//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1962] HCA 19
appellant. Appeal allowed. Order that all parties be paid their costs of the appeal out of the estate. Discharge so much of the order of the Supreme Court dated 22nd December 1960 as makes a provision out of...
No linked legislation citations have been extracted yet.
An 86-year-old man who had lived entirely apart from his wife and son for more than 45 years left his £36,000 estate to ten charities after a modest annuity for his widow. The adult son, a stable public servant earning £2,200 a year with his own home and family, had never met his father as an adult and had supported himself and his mother since age 14. The trial judge gave both widow and son further sums from the estate. The High Court majority held that the legislation did not permit such an order for the son: he was not in need, there was no relationship beyond biology, and the court must not rewrite wills merely because more money would be advantageous. The charities therefore kept the residue.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,714 words · generated 24/04/2026
David Scales died in Brisbane on 15 February 1960 at the age of 86. His last will, executed on 24 March 1958, gave his wife Mary Josephine Scales an annuity of £21 per month and divided the residue of the estate in equal tenth shares among ten named charities, eight in South Australia, one in Western Australia and one in Queensland. The estate was sworn at over £50,000 gross and was expected to yield approximately £36,000 net after death duties and liabilities. The Public Curator of Queensland was appointed executor.
The marriage had been brief and unhappy. The parties wed at Broken Hill on 23 February 1909. Their only child, Gerard Majella Scales, was born in Adelaide on 13 January 1910. By the time the birth was registered a month later the testator was already farming with his brother at Pinnaroo and was described on the register as “Farmer, Pinnaroo”. The testator lived with his wife and infant son intermittently for the next four years, visiting Adelaide from the farm and providing some financial support. In 1914 he left for Sydney and ultimately Brisbane. After that year he never saw his wife or child again.
For the following 46 years the testator maintained a distant and minimal connection with his wife only through the Public Curator. In 1940, while ill in hospital, he gave the Curator a power of attorney and instructed him to pay his wife £1 per week. That sum was gradually increased at the testator’s direction, ultimately reaching £23 per month. The wife occasionally wrote to the Curator asking for more; the Curator would seek instructions from the testator, who authorised specific increases but never communicated directly with her. The son, Gerard, had no recollection of his father, never attempted to contact him, and was discouraged by his mother from doing so. He left school at 14, worked first in the Postmaster-General’s Department, then passed the public service clerical examination and rose to section leader in the Tariff and Nomenclature Branch of the Department of Customs and Excise in Canberra. At the date of hearing he earned £2,200 gross per annum; his wife earned a further £800. They had three children, owned a home subject to a £3,000 mortgage and a motor car, and had made modest savings supplemented by a legacy from a paternal uncle.
In earlier wills the testator had once made provision for the son. The 1939 will left the residue to the wife for life and then to “Gerald Nygela Scales the son of the said Mary Josephine Scales”. By 1953 the son was omitted entirely and the wife received only an annuity of £20 per month, with residue going to the same ten charities. In 1958 the testator expressly told the solicitor he had no children and that “Gerald Nygella Scales” was not his son. Six months later he signed a note to the Public Curator stating that a person named Gerald Majalla Scales “may claim my Estate. He is nothing to me. He is the illegitimate son of my wife”.
The widow and son brought a joint application under The Testator’s Family Maintenance Acts 1914 to 1952 (Qld). Philp J. accepted their evidence unreservedly. He increased the widow’s provision to the income of a £20,000 fund for life plus a lump sum of £500. For the son he ordered an immediate £3,000 and a further £10,000 on the widow’s death. Only the charities appealed against the provision for the son. The High Court by majority (Dixon C.J. and McTiernan J.; Taylor J. dissenting on the outcome) allowed the appeal, discharged the orders in favour of the son, and confirmed the charitable gifts.
Dixon C.J., with whom McTiernan J. agreed, began by acknowledging the “very curious case” had caused him “a great deal of difficulty”. The ultimate conclusion rested on a close reading of the statutory words “adequate provision for the proper maintenance and support” and on the limited role the legislation gives the court.
The Chief Justice emphasised that each word must be given its value. “Adequate” and “proper” are relative concepts. What is proper maintenance and support for a particular claimant must be measured against his age, sex, condition, mode of life and situation generally. What is adequate must be measured against his own capacity and resources as well as against the size and character of the estate and the competing claims the testator himself regarded as superior. The legislation, while elastic, “cannot be pressed beyond [its] fair meaning”.
A critical passage adopted the statement of Fullagar J. in In re Sinnott that no special principle applies to an adult son, but “the approach of the Court must be different”. A widow or infant child is prima facie dependent and has a prima facie claim; an adult son is prima facie able to maintain himself. Therefore “some special need or some special claim must, generally speaking, be shown to justify intervention”.
