156 In the end, as Chernov JA pointed out[51], "whether the jurisdictional requirements have been made out by the claimant depends on the relevant facts and circumstances of the case, which are now to be identified by reference to para (e) to (p) of s 91(4)". Gibbs J had made the same point in Hughes v National Trustees Executors and Agency Co of Australasia Limited[52], although not in the context of s 91(4). That is to say, Gibbs J made the point that these cases turn on their own facts and circumstances.
The submissions - an overview
157 Counsel for the plaintiff submitted that the statements in cl 11 of the deceased's will, set out at [4], were factually wrong and that both of the reasons stated by the deceased in that clause for making "no further provision under this my Will for my son Michael" were flawed.
158 First, the deceased's statement that the plaintiff chose "to distance himself from me and his entire family" was inaccurate. Rather, there was a mutual separation onwards of 1996 between the plaintiff and the deceased and the other siblings. Indeed, the plaintiff was ostracised. Secondly, the plaintiff did not take any legal action against his father. Rather the notice of dispute dated 16 June 1995 concerning the partnership was served on the plaintiff by the deceased and Stephen. It was thus the latter who initiated the arbitration, as Stephen accepted in cross-examination[53].
159 The plaintiff submitted that by including cl 11 in his last will and by only making a token gift of shares to the plaintiff in cl 6 of the will, the deceased was not acting as a wise and just testator and failed to make adequate provision for the plaintiff's proper maintenance and support.
160 Counsel for the plaintiff then addressed each of the criteria set out in s 91(4)(e) to (p).
161 For his part counsel for the defendants submitted that there were two significant factual matters of dispute. First, the plaintiff's ability to provide for himself at the date of death and now. Secondly, the poor relationship between the plaintiff and the deceased and the reason for that. Counsel then addressed the plaintiff's financial position and his evidence generally concluding that his evidence should not be accepted where it was contradicted. He then proceeded to address the criteria in s 91(4)(e) to (p) and to make submissions as to the resolution of each of the three issues to be determined under s 91.
162 Having referred to the broad outline of the submissions I now consider the matters which s 91(4) requires the Court to have regard to.
(e) Family or other relationship
163 Counsel for the plaintiff submitted that there had been a close, normal father-son relationship for 37 years as well as an ongoing business relationship extending over 20 years which included a formal partnership from 1986 to 1994. The plaintiff and his wife both worked in the business. It was only in 1994 that the family relationship deteriorated significantly. After the dissolution of the partnership in 1996 the plaintiff received few benefits from the partnership. While his loan account was forgiven and he was indemnified for the partnership debts, he and his family had to vacate the house at 33 Lindon Strike Court. Further, his half share in the Donaldson Road land was encumbered to help support partnership borrowings and he and his family stayed with an aunt while he and his wife worked two jobs to keep their family afloat.
164 In his submissions counsel for the defendants noted that the plaintiff was the deceased's first son and aged 45 at the date of death. He submitted that the plaintiff's relationship with the deceased was all but terminated from around October 1994 without a reconciliation. It was submitted that the plaintiff was the initiator of this situation to the great distress of his father.
165 The proposition that the plaintiff initiated the termination of the relationship is incomplete and simplistic. The circumstances were more complex than that as they involved a mix of human relationships. It may be, though, that in the plaintiff's submissions the time when the family relationship deteriorated could be traced a little earlier to 1993 but whether that is so is not so critical as it is evident that differences developed over a period of time to the point in 1994 when they became significant. Then, in addition, there is the matter of the plaintiff's attitude to his father which, on the defendants' case, was evident over a longer time. On the defendants' case there was also a problem with his attitude towards Stephen and Jennifer. These matters relate to matters of personality and the nature of the interrelationships between the deceased and the plaintiff, and the plaintiff and his siblings. On the matter of relationships there is the submission of the defendants that the plaintiff's relationship with the deceased was all but terminated from around October 1994 and that the plaintiff initiated that situation. The plaintiff denies having initiated the termination of his relationship with his father.
166 It is apparent that these submissions are not complete in the sense that they do not in themselves fully inform one as to the underlying forces in the context of which the plaintiff's business and family relationship with his father broke down.
167 The evidence concerning the deceased, both directly as to his nature and personality and generally, enabled an assessment of his character and personality to be made. In forming a view on the plaintiff, the defendants and Jennifer, I had the considerable advantage of observing them give evidence.
168 The deceased was a strong-minded person, strong-willed, independent and stubborn. The plaintiff possessed the same characteristics. As Stephen agreed in cross-examination, there was the potential for conflict with two such like-minded people working together. Particularly, one might add, when they were father and son and the son was working in a business that was his father's and his father's before him and the son might want to make changes in the way the business was conducted.
