, acknowledged to be obiter and tentative, and unexplained by its authors, was regarded as binding to the extent of displacing what was thought to be well-settled law. On the contrary, I believe that we are bound by a body of authority upon the operation of s.91 of the Administration and Probate Act 1958 of this State (and of its predecessor since the enactment in 1937 of Act 4483) with which the obiter dictum in Singer v. Berghouse is not consistent. It is sufficient to refer to two decisions of our own Full Court, In Re Butler [1948] VicLawRp 77; (1948) VLR 434, at 435 and In Re Porteous [1949] VicLawRp 68; (1949) VLR 383, at 387-8; and to two of the High Court, Coates v. National Trustees Executors & Agency Co. Ltd. & Anor [1956] HCA 23; (1956) 95 CLR 494, at 507- 10, 512, 515-6, 517-9 and 526-8; and Hughes v. National Trustees Executors & Agency Co. of Australasia Ltd. [1979] HCA 2; (1979) 143 CLR 134, at 146- 7, per Gibbs J, with whom Mason and Aickin, JJ agreed. Consonantly with Handley JA in Fraser's Case, at 3 6 1 consider that, until those and like decisions are overruled by the High Court, the courts in this State should not follow the obiter dictum in Singer v. Berghouse.

8. I have had the advantage of reading in draft the reasons for judgment of Callaway JA, in which I concur. I also agree with the observations added by Tadgell JA in relation to Singer v. Berghouse [1994] HCA 40; (1994) 181 CLR 201 at p.209.

9. John William Grey, whom I shall call "the testator", died on 14th August 1994 leaving a will dated 12th January 1988 appointing the respondent to be his executor. He left his residuary estate upon trust as to one-half thereof for his grand-daughter, Catherine Marie Laurel Grey, provided she attained the age of 25 years and as to the other half to his sister, Joan Laurel Henderson. The respondent was authorized to pay or apply any sum or sums out of the capital of the grand-daughter's contingent share to or for her maintenance, education, benefit or advancement. No provision was made for the appellant, Peter John Grey, who is the testator's only child, born on 28th December 1952. The testator's grand-daughter is now aged 17 and his sister is aged 77. By an originating motion dated 24th October 1994 the appellant applied for provision to be made for him by the Supreme Court under Part IV of the Administration and Probate Act 1958.

10. The principal assets of the estate were the testator's home in Lansell Crescent, Camberwell, a bank balance and the proceeds of a life assurance policy. There were also furniture and household effects and a motor vehicle. The house was sold on 16th December 1995 and, after making allowance for expenses yet to be paid, the net value of the undistributed estate is now approximately $250,000. Two advances, each in the sum of $5,000, have been made to the appellant, who occupied the house until a few days before it was sold. The advances will have to be brought to account in the provision made for him, but I do not think that any accounting need be made in respect of his occupation of the house. It was sold within a reasonable time after the testator's death and the respondent had the advantage of its being occupied and cared for during that period.

11. The appellant has no significant assets. He qualified as a lawyer and practised as a barrister, nominally from 1977 to 1985, but his career was destroyed by alcoholism. He married in 1978, the only child of the marriage being the testator's grand-daughter. The marriage was dissolved in 1994 after seven years' separation. Between 1987 and 1989 the appellant lived mainly in parks, boarding houses, on the streets or in hospitals. In September of the latter year he became an active member of Alcoholics Anonymous and is now a total abstainer. In 1990 contact with his father, which had been broken off, was resumed and the appellant lived with him from August 1993 until his death. Except for a period of 14 months, he has been unemployed since his rehabilitation from alcoholism and remains unemployed.

12. It is not difficult to understand why the testator omitted the appellant from his will. In an affidavit sworn on 5th December 1994 the respondent deposed that the testator had explained to him that he did not want "his estate pissed up against the wall by Peter". It is equally understandable that the testator should wish to make provision for his grand-daughter who, according to her mother's evidence, had received virtually no financial support from her father. The appellant testified that, after he had returned to live with the testator, the latter told him that he wanted him to inherit the estate and tore up a copy of the will. No further steps were taken and the will remained unrevoked.