The only connection between father and son was “the bare fact of paternity and no other mutual relation”. The son had no conscious memory of his father. He had never attempted contact. The testator had never known the adult son and, in later life, had expressly disowned him in both the will instructions and the 1958 note. The son had left school at 14, contributed almost all his wages to his mother, advanced steadily in the public service, married, raised three children, supported his mother until she was 81, and accumulated modest assets. He was not destitute. Additional money would be an advantage, but that is not the statutory test.
The Chief Justice also applied the moral duty formulation drawn from Salmond J. in In re Allen and approved in Bosch v Perpetual Trustee Co Ltd. The court must ask what a wise and just testator, fully aware of all relevant circumstances, would have felt morally obliged to do. But the court can never be certain it knows all the circumstances; the testator is dead and cannot give his side. Even if the testator could not have justified his early conduct in 1910-1914, that long-past conduct did not fix his testamentary duty in 1958. At the end of a long life in which the son had played no part, it was difficult to see why the testator should be deprived of his “complete freedom of testamentary disposition”.
Taylor J. took a different view of the same facts. He accepted that the testator had disregarded his obligations for decades and that the son’s support of his mother had indirectly enlarged the testator’s estate. He considered the son’s capital position modest, his wife’s earnings necessary to educate the children, and the complete absence of any competing claims on the bounty. In those unusual circumstances Taylor J. was not prepared to say that Philp J. had exceeded a sound discretionary judgment. The majority, however, held that the absence of any relationship beyond biology, the son’s self-sufficiency, and the long-standing and deliberate separation meant no moral duty arose that required the court to disturb the charitable gifts.
Before this decision the law in Queensland, as in other Australian States, was expressed in substantially the same language as the Victorian and New South Wales statutes. The Queensland Acts spoke of “adequate provision for the proper maintenance and support” and gave the court power to order lump sums or periodic payments. They also contained a discretion to refuse relief where the applicant’s character or conduct disentitled him or where refusal was reasonable in all the circumstances.
The High Court had previously considered the legislation in Bosch v Perpetual Trustee Co Ltd (on appeal from New Zealand) and had approved Salmond J.’s “just and wise father” test. State courts, notably Fullagar J. in In re Sinnott, had emphasised that adult sons stand in a different position from widows or infant children and that special need or claim is ordinarily required. McCosker v McCosker and Stott v Cook had shown that adult sons could succeed in appropriate cases, but those cases involved greater financial stringency or other distinguishing features.
The present decision reinforced the restrictive approach to adult sons. It made clear that the legislation does not authorise the court to equalise outcomes or to give an adult child a share simply because the estate is large and there are no competing moral claims. The court reiterated that testamentary freedom remains the starting point and that the statutory jurisdiction is not a general power to rewrite wills. The emphasis on relativity—“adequate” and “proper” judged by all the circumstances—has become a standard reference point in later family provision cases.
After the decision the law continued to develop, but the core propositions stated by Dixon C.J. have remained authoritative: the need for special claim or need in adult son cases, the limits on judicial rewriting of wills, and the requirement that moral duty be assessed from the standpoint of a wise and just testator placed in the actual testator’s position.
Dixon C.J. said: “The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. It seems certain that if at any time they had been brought face to face the son would not have known his father and the father would not have known the son … In truth there is the bare fact of paternity and no other mutual relation.”
Plain English: After the first few years there was literally nothing between them except biology. No relationship, no knowledge, no affection, no contact. That fact dominates the legal analysis.
He continued: “Much has been written about the principles which should guide the Court … But I do not think that any of the chief expositions give any foundation for applying the provisions to a case like this.”
Plain English: All the leading cases on family provision still require something more than the mere existence of a child before a court can override a will. This case has nothing more.
The Chief Justice adopted Fullagar J.’s statement from In re Sinnott: “an adult son is, I think, prima facie able to ‘maintain and support’ himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act.”
Plain English: Grown-up sons are presumed to look after themselves. The court will not step in unless there is a special reason—either unusual financial hardship or some other strong moral claim.
He added: “One must not confuse the question with his duty to his widow. That depends on other considerations. It is dealt with by the order of Philp J. and is not before us. ‘Duty’ no doubt does not afford an exclusive test, indeed it is not right to treat it strictly as a test at all. It is but an element, however important an element, that is to be taken into account in weighing all the considerations.”
Plain English: The duty to a wife is different from any duty to an adult son. Moral duty is important but not the only factor; everything must be weighed together. Here the scales came down against the son.
Finally: “If one really considers the situation of this old man in the closing stages of a long life in which his son has played no part at all, a son to whom his father has meant nothing and who did not even know him, it is hard to see why the testator, in the interest of his son, should be deprived of his complete freedom of testamentary disposition.”
Plain English: At the end of his life the testator was entitled to decide who should have his money. The law does not force him to leave it to a stranger who happens to be his biological son.