169 Further to the above, Anna said that her father was a gentleman, not assertive. Stephen said that he was genuine and honest. While I accept that the deceased possessed these characteristics it is not to be overlooked that it was in their interest, as opposing parties seeking to uphold the will, to portray the deceased as a testator of wise and just judgment.
170 The above described characteristics of the deceased were, I considered, to be seen to a greater or lesser extent in the plaintiff's siblings who gave evidence. For one thing, a single-minded determination for their chosen course was evident in the decision to falsely answer Thomson's letter when a moment or two's reflection by a reasonable and open mind would have produced the correct response.
171 Stephen described himself in cross-examination as an understanding person. However I also saw in him a determination to maintain his position, doubtless the product of characteristics shared with his father and brother, and a deep resentment towards his brother if not simple dislike, to put it at its lowest. He and Jennifer had not spoken to the plaintiff since 1996.
172 As to Jennifer, I referred earlier to the pain that she still suffers as a result of the plaintiff ignoring her pregnancy and child. In addition I accept that the plaintiff's attitude to her in connection with the business was overbearing, inappropriate and distressing.
173 It is evident that the premature death of the deceased's wife had a profound effect on all the family. The role she played, including the ameliatory role of a wife and mother was lost and never replaced no matter how hard the deceased might have tried and the children worked. And they did work hard led by the plaintiff and Anna, but Stephen too together with Jennifer and Marina.
174 In addition to the characteristics referred to above, I found the plaintiff to be an intense inner man, perhaps with a tendency to brood and impatience. He was described as having been over-bearing in his manner and, in summary only, as having argued with, yelled at and belittled the deceased in the matter of the business.
175 Earlier in this judgment I referred to there being differences between the parties on the facts and that the truth may have lain somewhere between the two. I remain of that view, indeed I have an abiding concern as to the difficulty in knowing where the truth lies on some matters, so deeply does the bitterness and self interest run. Subject to that I make the following conclusions.
176 Michael impressed me as having a sharper and more alert business mind than Stephen and to be conscious of that. He and Stephen present with an evident physical strength and side to their personality. The plaintiff, with his intensity, could also have the tendency to an over-bearing presence. There is no doubt that the deceased wished the plaintiff and Stephen to take over and inherit the farm and thus he so provided in his will. Unfortunately, however, working in such a family environment can be difficult and so it proved in this case.
177 The plaintiff was the eldest son and developed views as to the conduct of the business. Even if the farm had been a great success financially he could have had views as to improvements to be made. But it was not such a successful operation as the ever increasing burden of the partners' loan accounts manifested. The evidence did not investigate the contentions of the plaintiff, and the responses thereto, and I cannot make findings on that matter. The fact is that differences arose, as they readily can in such an environment. The existence of such differences can be, and in my view was, in association with the plaintiff's forceful personality and conduct, a cause of the deterioration in the partners' relationship. To say this is not in any way to suggest that views expressed by the plaintiff as to the business did not have merit. That, as I say, is a matter on which I cannot reflect.
178 But there were other factors. Clearly the plaintiff resented Jennifer's involvement in the business and responded inappropriately. It is a difficult matter to know the truth whether she wanted a role in the business, over and above doing the bookwork, for it may not have been surprising in the family circumstances, and she certainly persisted in the face of adversity although that in itself may be explained by a sense of family involvement. But I do accept her evidence of an incident at the Fire Brigade where he pushed a cupboard door on her hand. This was consistent with his having a tendency to impatience and temper combined with a personality that wishes to have its own way. He resented Jennifer and wished her to be kept in her place, in my view.
179 Then, the plaintiff and Stephen had a physical side to their nature and relationship. This was revealed by the evidence that even in their 30s they had "scuffles". But these were not the reason for the breakdown in the partnership. In this connection there are two matters deposed to by Stephen of being chased and shot at and of Michael attempting to strangle him. Again, whatever the truth of these matters, they were not the cause of the partnership breaking down. As to whether they did happen, the failure of the plaintiff to call Dummett or explain his absence excites concern but is not sufficient to aid in establishing that the incident with the rifle occurred or the lead up to the alleged incident. As to the alleged strangling which was said to have occurred in the presence of the deceased, I am not satisfied that an incident occurred as Stephen described.
180 I should say, to make it clear, that I do not accept the defendants' submission that the plaintiff's evidence should not be accepted where it is contradicted. In so concluding I have taken account of the defendants' submissions in particular the points made in paras 14 and 15 of the written submission and the further written submission regarding the failure of the plaintiff to disclose his wife's recent purchase of 26 Albert Street, East Brunswick.
