Plaintiff v Defendants

2 The plaintiff was born in 1970. He has one sibling, a sister, who does not join in this application. The testator separated from his wife, Valerie, in April 1992. They did not ever divorce, but in May 1993 they entered into a property settlement. After the separation, the testator moved to a caravan behind a friend's factory in Croydon, where he lived for approximately three or four years. In about 1996, he moved to live in Elmhurst, where he was residing at the time of his death.

3 Approximately two years after he separated from his wife, the testator made a will dated 4 March 1994. By that will, he appointed the plaintiff as his executor, and devised the whole of his estate to the plaintiff. On 15 March 2007, the testator attended his solicitor, Mr Brendan Hardiman, by prior arrangement. The defendants had accompanied the testator on the drive to Melbourne, and he insisted that they be present at the conference with Mr Hardiman. In the course of that conference, the testator instructed Mr Hardiman that he wished to make a new will, by which he was to leave the whole of his estate to the defendants. He told Mr Hardiman that he had only had limited contact with the plaintiff, who was living in Melbourne.

4 The testator re-attended at Mr Hardiman's office on 17 May 2007, in order to make minor amendments to the draft copy of his will, and to execute the will. On that occasion, he told Mr Hardiman that he wished to make provision for the defendants, because of the generosity and support which they had given him. By the will which he executed that day, he left the whole of his estate to the defendants. He provided that if both the defendants should predecease him, he bequeathed his estate to the defendants' son, and, if he should predecease the testator, the estate should pass to the Lort Smith Animal Hospital. In clause 10 of the will, he explained why he did not make any provision for the plaintiff in the following terms:

"10 I have not made any provisions in this my will for my son Gary Andrew Leyden after serious consideration and after being informed of the existence of the provisions of Part 4 of the Administration and Probate Act 1958 as I have had previously advanced monies to him to assist him and I believe he is now adequately provided for and further there has been very minimal contact with my said son and myself in the latter years of my life which situation has been created by my son and it is his decision solely to have such minimal contact and I have therefore chosen to act in the manner as contained herein."

5 In the following two clauses of the will, the testator explained why he had not made provision for his former wife or for his daughter.

6 The two main assets of the estate of the testator consist of his home at Elmhurst, which has been valued in the sum of $125,000 to $135,000, and a mortgage fund with Challenger Howard Mortgage Fund in the sum of $156,000. That fund has been frozen, so that, in effect, the balance owing to the estate will not be repaid for four years. The only other asset of the estate is the sum of $8,000, which is held in the trust account of Mr Hardiman. The estate owes $1,000 in probate duties, and the defendants' costs of this proceeding are estimated in the sum of $20,000. Thus, the current net value of the estate is in the region of $270,000. The plaintiff's costs are estimated in the sum of $32,500. If those costs are ordered to be paid from the estate, the amount available for distribution will be about $235,000.

7 The plaintiff, who is now 39 years of age, married in 2003. His daughter, Emma, was born in August 2004, and his son, Aaron, was born in April 2006. The plaintiff's wife does not work. The plaintiff, who is employed as an electrician, earns approximately $80,000 gross per annum. His home in Warranwood is worth approximately $420,000, and it is subject to a mortgage debt in the sum of $170,000. The plaintiff has a superannuation fund of approximately $83,000. Otherwise, he has no other assets.

8 The main factual issue in the evidence concerns the reasons given by the testator for not making any provision for the plaintiff in his final will. In his affidavit in support of the application, the plaintiff stated that the assertion by his late father, that he had otherwise provided for the plaintiff, was not entirely correct. When the plaintiff bought his first home in about 1996, the testator gave him $5,000. Otherwise, the testator did not provide him with any other gift or provision of that kind. No evidence has been adduced by the defendants to contradict that evidence of the plaintiff, and I therefore accept that, apart from the gift of $5,000 in the mid 1990s, the testator did not otherwise make any financial provision for the plaintiff.