This decision is triggered when an adult child, particularly an adult son, applies for further provision from an estate in which the testator has made no or minimal provision and where the relationship between testator and child has been non-existent for decades. Key factual indicators include:
The precedent does not apply where the applicant is a minor, a disabled adult, or a spouse, nor where the adult child can point to sacrifice, contribution to the estate, or a continuing emotional or financial relationship. It is particularly apt where the testator’s will reflects a conscious and long-held decision to prefer charitable objects over distant family members.
Although the judgment itself cannot cite its own subsequent treatment, the reasoning of Dixon C.J. has been treated as authoritative on the limits of the family provision jurisdiction. The passages concerning the prima facie position of adult sons, the relativity of “adequate” and “proper”, and the preservation of testamentary freedom have been repeatedly approved. The decision is cited alongside In re Sinnott, Bosch and Stott v Cook as illustrating that the legislation does not create a general power to redistribute estates according to judicial notions of fairness. Courts have accepted that a complete absence of relationship across a lifetime can negative any moral duty, especially where the claimant is not in financial need. The majority’s refusal to disturb charitable gifts in the face of an adult son’s claim has been regarded as confirming that charities are not automatically displaced merely because an adult child would like a share. The judgment’s caution against courts assuming they know “all the relevant circumstances” has reinforced the deference appellate courts give to a testator’s expressed intentions when those intentions are rational on the known facts.
The judgment leaves open how a court should weigh an adult child’s moral claim when the testator’s disownment is based on a genuine but mistaken belief (for example, a reasonable but erroneous doubt about paternity). Dixon C.J. noted that the 1958 note was “no evidence of the truth of its contents” yet could explain the testator’s state of mind; whether such a belief, even if unreasonable, can negative moral duty remains a matter of degree.
The decision does not define the minimum “special need or special claim” that might justify an order in favour of an adult son who has had no relationship with the testator. Is long-term financial hardship sufficient, or must there also be some contribution to the testator’s welfare or estate? The case suggests that support given to the widow in relief of the testator’s obligations may be relevant, but its weight is not settled.
The interaction between the moral duty to a widow and to adult children is expressly left for another day; the Chief Justice noted that the widow’s claim “depends on other considerations” and was not before the Court. How a court should balance a modest annuity to a widow against further provision for an adult son where the estate is larger remains open.
Finally, the judgment hints at a broader concern that family provision litigation may be drifting toward routine re-writing of wills. Whether that tendency has been sufficiently checked, and what role appellate courts should play in restraining first-instance generosity, continues to generate debate. The present decision stands as a strong statement that testamentary freedom still has real content, but the precise boundaries in marginal adult-son cases are not exhaustively mapped.
High Court of Australia Dixon C.J. McTiernan and Taylor JJ. Pontifical Society for Propagation of Faith v Scales [1962] HCA 19
ORDER Appeal allowed. Order that all parties be paid their costs of the appeal out of the estate. Discharge so much of the order of the Supreme Court dated 22nd December 1960 as makes a provision out of the estate of David Scales deceased for the applicant Gerard Majella Scales that is to say: strike out of par. 1 of the said order the words and Gerard Majella Scales; strike out par. (b) of the said order; strike out par. (c) (ii); strike out of par. (c) (iii) the words the balance of; strike out of par. (d) of the said order the words and Gerard Majella Scales. Confirm the order as to costs in par. 2 of the said order.
This very curious case has occasioned me a great deal of difficulty but in the end I have formed the opinion that the appeal should succeed. The appeal is by certain charities against so much of the order of the Supreme Court of Queensland (Philp J.) as varies the dispositions of a will so as to confer benefits upon the respondent. The will is that of David (Patrick) Scales, who died in Brisbane on 15th February 1960. He was eighty-six years old. The will - his last will - had been made on 24th March 1958. At the age of thirty-six, on 23rd February 1909, he married Mary Josephine Eiffe who was then twenty-nine years of age. They were married at Broken Hill. From Broken Hill they went down to Semaphore near Adelaide, whence not long afterwards they, or perhaps she, moved to a flat or apartment in Hutt Street near King William Street, Adelaide. There on 13th January 1910 the child of the marriage was born, Gerard Majella Scales: he is the respondent to this appeal. At the time of his birth the testator and his wife were drifting apart and when she registered the birth of the child, as she did on 7th February 1910, she gave the rank and profession of the father as "Farmer, Pinnaroo". In fact he and a brother conducted a farm at Pinnaroo. The son has no conscious recollection of ever seeing his father. He was brought up by his mother, who was eighty-one years of age at the death of her husband and joined with her son in an application under The Testator's Family Maintenance Acts 1914 to 1952 of Queensland for an order that an adequate provision be made for them out of the estate of the testator. The testator's estate had been sworn for probate at over £50,000 gross, an amount which by death duties, liabilities and the like will be reduced, it is said, to £36,000 odd. Subject to an annuity of £21 a month to Mary Josephine Scales, his wife, the testator by his last will disposed of his estate in favour of ten charities, eight of them in South Australia, one in Western Australia and one in Queensland, each of the ten charities to take a tenth share. The Public Curator of Queensland was appointed executor and trustee. The respondent, Gerard Majella Scales, is not mentioned in the will at all. Philp J. decided that the widow should receive from the estate the income of £20,000 during her life and should receive also a lump sum of £500 "to allow her to buy things she wants and to tide her over the time which will elapse before she receives income". To the son he gave a lump sum of £3,000 and a sum of £10,000 out of the estate on his mother's death. There has been no appeal against so much of the order as makes a provision for the widow, but against that part of the order which makes the provision in favour of the respondent, Gerard Majella Scales, this appeal has been instituted by two of the charities.
