Plaintiff v Defendant

For reasons of convenience only, I refer to the children by their first names.

4 The deceased and her husband had conducted a farm at which they ran sheep and cows and cropped wheat and oats at Murmungee in Victoria. When they married in 1943 his father (who had himself received land from his father) gave him land and the deceased's husband added more land by purchase. The farm, known as "Gwinganna", comprised about 161 hectares or just over 400 acres. It comprised the land referred to in the deceased's last will.

5 The deceased left a will dated 25 February 1992. On 16 December 2004 probate of the will was granted to Denise, being one of the executors appointed by the will with leave being reserved to Maureen the other executor named therein to come in and prove the will. Maureen has not done so.

6 By her last will the deceased:

(a) by cl 3 gave to Denise freehold land known as the Cow paddock, Dal's paddock and Block paddock;

(b) by cl 4 gave to Maureen freehold land known as Connolly's paddock, the House paddock and Wattle Gully paddock;

(c) by cl 5 gave the residue of her estate to Maureen;

(d) in cl 11 stated as to Bernadette and Angela whom she had "not mentioned in this Will" that:

"Angela has assured me she does not expect anything as she has been away from home since leaving school. Bernadette and I had a disagreement in November 1984. She has not visited me since then, although I have asked her several times to do so."

7 Also on 25 February 1992, the deceased entered into a Deed with her daughters Denise, Maureen and Angela. In the Deed the deceased was described as the testatrix and Denise and Maureen as the beneficiaries. By the Deed the deceased agreed with the beneficiaries to make a will in the terms of the above will and not to revoke or alter it save with the beneficiaries' written consent. In the recitals to the Deed it was stated that:

(a) Angela had not invested time, effort or money on the deceased's farmlands at Murmungee and does not wish to share in her estate;

(b) the beneficiaries had invested time, effort and money on the deceased's farmlands and wished to continue to do so on different parts of the property.

8 The effect of the Deed and the will was to divide the farm between Denise and Maureen. There was no provision for Angela who assented to the Deed and who has not made a claim for provision out of the estate. It is clear that she has gone her own way in life. Bernadette on the other hand was not consulted on the matter as to the Deed and was unaware of the deceased's intentions or of the transaction.

9 It is next convenient to note that by an instrument dated 12 May 1995 the deceased transferred to Denise, in consideration of the natural love and affection which she had for Denise, the freehold farming properties the subject of the devise to Denise in cl 3 of the will. Hence, the deceased did not own those parts of the farm when she died.

10 Denise has not made a claim for provision out of the estate.

11 As stated in the inventory of assets and liabilities lodged in connection with the application for probate, the deceased died possessed of assets valued at $248,206.74 and liabilities of $479.19. The assets comprised:

(a) farming land at Murmungee namely -

(i) unimproved farming land of 40.25 hectares (or just over 100 acres) known as Connolly's paddock

(ii) premises and land of 42.46 hectares (or just over 106 acres) known as the House paddock, the improvements consisting of a two bedroom weatherboard dwelling

(iii) unimproved farming land of 8.09 hectares (or 20.225 acres) known as Wattle Gully paddock

12 The inventory omits the asset of stock and farm plant and equipment owned by the deceased, and the liability of the deceased under a mortgage to H.D. & C. Securities Ltd registered on 23 August 1993 and on which $65,425.49 was owing at 6 September 2005. Maureen has repaid the loan at $550.00 per month since the loan was taken out, and continues to do so. The omission of the stock, plant and equipment apparently recognises that Maureen has succeeded to these items.

13 The parties were agreed on the value of the estate at the time of the trial. The land is still held and is valued as follows:

(a) Connolly's paddock $275,000.00

(b) House paddock and Wattle Gully paddock $380,000.00

The shares in Incitec Pivot Ltd, a publicly listed company, were worth $4,191.00 based on the price in the market on 14 August 2006. Save for the mortgage which Maureen has in effect taken responsibility for, the deceased's liabilities have been paid (with the assistance of payments by the executor from her funds) and the estate has been administered subject to determination of this proceeding. The defendant's costs of the proceeding are estimated at $55,000.00 on the basis that the trial did not exceed two days; in fact it was conducted within one day. Counsel suggested that a similar sum of around $55,000.00 should be allowed for the plaintiff's costs.

14 It will have been noticed that in referring in her last will to the absence of provision for Angela and Bernadette the deceased used the expression "in this Will". That invites reference to her former wills and it is convenient to now refer to her two prior wills by way of indicating relevant context.

15 In a will made on 2 April 1983 the deceased appointed Denise as her executor and left her estate as follows:

(a) the Cow paddock and the Block paddock to Denise;

(b) Connolly's paddock to Bernadette;

(c) the House paddock and Wattle Gully paddock and her farm plant and equipment to Maureen;

(d) Dal's paddock on which was a dwelling house and sheds to Angela;

(e) the residue to her daughters equally.

16 In a later will dated 14 November 1989 the deceased appointed Denise and Maureen as her executors and varied the above gifts as follows:

(a) she repeated the devises in (a), (c) and (d) above in favour of Denise, Maureen and Angela respectively;

(b) The gifts in (b) and (e) were replaced by a gift of residue of her estate to Denise, Maureen and Angela equally subject to them paying Bernadette $30,000 by annual instalments of $6,000 commencing on the first anniversary of her death.

17 To complete this introduction, in opening the case counsel for Bernadette sought Connolly's paddock rather than the provision of a legacy. I refer below to the practicality of an order for provision of Connolly's paddock.

18 I now refer to the background facts.

19 The evidence establishes that the family lived a frugal, humble and hard-working life.

20 From the outset it seems that the deceased and her husband were mostly self-sufficient in running the farm, she assisting him until the needs of the children took her attention increasingly to the household. Also, she handled the bookwork and the telephone.

21 Living on the farm it was natural that the girls quickly became experienced in the ways of the farm, and in giving such assistance as they might. The evidence establishes that to a greater or lesser extent over the years they all put their shoulder into farm work for no remuneration or other reward. That is save for the benefit received by Denise by the transfer of about half of the farmland, and the gift to Maureen in the will of the balance of the farm.

