HEARING DATES: 30 November, 1, 2, 3, 6 December 2004

Succession - Family provision and maintenance - Principles upon which relief granted - Application of children - Adult daughters - Long estrangement - Working single mother with four children - Large estate - Allegations of sexual abuse not proven.

Testator's Family Maintenance Act 1912 (Tas), ss3(1), 8(1).

Judgment Number: [2005] TASSC 34

TANIA CATHERINE BOUWMEESTER, JOHN RUSSELL UPCHER

1 This is an application under the Testator's Family Maintenance Act 1912 ("the TFM Act") in relation to the estate of the late Bert Bouwmeester, who died on 4 July 2003. The applicant is an adult daughter of the testator. He made no provision for her in his will. His principal beneficiaries were his widow, who is the first respondent, and another daughter, who is the second respondent. They and a legal practitioner, the third respondent, were appointed as his executors. The first and second respondents were separately represented in their capacity as the principal beneficiaries.

2 The testator married twice. He and his first wife, Winn, had four children. The eldest was born before they were married, was adopted, and was rarely spoken of. As well as the applicant and the second respondent, they had a son named Daniel. The testator and Daniel had a falling out during the 1980s. The testator made no provision for Daniel in his will. Daniel has not made an application under the TFM Act.

3 The testator's first wife died on 1 September 1988. The testator's second wife, who is his widow and the first respondent, was the sister of his first wife. They married on 6 December 1997. Their marriage continued until his death.

4 According to the short form affidavit sworn by the executors for the purposes of their application for probate, the assets and liabilities of the testator at the time of his death can be summarised as follows:

5 The values attributed to the two pieces of real estate as at the date of death were, as is commonly the case, based on Government valuation figures, and probably significantly lower than market values. Both properties have no doubt increased in value since the death of the testator.

6 By his will, the testator bequeathed a legacy of $10,000 to his sister. It was common ground that she should receive that amount in full, whatever the outcome of these proceedings. I understand that the legacy was paid before the trial. The widow and the second respondent were the only other beneficiaries under the will. The widow received a right to live in the Battery Point apartment as long as she wishes; all the testator's household chattels apart from antique furniture collected by him and his first wife, his first wife's former possessions, and a painting of his first wife; and half the residuary estate. The testator left to the second respondent the antique furniture collected by him and his first wife, his first wife's former possessions, her painting, the Moonah property, and half the residuary estate. The will included a provision as to the division between the widow and the second respondent of any superannuation moneys that might become payable to the estate.

7 That will was made on 27 February 2002. By a codicil made on 2 July 2003 the testator bequeathed to his widow any proceeds of his superannuation fund that became payable to his estate; and gave his residuary estate to the widow and the second respondent in equal shares, provided that the division of the residuary estate was to be effected by taking into account, or bringing into hotchpot, the amount that the widow received from the superannuation fund, whether pursuant to the codicil or otherwise, and any amount standing to the credit of the widow with the superannuation fund at the date of his death.

8 The relevant superannuation was valued at $722,264 as at the date of death. That superannuation is additional to the estate assets referred to in the executors' short form affidavit.

9 The widow works two days per week as a counsellor. Her gross annual salary is $27,937. Before receiving her superannuation entitlements she had a savings account with a balance that exceeded her credit card liability by only hundreds of dollars. At the time of swearing an affidavit in March 2004, she had about $16,500 invested in shares, and about $72,000 in her own superannuation entitlements. She continues to live in the Battery Point apartment, which was the last home of the testator. She is 57 years old, and in good health for her age. She formed a close and loving relationship with the testator about 5 months after her sister's death in 1989. That relationship endured for the rest of the testator's life. It was obviously appropriate for the testator to provide for a substantial part of his estate to pass to her.

10 The second respondent is now 41 years old. She is a student. She trained as a nurse in the 1980s. She did not leave her father's home until she was 31 years old. She had a close and loving relationship with him, more so after the applicant left the family home in 1988. She lives in a de facto relationship with a man who is a finance broker with a car yard. He has no assets, apart from a half interest in their car. His income is low. They live in a house in West Hobart that is owned by the second respondent and heavily mortgaged. The widow has made a loan to her from the superannuation moneys that she received. It was obviously appropriate for the testator to make substantial provision for the second respondent from his estate.

11 The applicant left her parents' home in March 1986, when she was 20 years old. She did not tell them she was leaving. They were running a motel. She left with one of the guests, a Mr Rowley, and went to live with him in Melbourne. He was 35 years old. She expected her parents to disapprove of her departure. Her relationship with her parents did not recover. The applicant lived with Mr Rowley for a little over 17 years. They were married in 1988. They have four children. Mr Rowley left the family home on 10 May 2003, about 8 weeks before the death of the testator. Property proceedings between the applicant and her husband under the Family Law Act 1975 (Cth) are pending in the Family Court of Australia in Melbourne. They are likely to go to trial in June 2005.