Of the life of the testator during the period of forty-six years that passed between his last visit to his wife and his death, little appears. His last visit, according to her recollection, took place in 1914. His assets at the time of his death consisted of shares in mining companies and in an oil exploration company. He died in hospital in Brisbane and probably for upwards of twenty years he had lived in Brisbane, first in North Brisbane and later at the Kingsley Private Hotel, George Street. He made a will at the end of 1939 (29th December 1939) and another dated 1st September 1953, in each of which he named the Public Curator, Queensland, the executor and trustee. Counsel for that official, with concurrence of counsel for the other parties, informed the learned judge that in 1940 the testator had been taken to hospital very ill and required someone to conduct his affairs. Later in that year he gave a power of attorney to the Public Curator and instructed him to pay the testator's wife £1 a week as from 7th February 1940. As time went on, the amount of the payments was increased until in the end it was £23 a month. Mrs. Scales sometimes sent a missive to her husband contained in an envelope addressed to the Public Curator. The inference was that she asked for a greater allowance. Sometimes she would ask the Curator directly to increase the amount of the payments. In each case the Curator would receive instructions from the testator directing him to make some specified increase in the rate. The Curator acted under the power of attorney until 1952: then he acted for the testator until his death under some other authority; its nature is not clear. The amount of the remittances went up to £21 and then £23 a month. The testator never seems directly to have communicated with his wife and, except as already stated, she did not communicate with him. The respondent, Gerard Majella Scales, never throughout his life attempted to see or communicate with the testator at all. Philp J. asked the respondent Scales, when he was examined as a witness, whether he ever got in touch with his father, and upon his replying "No", asked him why not. His answer was this: "Well, mainly because I think my mother discouraged me from doing so, in that she felt it might cause trouble if I chased after him. Secondly, at the same time I thought I might find something that I did not want to find. I thought it is a most unnatural set-up. I thought he could even have been living with some persons. He could have married again." When the testator left Pinnaroo is uncertain but it seems likely that it was in 1914 or 1915. He continued to send a small allowance to his wife who eked out a livelihood by letting part of the flat and by sewing for a tailor. The allowance was dropped at one stage and she said in her evidence: "He stopped the money. I said I was sewing and he assumed I had enough money and I put the police on to find his address. I told them to remind him that he had a wife and child in Adelaide and I wanted more assistance and straightaway he said to the policeman at the door "I will send her some money now", and he did." When she gave evidence before his Honour she was eighty-one years of age but the learned judge in his judgment says of her: "Mrs. Scales is an intelligent woman apparently in good health but very deaf and difficult to question. I unreservedly accept the evidence given by her and her son." By collecting certain answers she gave to the appellants' counsel and to the learned judge, it is possible to obtain the picture she has preserved in her memory of her very short married life: "Have you lived with your husband at all since 1910? - I saw him before that. It was in 1914 when my son was four years old, but he was just in and out to the farm, and he came to visit me in 1914. He came in to see me and I saw him. He was sending me money. He last visited you in 1914? - I remember that, because the boy was four years old. Did you ever live with your husband? - Yes, I must have. Yes, we were married on 23 February and I conceived in April." "I take it that you and your husband lived together for about a year? - He was with me for a few months. I think that was all. He visited me regularly. He was out on the farm and he came up to Adelaide and I was in a room then. What year was that? That was in 1910, was it? - 1909 and 1910, yes. In 1909 was when I was sick and he came in and out a lot then. In 1910 he came and saw the boy and he saw the boy later." "He was such an unaffectionate man. He cared nothing for me, or the boy, or anything. Then after 1910, your husband stopped visiting you? - He never stayed with me or lived with me." "By his Honour: Why do you say your husband left you? - Because he was the strangest man in the world. He was a strange man and he was in poor health and I married him, and I think he was better off away from everybody and I think that might have been some reason for it. But you say you gave him no cause to leave you? - He started with his brother farming and from that time he seemed to like being away by himself. He was always a man like that. He never corresponded. Did he ever tell you why he was not living with you? - No, he never made any complaints. When the child was born he paid all the bills and bought me a little go-cart to use. That was a big surprise to me. When your baby was born, did your husband come to see you? Did he come to see you before your baby was born and after? - If you understand farming, it was just the middle of harvest and he had put money into that with his brother and he had to work hard and not forsake it, and that is why he did not come in in the middle of January. That is why he could not come in. How far away was this farm from where you were living? - Pinnaroo. I do not know how far out that was from Adelaide, but not very far. [In fact it is near the Victorian border.] He would get the express and come in. Did he come in while you were pregnant? - Before the baby was born? Yes, of course? - He came in several times. Did he come in after the baby was born? - Yes. How many times would he see the baby, would you say? - Off and on