22 A young man called Michael Stewart, who had been abandoned by his mother, lived with the girls' spinster aunts on a 20 acre block near the farm; the block was called Aunty's. He was about nine when he commenced living there in about 1954. When not at school he was always with the deceased's husband on the farm. On leaving school in 1960 Stewart was employed on the farm. He ceased working on the farm and left the district in about 1965. After Stewart left, the deceased relied more on Denise when extra help was needed. She helped after school, at weekends and occasionally had a day or two off from school at shearing and other busy times.

23 As may be expected, apart from the assistance of Stewart, outside contractors such as shearers were engaged in running the farm.

24 In 1966 the deceased's husband had a heart attack. He spent about a month in hospital, came home and a few weeks later had another attack. Thereafter in running the farm he needed the regular assistance of casual workers and in particular Bruce Witherow who lived nearby. He ceased cropping as it was too difficult for him and he sheared only the odd sheep. He called on Denise and Bernadette to help him around the farm. As Bernadette was getting older she was more able to do jobs. According to Bernadette the help was mainly in relation to sheep, rounding up and penning at marking time, carrying the lambs to her father for marking, and after school at shearing time handing the fleeces to her father for baling.

25 In 1967 Bernadette completed primary school at Murmungee State School and in 1968 commenced her secondary education at St Joseph's College, Wangaratta. It is convenient to note that in 1969 she commenced Form 2 at Marion College, Myrtleford where she stayed to Form 5. In 1973 she successfully undertook the matriculation year at Myrtleford High School. Bernadette said, and I accept, that she would have liked to have done nursing but by 1973 her father was suffering ill health in several respects and she felt it her duty to stay on the farm and help to look after him and help run the farm which is what she did.

26 Turning to Denise, she completed matriculation in 1969. Then and until 1972 she worked full-time on the farm. Her father still made the major decisions. Money being "tight" Denise worked part-time on hops and tobacco in season and picking fruit. She spent an average of seven months per year working on the farm. Bernadette lived and worked on the farm after she left school, and was assisted by her sisters on weekends and after school. Likewise their father helped in times of need and when he could.

27 By 1973 Denise had left home to commence nursing. She was away from home for most of the time.

28 Maureen left school in 1973 having completed the leaving certificate. She lived at home. She went to work in a hardware store in Wangaratta and about three months later commenced employment at a bank in Beechworth. She would give some assistance on the farm but was not able to do a great deal.

29 Angela was at home and attending school where she was doing well. Angela did not do much work on the farm but would help out if Bernadette required.

30 Denise commenced work at Mayday Hills Mental Hospital in early 1975. She trained as a psychiatric nurse. She worked shifts and on average devoted two days per week to helping on the farm.

31 The deceased's husband died of leukaemia on 30 July 1975. He was not able to work on the farm in 1975 and from that time Bernadette took over the sole management of the farm. In his last couple of years he had not been able to move far from the house.

32 In 1977 Denise left home to live in her aunt's house which was unoccupied. She helped with the farm when she could. Bernadette was handling most of the farm work with help from Maureen and Denise when they could.

33 Angela left home when she was about 18 (which would be in 1977) and went to Melbourne to live. Thereafter she was seen a few times a year until she went to Queensland to live in about 1987/1988. After leaving home Angela did not assist on the farm again. She only saw the deceased on two occasions after moving to Queensland, once when Denise took her mother to Queensland in 1989 and again in 1994 when Angela came down.

34 After her husband died the deceased referred to the farm as her farm, which it was. She never discussed Bernadette's future role with her. Bernadette knew that the deceased did not want to sell the farm. Without any discussion about her role or remuneration Bernadette continued on as she had when her father was ill and she had run the farm, which she had done with such assistance from Denise and Maureen as they could provide. Maureen had continued living at the house. The deceased did not involve herself in the actual farming activities. The running of the farm by Bernadette involved engagement in the normal activities involved in running the farm. I accept Bernadette's description of the work. It was onerous indeed. The deceased neither offered to pay and did not pay her any wages, indeed she received no wage between the period from her father's death in 1975 until she left in April 1980 upon her marriage. The deceased provided Bernadette with board and lodgings. Between her father's death and her leaving home to be married in 1980 the deceased bought Bernadette a few pairs of jeans and boots and each Christmas gave her a present of $20. In about 1979 the deceased gave Bernadette a cheque for $80 as the proceeds of a calf Bernadette had raised after its mother had died.

35 Bernadette said, and I accept, that she got on well with the deceased in a general sense. She said that through no fault of either of them they were never very close. She thought that the deceased, without being critical of her, favoured Denise. She thought that the deceased treated Maureen, Angela and herself much the same. Bernadette said that in the period from 1975 until her marriage in April 1980 she lived with the deceased in a harmonious relationship. On the farm side, Bernadette would advise when she thought stock was ready for sale; the deceased would decide and deal with the stock agents. There was not much time or money for any sort of social life. Bernadette occasionally drove the deceased to her mother's place in Euroa. Otherwise they would sit together each evening and watch television. There were no fights or altercations between them.

36 In order to earn some money for herself Bernadette went hop picking in season, which was three to four weeks twice a year. With savings she bought a chainsaw to make cutting wood on the farm easier. Then, for six weeks in 1978 Bernadette worked on a cattle station in Queensland. This was to try a different lifestyle but it did not work out.

37 In or about 1978 Bernadette met Brian John Vincent when he came to the farm to shear sheep. They married in April 1980. The deceased paid for their wedding. They went camping for four days for their honeymoon. Bernadette was then aged 24. She brought no money to the marriage as all her work to then had been on the farm for no pay.

38 Following their marriage, Bernadette and Brian commenced living at a house on 60 acres he owned at Stanley near Beechworth, about 12 miles from the deceased's farm. When Bernadette moved out of the deceased's property Maureen continued living at home with the deceased, which led to Maureen becoming the main farm worker. Denise gave Maureen assistance on the farm. In addition, when heavy work was required the deceased would call on Brian who would do such things as repair fences, cut hay, shear, and cut and stack wood for which the deceased paid him. On these occasions Bernadette would accompany Brian to assist and to also visit the deceased. Bernadette also visited the deceased on her own at least once per week.