181 In the end the discord developed to the point that there was a mediation and arbitration with termination of the partnership in October 1994.
182 It is important that to the deceased the farm and his family were his life, they were one and the same. The plaintiff's departure from the scene meant that his no doubt beloved eldest child and son for whom he had such hopes had left the farm and family, the holding together of which was his object in life. His disappointment is easy to understand. Unfortunately he and the plaintiff were not able to reconcile their differences, which may have increasingly disappointed the deceased. While the plaintiff regarded himself as ostracised he is said to have rejected opportunities to speak with, let alone restore relations with, the deceased and his family, and I accept that was so. In explanation of the plaintiff's attitude in that regard it is fairly to be observed that from his point of view the departure terms were harsh even to the extent that his only interest in land could not be dealt with for a period of six years and then only in 2005 at the end of a partition proceeding in which he had the pleasure of paying Stephen's costs. Of course the plaintiff had the benefit of the income distribution from the Trust but otherwise he left the farm with no house, no job and no useable asset. What he had devoted himself to had come to nought and he had to start afresh with a wife and two children. Add to this that he was the eldest son who had carried an appreciable burden in the conduct of the farm over many years. In other words there were factors which could have, and in my view did, produce in him a profound hurt and resentment which, as the eldest child and a proud person, was difficult to cope with. He may be seen as having responded in the manner referred to, which was unfortunate but not outside the realm of human reaction given his and his father's nature and personality.
183 Finally, by the time the plaintiff went to see his father shortly before he died it was too late to repair the bridges. I should say that I saw nothing in the suggestion that the plaintiff should not have taken his wife with him. She was his wife. I accept the plaintiff's evidence that it was a traumatic situation and that she was there to support him. It is not established that she had a note pad with her.
(f) Obligations or responsibilities of the deceased
184 The plaintiff submitted that the deceased had legal, moral and financial obligations to the plaintiff. This was acknowledged by the deceased in three wills, however, in each successive will he reduced the plaintiff's entitlement.
185 According to the plaintiff's evidence, in the first will made in about 1980 the deceased had provided that the plaintiff and Anna were to be the executors; the plaintiff and Stephen were to be given the poultry farm together with the business; and the residue of the estate was to be divided equally among the deceased's three daughters. I repeat that the plaintiff was not cross-examined on his evidence in relation to this and the subsequent wills. The plaintiff's expectation that he and Stephen would receive the poultry farm was corroborated by Jennifer.
186 The deceased's second will dated 14 August 1995, made approximately one month after the deceased and Stephen had sought an arbitration of their partnership dispute with the plaintiff, provided that Stephen was to receive the poultry farm and business with the plaintiff entitled to an equal share in the residue of the estate with the other siblings.
187 The deceased's third will (actually the fourth will), executed seven days prior to his death in hospital, effectively excluded the plaintiff from any share of the deceased's estate, he being merely entitled thereby to an equal share of the Woodside shares.
188 The plaintiff submitted that the Court should have regard to each of the earlier wills and their pattern of distribution as they indicate that the deceased acknowledged his responsibility to make proper provision for the plaintiff.
189 Not surprisingly, counsel for the defendants relied on the deceased's statements in cl 11 of his last will that his primary obligation was to the plaintiff's siblings and their issue. It was submitted that by cl 11 the deceased recognised no obligation or responsibility to the plaintiff. I comment on that submission as follows. If regard is had to cl 6 alone, to the exclusion of all other provisions in the will, the plaintiff is seen to be treated equally with his siblings. It is only in the context of the will as a whole, together with the value of the Woodside shares, that it is seen that the plaintiff is dealt the most minimal or token gift. So understanding the disposition of the estate the gift to the plaintiff in cl 6 gave scant recognition to an obligation or responsibility to the plaintiff. The deceased, however, did not say that he felt or had no obligation to the plaintiff. He described a primary, not a sole, obligation to the plaintiff's siblings and their issue, but only after first making provision for the plaintiff and then stating the reason for that provision being of limited kind. He did not eschew all sense of obligation or responsibility to the plaintiff although the benefit provided was near to manifesting such a state of mind. Furthermore he expressly disavowed any lack of love or affection on his part. What he did do was state two reasons for the disposition. I have already referred to the circumstances of or in which the "distance" arose between the plaintiff on the one hand and his father and the family on the other hand. The deceased's second reason was incorrect. It was not the plaintiff but the deceased and Stephen who took legal action when they initiated the legal proceeding in the form of the arbitration, having first given the plaintiff notice of termination. It was suggested that the deceased's reference to taking legal action could be a reference to the plaintiff being the first to involve lawyers in the dispute that occurred in 1993. That was when the plaintiff went to a solicitor after the deceased had asked if he was going to act on his resignation. Thus prompted, the plaintiff went and saw a solicitor who thereafter acted for him in the dispute. Perhaps this is an explanation, but in truth it was the deceased and Stephen who initiated the arbitration, I infer on legal advice in each respect, as their response to the breakdown in the working of the partnership. That was the reality of the situation. In my view the explanation for the statement is that the deceased was searching for reasons to explain and justify his change in treatment of the plaintiff. He may, of course, have been of the view that, regarded overall, the breakdown of the partnership was the plaintiff's fault, although he did not say that, and that is significant, but what he did say was not correct.