9 Most of the affidavits which were filed in the case focused on the question of the amount of contact which the plaintiff had with the testator, after the testator had moved to Elmhurst in about 1996. In his affidavit in support of the application, the plaintiff stated that he used to visit his father weekly while he was living in the caravan in Croydon. After the testator moved to Elmhurst, the plaintiff continued to have regular, but not as frequent, contact with him. The plaintiff would visit the testator three or four times each year, and they spoke regularly on the telephone. In particular, the plaintiff visited his father each Christmas, and also stayed with him on other occasions. After the plaintiff's children were born, he would take them to Elmhurst to visit the testator. The plaintiff stated that he continued to have a good relationship with the testator. In particular, the testator was very fond of his grandchildren, and was excited when he learnt that the plaintiff was having a son. The plaintiff tendered in evidence a quantity of telephone records, E-tag records and bank statements, in support of his evidence as to his visits to, and contacts with, the testator.

10 The plaintiff further stated that he was not aware that there had been any problem in his relationship with his father in May 2007. In February and March 2007, the plaintiff had been unable to have much contact with the testator, because the plaintiff was working long hours, each day, at the Grand Prix. He visited the testator on 19 May 2007, shortly before his birthday. During that visit, the testator did not say anything to the plaintiff about changing his will, nor did he say that he was unhappy with the plaintiff.

11 In his affidavit, the plaintiff also described how, in his latter years, his father was starting to act somewhat strangely, and was showing some signs of paranoia in his thinking. The plaintiff gave some examples of that conduct. The plaintiff acknowledges that the defendants had been long standing friends of the testator, but he does not consider that they provided to him any particular close care or contact.

12 The plaintiff's affidavit was supported by a short affidavit sworn by Lorice Cloke, who was a friend of the deceased. Ms Cloke would stay with the deceased during the weekends for a period of about ten years before his death. During that time, the deceased would speak about the plaintiff, but he did not make any complaint about him. Ms Cloke states that she was aware that the plaintiff visited the deceased quite often, and that the deceased was particularly happy when he heard that the plaintiff was going to have a son.

13 The defendants filed two affidavits in opposition to the application. The first was an affidavit of Mr Hardiman, explaining the circumstances in which he took instructions from the deceased, and in which the will was subsequently executed by the deceased. Mr Hardiman stated that when he took instructions from the testator, he told the testator that he may wish to give instructions to him in the absence of his friends (the defendants), but the testator insisted that they remain. The testator spoke to Mr Hardiman in sad terms about his son, the plaintiff, with whom, he claimed, he had only had limited contact. Mr Hardiman states that at the time at which the testator gave instructions for his will, and the time at which he signed it, he appeared to be fully aware of what he was doing.

14 The first defendant, Mr Vincent McVeigh, has also sworn an affidavit in opposition to the application by the plaintiff. In that affidavit, Mr McVeigh states that the testator had a close relationship with the defendants' family. He was involved in many of their family activities. The defendants and their children had kept in regular and frequent contact with the testator by telephone, and on several occasions each year, the first defendant would join the testator on fishing trips. Mr McVeigh states that at no time was he aware of the testator's intentions to make a disposition in favour of the defendants, until after the testator had given instructions to his solicitor in the presence of the defendants in March 2007.

15 In his affidavit, the first defendant also states that, from statements made to him by the testator, he did not have regular and frequent contact with the plaintiff. That was a matter of great disappointment to the testator. The first defendant exhibited to his affidavit a copy of the testator's diary for 2007, which indicated that, at that time, the testator's contact with the plaintiff consisted of five telephone conversations, and one visit, recorded in the diary. The testator told the first defendant that when he telephoned the plaintiff, he was given the impression that the plaintiff was too busy to talk to him.

16 The plaintiff responded to the defendants' affidavits by a further affidavit. In that affidavit, the plaintiff states that at no time did the testator express any disappointment to him. He states that the diary of the testator is not necessarily accurate, and that he has records of making other telephone calls to the testator, which are not recorded in the diary. The plaintiff further states that he had not been too busy to talk to the testator, and that when they spoke on the telephone, they got on well.