13. The respondent contended in the court below that the appellant had given his father little real support in his last years, that what support had been given was more than compensated by free accommodation in comfortable surroundings, that he had stolen from and lied to his father and that his dishonesty was not solely a product of alcoholism but had persisted after he had ceased drinking. Mr. Francis QC, who appeared with Mr. Phillips on the appeal, elaborated those submissions. He contended, in effect, that the appellant was an habitual liar and that, accepting the judge's view that his character did not disentitle him from any provision, the provision to which he was entitled was of very modest dimensions. it is, I think, unnecessary and would be unedifying to detail the examples of dishonesty that were given. It is clear that there were thefts from the testator when the appellant was an alcoholic and that his cure from that disease did not cure him of untruthfulness.

14. The testator's sister owns the unit in which she lives in Adelaide and has some small savings, but is otherwise dependent on the aged pension. She was six years younger than her brother but they stayed in touch. They spoke to each other by telephone every Sunday for at least the ten years preceding his death. In all but two of the years between 1978 and 1993 they shared an annual holiday either in Melbourne or Adelaide. It is all too easy to underestimate the claims of an elderly sibling and to subordinate them to the perceived needs of a man in middle life or a neglected grand-daughter. Additional security and the opportunity to enjoy a few luxuries are all the more important for a person of Mrs. Henderson's age.

15. So too we must not underestimate the significance, both practical and symbolic, of freedom of testation. It is one of the badges of a society that has graduated from primitive conditions and a notable human right. Part IV of the Administration and Probate Act is to be construed accordingly. Cf. Coco v. The Queen [1994] HCA 15; (1994) 179 CLR 427 at pp.437-438. The critical provision, for present purposes, is s.91. It provides, among other things, that, where the distribution of a person's estate effected by his or her will "is such as not to make adequate provision for the proper maintenance and support" of a child of the testator, "the Court may ... order that such provision as the Court thinks fit" shall be made out of the estate for that child. Section 96(1) provides that the court may refuse to make such an order if the character or conduct of the applicant is such as, in the opinion of the court, to disentitle him or her to the benefit of any provision under Part IV.

16. The learned primary judge was satisfied that the distribution of the testator's estate effected by his will was such as not to make adequate provision for the proper maintenance and support of the appellant. His Honour was not of the opinion that the appellant's character or conduct was such as to disentitle him to the benefit of any provision under Part IV. No challenge is made to either of those conclusions. This appeal is concerned solely with the question whether his Honour erred in ordering that provision in the sum of $43,000 should be made out of the estate for the appellant. If that sum was within the range of his discretion, no complaint is made of the way in which it is to be paid out of the shares bequeathed to the testator's sister and his grand-daughter or as to the order for costs that was made. If a larger sum is appropriate, the appellant proposes that it should come more from the testator's sister's share than from that of his grand-daughter.

17. After referring to the various matters that he had taken into account, the judge expressed his conclusions as follows: "Balancing these considerations as best I can, it seems to me that the plaintiff is entitled to a sum which would enable him to put a deposit on a house, purchase a computer and a motor vehicle, and have enough remaining to tide him over the time he will need if he is to find a house and a job. I think that $20,000 should cover the deposit, $10,000 the purchase of the vehicle, $8,000 the purchase of a computer and ancillary equipment and $5,000 should be sufficient to meet the plaintiff's needs in the immediate future. The total of these items is $43,000. Of this sum, $23,000 should I think come from what would otherwise be Mrs. Henderson's share, and $20,000 from Catherine's share."

18. In Singer v. Berghouse [1994] HCA 40; (1994) 181 CLR 201 at pp.210-212 Mason CJ, Deane and McHugh, JJ re-affirmed that the decision sought to be impugned in this case, made at the "second stage" of the inquiry contemplated by s.91, involves an exercise of discretion in the accepted sense and that the principles of law which regulate the circumstances in which an appellate court may review the exercise of that discretion are those set out in House v. The King [1936] HCA 40; (1936) 55 CLR 499 at pp.504-505: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. in such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (Emphasis supplied.)"