190 The defendants submitted that the deceased owed a responsibility to his four other children for several reasons. They had retained a good relationship with him, they had assisted with the farm in some way or other, the deceased and Stephen had assumed the plaintiff's partnership liabilities, and Stephen had continued on the farm. It was further said that the plaintiff had had the assistance of rent free housing for a longer time than had Stephen. Further, the plaintiff's seven year occupation of the 33 Lindon Strike Court was at the expense of Stephen in that it was owned and paid for by the partnership. There is substance in all of these matters, they reflect what happened. It is, however, to be remembered that the arrangements were those considered appropriate by all, that the rent free housing may be seen as an offset for low wages and that the 33 Lindon Strike Court property was purchased by the partnership and not merely to provide accommodation for the plaintiff, and that the deceased and Stephen (and not the plaintiff) had the benefit of the proceeds of sale. It is also to be borne in mind that the deceased and Stephen had the benefit of using the plaintiff's interest in the Donaldson Road property as security for six years. Furthermore, the benefit of the plaintiff's labour and contribution to the deceased and the business over two decades is not to be overlooked, and could fairly and justly be seen as founding an obligation to him.
(g) Size and nature of the estate
191 I have already dealt with this matter. It was said by counsel for the defendants that the farm business has no real value, the asset of value being the 7 Crest Road land.
(h) Financial resources and needs
192 I have already referred to the financial position of the plaintiff and his siblings at the date of death of the deceased and in December 2005. The plaintiff does not seek to disturb the dispositions to his sisters under the will. On that basis the gift to Stephen would bear any provision ordered.
193 Briefly, as to the plaintiff and Stephen, the plaintiff is aged 47, and since leaving 33 Lindon Strike Court in 1996 has acquired a business which depends for its success on his initiative, energy and good health. The business seems evidently not to have succeeded in the hands of its previous owners who gave it up to the plaintiff on a consideration of the plaintiff's unpaid commission. In the plaintiff's hands it is developing, but it is a small business, has no goodwill, is partially subject to currency fluctuations, and trade debtors are significant. It is vulnerable in that as a result of the plaintiff not having an external asset to use as collateral he cannot obtain bank finance and must therefore rely on the generation and retention of funds from its business activity. I accept the plaintiff's evidence that the business runs on a fine line. That he and his wife have managed to be where they are, and to have educated their children, reflects endeavour and application doubtless driven by their parlous situation in 1996. Significantly the plaintiff still does not own a house which is both a limiting factor in terms of being able to raise money for his business and something he would like to own for occupation as a family home, in lieu of their present rented accommodation. He does have the benefit of a 25 percent interest in the Trust and there is some suggestion in the evidence that that may be vested in 10 years or so. The value of his interest may be gauged by the value placed on Stephen's interest in 2004, and it may be assumed that that value will increase over time as the Trust's land increases in value and the mortgages thereon are reduced. At the moment it would seem that one could think of a present value of about $300,000. To say that, however, is not to assume an early vesting of the Trust. Nor is it to suggest that that amount is available or could be made available or that the plaintiff has any intention of seeking a capital distribution. His greater wisdom would seem to lie in the Trust continuing as at present with the prospect of a greater capital distribution in the future and income distributions in the meantime. But when and if that will happen is speculative.
194 In the above summary I have not referred to but do not overlook the financial circumstances of the plaintiff's wife or their combined position. I note that her car is financed by Trucom.