17 Two further affidavits were also sworn in support of the plaintiff's case. The first affidavit was sworn by Ms Patricia Yeoman, a second cousin of the testator. Ms Yeoman states that she and her husband spoke with the testator from time to time on the telephone. In those conversations, the testator spoke about the plaintiff in proud terms. He did not ever say that he was disappointed with, or unhappy about, the plaintiff, nor did he complain that the plaintiff had not maintained contact with him. The other affidavit sworn in support of the plaintiff's application is that of Mr Colin Wills, who was a friend of the testator. Mr Wills stated that the testator used to speak to him of the plaintiff's visits, and that he did not complain that the plaintiff had not been contacting, or visiting, him enough. Mr Wills on occasions witnessed visits by the plaintiff to the testator. He said that the testator spoke in proud terms of the plaintiff and his family. He had encouraged the plaintiff to work hard, and he was aware that the plaintiff worked long hours as an electrician. Mr Wills also confirmed that, from time to time, the testator had acted in a strange way, and in particular he had exhibited signs of advancing paranoia as he got older. Mr Wills, in his affidavit, referred to entries contained in the diary of the deceased which contained indications of that conduct.

18 The plaintiff gave brief additional evidence before me. He was not cross-examined. Nor did Mr Newton, who appeared on behalf of the defendants, contest the plaintiff's evidence as to the amount of contact, which he had had with the testator during the decade before his death. That evidence is supported by the documents which were tendered on his behalf, consisting of telephone records, E-tag records, and bank statements. Mr Verspaandonk, who appeared for the plaintiff, compiled and tendered on behalf of the plaintiff a helpful schedule, in tabular form, summarising those contacts. That schedule demonstrates that the plaintiff did have reasonably regular telephone contact with the testator during the last four years before his death. In addition, there is evidence, contained in the documents, supporting the plaintiff's testimony that he visited the testator on three to four occasions each year. It is noteworthy that the documentary evidence, and Mr Verspaandonk's chart, indicate that the plaintiff, in his evidence, in fact appears to have underestimated the amount of telephone contact, which he had with the testator during the last six months of his life. The evidence of the plaintiff as to his contact with, visits to, and relationship with the testator, also gains some support from the evidence of Mr Wills and Ms Cloke.

19 Accordingly, I am satisfied that the reasons given by the testator, in his will, and to his solicitor, for excluding the plaintiff as a beneficiary under his will, were unfounded and misconceived. The statements made by the testator, during his lifetime, to the contrary, are not evidence of the facts contained in those statements. At most, they are admissible, and were received by me, as evidence of the reasons why the testator chose not to make any testamentary disposition in favour of the plaintiff.[1] I am therefore satisfied that the testator, in the period leading up to his death, had formed the misconception that the plaintiff was not interested in maintaining contact with him, and, for that reason, chose to exclude him from being a beneficiary under his will.

20 Mr A Verspaandonk, who appeared for the plaintiff, commenced his submissions by referring to a number of legal principles which, he contended, are applicable to the plaintiff's application. First, he submitted that the Act contemplates that the class of persons, who are entitled to make a claim, are those to whom the testator owed a moral duty, either because they had a close family connection to the testator, or because they stood in a relationship with the testator which was analogous to that of a close family member.[2] Mr Verspaandonk emphasised the importance of the adjective "proper" in s 91(3) of the Act. In particular, he submitted that it is not necessary for the plaintiff to demonstrate that he was in necessitous circumstances, in order that he was owed a moral duty by the testator to make adequate provision for his proper maintenance and support.[3]

21 Mr Verspaandonk submitted that the penultimate will made by the deceased in 1994 constituted an appropriate recognition by him of his relationship with, and responsibility to, the plaintiff. At that time, and in the years which followed until his death, the plaintiff was the sole member of the testator's family who had continued to have a relationship with him. The plaintiff had remained in regular contact with the testator. The final will of the testator, made some six weeks before his death, constituted a radical departure from the dispositions made in the 1994 will. The default provisions of the will were structured to ensure that the plaintiff would not receive any benefit from the testator's estate, even if the nominated beneficiaries predeceased him. The explanation given by the testator for disinheriting the plaintiff was unsound, and has been rebutted by evidence tendered on behalf of the plaintiff. Mr Verspaandonk submitted that the invalidity of the basis, proffered by the testator for excluding the plaintiff from the will, demonstrated that the testator did not approach his testamentary discretion as a wise and just testator.