39 In May 1981 the first of Bernadette's six children was born, called James Brian Vincent. The deceased was very pleased with her first grandchild particularly being a boy which she and her husband would have liked themselves. She visited Bernadette at Beechworth Hospital where he was born and at Stanley regularly. Bernadette took James to see the deceased about weekly. The deceased got great pleasure from these visits.

40 By this stage, 1981, Maureen had left the bank and was working on the farm as well as doing seasonal work around the district. She developed her capacity for farm work.

41 In June 1982 Denise bought out her sisters' shares in the property known as Aunty's. It had been left to the four girls. Bernadette said that it was in 1983 when she received from Denise her one-quarter share of $7,000.00. Whether it was in 1982 (as Denise seems to suggest) or 1983 is irrelevant.

42 In December 1983 Bernadette's second child, Thomas Alec Vincent, was born. Again the deceased was pleased and visited Bernadette in hospital. As before, Bernadette would visit her mother with her children about once a week.

43 Maureen undertook a part-time wool classing course at TAFE between July 1984 and December 1987. She also attended classes in accounting, English and mathematics. She would attend to farm jobs after school.

44 Then, unfortunately, on 6 November 1984 an incident occurred between Bernadette and the deceased which damaged their relationship. This is the disagreement which the deceased referred to in her last will. What happened was this. Bernadette rang the deceased who "told me that my beloved horse 'Shandy' (which my father had bought for me) was sick and that the vet was on the way". Bernadette was upset that she had not been rung to advise that Shandy was seriously ill. On arriving at the deceased's farm at about 11.00 am Bernadette could see that Shandy had a broken leg. Denise and Maureen had gone to the races. Bernadette asked the deceased what had happened and the deceased kept saying that it was not their fault. It was a quiet horse and Bernadette could not understand how it had broken its leg. The vet came and put Shandy down. Bernadette was very upset at not having been told by the deceased that Shandy was lying in a paddock with a broken leg. She became upset and angry and remonstrated with the deceased for not having rung her. Bernadette said that while she did not swear at the deceased or do anything dishonourable she had said in an angry tone that she was sick of being treated as a visitor, and not as a member of the family, as she had been since she married and that this was the last straw. The deceased went inside and slammed the door on her. Bernadette went home.

45 In cross-examination on the matter Bernadette said that she was upset because Shandy was "a special horse", the death of which affected her deeply. She explained that her father had given her Shandy "and he was dead now. I watched him die and it was like the last thing I had". She was very upset at the time. She said that "they didn't tell me anything about how it happened or what had happened or - it was just because that they didn't explain anything about it. That upset me too." When counsel suggested that her mother had done nothing wrong Bernadette said that she treated her differently, "I wasn't part of the family once I got married". It was like Denise and Maureen belonged there, while Bernadette felt that she "didn't belong anywhere". She was treated well, but so are visitors. That was how she would explain it. There was something, the deceased sided with Denise and Maureen. It was a feeling when she was at the deceased's house. When again counsel suggested that the deceased had done nothing that warranted her (Bernadette) changing her attitude to her mother she said that the deceased "didn't seem to care that my horse was dead".

46 It is a convenient point at which to observe concerning Bernadette that I found her an intelligent and honest witness. I accept her evidence. Her evidence of this unfortunate occasion was not given with embellishment but with an evident sense of sadness of past events and seeking to adequately describe what had occurred and why. In describing the relationship with her mother she evidently (from my observation) sought to put her inner thoughts into words. The emotional interplay between parent and child, and between siblings, can be complex and difficult to state in simple words. There can be a good relationship and there undoubtedly was but at the same time there can be undercurrents and self perceptions which affect the relationship and which can trip to the surface in stressful circumstances. This particular occasion was one that caused Bernadette deep upset the clue to which was given, I find, in her evidence indicating that the death of Shandy was the loss of the last link to her father. If, as I would infer was the case, Bernadette was close to her father, as a daughter can be, greater understanding is given to the depth of her reaction. To that then is to be added that Bernadette had not been rung with advice of Shandy's injury, that Denise and Maureen had left the farm to go to the races before Bernadette arrived, and that she was not told how the injury was sustained.

47 On the other hand, the deceased may have tried to mollify Bernadette, and in doing so may have sought to protect Maureen from fault or criticism but in doing so had not got to the heart of Bernadette's problem, which could have made matters worse. These things can require careful management and understanding, on both sides. Unfortunately, however, those qualities were missing in the required degree and notwithstanding the subsequent passage of time the incident occasioned a rupture in the relationship that was never completely repaired. The subsequent conduct and reactions of the deceased and Bernadette reflected emotional inability to deal with the injured feelings and hurt of the day. Perhaps they were too alike in personality.

48 I do not overlook the evidence of Maureen and Denise on the matter. Indeed I have taken it into account. I accept Maureen's evidence that she found Shandy in the morning with an injured leg. The deceased called the vet. Denise arrived and she and the deceased thought he had broken his leg. Before the vet and Bernadette arrived Denise and Maureen left for the races. Later the deceased said that Bernadette had blamed Maureen for Shandy's broken leg, that she had yelled at the deceased and not liked the way that the deceased had stuck up for Maureen. Maureen said that the next day Bernadette and Brian came down, they went to the shed and when Maureen went over to talk to them Brian abused her. Bernadette could not recollect that occasion.

49 In the result, following this incident the deceased and Bernadette were cool towards each other. The deceased rang Bernadette once or twice and they talked for a little about how each was, the children and such things. Bernadette did not ring the deceased. They did not visit each other until the in person contact referred to below. Bernadette agreed in cross-examination that the deceased was "probably" trying to get her to come and see her. She did not do so but nor did the deceased come and see her. Bernadette disagreed that she "chose" not to see the deceased; she felt that the deceased would slam the door in her face again. That was how she felt. Denise said that she went to Bernadette's place and tried to talk her into seeing the deceased and Maureen's side and coming back to be a family. Denise said that Bernadette stated that if she (Denise) kept bringing it up she would disown her too.