195 Stephen is aged 45, not married, lives on the poultry farm and conducts the farm business from which in evidence in October 2004 he said he had drawn $2,285 per annum. Self evidently, he must have had more money than that to live on. As mentioned earlier, it is to be inferred that he draws funds from the business. He also has the entitlement in the Trust which is now reduced to two percent. His financial liabilities emanate from the financial burdens left by the deceased of the mortgage on 7 Crest Road and a business with internal debt and a history of relatively poor profit. Clearly Stephen needs time and good fortune, which hopefully will come with application and endeavour, to improve the business. The evidence satisfies me that he will, and has commenced to, achieve this. There is an incentive on him to do so. As the years go by the value of 7 Crest Road may be expected to increase. At the same time, as returns from the farm improve, Stephen will have an increasing capacity to reduce his debt. Finally, Stephen is single with no dependents.
(i) Disabilities
196 This is not relevant.
(k) Contributions of plaintiff to building up the estate or to welfare of the deceased or his family
197 Self evidently the efforts of the plaintiff in working on the farm for 20 years for long hours and with no remuneration to 1994 contributed significantly to building up the estate and to the welfare of the deceased and the family. Of course, as already mentioned, the other siblings worked on the farm in one way or another and to greater or lesser extents, with the plaintiff and Stephen doing the farm work with their father. The plaintiff, and Stephen, worked seven day weeks with every second weekend off, working eight to ten hours a day and sometimes longer as the plaintiff deposed. And, after leaving the partnership, the plaintiff further contributed by the provision of his interest in the Donaldson Road property as security for the partnership mortgage for six years to 2002.
198 For the defendants it was said that there was no evidence that the value of the 7 Crest Road land was enhanced by the operation of the business. Let it be accepted that that was so, yet the submission overlooks that the business conducted thereon was the source of the funds applied to pay the mortgage thereon and various other costs and expenses. Without that funding the land may not have been able to be held, and retained, while its value has doubtless increased over the years. The same is true of 32 and 33 Lindon Strike Court.
(l) Benefits previously given by the deceased
199 The plaintiff and his siblings received an education.
200 The plaintiff was provided with rent free accommodation for himself and his family. At first, from 1980, this was provided by the deceased at the old family home at 32 Lindon Strike Court, which the plaintiff renovated. Then, subsequent to establishment of the partnership in 1986, the plaintiff and his wife occupied rent free the new home built at 33 Lindon Strike Court. This was not provided by the deceased alone, but by the partnership. They lived there until April 1996 which included 18 months when the plaintiff was not working in the partnership. I referred earlier to the sale of the property in 1996 which enabled clearance of the mortgage, an overdraft and payment of a small balance to the deceased and Stephen.
201 Finally, it is pointed out by the defendants that pursuant to the arbitration award they forgave the plaintiff his loan account of $115,511[54].
(m) and (n) Plaintiff being maintained by deceased or others
202 These are not applicable.
(o) Character and conduct of plaintiff or any other person
203 I have dealt with this matter in the course of the judgment. Perhaps because of the deceased's statement in his will as to the plaintiff having chosen to distance himself counsel's submissions referred to the situation after the plaintiff left the partnership.
204 Counsel for the plaintiff submitted that the plaintiff's conduct did not amount to disentitling behaviour and that the period of separation from the deceased was not long, nothing like the period of 46 years in Pontifical Society for the Propagation of the Faith v Scales[55]. Here the plaintiff was of good character, had worked hard and long on the farm, had been involved with his family in the local Fire Brigade where he had met his father after functions, and the six year period of alienation was not very long. It was also submitted that the plaintiff had sought a reconciliation with his father when he saw him shortly before he died, however it was clear from the plaintiff's evidence that the submission overstated the purpose of the visit. The plaintiff recognised that so much had happened that reconciliation could not then and there have occurred. In all, the circumstances were quite unlike those in Scales case.
205 As against that, the defendants submitted that the plaintiff's conduct after leaving the partnership caused the deceased great distress. And, rather than the plaintiff being excluded, it was that he ignored his father and siblings. Despite living in the area he did not keep up contact with his father and cut his children off from his father. That was in the face of evidence of his father having attempted to keep in touch with the children by presents and cards. Stephen also gave evidence that post 1996 their father attempted to reconcile with the plaintiff although Stephen did not know exactly when.
206 Then it was noted that following his visit to his father the plaintiff did not visit him again in the two weeks before he died. Of course, if one accepts that the plaintiff's experience of his visit was as he described it, it may be understandable that he did not visit his father again, for a variety of reasons including the unnecessary stress it may have caused. I accept that the particular visit was an unhappy and unsuccessful one which distressed the deceased and the plaintiff.
207 Finally, the evidence of Nicholas showed the deceased responding in the circumstances as a loving and caring grandparent who doubtless would have liked continued contact with the plaintiff's children. The denial of that conduct is to be attributed to the plaintiff, in my view. As such it was an unfortunate reaction to the circumstances, carrying with it an element of punishment of the deceased who would be expected to have liked to see his grandchildren. It also served to deprive the grandchildren of the benefit of that ongoing relationship.