22 Mr Verspaandonk submitted that the plaintiff is the only person to whom the testator had a responsibility to make adequate provision for his proper maintenance and support. The defendants had been good friends of the deceased, but there is no evidence that they were in straitened financial circumstances, or that, in any other way, the testator had a responsibility to make adequate provision for them in his will. On the other hand, the plaintiff was the testator's son, and the only member of his family who had remained loyal to him. Notwithstanding the demands on the plaintiff as a result of his work and family commitments, he nevertheless remained in regular contact with the testator, and visited him on three or four occasions each year. While the plaintiff has been in regular employment, and has been able to earn a good income, he does not have any assets, apart from his equity in his family home. His wife does not work, he has two young children, and a sizeable mortgage debt over his home. In particular, the plaintiff is in a vulnerable financial position, if, by reason of some contingency, he should be unable to continue in his employment. In those circumstances, it was submitted, the testator had a responsibility to make adequate provision for the plaintiff's proper maintenance and support. The testator had failed to make such provision. Accordingly, the jurisdiction of the court is enlivened, under s 91(3) of the Act, to make an order in favour of the plaintiff.

23 Mr Verspaandonk submitted that the amount of provision, which the court should order in favour of the plaintiff, should be equivalent to the whole of the estate of the testator, or, at least, a substantial part of it. The estate of the testator is relatively small. The mortgage fund with Challenger Howard Mortgage Fund has been frozen for a period of four years. Accordingly, if the plaintiff is not to be awarded the whole of the estate, any provision in his favour should be structured so as to ensure that he received his portion of the estate in priority, in terms of time, to the defendants.

24 In response, Mr S Newton, who appeared for the defendants, submitted that, in effect, the plaintiff was contending that the court should "tear up" the last will of the testator, because the 1994 will is a better will, and more accords with how a testator might, ordinarily, dispose of his estate. Mr Newton submitted that such an approach is impermissible. In particular, he emphasised the fundamental principle that a testator is entitled to exercise freedom of testamentary disposition as of right.[4] In exercising its jurisdiction under Part 4 of the Act, the court is only entitled to impinge on the testator's freedom of testamentary disposition, so far as is necessary in order to make adequate provision for the proper maintenance and support of a person, to whom the testator owed, but had not discharged, a responsibility to make such provision. In determining whether the testator had such a responsibility, and the extent of that responsibility, the court must be satisfied that the plaintiff has established a need for his proper maintenance and support, which has not been met by any disposition made by the testator in the will.[5]

25 At the outset of his submissions, Mr Newton accepted that the testator had owed, but had failed to discharge, a responsibility to the plaintiff to make adequate provision for his proper maintenance and support. However, bearing in mind the above principles, he submitted that the plaintiff's entitlement to such provision was relatively small. The plaintiff has been able to demonstrate some ongoing contact with his father, but that was not contact indicating a close and constant relationship with him. Further, the plaintiff was financially independent, with his own home and family. He is comfortably off, and there is no evidence that his financial circumstances are not manageable. The estate of the testator was relatively small. He was entitled to make appropriate disposition in favour of the defendants. They had been long standing and good friends to him, and as part of his testamentary freedom, the testator was entitled to recognise that relationship by leaving a substantial portion of his estate to them. In those circumstances, Mr Newton submitted that, at most, the court should make an order, under s 91(3), for the provision to the plaintiff of one-third of the estate of the testator.

26 The plaintiff's claim is made under Part 4 of the Act. Section 91(1) provides that a court may order provision be made out of the estate of a deceased person "for the proper maintenance and support of a person for whom the deceased has responsibility to make provision". Under s 91(3), the court must not make such an order, unless it is of the opinion that the distribution of the estate of the deceased, as effected by his will, does not make "adequate provision for the proper maintenance and support" of the plaintiff.