50 Denise had her first child, Luke James Martyn, to her partner Wayne Martyn on 16 February 1985, which gave the deceased pleasure. Denise had two further children, a daughter in July 1987 and a son in October 1989. At that stage Denise gave up working. Denise and her children had a good relationship with the deceased who she assisted with shopping and personal matters. She also assisted Maureen with the farm. Further, as the years went by, if Maureen was away working the deceased would stay with Denise.

51 For about four years Bernadette and Brian lived in the house at Stanley until they sold the house block with about 17.5 acres with a view to using the proceeds to buy a farm. They moved into a shearing shed on the remaining area of approximately 40 acres. Brian constructed a hut inside the shed. The hut had two rooms and floorboards cut by Brian. They and the children slept in one room and they lived in the other room. The bath and toilet were in the shearing shed proper.

52 In winter 1985 Bernadette and Brian bought their current farm at Peechelba. They were registered as proprietors as tenants in common on 15 June 1987. They moved into a converted shearing shed on the farm while Brian built a house, which took seven and a half years being completed in 1992. Until then they lived in converted areas within the shearing shed. After the birth of Bernadette's third child, Laura, in July 1986 Brian added an extra bedroom and constructed a toilet with a septic tank in the shearing shed.

53 The delay in building their house was attributable to Brian being away most of the time doing contract shearing, crutching and hay contracting, and applying money to reduce the debt on the farm and provide for the children. When they moved into the house in 1992 it was not finished: there were no carpets, an old woodstove did for heating and cooking, and the kitchen benches and other fitting were rudimentary. The house is still not finished.

54 An additional factor in the delay is that having no skills for employment other than farm work, and with the children to look after, Bernadette was unable to get a job off the farm to help with finances. After Laura was born in 1986 she did some night fill work at the supermarket at Wangaratta but more children were to come.

55 When Laura was born in 1986 the deceased visited Bernadette at hospital. That was their first meeting since 1984. They had a pleasant and amiable conversation. After she returned home and until late 1992 Bernadette and the deceased spoke on the telephone from time to time. They did not visit each other at their properties. Bernadette said that in their conversations neither talked about what had happened. Bernadette said that she did not try to talk through the issues between them. She left raising what had happened in November 1984, and how she felt, "to her to say because I felt she just shut the door or shut the - off on any conversation". Denise kept Bernadette informed about the deceased; Denise and Bernadette visited each other three or four times a year with the children. Bernadette said that she might have seen the deceased at one of the children's birthdays at Denise's. Of course it was in February 1992 that the deceased entered into the Deed providing for the distribution of her estate.

56 In 1992 Denise's house burned to the ground. She and Wayne Martyn lost everything they owned, and his business went bankrupt. They moved in with the deceased and Maureen for some months until they fixed a shed to live in. At the same time they assisted with work on the deceased's farm.

57 In 1992 Bernadette had her fourth child, Alice. The deceased did not visit her in hospital. Prior to Christmas 1992 Bernadette took Alice to visit the deceased at the farm, to try and improve the relationship. The deceased seemed a bit cool but "they had a yarn together". From then until subsequent visits their contact was by telephone.

58 In June 1994 Bernadette had twins, Jessica and Lisa. The deceased did not visit her in hospital. A few months later Bernadette took the twins to the farm to show the deceased. Bernadette said that the deceased was happy enough but she could still sense some tension on her part. After that visit Bernadette and the deceased kept in touch with occasional telephone calls.

59 In about 1994 Bernadette invited the deceased, Maureen and Denise for Christmas dinner. Denise came with her family but Maureen and the deceased did not. The deceased telephoned Bernadette on Christmas eve to say that she would not be coming the next day because the doctor said that she might catch something from the children. Although Maureen could not recall this I accept that there was such an occasion.

60 As referred to at [9] above, in May 1995 the deceased transferred part of the farmland to Denise. Maureen said that the deceased decided to gift the land because the fences were deteriorating, stock were roaming, and it was a financial burden.

61 On 6 February 1996 the deceased had an ankle fusion at Albury Private Hospital. Later that year, on 1 July, the deceased had a knee operation. Bernadette visited the deceased at Beechworth Hospital, to where she had been transferred after the knee operation. However, it may have been after the ankle operation as Bernadette thought that the relevant operation was in about February on the knee. Whichever operation it was, I accept that Bernadette visited the deceased.

62 Being the one at home, Maureen took the burden of care for the deceased, as well as attending to work on the farm.

63 After the deceased recovered from her knee operation Bernadette took the children to see her at the farm about twice a year. As the twins got older the deceased enjoyed their company. Bernadette said, and I accept, that she and the deceased tried to patch things up. Occasionally the deceased would telephone and invite Bernadette to visit and Bernadette would reciprocate. Bernadette visited occasionally but found it difficult to do so with six children. The drive is about an hour. As to the deceased visiting Bernadette at her property at Peechelba, according to Denise the deceased went only once in about 2001 when they (Denise and Maureen) took her on the way home from football in Yarrawonga. I accept that this visit occurred, but there may have been another visit as Bernadette indicated.

64 Maureen referred to an occasion after the deceased had transferred part of the farm to Denise when Bernadette visited the deceased with the twins and Alice. Maureen was present. Maureen said that they were surprised at the visit. Maureen said that she told Bernadette of the 1992 will and explained that the deceased had not wished to see the farm she loved split-up and sold out of the family. If individual paddocks were gifted, nobody could make a go of it. She said that Bernadette became upset and left. Bernadette disputed that Maureen had told her that she (Maureen) was to get half the farm. According to Bernadette, Maureen told her that the deceased had signed half the farm to Denise and Bernadette assumed that Maureen was to get the remainder. Bernadette said that she put this to the deceased who said that Maureen was to get the other half. She was upset and asked the deceased why she would get nothing because she (Bernadette) had worked very hard on the farm. The deceased replied that there would not be enough for everyone. Bernadette said in evidence that she took that "pretty hard", she was very disappointed but did not argue and left on good terms.