19. Mr. R.C. Gillard QC, who appeared with Mr. Boaden for the appellant, submitted that the judge had fallen into error in a number of respects, but at an early stage of the hearing it became apparent that the Court was disposed to accept that his Honour had mistaken the facts in concluding that $20,000 "would enable (the appellant) to put a deposit on a house". The kind of house the appellant said he was looking for was "a two bedroom cottage ... between $150,000 and $200,000". The sum of $20,000 would not enable him to put a deposit on a house worth even $100,000, given that he is unemployed and has no prospect of obtaining finance either from a vendor or a financial institution. In those circumstances it is unnecessary and undesirable to consider any of the other criticisms that were made of his Honour's carefully considered reasons. The discretion being re-opened, it falls to this Court to determine the provision that should now be made for the appellant's proper maintenance and support.

20. In Bosch v. Perpetual Trustee Co-Ltd. (1938) A.C. 463 at pp.478- 479 the Privy Council said: "Their Lordships agree that in every case the Court must place itself 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, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father. As was truly said by Salmond J in In re Allen (Deceased), Allen v. Manchester ...: 'The Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances."

21. As Fullagar and Menzies JJ said in their dissenting judgment in Blore v. Lang [1960] HCA 73; (1960) 104 CLR 124 at p.135, the purpose of testator's family maintenance legislation is to remedy "breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family". The breach is objective, being measured against all the relevant facts, which may include facts that were unknown to the testator: Coates v. National Trustees Executors and Agency Co.Ltd. [1956] HCA 23; (1956) 95 CLR 494 at pp.522-523 per Fullagar J and 526-528 per Kitto J Any provision made by the court is determined according to the circumstances obtaining at the time of the order: Coates's Case and Blore v. Lang at pp.130 per Dixon CJ and 136 per Kitto J.

22. The touchstone of what a wise and just testator would have thought his or her moral duty has been accepted for many years. It supplies the norm that the legislature left unexpressed. See and compare Permanent Trustee Co.Ltd v. Fraser (1995) 36 NSWLR 24 at p.46 per Sheller JA It is the way in which the courts, for almost the whole of this century, have construed the legislation. As Ormiston J explained in Collicoat v. McMillan (unreported, 30th October 1995) at pp.63-76, it is in large measure epexegetical of the word "proper" in the phrase "proper maintenance and support". It also reflects the view that there is no legislative justification to abridge freedom of testation unless the testator has breached a moral duty, or alternatively that there is no judicial reason to exercise the statutory discretion except for the purpose of remedying such a breach. Different considerations apply to family provision in the case of intestacy.

23. In Singer v. Berghouse at p.209, Mason CJ, Deane and McHugh, JJ said: "In Australia, it has been accepted that the correct approach to be taken by a court invested with jurisdiction under legislation of which the Act is an example was that stated by Salmond J in In re Allen: Allen v. Manchester (12). In that case his Honour said (13): ((12) (192) 41 NZLR 218.) ((13) ibid., at pp.220-221; appvd in Bosch v. Perpetual Trustee Co.Ltd., (1038) AC 4634, at p.479; appld in worladge v. Doddridge [1957] HCA 45; (1957), 97 CLR 1, at p.11; Goodman v. Windeyer [1980] HCA 31; (1980), 144 CLR 490, at p.497.) 'The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.' For our part, we doubt that this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to moral duty' or 'moral obligation' may well be understood as amounting to a gloss on the statutory language (14)." ((14) Hughes v. National Trustees, Executors & Agency Co. of Australasia Ltd. (1979), 143 CLR, at p.158; Goodman v. Windeyer (1980), 144 CLR, at pp.504-505.")

24. It is clear that their Honours' statement was obiter.

25. In the first place, it played no part in their decision that the primary judge's conclusion at the "first stage" of the inquiry was not entirely erroneous and accordingly could not be disturbed. Secondly, the form of the statement, "For our part, we doubt ... " shows that it was not intended to form part of the ratio decidendi. Thirdly, attention was expressly drawn both in the body of the text and the footnotes to the acceptance and approval of Salmond J's approach by the Privy Council in Bosch's Case and in two decisions of the High Court. See also Permanent Trustee Co.Ltd. v. Fraser at pp.27-28 per Kirby, P. and 32 per Handley JA.