27 In 1997, Part 4 of the Act was amended, principally in order to broaden the class of persons who might make an application under it.[6] Before the introduction of those amendments, the courts had for many decades applied, as the test for determining whether a deceased had made proper adequate provision for the proper maintenance and support of an applicant, the well known statement of Salmond J in Re Allen (deceased); Allen v Manchester[7]:

"The provision which the court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances."[8]

28 In Blair v Blair[9], the Court of Appeal held that the same test continued to apply, in determining whether under s 91 a deceased had a responsibility to make adequate provision for the proper maintenance and support of the applicant, and, if so, whether the deceased had discharged that responsibility by making such provision for the applicant by his will.[10]

29 The plaintiff is the adult son of the testator. For some decades, at least since the 1940s, it had been considered that an able bodied adult son was required to demonstrate some "special need", or "special claim", in order to succeed in a claim under Part 4 of the Act.[11] That principle was, ultimately, repudiated by the Court of Appeal in Blair v Blair[12]. In that case, Chernov JA (with whom Nettle JA and Hansen AJA concurred) stated:

"In my view, (the trial judge) did not err in rejecting the submission that, merely because he was an adult son of the testator, the respondent was required, as a prerequisite to obtaining further provision out of the estate, to establish some special need or special claim on the estate. It is plain enough that section 91(4) - particularly paras (e), (f) and (h) - requires the Court, in considering the jurisdictional issues, to take into account what could be described as the applicant's moral claims on the estate and his or her financial needs, but they do not elevate them to a "special" status and do not require these matters to be established as a prerequisite to a successful application. As McDonald J pointed out in Allan v Allan[13] the provisions of sections 91(4) draw no distinction between the applicant who is a son or daughter of the testator, and there is nothing in its paragraphs that suggests that an adult son must establish a special need or special claim before the court can exercise its discretion in his favour. On the contrary, it seems to me that, by stipulating the matters to which the court must have regard in determining the jurisdictional questions, the legislature has made it apparent that the court should not approach these matters with the predisposition contended for by the appellant."

30 In determining whether the testator owed the plaintiff a duty to make provision for his maintenance and support in his will, and in determining the extent of such provision, the courts have long recognised the importance of the basic right of a testator to exercise freedom of testamentary disposition in respect of his or her estate.[14] That right is only subordinated where, and to the extent, that the plaintiff can demonstrate that the testator has failed to discharge his moral duty to make provision in the plaintiff's favour pursuant to Part 4 of the Act. That legislation, however, does not entitle a court to re-write the will of the testator, in order to better accommodate it to the court's individual view as to how the testator should, or might, have exercised his testamentary power.

31 In determining whether the testator had a responsibility to make provision for the plaintiff, and the extent of that provision, the courts have emphasised the weight to be given to the adjectives "adequate" and "proper" in s 91(3) of the Act. In Bosch v Perpetual Trustee Co Ltd[15], Lord Romer stated:

"The use of the word 'proper' is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the adequate maintenance of a child, for instance, but having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale which is 'proper' in the circumstances."

32 Similarly, in McCosker v McCosker[16] Dixon CJ and Williams J stated:

"The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v Perpetual Trustee Co Ltd the word 'proper' in this collocation of words is of considerable importance. It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance, education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."

33 It follows that, in order to succeed in an application under Part 4 of the Act, the plaintiff need not show that he would be in necessitous circumstances, if he were left without any provision from his father's will.[17] On the other hand, it has been recognised that an adult son, who is capable of supporting himself comfortably, may have difficulty demonstrating any breach by his parent of a moral obligation to make adequate provision for his proper maintenance and support.[18]