65 In 1999/2000 the deceased's health declined. In 2000 dementia was diagnosed. It was a difficult time for Maureen in managing the deceased whose condition deteriorated from loss of memory, being easily upset and frustrated, and suffering forgetfulness which was a concern in the home. This affected Maureen's ability to leave the deceased in the house while she did farm work let alone to be away for periods of wool classing. Maureen needed to earn money. It got bad with the deceased in June to mid September 2000 when Maureen had to move the deceased to stay with Denise while she was wool classing at Finley. Denise's house was not ideal and the deceased was moved to the hostel at Beechworth at the end of October. She remained in care, later moving to Lindell, until she died. Maureen saw to her welfare, regularly visiting her and taking her out, as did Denise. Denise and Maureen were with the deceased at the end and arranged her funeral.

66 Maureen said that she and Denise contacted Bernadette and Angela when the deceased's memory was starting to go to suggest they come and see her, but that neither did.

67 I accept Bernadette's evidence that she visited the deceased at the hospital two or three times a year until she died. Bernadette said that it was difficult to visit more frequently because of the six children and for most of the period they only had one working motor car. Further, the deceased's dementia was advanced and she appeared to only vaguely recall Bernadette during the visits.

68 The above account sufficiently describes the relationship between the deceased and Bernadette. I turn now to the other matters referred to in s 91(4) of the Act.

(f) Obligations or responsibilities of the deceased

69 Save as I may conclude for the purpose of s 91(1) and (3), the deceased had no obligation or responsibility to Bernadette. The deceased was obliged to Maureen by reason of the Deed dated 25 February 1992.

(g) Size and nature of the estate

70 I have set this out at [11]-[13] above.

(h) Financial resources and needs of Bernadette and Maureen

71 There is no significant difference between the financial position of Bernadette when her mother died and at the time of the trial, or at least none that would affect the result of the case. Bernadette's position was readily to be appreciated and foreseen by the deceased.

72 Bernadette and Brian own as tenants in common 647.25 acres at Peechelba worth $860,000. Thus Bernadette is the legal owner of only one-half of that land. Brian also owns 42.8 acres at Stanley worth $145,000. Both are unencumbered. They and their six children live on the land at Peechelba. The two older sons work, James as a shearer and Tom as an apprentice baker. They do not pay board. The four younger children are dependant on Bernadette and Brian; Laura who is now 20, is undertaking a nursing degree at LaTrobe University, Wodonga. The three youngest are at school.

73 Bernadette and Brian own household furniture which is old and mostly second hand, worth about $2,000. They own a 20 year old Toyota Landcruiser worth $2,000 and a Ford Courier 2002 worth $10,000. In her affidavit sworn in April 2005, Bernadette disclosed they had $20,000 in savings for a new tractor. At 30 June 2005 they had cash at bank of $36,800. That amount had reduced to about $19,000 at the time of the trial. In cross-examination Bernadette said that she has used an inheritance from an aunt Agnes to pay for costs of the proceeding. The inheritance, also received by Maureen, was $18,000 or so.

74 Bernadette and Brian farm their land at Peechelba and Brian's land at Stanley in partnership. The partnership has been returning losses: in the year ended 30 June 2005 the partnership had an operating loss before tax of $406, and in the year ended 30 June 2004 of $8,394. The balance sheet for 30 June 2005 recorded plant and equipment including motor vehicles at $17,902 and partners' capital accounts as $181,243 for Brian and $73,714 for Bernadette. Bernadette's capital contributions include Family Assistance Payments. Her taxable income in recent years has been as follows:

2000 $5,251

2001 $1,076

2002 $752

2003 Nil

2004 Nil - on a loss of $6,370 (including past year losses)

2005 Nil - on a loss of $203

2006 Apparently a loss of $4,381

Bernadette's income has been supplemented by Family Assistance Payments in recent years as follows:

2001/2002 $16,997.68

2002/2003 $14,024.83

2003/2004 $16,016.16

2004/2005 $16,997.68

The Family Assistance Payments enable the family to survive financially.

75 Bernadette's husband Brian earns income from the partnership and as a casual worker. In the last several years his taxable income has been:

2000 $6,057

2001 $9,277

2002 $9,894

2003 $2,920

2004 $50

76 In the 2005 year Brian's share of the partnership loss was $203, and he had other income being wages of $5,015. His taxable income was $4,514.

77 Allowing for ordinary living expenses for the family and costs associated with the children such as school uniforms and the like, including board and lodging for Laura of $4,150 in Wodonga in 2005 alone, it is evident that Bernadette now and in the past has had to manage on the most limited financial resources. She and Brian have, however, managed to pay off a loan of $72,000 which, together with the sale of Brian's house property at Stanley, enabled them to buy the farm at Peechelba. The loan was interest only but allowed repayments of principal which Bernadette and Brian made whenever they were able, with repayment being completed over about 12 years. It is to their credit that they did that, thus acquiring the asset, and reflects favourably on their hard work and financial discipline. But they have done it hard.

78 As far back as 1982 Bernadette and Brian had been unable to obtain a bank loan to buy an 80 acre paddock opposite the deceased's property, and they asked the deceased for a loan for the purpose. The deceased refused. Further, as the years went by the deceased was aware of the parlous living conditions of Bernadette and her family. In relation to the children, they have missed out on weekend sport as Bernadette has not had the means to transport them.

79 Bernadette has no cash or superannuation, indeed no assets other than those referred to above.

80 I now complete the description of the effect of Bernadette's limited financial circumstances. As may be imagined having regard to the income level and the size and needs of the family, their money is devoted to the family. Dental and orthodontic treatment has been required, which have had to be saved for. Bernadette had never been out for dinner until Brian's parents' 50th wedding anniversary in 1992 at a hall in Wangaratta. She had never been to a restaurant in her life until Brian took her to lunch while in Melbourne on 10 August 2006 for the purpose of this case. Nor do they have recreation as such. During their marriage their holidays have been as follows: on two occasions they have driven to Lakes Entrance, on one occasion to Eden and on another occasion to Marlo, each trip being for a few days; and two or three times a year they travel as a family to Buffalo River (about two hours away) and stay for one or two nights. Otherwise they stay and work at the farm all week.

81 The children attend school in Wangaratta but are not allowed to do weekend sport because the cost of driving them would be too great.

