21 His Honour was then writing in 1995. Since that date, the statute has undergone a fundamental change in admitting as claimants persons who fall outside the previously specified class of family members. And so, the first question is to determine whether the plaintiff falls within the class of persons for whom the deceased had a responsibility to make provision. As Callaway JA points out, this responsibility must be "a legal or moral responsibility, in the sense in which 'moral' has been explained in the authorities, for what other kind of responsibility is there?"[4]
22 This statement must lay to rest the concern expressed by Chernov JA in Coombes v Ward[5] that references to the concept of morality in this area may act as a distraction from the application of the statutory criteria set out in s. 91(4).[6] As Nettle JA pointed out in Blair v Blair[7], the attention that must be directed to those criteria by a judge acting in obedience in s. 91(4) provides no answer to the question as to the existence of a responsibility to make provision; some yardstick must be brought to bear.
23 Moreover, it may be that the statutory criteria have a different role to play in their application to the three questions which the Court must address under s. 91. The first question is, to my mind, directed to the status of the claimant vis-à-vis the testator - the relationship which existed between them. It replaces the mechanical approach adopted under the repealed legislation of identifying this status by blood relationship of a particular kind. The amended provision recognises that, in modern Victorian society, other acceptable relationships which may admit a claim are varied and must be catered for. If this were not the case, then, in a case where no testamentary provision was made for the claimant, the first and second questions would merge.
24 The reference to accepted community standards requires a consideration of what those standards of the general community are at the time from which the will speaks[8]. They may change from time to time. For example, I would have little difficulty in concluding today that a relationship between the testator and an unmarried heterosexual partner or between a testator and a homosexual partner would today be seen by the general community as one which might give rise to a moral obligation just as a relationship with a spouse. The challenge presented by a case such as the present arises at a different level. I am required to analyse the conduct, including statements, of the parties and witnesses in order to form an assessment of the true relationship which existed between the deceased and the claimant in order to determine the existence or not of the moral duty. As is usual in these cases there is no evidence from one party to the relationship, the deceased. In the case of a family relationship or a heterosexual relationship, I would be able to bring to bear my own experience. Difficulty arises where this is a relationship between members of a community with which the judge is not familiar. This may be a particular ethnic or social community; it may be a community whose bond is that of sexual orientation. In the absence of evidence of this, which may or may not be available or perhaps inadmissible, the judge must do the best he or she can, bringing to bear wisdom, an openness of mind drawing upon long experience of life and human conduct and attitudes, and above all, resisting the temptation to apply perceived stereotypes. Another temptation to be resisted is to assume that all members of the community think and conduct themselves like the judge and share the same values and moral imperatives. I underline at this stage that I am here speaking of the role of the judge in drawing inferences as to the relationships in this area of law from overt conduct including statements. I am not referring to the accepted community standards mentioned by Ormiston J in the passage from Collicoat v MacMillan which I have set out above. It was common ground before me that questions as to what is right and proper in that context fall to be determined by reference, not to the mores of a section of the general community, but by reference to the standards of the community as a whole.
25 I turn now to consider the various matters listed in s. 91(4) having regard to the underlying standard of moral duty or obligation of the deceased.[9] I shall concentrate on those which have particular relevance to the circumstances of the present case.
26 As to the relationship between the deceased and Mr Bentley, I have concluded that he had an abusive paedophilic relationship with the younger man over a period of eight years from 1969. After a break of some four years, a relationship with sexual aspects existed between them and this continued over the last 20 years of the life of the deceased. It was a relationship of two close friends with activity of a sexual nature occurring between them from time to time. I accept that from Mr Bentley's point of view, it was a loving relationship: he loved the deceased. The deceased derived from Mr Bentley assistance in the maintaining of his garden, motor car and odd jobs and he doubtless enjoyed the younger man's company. They went sailing together for as long as the deceased was able. The last entry in the log of the deceased's yacht Harmony shows that the deceased did this as late as April 1999. It also appears that other men also did this. Mr Bentley agreed that work at Rae Street was performed by Patrick Molloy, Malcolm McLeod (a beneficiary), Ian Stewart and Paul Harris (a beneficiary) and by persons whom he referred to as Ailsa, Ray Nelson, Angus and Betty. The April 1999 entry in the log of the Harmony shows that there were arrangements for the deceased to sail with persons described as Paul and Mark as well as with Mr Bentley. I am confident that counsel for the plaintiff is correct when he submitted that the relationship between the deceased and Mr Bentley provided also enjoyment for the deceased and enhanced his quality of life. This enhancement was provided, too, by the contributions of the many persons who frequented Rae Street.
27 It was, in my assessment, a relationship, but not an exclusive one, of mutual friendship and, perhaps, one of mutual love. From time to time it found a sexual expression in the sense which I have described. It was a relationship which was important for the plaintiff, particularly when he was experiencing difficulties in his marriage, his work, his health and in financial matters. It was probably important, too, for the deceased, although the evidence shows that he had other homosexual relationships and that the plaintiff accepted this at the time. It would seem that, as the older and more comfortably off partner, the deceased was the dominant party. Acknowledging the dangers of transposing from the homosexual to the heterosexual, I would liken this relationship to be akin to that between a man and a close woman friend. I do not refer to the image of a man with a kept mistress or even of a man who engaged in intermittent dalliance with a woman; the relationship here was based on a close and loving friendship with an underlying sexual element which surfaced from time to time. It is not surprising that the deceased in this case acknowledged this by making a modest provision for his friend in his will. It is not surprising that he expressed an extra testamentary intention that his friend should have the yacht Harmony where they had shared happy times together.