26. It is our duty none the less to give careful consideration to a recent and considered dictum by three members of the High Court; but the authorities so strongly favour the criterion of what a wise and just testator would consider his or her moral duty that we are not free to jettison it. That is particularly so in Victoria where there has been no legislative change of the kind that has occurred in New South Wales. it might even be said that the legislature enacted Part IV of the Administration and Probate Act, or at all events amended it in 1962, against the background of a settled judicial construction of the words "proper maintenance and support" that have appeared in the Victorian legislation since 1937. That is not to say that either the denotation of those words or the content of wisdom, justice and moral duty do not change with time or respond to community standards. See, for example, Permanent Trustee Co.Ltd. v. Prager at pp.35-36 per Handley JA. That is a point that is particularly important to remember when reading authorities that reflect outdated stereotypes. Cf. Singer v. Berghouse at pp.220-221 per Toohey J. We should therefore understand their Honours' observation as no more than an indication that earlier authorities might be overruled or explained on some future occasion.

27. The dictum in Singer v. Berahguse and the statements of Murphy J to which it refers have already been the subject of extensive discussion both in Collicoat v. McMillan and in Permanent Trustee Co.Ltd. v. Fraser. It may well be that too much has been read into the dictum and that ultimately it is intended only as a warning against departing too far from the language of the statute. For example, it is one thing to say that the court should consider what is proper having regard, among other things, not only to the conduct of a proposed object of provision or further provision but also to the testator's other obligations. It is another thing to say that a person whose dire need would have engaged the sympathy of a wise and just testator may be punished for immoral conduct, such as mendacity, of which the court does not approve. Ultimately the question is always what constitutes adequate provision for the plaintiff's proper maintenance and support. As Dixon CJ said in Pontifical Society for the Propacration of the Faith v. Scales [1962] HCA 19; (1962) 107 CLR 9 at p.20, "duty" is but an element that is to be taken into account in weighing all the considerations.

28. I add only two observations, before returning to the present case. I am conscious that, to some degree, they re-state what I have already said, but their importance may warrant some recapitulation. First, s.91 provides that, where the initial requirement is satisfied, the court "may", not "must", order that such provision "as (it) thinks fit" shall be made out of the estate. As Mason CJ, Deane and McHugh, JJ said in Singer v. Berghouse at p.211, that clearly imports the exercise of a discretion. There is no reason to confine it by reference to s.95(b), which refers to independent means, or s.96, dealing with wholly disentitling character or conduct. indeed the latter step would be inconsistent with the authorities which say that the applicant's character or conduct, although not disentitling, remains relevant to the exercise of the discretion. Even if s.91 did contain a legislative judgment that a person had a prima facie claim, it would still be necessary to identify the criterion by which the court should make adequate provision for his or her proper maintenance and support.

29. Secondly, it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s.91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent. So much may be derived from the concept of "proper" maintenance and support but also, and more fundamentally, from those considerations.

30. There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight. The word "due" is chosen, mindful of what Kitto J said in Lovell v. Lovell [1950] HCA 52; (1950) 81 CLR 513 at p.533. The relevant factors in the present case include the size of the estate, the testator's close relationship with his sister, her own modest circumstances in old age, his son's neglect of his grand-daughter, her needs and her father's likely capacity in due course to provide for himself if he is given a "second chance" in life. I use that expression because I accept that he has made a recovery from his alcoholism.

31. A wise and just testator might well have divided his residuary estate, after payment of his just debts and funeral and testamentary expenses, into three equal parts, giving one such part to his widowed sister, one to his neglected grand-daughter and the other to the appellant. I would make orders having the effect that the appellant is to receive a legacy equivalent to one-third of the net residuary estate, but no order displacing the operation of S.97(2). As I have previously mentioned, the appellant must account for the $10,000 he has already received. Payments have also been made out of the estate for Catherine Grey's education, including the purchase of a computer for use in her schooling. They must likewise be brought to account except to the extent, if any, that they represent her share of income. The costs of the appeal, like the costs of the application to the Supreme Court, should be paid out of the gross residuary estate as if they were testamentary expenses. Cf. Anderson v. Teboneras [1990] VicRp 47; (1990) VR 527 at p.542.