34 As I have stated, Mr Newton has accepted that, in terms of s 91(1) of the Act, the testator did have a responsibility to make provision for the proper maintenance and support of the plaintiff. In my view, that concession by Mr Newton is correct. The responsibility of the testator to make such provision for the plaintiff was the product of a combination of a number of factors. First, as the son of the testator, the plaintiff was the only member of his family who had maintained ongoing contact with the testator, from the date of the break up of his marriage in 1992, until his death fifteen years later. When his parents' marriage disintegrated, the plaintiff was then a young man. It appears that the breakdown of the testator's marriage was a bitter affair, at least from the viewpoint of the testator. Notwithstanding that the plaintiff remained on good terms with his mother, nevertheless, at the same time, he continued to have a regular ongoing relationship with the testator. He remained a good and loyal son to the testator until his death in 2007. It appears that the testator was a man who prided himself on his independence, who was, overall, in good health, and was not in need of any material support or assistance from his son. Rather, the plaintiff attended to him as a dutiful son would, by maintaining regular contact with him, and visiting him when he was able to do so. Although the contact between the plaintiff and the testator was, necessarily, limited by the geographic distance at which the two men lived apart, nevertheless, given that limitation, it might fairly be concluded that the plaintiff did maintain regular and appropriate contact with his father. It equally appears that the testator was proud of the plaintiff, pleased with his grandchildren, and very fond of them. The plaintiff at the same time was working hard in his trade, and, subsequently, occupied in maintaining his young family. A wise and just testator could not reasonably have expected more contact with, or attention by, his son, than was accorded to him by the plaintiff.

35 In addition, although Mr Newton is correct in pointing out that the plaintiff had a gainful trade, was in employment, and earned a good income, nevertheless his financial security and stability, and that of his young family, was subject to being adversely affected by the vicissitudes of life, such as loss of employment, injury, ill health, and the like. In those circumstances, a wise and just father would, in my view, have deemed it his moral responsibility to make adequate provision for his son, and his young family, in order to provide a reasonable buffer against ill fortune, and some security, particularly while the plaintiff bore the responsibility as the sole breadwinner for his young family.[19]

36 In addition, although the estate of the testator was not particularly large, there were no competing claims on his bounty at the time of his death. In particular, there were no competing claims which would have either diminished, or nullified, the responsibility of the testator to make appropriate provision for the plaintiff from his estate.[20]

37 As I have already stated, I am well satisfied, on the evidence, that the reasons given by the testator, both in his will and to his solicitor, for excluding the plaintiff from his estate, were misconceived and unfounded. The fact that the testator exercised his testamentary discretion on such a false foundation reinforces my conclusion that he was not acting as a wise and just testator, mindful of his responsibilities to his son, who had remained loyal to him throughout his adult life.[21] Thus, I am satisfied - as has been accepted by the defendants - that the testator did have a responsibility, in terms of s 91(1), to make adequate provision for the proper maintenance and support of the plaintiff. The testator made no such provision at all. Accordingly, the jurisdiction of the court, to make an order that provision be made out of the estate for the plaintiff under s 91(1), is enlivened.

38 I turn, then, to the question as to what amount of provision I should order be made, for the proper maintenance and support of the plaintiff, out of the estate of the testator.

39 Section 91(4)(e) to (o) set out a number of factors, which the court must take into account in determining whether the testator had a responsibility to make provision for the plaintiff, whether in fact the testator had discharged that responsibility, and, if not, the amount of provision which should be ordered by the court in favour of the plaintiff. Section 91(4)(p) also requires the court to take into account "any other matter the court considers relevant".

40 The starting point for resolving the question of the amount of provision to be ordered in favour of the plaintiff is the size and nature of the estate of the testator (s 91(4)(g)). As I have stated, the estate of the deceased was not large. The best estimate of the parties is that, after deduction of costs and other expenses, about $235,000 will be available for distribution to the beneficiaries of the estate. More than one-half of the residuary estate will consist of the funds from the Challenge Mortgage account, repayment of which will be deferred over the next four years. The nature and size of the estate necessarily impacts upon the amount of provision which the court would expect the testator to have made in favour of the plaintiff, in discharge of his responsibility to the plaintiff, and also the nature of such a provision.