28 As will appear, I am not, however satisfied that, from the perspective of the deceased, the relationship was one where he did or ought, in his lifetime, to have assumed a responsibility to provide support for the younger man, having regard to the statutory criteria. It was not one which can be equated to that of a domestic partner or that of a father to a son, even making allowances for the difference between these relationships and a homosexual relationship.
29 Some point was made in this context of the abusive origins of their relationship. Reference was made to the opinion of Dr Dunn that the present depression and anxiety of the plaintiff which renders him unable to work is a result of this abuse. The doctor told me that he referred the patient to a clinical psychologist in Frankston, Dianne McGreal. I was told by counsel for the plaintiff at the commencement of the trial that his client was that day having a consultation with Ms McGreal and that it was expected that she would be producing a report and, presumably, would give evidence. In fact nothing of the kind eventuated. The only evidence linking the earlier abuse with the present depression and anxiety of the plaintiff is that of Dr Dunn, and he accepted that factors such as the marital difficulties of Mr Bentley his difficult financial circumstances and his various accidents played a role in his psychological condition.
30 Counsel for the plaintiff accepted that jurisdiction under Part IV cannot be used to grant compensation to a person, like the plaintiff, who has been wronged by the deceased. What he did submit was that the wise and just testator, looking back over his lifetime would be mindful of what he had done to the young vulnerable life which had come into his hands long ago and what were the consequences of the abuse he made of it. Such a testator would or, in accordance with accepted general community standards, should feel a moral obligation to provide the other with a place of refuge where he might find healing or a future life - a life which had been denied him by the misconduct of the testator
31 It is here that one must be cautious of the concept of moral obligation. Doubtless on his deathbed the wise and just testator might be encouraged to see as his moral obligation to hold out a hand of friendship to those whom he had wrongfully rejected; a hand of forgiveness to those who had wronged him; and to make good, if this be possible, any damage which he has caused to another in his lifetime. It may be that the general community would applaud his decision to make provision in his will for such a person by way of atonement. But this is not the role of Part 4 of the Administration and Probate Act 1958. As Callaway JA was at pains to emphasise in Lee v Hearn[10], "the real issues are not morality as such, but personal autonomy and individual freedom". Traditionally, the law has acknowledged that this freedom might, in certain cases, have to give way to the duty to have regard to one's responsibilities towards certain family members and, since the legislative amendment, to others. And so, the statute has no role to play where the responsibility is said to arise only from some failure to recompense a person for services rendered[11] or to compensate some person only because he or she has suffered loss or hurt from some wrongful act of the testator. The law provides other remedies for this. This is not to say that these matters will never be relevant: they may be properly taken into account in connection with or to establish the relationship which might give rise to the responsibility to make provision; it is just that alone, they will not suffice. They may also have a bearing on the second or third questions which s. 91 raises.
32 The evidence that the present position of the plaintiff, psychological, domestic and financial, is a product of the early misconduct to which he was subjected is sparse. I am not satisfied that the causal connection has been made out. I do not, however, accept the submission put on behalf of the defendant that the resumption of an adult relationship in 1981 amounted to a forgiveness by Mr Bentley of what had gone before so as to require that it be put to one side for present purposes. The relationship of the adult plaintiff with the deceased carried with it the vestiges of the earlier abuse, but it appears, on the surface at least, to have its own life and its own nature which I have described.
33 The remaining matters listed in s. 91(4) play a far less significant role in this case.
34 The relationship between the deceased and the substantial beneficiaries is that of family members. The will was made at a time when the two sisters were alive and it is clear that the deceased was concerned to ensure that they had the family home and collectively one-half of the residue to support them. Following their predeceasing the testator, their shares passed to the nieces and nephew who received in addition a quarter of residue in their own right. It seems that relations between them and their uncle were good but that their contact with him was limited, if only by reason of the fact that two of them lived in regional Victoria. The moral obligation of the deceased towards them arose by the blood relationship; it is not much more than that they were his only surviving relatives.
35 The net value of the estate, of which $975,000 represents the Rae Street property, is $921,000. I put to one side the incidence of the plaintiff's own legal costs which are estimated at about $25,000. The case was presented on the basis that the entire estate was worth $1.07M and that, of this, the residue represented about $400,000 and that, after costs (not including the plaintiff's costs) were deducted, residue would amount to about $220,000. I am not entirely confident that this is correct, but I proceed on this as the agreed basis for the purposes of the case. The share of each of the friends, including the plaintiff, on this basis would be little more than $17,500. On this basis the nieces and nephew might receive about $250,000 each.
36 The financial resources and earning capacity of the plaintiff are meagre. He has a psychological disability. The evidence shows that he is a man of 45 years divorced with two children. I was not told what support arrangements are in place for the benefit of his ex-wife and the children. He is unemployed. According to Dr Dunn, he is incapable of working by reason of his psychological condition. It does appear that he has trade skills and is capable of doing odd jobs or other work. He has no assets other than certain property he received from the deceased or the executors. This comprises the yacht Harmony which is valued at $2,000, the caravan where he used to stay at Rae Street, a 1980 Toyota sedan and a 1980 Toyota Hiace. These are of no practical value.
37 I place no weight on the contributions of the plaintiff, otherwise than for value, in building up the estate or in contributing to the welfare of the deceased. Likewise, benefits passing from the deceased to the plaintiff are of no relevant consequence. The deceased did not maintain the plaintiff nor did he assume a responsibility to do so. No other person has a liability to maintain the plaintiff.
38 I make no finding as to any relevant aspect of the character and conduct of Mr Bentley or of any other person.
39 No matter was placed before me as relevant other than those to which I have referred.
40 I conclude from all of this that it has not been established that Mr Bentley is a man for whom the deceased had a responsibility to make provision in his will. That he did make provision is an indication of his love for his friend and a mark of his generosity towards him.
41 The application will therefore be dismissed.