(p) Any other matter
208 Neither counsel suggested any matter under this heading.
Decision
209 The first issue is whether the deceased had a responsibility to make provision for the proper maintenance and support of the plaintiff.
210 Counsel for the plaintiff submitted that in the circumstances, according to accepted community standards, the deceased had such a responsibility and that the gift of one-fifth of the Woodside shares was insufficient to discharge that responsibility. In so providing for the plaintiff the deceased failed to act as a wise and just testator would have in all the circumstances. In so submitting counsel acknowledged, correctly, that the question was not one of fairness of disposition between the children, there being no principle of equality of treatment between children as was recognised in Blair. Nor, as counsel correctly acknowledged, was the Court free to remake the testator's will according to considerations of justice in a general sense as distinct from confining attention to that provision which is proper for the maintenance and support of the claimant[56], assuming, of course, that the testator had a responsibility to make provision for the claimant.
211 On the other hand it was submitted for the defendants that the deceased had no moral obligation to maintain the plaintiff at the date of his death given the benefits he had received, the way he had behaved toward the deceased and his capacity to maintain himself.
212 In dealing with these submissions I do not propose to repeat the discussion and findings earlier in this judgment. I have dealt at length with the character and personality of those involved, the conduct of the farm and the unfortunate breakdown in the partnership and in the family relationship between the plaintiff and the deceased. Among other things, in the course of doing so I observed on something that struck me with the benefit of seeing the plaintiff and Stephen at the trial, namely that the plaintiff impressed as having a mind and personality more attuned to business matters. And I was well satisfied on the balance of probabilities that the deceased was to be equated to Stephen in this respect. I did not earlier refer to, but I do now, a submission of counsel for the defendants in his closing address that the rift in the relationship between the plaintiff and his father was attributable to the plaintiff. In the course of that submission counsel said that the evidence showed that the plaintiff was "a fairly shrewd competent business person and it may well be that the intergenerational conflict to which Mr Miller [counsel for the plaintiff] is referring is an eldest son basically trying to do things the way he thinks they should be done for the good of the farm and the good of the partnership etc, and not brooking any opposition essentially". A little later he submitted that the plaintiff's notice of resignation in 1993 showed that he considered he was in control of his comings and goings so far as the business was concerned. It was consistent with a man "who is probably competent in business, perceiving others around him to be less so and not wishing his interests to be prejudiced".
213 In my view these assessments of the plaintiff as a business person were correct, and accord with my impression and the findings I made earlier. And, as I observed earlier, the possession by the plaintiff of an aptitude for business not possessed in the same measure by the deceased, and Stephen, is not surprising. It happens in family. There can be differences in aptitude between parent and child and as between siblings. Where this happens and where father and sons are engaged in a family business, differences in view as to the conduct of the business can arise and produce arguments and breakdown of the relationship. That, I find, is what happened in this case, and the resulting problems were not able to be managed. That does not mean that there was not an underlying loving relationship, but in this case, I find, the hurt in the breakdown went so deep the relationship was not able to be recovered before the deceased died.
214 It was thus in my view too simplistic by far for counsel for the defendants to assert that the plaintiff, in the sense of the plaintiff alone, was responsible for the rift with his father. It was also simplistic to say that the deceased did not choose the alienation. Doubtless, if the clock was to be wound back, no one did. It happened, unfortunately, as a result of events over a period of time but basically, in my view, stemming from differences in the conduct of the business which produced frustration in the plaintiff as to that matter and as to his position which in the end resulted in intolerant behaviour to the deceased, Stephen and Jennifer. In the end, with the deceased and his sons being unable to work out how to continue, termination of the partnership may be seen as an inevitable result.
215 As I have mentioned, the terms on which the partnership was ended were harsh to the plaintiff. I do not repeat my earlier analysis. I referred above to the defendants' submission that a factor favouring the conclusion that the deceased did not have a moral obligation to the deceased was the benefits he had received. Related to this was a submission that the plaintiff had received greater benefits than Stephen. This seems to be related to the provision of rent free accommodation. In short, the benefit the plaintiff received from occupying premises rent free, as Stephen did also, must be seen in context of the plaintiff's contribution over 20 years at low wages, that the terms were agreed by the deceased and then the partners, that at the end of it all when he left Lindon Strike Court in 1996 he did so in the parlous financial circumstances described, and that the deceased continued to occupy the farm, as Stephen resumed doing and now has the benefit of the farm under the will.