82 Bernadette's only recreation is sewing - she has always sewn for the children - and working in the garden.

83 While it is generally obvious that Bernadette has a financial need she referred to the following specific areas of need in her evidence. First, in the area of the house and personal possessions, the furniture is old and needs repair, they need a new refrigerator and stove and carpet on the hallway floor, the general household goods are second hand and need replacing; the children need a computer and desks; the interior needs painting and the outside needs repairs. Secondly, they have been saving for a new tractor but need a new post hole digger, new disks and a seed drill to enable them to make the property a more viable proposition; and a new Bale lifter would help as Brian has a bad back and it would assist at hay carting time. Thirdly, the children's education is a heavy burden.

84 I turn now to Maureen. She owns no land but will inherit the remaining land of the deceased subject to any order in this proceeding. Maureen has lived and worked on the farm since 1980 including expending her own monies on it. She is single with no dependants. Her sources of income are the farm and her work as a wool classer. In recent years her taxable income has been:

2002/2003 $9,614

2003/2004 $12,746

In 2004/2005 her income was in the order of $23,000 after payment of expenses. She had accumulated losses of $10,000.

85 At the time of the trial Maureen had an overdraft of just over $15,000 on a limit of $20,000 with Elders Rural Bank Ltd, and is meeting the monthly repayments of $550 under the farm mortgage. She has bank accounts with small balances and superannuation of about $40,000 and livestock. It is hard to know the value of the livestock now on hand. Maureen said that a number of the sheep referred to in the valuation exhibited to her affidavit had been sold. But the valuation was not brought up to date. Hence while I was told that the valuation exhibited produced an overall value of $66,000 odd I do not have the present figure. I accept that stock on hand are worth less than $66,000. For want of better information but doing the best I can on the evidence I would proceed on the basis of $35,000 being a conservative estimate of the value of stock on hand.

86 Maureen says that she needs all of the farm property to earn a living income. That is, she needs Connolly's paddock. I note that Bernadette's counsel put to Maureen in cross-examination that she (Maureen) would be no worse off if she were to lose Connolly's Paddock, on the basis that the farm business had been running at a loss, that Maureen survived on income earned outside the farm, and that if she were relieved of the obligation to maintain Connolly's Paddock, she would have more time for work outside the farm. Maureen disagreed, saying in essence that much work had been done to improve Connolly's Paddock, and it was the best land on the farm. I accept her evidence as to the adverse effect the loss of Connolly's Paddock would have on the viability of her farm.

87 Bernadette is in generally good health but suffers migraine headaches. Maureen is in good health.

88 Bernadette is aged 51 years. Maureen is aged 49 years.

(k) Contributions of applicant to building up the estate or to welfare of the deceased or her family

89 I have described above how as a child and adult Bernadette worked on the farm, in particular from 1973 when she left school to her marriage in 1980 when she ran the farm for which she received no remuneration. This was a very significant contribution to the maintenance and ongoing viability of the farm and the welfare of the deceased. This was through times when her siblings were receiving education or vocational training. Indeed it enabled the farm to be kept going and maintained intact. It is said by counsel for the defendant that the plaintiff made no direct financial contribution towards the farm. That is true but the point ignores that the plaintiff had had no opportunity to earn any appreciable money in employment. She sacrificed herself to her parents and their farm. Further assistance was provided in the period to November 1984 by Bernadette and Brian, but by Brian in particular and for which he was remunerated.

90 Moreover, as a result of the deceased's actions in favouring Denise and Maureen as recipients of the farm, Bernadette's contribution may be seen to have enured for their benefit also.

(l) Benefits previously given by the deceased

91 I have referred above to the few benefits provided by the deceased: some jeans, boots, $20 at Christmas, board and lodging, and the wedding. The deceased never remunerated Bernadette for her work.

92 On the other hand, and in stark contrast, the deceased promised Maureen and Denise to split the farm between them, effectuated the promise to Denise in 1995 and left the balance to Maureen in her will. The deceased also made Maureen a partner in the farming business and gave her the stock, plant and equipment. As I noted earlier, the stock, plant and equipment were not included as assets in the inventory of the deceased's assets.

(m) Plaintiff being maintained by the deceased

(n) Liability of any other person to maintain the applicant

94 The only other person liable to maintain Bernadette is her husband Brian. He has a degenerative back condition due to which, his doctor certified in March 2005, he is unable to shear which was of course his occupation. He will have to cope with his back condition in carrying out his farming work. In fact, Bernadette said, notwithstanding that he has been told by his treating doctors not to do heavy lifting and to cease shearing, he has no option but to shear the 400 sheep on their property.

(o) Character and conduct of the applicant or any other person

95 The parties took differing positions on this matter. It was submitted for the plaintiff that her character and conduct could not be criticised. Although her relationship with the deceased suffered following the disagreement in November 1984, there were the balancing considerations of Bernadette's commitments and restricted financial circumstances which militated against more frequent contact. Moreover the frequency of contact was not the sole indicator of a loving relationship.

96 Counsel for the defendant, however, pointed to the obvious difference in the relationship between Bernadette and the deceased before and after the 1984 disagreement, submitted that the deceased had, but Bernadette had not, tried to repair the relationship, and that Bernadette had excluded or decided to reduce the involvement of the deceased in her life. It was submitted that the deceased did nothing to exclude Bernadette. The resulting period of estrangement of just over 19 years where no blame was attributable to the deceased meant either that the deceased was not under a moral obligation to provide for Bernadette or, if she was, that the obligation was considerably reduced. Even considered on the latter basis the claim must fail in light of the size of the estate and Maureen's strong claim.