up until the boy was four years old. Did your husband ever suggest to you that the child was not his, that it was illegitimate? - Never. Never. He never gave me that idea at all. You know of course, that he left a document in which he says it was not his child? - It is his child. As I understood it, your husband finally left you? - He was a man who liked to live by his own self. He had no friends. He did not want friends. He wanted to live by himself. When did you last see him? You say you saw him in 1914? - He came down in 1914. When did you last see him after he left you somewhere about 1910? When did he finally cease to live with you? - About 1914. That is when he finally ceased to live with you? - Yes. I understand from what you told Mr. Gibbs that he had not lived with you since 1910? - No, never lived with me from the time I conceived. After the baby was born, how did you support yourself and the baby? - He was sending me some money. About how much? - Quite enough money at the time, and I had a flat where the baby was born. Why did you not take him to court to get maintenance from him? - He was giving me money and he was not affectionate, lovable, after that happened, and I sort of drifted away myself." Upon this evidence it seems to be clear enough that after the child was conceived they did not again cohabit, and that such matrimonial relationship as was maintained was very tenuous and came to depend, if it could be considered still to exist at all, upon a meagre, though perhaps regular, supply of money. No one except the testator seems ever to have expressed or entertained any doubts as to his being the father of the respondent and on very strong evidence it has been found that the testator was certainly his father. But from the beginning the testator seems to have taken little or no interest in his son and in the earliest document under his hand which we have in which his son is mentioned, he is pointedly described as Gerald [sic] Nygela [sic] Scales "the son of the said Mary Josephine Scales". That is in a will made on 29th December 1939, the first of the three wills in evidence. In this will the testator bequeathed three general pecuniary legacies of £300 each to a niece and two cousins, about one of whom he expressed uncertainty as to his survival and whereabouts. He bequeathed £50 each to six charities in South Australia and £1,000 towards a fund to establish in Adelaide a home for orphan and neglected boys under the Salesian Order of Priests. The residue he devised and bequeathed upon trusts for conversion and to hold the proceeds upon trust to pay the income "to my wife Mary Josephine Scales during her life and from and after her death my Trustee shall stand possessed of the capital of the said trust fund upon trust for Gerald Nygela Scales the son of the said Mary Josephine Scales for his own use and benefit absolutely".
In the second will the name of the respondent, Gerard Majella Scales, is entirely omitted and the residuary gift to the testator's wife is replaced by a bare annuity of £20 a month to her. There was a gift of residue in tenth shares to the same ten charities as in his last will. The will was dated 1st September 1953. He named his place of residence as Kingsley Private Hotel, George Street, Brisbane. When he gave instructions for the will of 1939 the testator is said to have stated that he had no children and that he and his wife had been living apart for some years. When he gave instructions for the will of 1953 he said that he had no children and that Gerald Nygela Scales, son of his wife, was not his son. At the office of the Curator there was received a note dated 10th September 1958, that is to say nearly six months after the making of his last will; it was addressed to the Public Curator, Brisbane, and it was signed by the testator. It said: "A person named Gerald Majalla Scales in the Government Service Canberra may claim my Estate. He is nothing to me. He is the illegitimate son of my wife. David Scales". There is nothing to show what prompted this communication.
Turning to the life which the respondent, Gerard Majella Scales, has pursued and his present position, we get a picture of early devotion to his mother, steady advancement in the Public Service, marriage, the birth of children, and the proper discharge of all the obligations of family life and a praiseworthy career. Speaking of his early years, Philp J. says: "The son having left school when he was fourteen obtained employment in the Postmaster-General's Department and for many years gave practically all of his wages to his mother. He married in 1941 and continued to contribute to his mother's support until after his first child was born. He thinks that his father then at his mother's request increased her allowance. His mother continued to live with him until he was transferred to Canberra in 1956 when his mother went to live in a little rented cottage in Adelaide of which the rental was 15s. a week." He left school at the age of fourteen under the necessity of earning something and went into the Post Office. His mother took in tailoring work and his earnings slowly increased. Having passed the clerical examination of the Public Service he was appointed to the Customs Department. He and his mother continued to live together and when he was posted to Port Pirie for a time, he sent his contribution to her upkeep. Upon his marriage in 1941 they continued to live together and that went on until 1956 when he was posted to Canberra. At the time of the hearing before Philp J. he was a section leader in the Tariff and Nomenclature Branch of the Department of Customs. His gross salary was £2,200 a year. To help in the education of their children and otherwise, his wife took employment and earned about £800 per annum. At the date of the hearing their eldest child, a daughter aged eighteen, had entered the Public Service and a daughter and a son, both aged sixteen, had not completed their education. The respondent Scales had made no great savings but an uncle on his father's side had left him a legacy and they had been able to purchase a home, subject to a mortgage, and a motor car.