41 The next relevant set of factors concern the nature of the plaintiff's claim, and the circumstances of the plaintiff, as described in s 91(4)(e), (f), (h), (j) and (o). As I stated, I consider that the testator had a responsibility to the plaintiff, as his loyal adult son, to make such provision as would provide a reasonable measure of protection to the plaintiff against his vulnerability to the vicissitudes of life. The plaintiff is now 39 years of age, and has the responsibility to provide for his young family, including his two children who are now aged 6 and 3 years respectively. He has no assets apart from his house, which he values in the sum of $420,000. That house is subject to a mortgage loan, the current balance of which is $170,000. In addition, he has a credit card debt of approximately $4,000. While, as I stated, the plaintiff has a healthy income, the future is never assured, particularly in the electrical trade, which is allied to the building industry. At the risk of repetition, in my view those factors give rise to a need for the testator to have made such provision as would provide a reasonable buffer to the plaintiff, and his young family, against the various vicissitudes to which he might be subjected, and to provide him with some ongoing security.

42 On the other hand, it has not been put, nor do I consider, that the testator owed to the defendants a responsibility to make any provision for their maintenance and support, pursuant to Part 4 of the Act. I have no doubt that the defendants were good and loyal friends to the testator, and it was for that reason that the testator wished them to benefit from his estate. However, they did not have any moral claim upon his estate. The defendants have not put forward any evidence that they have, or had, any particular financial, or other, need for support from the testator. In the absence of that evidence, it is appropriate that I proceed on the basis that the defendants do not, and did not, have any such particular need.[22] On the evidence before me, there was no other person who might claim to have been owed a responsibility by the testator for proper provision out of his estate. (Section 91(4)(f), (h)).

43 I do not consider that the gift of $5,000 made to the plaintiff by the testator in 1996 reduced, or negated, the obligation of the testator to make adequate provision for the plaintiff in his will. (Section 91(4)(l)). For the purpose of completeness, I note that paragraphs (i), (k), (m) and (n) of s 91(4) are not relevant.

44 With those circumstances in mind, I return to the question of what provision should be ordered in favour of the plaintiff pursuant to s 91(3). In doing so, it is important to reiterate, at the outset, that the issue does not involve determining whether the disposition made by the testator in his penultimate will of 1994 should be reinstated. Rather, what I must decide is what provision from the testator's estate would be adequate for the proper maintenance and support of the plaintiff. In essence, as I have already stated, I consider that the testator owed the plaintiff a responsibility to make adequate provision in his will so as to provide an appropriate financial bulwark for the plaintiff against financial adversity, and thus to give him a reasonable measure of financial security, particularly while he is responsible for the support and upkeep of his young children. In my view, such provision would be the appropriate measure of the "proper maintenance and support" of the plaintiff, which was the responsibility of the testator. In determining the measure of such provision to be made in favour of the plaintiff, it is important to bear in mind that the court only has jurisdiction to order such provision as is "adequate" in the circumstances, which include, inter alia, those identified in s 91(4), and which I have discussed above. In particular, it is important to take into account the size of the estate, and the fact that the plaintiff is an able bodied young man who is gainfully employed in a trade. In determining what order should be made, the provision in favour of the plaintiff must be no more than what is adequate to fulfil the responsibility which I found the testator had to the plaintiff. That is the limit to the adjustment which the law permits, by way of intrusion on the freedom of the testator to choose how he wished to dispose of his estate on his death.

45 Bearing that stricture in mind, I do not accept the submission of Mr Verspaandonk that the responsibility of the testator to make provision for the plaintiff could only be adequately fulfilled by an order that the plaintiff receive the whole, or almost the whole, of the estate of the testator. While such a provision might well relieve the plaintiff from the burden of his mortgage debt, I do not consider that the responsibility of the testator to his adult son required him to place the plaintiff in such a financial position. Rather, as I stated, the testator had an obligation to the plaintiff to provide to him a reasonable measure of security, bearing in mind the limitations of the size and nature of his estate, and the nature of the claim by the plaintiff on him. In my view, a wise and just father, mindful of his responsibility to the plaintiff, would have devised to the plaintiff one-half of his residuary estate, which would thus provide to the plaintiff a sum in the region of $115,000. Such a disposition would, I consider, constitute adequate provision for the proper maintenance and support of the plaintiff. An order to that effect would, thus, vindicate the responsibility of the testator to the plaintiff, while respecting the right of the testator to make a testamentary disposition in favour of his long standing friends, the defendants.