97 At present I am not considering the ultimate resolution of the claim. I am considering only the matter of character and conduct. I refer to but do not repeat my earlier discussion concerning the disagreement. I do not accept that responsibility for the disagreement and the subsequent damage to the relationship between the deceased and Bernadette rested with Bernadette alone. To so find would be altogether too narrow a view, to ignore the capacities of, and often the demands on, a mother in understanding and dealing with her children no matter their age, and bearing in mind that in 1984 Bernadette was a young married mother in her 20s with two children, managing in hard circumstances and to whom the loss of Shandy was a blow the depth of which was not understood or sympathised with by the deceased let alone Maureen and Denise who absented themselves from the scene on the day. Moreover the fact is that disagreements occur between child and parent and responsibility and reactions go both ways. Often a parent will be sorely tested by the reactions and statements of a child, particularly where sibling rivalry, misunderstanding or differences exist. It can be a fruitless exercise, and will often be pointless, to seek to ascertain the exact cause, or fault, for a disagreement; see as to this the insightful observations of Young J in Walker v Walker[1], referred to by Brereton J in McDougall v Rogers[2]. For one thing the precipitating factor or factors may lie elsewhere or not find expression in the particular disagreement. I cannot help but feel, regarding the evidence and Maureen and Bernadette closely in the witness box, that that may have been true here, and that the death of the horse was the final break with her late father. I agree with respect with the observations of Brereton J in McDougall at [39] made with reference to statements of Holland J in Kleinig v Neal (No 2)[3] that a wise and just testator will recognise that disharmony between parent and child, and disappointment in a parent's hopes and expectations, are unexceptional and almost inevitable, and do not abrogate the obligation of a parent to provide on death for a child's needs for maintenance and advancement in life. In the end the matters concerning character and conduct are to be considered in light of all the relevant circumstances and prevailing community standards. For the moment, as to the matter presently under consideration I conclude that the 1984 disagreement and subsequent loss of the former relationship between the deceased and Bernadette was not the sole fault of Bernadette. It was regrettable and most unfortunate but a situation that neither was able to fully mend for reasons, in my view, that lay in their personality. I say "fully" mend because in 1992 Bernadette genuinely attempted to mend the fences and the relationship did improve, although never being fully restored. Significantly, of course, the deceased had committed herself to her will earlier in 1992 prior to that visit. The deceased's statement in her will must be seen in that context. Once she had thus committed herself the deceased's freedom of testation was affected by her irrevocable promise to dispose of her estate by her 1992 will[4]. Hence the reality was that any attempt by Bernadette to improve the relationship after early 1992 would not have led the deceased to alter the dispositions in the will.

98 The matters referred to by counsel under this heading were more by way of overview of the relative positions of Denise, Maureen and Bernadette and the appropriateness of the gift to Maureen in the circumstances.

99 I turn then to the resolution of the issues namely, whether the deceased had responsibility to make provision for the proper maintenance and support of Bernadette; if so, whether the deceased's will failed to make such provision; and if so, the amount of any provision to be ordered.

100 Counsel referred to relevant authorities concerning the obligation of a testator under s 91. I was referred to the discussion in my decisions in Brinkkotter v Pelling[5] and Horsburgh v White[6]. The principles are well known and counsel did not debate them. The concentration was on the facts.

101 The first question is whether the deceased had responsibility to make provision for Bernadette.

102 The strength of the claim lies in Bernadette being a child of the deceased who had made a substantial and unremunerated contribution to the welfare of the deceased and her father by working on the farm and, in doing so, to the ability to retain the farm in an ongoing sense. Furthermore, she went from working on the farm to marriage with no money or asset and no qualification for a vocation as Denise and Maureen had, and was a mother of six children living in frugal circumstances. She had an obvious need for financial assistance.

103 There is sufficient there, standing alone, to have led a wise and just, but not fond and foolish, parent to have made provision for their daughter out of their estate. In other words, to make provision to satisfy a moral duty or obligation upon the parent to do so. As against this however is a range of matters which Denise, as the defendant executor, and Maureen rely upon. On the basis of these matters it was submitted that the deceased owed no moral obligation to make provision for Bernadette.

104 It was submitted, generally, that the deceased was entitled to conclude that her overwhelming moral obligation was to Maureen. Satisfaction of that obligation required that Maureen be given the balance of the farm remaining in the deceased's ownership at death. That was the farmlands referred to in cl 4 of the will. Accordingly the deceased owed no obligation to Bernadette. This submission was based on a range of matters which I would summarise as follows and which are more fully set out in counsel's written and oral submissions to which I have regard.

105 The first matter was the estrangement between the deceased and Bernadette. I have already dealt with this and do not repeat my findings and observations on the matter of the disagreement in 1984 and the subsequent course of the relationship. I have in the above discussion dealt with the defendant's submission that cast responsibility on Bernadette and contended that Bernadette had not repaired or attempted to repair the situation. I have both rejected the submission and placed the events in the context provided by Bernadette having taken an initiative in late 1992 when unbeknown to her the deceased had committed herself to dispose of her estate as she did. Thus, although Bernadette's effort was to an extent successful it did not and could not alter the course that the deceased had determined upon in early 1992. That was a little over seven years from the November 1984 disagreement, not the full period of 19 years to death in 2004. It is important that this be seen in context. Indeed, Bernadette had three more children after the deceased committed herself to her will in February 1992, and her relationship with the deceased improved after her visit in late 1992.

106 It was perhaps little wonder that Bernadette noticed a tension in the deceased subsequent to 1992.

107 Then it was said that while on the one hand the deceased owed no obligation to Bernadette, on the other hand she had assumed an obligation to Maureen and Denise by the Deed made on 25 February 1992. It was further said that the deceased's obligation to Maureen became stronger after the deceased transferred part of the farmland to Denise in 1995.

108 Doubtless it is correct that in legal terms[7] the deceased was not under an obligation to Bernadette but in moral terms, or in terms of fairness, the position was different having regard to the earlier devotion and unremunerated labour and her financial circumstances. I do not understand how that is properly to be disregarded.

109 In entering into the Deed and committing herself to its terms the deceased brought herself under the obligation to Denise and Maureen which is now raised in bar to Bernadette's claim. She did this voluntarily and being well aware, as she must have been, of her obligation to Bernadette arising by reason of her past contribution to the farm and her (the deceased's) welfare and as a child in her circumstances in life. Then, the effect of transferring part of the farmland to Denise was to significantly reduce the estate divisible on death and, in consequence, able to bear an order for provision for Bernadette.