12 The assets and financial resources of the applicant and her husband are as follows:

(a) They own a house, in which the applicant and the children live, in the Melbourne suburb of Brighton. It is worth about $625,000. It is unencumbered, or practically unencumbered.

(b) The husband controls a company named Soundequip Pty Ltd. It used to hire out equipment to television and radio stations, but apparently now only sells such equipment. According to its balance sheet for 30 June 2003, its assets exceeded its liabilities by $39,574. However I am not in a position to determine the true value of the company. The balance sheet is now nearly two years old. Goodwill is not shown as an asset. I cannot tell whether that is appropriate or inappropriate. Trade debtors account for more than half the current assets, but I do not know what proportion of the trade debtors figure, if any, is attributable to bad debts. I do not know how realistic the written down values of the plant and equipment and motor vehicles are. The balance sheet shows that the company owed Mr Rowley $22,652 as at the balance date. The change in the nature of the business from leasing to selling may have occurred after the balance date. The figure of $39,574, in the circumstances, gives only the slightest indication of the true worth of the company.

(c) According to a financial statement dated 5 February 2004 and filed by the husband in the Family Court, he then had minor assets comprising $547 in a bank account, shares worth a total of $1,608, a Toyota Tarrago vehicle worth $4,000, household effects, and superannuation worth $58,620.

(d) The applicant has a car, for which she paid $14,000 in June 2003.

(e) The applicant has superannuation entitlements worth about $22,000.

(f) The applicant owns the assets of a business that she now operates named Chocs and Candy. She financed that business with a loan from a bank. It is likely that the net value of the business is minimal. That business replaced a small carpet business that the applicant established just before her father's death.

13 The applicant's principal sources of income are child support payments, a Centrelink pension, and Centrelink family allowance payments. As at August 2004, the pension amounted to $470 per fortnight, the family allowance payments totalled $284.90 per fortnight, and the child support payments were normally $1,818.58 per month. In addition to the child support payments, her husband has been paying the household insurance premiums, the council rates, the water rates, the gas and electricity bills, private health insurance for the family, and the applicant's mobile phone bills. This expenditure amounts to about $120 per week. The applicant's business income, if any, is minimal. She sometimes receives Centrelink payments that are much larger than usual. Her eldest child attends a private school, with a scholarship so that only half the usual school fees are payable. The other children attend government schools.

14 The outcome of the property litigation in the Family Court is not able to be predicted with any precision. The applicant once suggested in a letter that she might hope to receive 70 per cent of the couple's net worth. Her husband may have similar expectations. It seems likely that her principal contentions will be that she made substantial contributions over 16 years as homemaker and parent, and working in her husband's business; that she is disadvantaged because she is the children's primary carer; that her earning capacity is lower than that of her husband; and that some allowance ought to be made for the fact that her husband is an alcoholic, and might therefore cease supporting the children before they become independent. The husband's contentions are likely to be that he made a greater initial contribution to the assets, the applicant having come into the relationship with nothing; that he made a substantially greater contribution to the business assets; that he is providing substantial support for the children; that a substantial proportion of the assets resulted from a recent inheritance from his mother; and that the goodwill of his business is personal to him and therefore of no real value. If I order any provision to be made for the applicant from the estate of the testator, that entitlement will have to be taken into account as an asset or resource of the applicant, to the advantage of the husband.

15 Mr Read submitted on behalf of the beneficiaries to the effect that Soundequip Pty Ltd had shown a profit each year of between $150,000 and $220,000; that that company could be expected to be worth between $200,000 and $500,000; and that, on the basis that the applicant should receive 70 per cent of the relevant assets and financial resources, she is likely to retain her home unencumbered, as well as its contents and her motor vehicle. I disagree. For one thing, I think there is a strong chance that the applicant will end up with a distribution of assets and financial resources far less favourable to her than the 70:30 split that she has spoken of. Further, I think the profitability of the company has been overestimated by Mr Read. Using figures from the balance sheets for the four years from 2000 to 2003, I have calculated the income generated by the company as follows:

It may be that the figures shown for superannuation and wages include components in respect of employees other than the applicant and her husband. Even if that is not the case, it seems that the income generated by the business has varied within the range of $50,000 to $140,000 per annum. It certainly does not follow that the company is of significantly greater value than the 2003 balance sheet would suggest.

16 Substantial legal fees have been incurred already in relation to the Family Court proceedings, and much more will be spent if they go to trial. In my view, it is quite likely that the house in Brighton will have to be sold, or at least mortgaged, so that the husband can receive a just and equitable share of the relevant assets and financial resources.