216 There is however the contention as to need, that is that the plaintiff had not established a financial need for provision. Whatever his circumstances had been, it was submitted that by the time of death he had established himself in work, was well able to maintain himself and was likely to be able to continue to do so.
217 I have earlier referred to the financial circumstances of the plaintiff and his wife. They have worked very hard to be at their present position. They have both worked for income with which to live and educate their children and, as well, the plaintiff (on the consideration of his unpaid commission) has acquired Trucom which he is building up. But his ability to do so is much restricted by his lack of collateral which goes back, I find, to the time he devoted to the farm and which he did not leave until 1996. It was only six years to the date of the deceased's death, eight years if you measure from the termination of the partnership. At his age at those times he had to start from nothing save for income from the Trust, an amount that would readily have gone in family expenses. While he worked on the farm, for the deceased and the partnership, it was understandable that he was prepared to work for low wages as his expectation was that he and Stephen would ultimately own the farm land, but then he had to leave, and as a result of the deceased changing his will, that expectation was not to be fulfilled. He was then in the position of having to save to have capital with which he could purchase land and establish himself. That takes time, even years, particularly when he is seeking to establish a business which requires the retention of profit. Circumstances of this nature were foreseeable by the deceased who was well experienced with borrowing money on mortgage for the purchase of land and, thereby, was aware of the money and effort it takes to do so. In addition to the lack of collateral is the level of trade debtors in Trucom which is a constant business risk particularly with no support of bank finance.
218 I do not overlook the assets of the plaintiff's wife, although she has significant borrowings. I have regard to their combined asset and income position.
219 In my view, having regard to all the relevant circumstances, the deceased had a responsibility to make provision for the proper maintenance and support of the plaintiff. In changing his will to confine the plaintiff to the mere benefaction provided in cl 6 he failed to bear in mind the overall circumstances of the plaintiff. He overlooked the decades of profound, heavy commitment of the plaintiff given to the deceased and then the partnership in the most active and vigorous years of his adult life. He overlooked the financial circumstances of the plaintiff when he left the partnership and ultimately residence at 33 Lindon Strike Court with a wife and two children and how at that age he would have to start all over without a capital base other than his interest in the Donaldson Road land which remained tied up for the benefit of the deceased and Stephen until 2002. He erred in stating in cl 11 that the plaintiff had taken legal action against him. I find that he overlooked the full circumstances and reasons for the discord between he and Stephen on the one hand and the plaintiff on the other hand, and the role and causative effect in that regard of the character and personality of himself and his sons including the plaintiff's business capacity. I find that he overlooked and did not have proper regard to and understand the depth of hurt of these events on the plaintiff's side, as well as his own. Perhaps an insufficient period of years had passed for a reconciliation to have occurred, but it had not, and the deceased for whom farm and family were one and the same thing should have had broad regard to all the circumstances. Once the plaintiff had left the deceased was dependent on Stephen, in whom he saw the future as he had hoped it to be, and Stephen had a deep distrust and dislike of the plaintiff, which the deceased must have been aware of. In the result, while the deceased in cl 11 referred to love and affection for the plaintiff he was, it would seem, unable to see any love and affection from the plaintiff in return, as to which there was in my view a lack of appreciation of the consequences to the plaintiff of all that had happened. That the plaintiff had not been able to put aside his disadvantage, hurt and diminished standing and self respect within the family may be one thing, although requiring particular capacities to do so, but it aids in understanding the plaintiff's conduct and should have to the deceased. This is not a case in which properly regarded in the circumstances, the conduct of the plaintiff was such as to disentitle him from consideration by the deceased. Of course there was provision but it was minimal or token.
220 I add that his estate was of such a size that the deceased was readily able to provide for the plaintiff, and at a level significantly greater than that provided in cl 6.
221 The second question is whether the distribution of the estate by the deceased's will does not make adequate provision for the proper maintenance and support of the plaintiff.
222 It was submitted for the plaintiff that the gift in cl 6 was of such small value as to bespeak inadequacy. It was minimal or token.
223 Counsel for the defendants submitted that the following matters were relevant. What was adequate and proper involved consideration of the nature, extent and character of the estate, the other demands upon it and what the testator regarded as superior claims or preferable dispositions. The moral claim of an applicant will be taken into account in determining what would be proper for his maintenance and support. As to that, it was submitted that the plaintiff had no moral claim, and was in no need. Further, any additional provision for the plaintiff would impinge on the entitlement of Stephen, who had stood by his father and helped absorb a share of the plaintiff's farm liability. The farm is now Stephen's only substantial source of income. In those circumstances community standards would not hold the testator's small bequest to the plaintiff to be an abuse of his testamentary freedom.