110 I take account of the deceased's statement in her will as to why she made no provision for Bernadette. Nevertheless, regarding the matter overall what is seen to have occurred in my view is that the deceased determined to keep the farm together in the family to the greatest extent possible and to divide it between Denise and Maureen. Bernadette had married and the deceased might have assessed her as ultimately being able to manage. I should say as to this, as I have already, that I found Bernadette to be an honest and intelligent person and as being, with Brian, an extremely hard working person. The deceased would have known Bernadette's underlying qualities, and was entitled to take them into account. She was also entitled to take into account that Maureen was and may remain single and therefore without the support of a partner. She was also entitled to consider Maureen's contribution since 1980 both to the farm (on which she has expended her labour and money including on the mortgage) and the welfare of the deceased, and that the balance of the farm left for Maureen could produce a living, but not a generous living, and a measure of security for Maureen, just as the other part of the farm might for Denise. She was also, in relation to these matters, entitled to take into account the size of her estate. Indeed the presence of these considerations makes one wonder why the February Deed was entered into. It is difficult not to allow the possibility, if not probability, that the reason was in part at least for the purpose of making more difficult a claim by Bernadette for provision out of the estate. The merits of such a claim were so evident, and must have been.

111 It is not irrelevant to the first issue to consider the order sought by Bernadette. As mentioned earlier, counsel sought provision by the award of Connolly's paddock. Counsel submitted that was reasonable. In value it was less than half of the balance of the land in the estate. It was not an inconvenient location to Bernadette as it was approximately the same distance from the property at Peechelba as is Brian's paddock at Stanley.

112 It is however necessary to consider the effect of an order that Connolly's paddock be received by Bernadette. The first effect would in all probability be to render a marginally viable farm an uneconomic operation. In other words the land remaining for Maureen would not produce a sufficient return to justify the effort. As to this the mortgage - which is over the three paddocks - is not to be forgotten. That position would be exacerbated, indeed Maureen's position may be rendered impracticable if not impossible if the estate that passed to her bore the costs of the proceeding. As the farm is already encumbered by a mortgage it would seem clear enough that the whole or part of the land passing to Maureen would have to be sold. Maureen would not have the financial capacity to do otherwise. In these circumstances it is seen that Maureen's position may pass from bad to worse, to the thoroughly unjust.

113 Counsel for the defendant submitted that Bernadette should not receive Connolly's paddock or a substantial sum because that would lead to the farm being sold which would defeat the deceased's testamentary intentions. Alternatively, if the Court determined that provision should be ordered, a modest legacy of $20,000 would be appropriate. That would give Maureen a chance of keeping the farm as it presently is. Otherwise an order for provision should be on the basis that Connolly's paddock be sold to pay the costs and divide the proceeds between Bernadette and Maureen. That would preserve the rest of the farm for Maureen.

114 Counsel for Bernadette sought to address some of these difficulties in final address. Accepting that if Bernadette received Connolly's paddock Maureen would have to sell the house property to pay the costs, he suggested that Bernadette may pay her own costs leaving Maureen to bear the defendant's costs. Alternatively the defendant's costs could be charged on Connolly's paddock thus leaving them to be borne by Bernadette. Another alternative was to require Bernadette to make some contribution towards the defendant's costs, as to which a 50/50 split was suggested. These suggestions were all very well but Bernadette does not have the financial capacity to repay a loan charged on the land which would seem to mean that Connolly's paddock would be sold. However counsel said that Bernadette and Brian hoped they could make enough out of Connolly's paddock to pay the interest on a loan.

115 Taking account of all these considerations and all that counsel submitted I am yet of the view that as a wise and just testator having regard to all relevant circumstances the deceased did have responsibility to make provision for Bernadette. That conclusion accords with prevailing community standards in light of all the circumstances, in my view. It is another thing altogether as to what might have been sufficient to meet the deceased's obligation. Putting that aside, in my view the proper answer on the first issue is that there was a responsibility to make provision. I do not consider that the several matters relied on by the defendant operate, alone or in combination, to exclude that conclusion. Nor do I consider that to so conclude is to deny to the deceased her freedom of testamentary disposition. Nor does it mean or lead to a simple putting aside of her intentions as expressed in her will.

116 As the deceased made no provision for Bernadette I proceed to consider the third issue of the provision to be ordered. It is not an automatic consequence of the omission of any provision that an order for provision will be made. It may yet be that considering the matter overall, including the relative position of Bernadette and Maureen, and Denise, and all of their individual circumstances, that the distribution of the estate may be seen as fair, as counsel for the defendant submitted, and conversely that an order for provision would result in unfairness to Maureen. I take account of this and the like contentions of the defendant and Maureen in her evidence. They are matters of substance, as is continuing regard for the deceased's intentions and freedom of testation.

117 In my view the deceased should have made provision for Bernadette by way of a modest legacy. Bernadette's financial need is strong. While, if the land owned by Brian is taken together with Bernadette's half interest in the Peechelba land they have an asset of $1,005,000 unencumbered, she (and Brian) are income poor. The land might be valuable but it is required for farming purposes which purposes produce only the relatively small financial returns mentioned. Bernadette manages from hand to mouth, dependant on government support. She has no fund to fall back on in case of an emergency or to which resort might be had to cushion the effects of the vicissitudes of life, or otherwise to enable them some little extra here or there.

118 Unfortunately in her last will the deceased approached the distribution of her estate on the basis of dividing the land between Denise and Maureen whereas the whole or part could readily have been charged with a legacy with or without terms for payment. Then, as a result of transferring land outright to Denise in 1995 all that remained in the estate is that to pass to Maureen. Of course the deceased was free to give the land to Denise and if she had done the same with Maureen there would be no estate out of which to order provision. But there is an estate and in my view it should bear a legacy of $50,000 in favour of Bernadette. That is as small an amount as could be ordered yet is appropriate when regard is had to all the competing factors, the circumstances of the parties, the estate available for distribution and the effect of an order on Maureen. It is the provision which the deceased should have made as a wise and just testator.

119 There will therefore be an order that the estate of the deceased be administered on the basis that the will provided for a legacy of $50,000 payable to Bernadette. I consider it appropriate to also order that the legacy not bear interest until two years from the grant of probate. I will otherwise hear counsel on the orders to be made.

[1] Unreported, New South Wales Supreme Court, 17 May 1996.

[2] [2006] NSWSC 484 at [42].

[3] [1981] 2 NSWLR 532 at 540.

[4] Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712 at 736-737, [73]- [76].

[5] [2006] VSC 101 at [155]- [156].

[6] [2006] VSC 300 at [181]-]183].

[7] Leaving to one side any declaration that may be made in the present case.