The question is whether, in the circumstances disclosed by the foregoing narrative, there is any sufficient justification under The Testator's Family Maintenance Act of Queensland for varying in favour of the respondent, Gerard Majella Scales, the provisions of the testator's last will. The legislation of Queensland upon the subject is to the same effect as that of other States. It speaks of "adequate provision for the proper maintenance and support" of the wife, husband or children and, like the Victorian legislation, does not employ also the words "education or advancement in life" as does the statute in New South Wales, but that is not a matter of any importance, at all events in the present case. The Court may make a provision of a lump sum or of periodical or other payments. The Court may refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the Court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable. Again this provision has little direct bearing on the facts of the present case. The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. It seems certain that if at any time they had been brought face to face the son would not have known his father and the father would not have known the son. The mother may have been wrong in discouraging her son from getting in touch with the testator, as he says she did. Doubtless some reason lay under the feeling he ascribed to his mother that "it might cause trouble if he chased after him". But the result of that and of the testator's attitude was that neither would know the other or have any direct knowledge concerning him. In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator's death.
Much has been written about the principles which should guide the Court in administering the provisions of the Testator's Family Maintenance legislation. But I do not think that any of the chief expositions give any foundation for applying the provisions to a case like this. It has often been pointed out that very important words in the statute are "adequate provision for the proper maintenance and support" and that each of these words must be given its value. "Adequate" and "proper" in particular must be considered as words which must always be relative. The "proper" maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is "adequate" must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words "proper maintenance and support", although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court. An observer of the course of development in the administration in Australia of such statutory provisions might be tempted to think that, unchecked, that is likely to become the practical result. Perhaps this Court and other Courts of Appeal have attached too much significance to the discretionary aspects of orders under appeal and have accordingly allowed orders to stand which no member of the Court of Appeal would himself have made, had he sat at first instance.
In the present case the application for a provision for maintenance and support is by an adult son. In In re Sinnott [1] in the course of what is perhaps the soundest and most illuminating of all the discussions of the statutory provisions, Fullagar J. remarked: "No special principle is to be applied in the case of an adult son. But the approach of the Court must be different. In the case of a widow or an infant child, the Court is dealing with one who is prima facie dependant on the testator and prima facie has a claim to be maintained and supported. But an adult son is, I think, prima facie able to "maintain and support" himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act" [1] . In the course of a well-known judgment Salmond J. in In re Allen dec'd. [2] said: "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 [3] ." This view has been repeated frequently and has been adopted in the Privy Council (Bosch's Case [4] ), though with the somewhat important change of requiring the Court to put itself in the position of the testator, not of requiring it to assume a just and wise man fully aware of all the circumstances. The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator is dead and cannot tell his. It may be that if the testator in this case could tell his no valid or plausible defence of his conduct to his child in 1910 and for some years thereafter would or could be made by him. But that is a long time ago and cannot determine once for all his duty forty years later to make a testamentary provision for a son to whom he himself has always been nothing. One must not confuse the question with his duty to his widow. That depends on other considerations. It is dealt with by the order of Philp J. and is not before us. "Duty" no doubt does not afford an exclusive test, indeed it is not right to treat it strictly as a test at all. It is but an element, however important an element, that is to be taken into account in weighing all the considerations. One consideration here is that the son has made his way in life and though, like most people, he would find more money an advantage, he is not in need. If one really considers the situation of this old man in the closing stages of a long life in which his son has played no part at all, a son to whom his father has meant nothing and who did not even know him, it is hard to see why the testator, in the interest of his son, should be deprived of his complete freedom of testamentary disposition.
It is on these grounds that I think the appeal should be allowed. I would discharge the order in favour of the respondent, Gerard Majella Scales, but allow his costs of the application to the Supreme Court and the costs of all parties to the appeal out of the estate.
I agree in the order proposed by the Chief Justice and in his reasons and I have nothing to add.