224 I reject the defendants' submission. Again, I do not repeat all that has been discussed so far, and the findings made. I find that the plaintiff had a moral claim based on his contributions and assistance to his father over so many years, bearing also in mind that he (like the other children) following his mother's death did not undertake the course of training he wished to, and those contributions assisted the farm generally which Stephen is to take absolutely. Of course there were and are associated debts but their existence when the plaintiff was involved, including the partners' loan accounts, can be seen to be related to the business structure and operation the efficiency of which, I find, was a matter which provided a source of discord. Further, although the deceased and Stephen indemnified the plaintiff in respect of partnership debts the plaintiff had remained liable to creditors. Further, the partners' loan account may, as I have said, be seen to be related to the business model and unprofitability of the farm, a matter on which the plaintiff had views, I find. It is with regard to such matters, in the wider considerations generally concerning the relationship, and the plaintiff's financial position at the termination of the partnership, that the question of the plaintiff's claim, or moral claim, is to be regarded.
225 As to the matter of need I have referred to this above. Further, it is self evident in my view and should have been to the deceased that the plaintiff would have required, and be much assisted by the provision of, a capital sum to aid him in establishing himself in the circumstances that he was no longer to share in ownership of the farm and its assets, to the maintenance, improvement and preservation whereof he had given so much. Furthermore, whether regard is had to the estate as a whole or only to that given to Stephen, the estate was large enough to be able to provide a sum of reasonable proportion to the plaintiff without disproportionate diminution of that passing under gifts to his siblings.
226 I conclude, having regard to all the circumstances and community standards, that the bequest to the plaintiff in cl 6 of the will does not make adequate provision for the proper maintenance and support of the plaintiff. It was not the act of a wise and just testator. In the language of the authorities it constituted an abuse of his testamentary freedom.
227 This brings me to the third question as to the amount which the Court may order. I referred at [15] to statements of the plaintiff's counsel as to what the plaintiff sought. Ultimately it was $400,000 but without affecting the devise of 32 Lindon Strike Court to his sisters. At [16] I referred to the defendants' position that any award should be "very minimal".
228 In his written submissions counsel for the plaintiff pointed to the value of 7 Crest Road of $1M. Counsel said that there was a net equity of $968,036 in the farm. I note that I have referred to the estate liabilities and those of Stephen above. Counsel said that an order for $400,000 would enable the plaintiff to buy a family home and he referred to Penn v Richards[57] where an order was made for that purpose. It is sufficient to say of that case that the facts are much removed from the present. Moreover the submission that the plaintiff should receive an amount sufficient to be able to buy a house is over-ambitious by far, in my view.
229 In my view provision should be made for the plaintiff by providing a legacy of $75,000 in addition to the bequest in cl 6. The legacy should be borne by Stephen and be charged upon the Research Poultry Farm referred to in cl 7 of the will. I agree with counsel for the plaintiff that the gift to the deceased's daughters, being the specific devise of 32 Lindon Strike Court should not bear the burden of the award. I further consider that their gift of residue should also not be affected. That is consistent with the long standing and well understood intention of the deceased, and the reality of the estate as to the likelihood of any residue in view of the administration to date of the estate and the burden of costs. Furthermore, it would accord with the act of a wise and just testator having regard to his moral obligation, in the circumstances of this case, to place the burden of the legacy upon Stephen and the Research Poultry Farm as defined in cl 7 of the will.
230 The amount of $75,000 is not calculated on an arithmetical basis. It is an amount that will provide the plaintiff with some capital that may aid in the purchase of a house or the conduct of his business or be retained as an investment and as such provide a measure of security for future expenses and contingencies. It is a measure of that which the deceased ought have recognised as proper to provide for the plaintiff in all of the circumstances. It is a measure of recompense, of recognition of loyalty and service provided, and of the filial relationship the affecting of which was not the sole fault of the plaintiff. I consider this sum to be the minimum, conservatively estimated, that the deceased should have provided for the proper maintenance and support of the plaintiff, eschewing any principle of fairness or equality between the deceased's siblings or any of them.
231 Accordingly there will be orders on the following lines, namely that the estate of the deceased be administered on the basis that there be paid to the plaintiff a legacy of $75,000 in addition to the bequest contained in cl 6 of the deceased's will, and that the devise and bequest to Stephen in cl 7 of the said will be conditional on the payment by Stephen to the plaintiff of the said sum and that pending payment the plaintiff be entitled to lodge a caveat against the subject land being the property at 7 Crest Road. I will hear counsel as to the terms of the orders appropriate to be made, and as to costs.