46 Finally, I do not consider that the needs, or entitlement, of the plaintiff to provision from the estate of the testator is such as to justify an order that he should receive the provision to be made in his favour in priority of time to the entitlement of the defendants as beneficiaries of the estate of the testator. Accordingly, and bearing in mind the nature of the estate, I agree with Mr Newton that it is appropriate that any provision to be made in favour of the plaintiff be expressed in terms of a percentage share in the estate of the testator. I therefore consider that such provision should be made by making an order that the plaintiff be entitled to one-half of the residuary estate of the testator.

47 Accordingly, and subject to hearing from counsel on the appropriate form of orders, and on the question of costs, I shall make the following orders: Clause 3 of the will dated 17 May 2007 of Robert Andrew Leyden deceased be varied so that provision be made out of the estate of the said testator for payment to the plaintiff of 50% of the residue of his estate.

[1] Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 137 to 138 (Barwick CJ), 152 to 153 (Gibbs J), 159 (Murphy J).

[2] Schmidt v Watkins [2002] VSC 273, [9], [23] (Harper J).

[3] Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 476 (Lord Romer); Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, 199 to 200 [12] (Gleeson CJ); Re Leonard [1985] NZLR 88, 91 (Woodhouse P).

[4] Grey v Harrison [1997] 2 VR 359, 363 (Callaway JA).

[5] Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, 78 to 79 (Chernov JA).

[6] Wills Act 1997 (Vic) ss 53-61.

[7] [1922] NZLR 218, 220 to 221.

[8] See Bosch v Perpetual Trustees Co [1938] AC 463, 479; Coates v National Trustees Executors and Agencies Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 519 (Fullagar J), 527 (Kitto J); Pontifical Society for the Propagation of the Faithful v Scales [1962] HCA 19; (1962) 107 CLR 9, 20 (Dixon CJ).

[9] [2004] VSCA 149; (2004) 10 VR 69.

[10] Above, [13] (Chernov JA), [41] (Nettle JA); See also Lee v Hearn [2005] VSCA 127; (2005) 11 VR 270, [4] (Callaway JA), [53] (Batt JA); Vigolo v Boston & Ors [2005] 8 HCA 11 (2005) 221 CLR 191, 202 [21] (Gleeson CJ), 228 to 230 [113-121] (Callinan and Heydon JJ); Cf 218 [73] (Gummow and Hayne JJ).

[11] In re Sinnott (deceased) [1948] VicLawRp 48; [1948] VLR 279, 280 (Fullagar J); Re Buckland deceased (No 2) [1967] VicRp 1; [1967] VR 3, 5 (Gillard J); Re Adams deceased [1967] VicRp 115; [1967] VR 881, 884 (Lush J).

[12] [2004] VSCA 149; 10 VR 31.

[13] [2001] VSC 242, [67].

[14] See for example Grey v Harrison [1997] 2 VR 359, 363 (Callaway JA).

[15] [1938] AC 463, 476.

[16] [1957] HCA 82; (1957) 97 CLR 566, 571 to 571.

[17] Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, 199 to 200 [12] (Gleeson CJ); Re Leonard [1985] 2 NZLR 88, 91 (Woodhouse P).

[18] Collicoat v McMillan [1999] 3 VR 803, 820 [47] (Ormiston J); Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, 78 to 79 [21]-[22] (Chernov JA).

[19] Compare Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 128 (Dixon CJ), 135 (Fullagar and Menzies JJ); King v White [1992] VicRp 72; [1992] 2 VR 417, 424 to 425, 427 (Hedigan J).

[20] McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, 576 (Dixon CJ, Williams J).

[21] Compare Hughes v National Trustees Executors and Agency Co Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134; Re Leonard [1985] 2 NZLR 88, 91 (Woodhouse P), 92 (Richardson J).

[22] Anderson v Teboneras [1990] VicRp 47; [1990] VR 527, 535 to 536 (Ormiston J).