In this appeal we are asked to review, in part, a discretionary order made by the Supreme Court of Queensland (Philp J.) pursuant to The Testator's Family Maintenance Acts, 1914 to 1952 Q.. By his order the learned judge of first instance directed that the widow of the appellant should be paid out of the estate of the testator the sum of £500 and, further, that she should, during her lifetime, receive the income of a fund of £20,000 provided out of the estate. At the same time provision was made for the son of the testator, Gerard Majella Scales, and this was based upon his Honour's decision to direct that there should be paid to him £3,000 immediately and, upon his mother's death, one-half of the fund the income of which was directed to be paid to her during her lifetime. In the result, however, the final order did not provide for payment of the sum of £3,000. In lieu thereof securities to that value were, apparently by agreement, directed to be transferred. There is no appeal against the order in so far as it relates to provision for the testator's widow and the appeal against the order, in so far as it makes provision for the testator's son, raises the question whether a case for relief under the Act was made out and, secondly, whether the order which was made was excessive.
Philp J. regarded the case of the respondent as a difficult one and it was, as he said, unique. At the time of his father's death on 15th February 1960 the respondent was fifty years of age. He had been married for approximately nineteen years and he had three children, a son and daughter each aged sixteen years and another daughter two years older. The elder daughter was employed in the Commonwealth Public Service and the younger children were still at school when the application was made but the younger girl commenced work about a fortnight before the hearing. At that time the respondent was receiving a gross salary of £2,200 a year. Upon these bare facts it would not be possible to justify an order pursuant to the statutory provision but they are by no means the whole of the relevant facts.
The respondent's parents were married at Broken Hill about eleven months before he was born. This latter event occurred in Adelaide on 13th January 1910. His parents had moved from Broken Hill and had obtained accommodation at a boarding-house in a suburb of Adelaide. But the testator lived there for a few months only and then commenced farming with his brother at Pinnaroo, some distance from Adelaide. During the next four years he came to Adelaide many times and saw his wife and son and during this period he supported them. But in 1914 he went to Sydney and, ultimately, to Brisbane. For a time he sent some small sums of money to his wife but he ceased to do this a little later. Thereafter until he was traced by the police he seems to have sent nothing though later he sent further small sums until the respondent, at the age of fourteen years, commenced work. Whether the testator intended to leave his wife permanently when he went to Sydney and then to Brisbane does not appear. Nor is there the slightest indication of any reason why he left. But there is nothing in the case to suggest that there was any fault on the part of his wife and certainly there was not on the part of the respondent who was then only four years old. The fact is, however, that the testator never returned home and never thereafter concerned himself in the slightest about the welfare of his wife and child. From the time when the testator left his wife struggled to bring up the child. He received some secondary schooling and then commenced work. From then until his marriage the respondent made regular contributions, small at first but increasing as the years went on, towards the maintenance of the home. After his marriage his mother lived at his home until he was transferred to Canberra in 1956. She is now eighty-three years of age and is living at a home for old people at Randwick. After her son's marriage she managed to obtain some assistance from the testator, first of all at the rate of £1 a week, then at £2 per week and in later years about twenty-one or twenty-three pounds per month.
When the testator left Adelaide he was not possessed of any substantial means, but when he died his estate was valued for the purposes of death duties at an amount in excess of £50,000. We are told that after payment of death duties and administration expenses there will be a net estate of approximately £36,000. There is no evidence in the case to indicate how, or in what manner, the testator managed to acquire an estate of this magnitude. But the fact is that he did and that he managed to do so while constantly disregarding his obligations to his wife and child and without affording them any inkling of his financial prosperity. Apparently, by the end of 1939 he was a person of some substance for in that year he made a will leaving the residue of his estate to the respondent subject to the payment of the income thereof to his wife during her life. This gift of residue followed legacies of £300 to each of three relatives, legacies of £50 to each of six religious organizations and a legacy of £1,000 to the Roman Catholic Archbishop of Adelaide "as a nucleus of or bonus towards a fund to establish a home for orphans and neglected boys". This was followed by another will in 1953 by which he gave to his wife an annuity at the rate of twenty pounds per month. Nothing was left to the son, the residue being given in equal parts to each of ten religious or charitable organizations. Then in 1958 the testator, at the age of seventy-eight or seventy-nine years, made his last will. By it he gave to his wife an annuity at the rate of twenty-one pounds per month, the residue being bequeathed in equal shares "for the purposes" of each of the ten organizations specified in his second will. This will was dated 24th March 1958 and in giving instructions for its preparation the testator stated that he had no children; he said that the respondent, "Gerald Nygella Scales", was not his son, and on 10th September 1958 he signed a document stating that "a person named Gerald Majalla Scales may claim my estate". The document went on to say "He is nothing to me. He is the illegitimate son of my wife".
It should be said at once that there was no evidence in the case which threw the slightest doubt on the respondent's parentage. On the contrary, there is every indication that there was no justification whatever for the testator's assertion that he was not his father. As already appears the testator and his wife were married in February 1909 and the respondent was born on 13th January 1910. His birth was registered by his mother on 7th February 1910 and the testator appears on the register as his father. It is not surprising that the mother registered the birth for the respondent was born whilst harvesting operations were going on at Pinnaroo. But, as already appears, during the next three or four years the testator supported his wife and child and came to see them many times. The assertion that the respondent was the product of adulterous intercourse during the first two months of the marriage is, in itself, strange enough but it is impossible to believe that the testator during this period had any cause whatever to think that he was not the respondent's father. Nor was any such suggestion made by him when he left Adelaide to come to Sydney and Brisbane or when pressed, on subsequent occasions, to contribute to his wife's support. It is, perhaps, sufficient to add that the respondents to the application did not, in any way, attempt to support the testator's assertion.
The signed statement, itself, is no evidence of the truth of its contents (Re Richard Edward Jones [1] ; Re G. Hall (dec'd) [2] ; and In the Will of Jolliffe [3] ) though statements made by a testator in his lifetime may provide some evidence of the reason why he has disposed of his estate in a particular way. Whether or not the statement in question here discloses why the testator thought it proper to exclude the respondent from any testamentary benefit is impossible to say. But if it does it is apparent that in his latter years he entertained a completely unfounded belief which led him to disregard every parental obligation. On the other hand, if he did not entertain that belief, his statement represents no more than a senile attempt to justify the terms of his will. In that case also his will was executed with complete disregard for any moral obligation which he had towards the respondent.
Cases such as In re Sinnott [4] ; McCosker v. McCosker [5] ; and Stott v. Cook [6] make it clear that the fact that an applicant is an adult son does not necessarily mean that relief in applications of this character must be refused. But such cases present special difficulties and, of course, before relief can be granted it must appear that the circumstances are such that the applicant is, in the language of the Queensland Act, left without "adequate provision for his proper maintenance and support". But what is "adequate" and what is "proper" must be determined in the light of all the circumstances of the case. It is, of course, contended strongly that the respondent was not in need of maintenance or support. He was in receipt of a salary of £2,200 per annum which left him, after payment of tax, with a net salary of somewhere about £1,800 or £1,900 per annum. He has a motor car and a home upon which he owes £3,000. His income is considerably more than that of the appellant in Stott v. Cook [6] , but his capital position is no better. He is, according to the learned judge of first instance in "moderately good circumstances" but he has had nothing to spare in bringing up his family. Indeed, for a period of five years prior to the application his wife found it necessary to obtain employment in order that the children might be educated. Moreover, the support which the respondent gave to his mother for many years, in relief of the testator, undoubtedly contributed to the diminution of his own resources and to the enlargement of those of the testator. The conclusion is, I think, inevitable that had the testator made any reasonable attempt to fulfil his marital and parental obligations the respondent and his family might well have been enjoying now a higher standard of living than that which his present means permit. He is not, of course, destitute but this is beside the point; in all the circumstances of the case he had, in my view, sound grounds for thinking that the testator was not morally free to dispose of his estate without regard to his claims. Was he not in the circumstances set forth entitled to say that, in the absence of any other claims on the testator's bounty, there was a moral obligation on the testator to restore him, in some measure at least, to the standard of living which might otherwise now have been available to him? Philp J. was firmly of the opinion that he was and when I ask myself, in the language of Kitto J., in Stott v. Cook [1] whether the testator, if he had been "wise and just without necessarily being also affectionate could have sat down to dispose of an estate of" £50,000 "without feeling driven - not by a sense of fairness for that would be irrelevant - by a sense of moral obligation to make some provision" towards the alleviation of the respondent's position, I find some difficulty in denying the respondent's title to some relief. I do not overlook the fact that the testator and the respondent lived entirely separate lives and that the bonds which normally exist between father and son were entirely missing. The existence of this state of affairs is, of course, of considerable importance in the case and its weight is not greatly diminished by the fact that its origin is to be found in the testator's conduct. But, important as it is, it is but one feature of a case which, having regard to the whole of the circumstances, is quite unusual. Nevertheless it is a circumstance which weighs heavily with me. But when I take into consideration the whole of the facts of the case I am not prepared to hold that, in making an order in favour of the respondent, the learned judge of first instance travelled beyond the bounds of a sound discretionary judgment. The order which he made was undoubtedly generous and it is probable that his Honour, in making it, was to some extent influenced by the fact that there were no competing claims. But since two other members of the Court are of the opinion that the order should be discharged it is unnecessary for me to go further and express an opinion as to whether the provision made by the order was excessive.
Pontifical Society for Propagation of Faith
Scales
Appeal allowed. Order that all parties be paid their costs of the appeal out of the estate. Discharge so much of the order of the Supreme Court dated 22nd December 1960 as makes a provision out of the estate of David Scales deceased for the applicant Gerard Majella Scales that is to say: strike out of par. 1 of the said order the words and Gerard Majella Scales; strike out par. (b) of the said order; strike out par. (c) (ii); strike out of par. (c) (iii) the words the balance of; strike out of par. (d) of the said order the words and Gerard Majella Scales. Confirm the order as to costs in par. 2 of the said order.