17 When the applicant was a schoolgirl, her parents had a successful carpet business. She sometimes assisted her father in laying carpets. Subsequently her father established a motel at Sandy Bay, which I have already referred to. The applicant and the other children provided their parents with some assistance in establishing the motel. For example, they helped to establish the gardens. It was also common for the applicant and the other children to assist in the operation of the motel when necessary. For example they sometimes helped by cleaning rooms, on an irregular basis. The applicant did more around the family home and the motel than her parents expected her to do. She was very close to her parents. When she was 18 years old, the family learned that her mother was suffering from breast cancer. By then her brother had left home and joined the Navy, and the second respondent had a busy social life, and spent little spare time at home.

18 Shortly before her final departure to Melbourne with Mr Rowley in March 1986, the applicant made a short trip to Melbourne with him. She told her parents that she was travelling by yacht across Bass Strait with a school friend called Sue and a skipper who had been an officer in the Navy. Her father told her to phone home, reversing the charges, as soon as she arrived in port, and she agreed that she would. She did not ring until the day after she was expected to ring. Her parents became very worried that she had drowned.

19 When she returned to Hobart, she stayed for only one night. She went to Melbourne with Mr Rowley the next day. She thought of ringing her parents after arriving in Melbourne, but was very anxious. Mr Rowley therefore rang them. It was only then that they learned that their daughter had begun a sexual relationship with him, that she had left their home, and that she had commenced to live with him. The applicant had rightly anticipated her parents' extreme disapproval of that situation. Their feelings of anger, betrayal and hostility were made much worse by the fact that this information was revealed by Mr Rowley, and not by the applicant.

20 The testator did not take the view that the applicant was an adult whose right to choose a partner should be respected. He flew to Melbourne the next day, confronted the applicant at Mr Rowley's home, spoke about the effect of the applicant's conduct on her sick mother, complained that Mr Rowley was twice the applicant's age, and said that he would pound Mr Rowley and kill him when he came home. He physically forced the applicant into the house, but she escaped, ran to a phone, and warned Mr Rowley, who subsequently arrived home, bringing some police officers with him. The testator eventually went away. He made a number of hostile phone calls to the applicant. Her mother wrote a long and hostile letter about the events that had occurred.

21 The contact between the applicant and her father during the remaining 17 years of his life was so limited and so infrequent that it is possible to catalogue almost every trip, meeting, letter and phone call. The applicant did not see her parents from March 1986 until some time in 1987 when they visited Melbourne to see a musical. Thereafter, she wrote some letters to her mother, but she ceased writing after some weeks. In November 1987, she made a trip to Hobart, and stayed one night at her parents' home. She did not see her mother again. She married Mr Rowley on 30 July 1988 without inviting her parents to the wedding or sending them photos afterwards. When her mother was about to die, she decided to visit Hobart, but she left it too late. Her mother died on 1 September 1988. She attended the funeral. Her first child was born in February 1991. She had not told her father of the pregnancy, but she sent him some photos of the baby. According to her evidence, she maintained contact with her father by phone and by letter from 1986 until the first child was about a year old, without any softening of his attitude towards her, but then gave up trying to re-establish a friendly relationship with him. Her second child was born in February 1993. During 1993 her father saw her on three trips to Melbourne - once at Southbank, once at the Hyatt Hotel, and once at Melbourne Airport. He instigated each meeting, and apparently wanted to rebuild a friendly relationship, but he insisted on an apology from Mr Rowley for his conduct at the time of the elopement seven years previously. Mr Rowley phoned him once, but he did not take the call, and got the first respondent to tell Mr Rowley to put his apology in writing. No apology was forthcoming. There was no further contact until early June 1995, when the applicant wrote to her father advising of her third pregnancy. She sent photos of her third child the following month, with a short covering note. Two years went by. On 25 September 1997 the first respondent phoned the applicant and told her that she was mailing invitations to the testator's 60th birthday party, and to their wedding. The invitations were for the applicant only, and not for Mr Rowley, who had by then been married to her for nine years and fathered her first three children. When the invitations were delivered, the applicant did not open the envelope, marked it "return to sender", and sent it back. She strongly disapproved of her father marrying her mother's sister. She did not tell her father of her fourth pregnancy, nor of the birth of her fourth child in June 1998. More years went by. In January 2001 the applicant visited Hobart with her husband and children and stayed in the motel that her parents used to operate, but she did not tell her relatives of her trip. Her sister, the second respondent, found out about it and telephoned, but the applicant still did not make contact with her father.

22 In January 2002 the testator learned that he was suffering from cancer. He did not tell the applicant, but she soon heard about the cancer, telephoned, and spoke to him, apparently for the first time since 1993. Their relationship did not improve as a result. On 19 February 2002 the applicant sent her father two letters. She said that one of them had been written by her eight months previously, but not sent. It was seven pages long, and consisted mainly of complaints about her father's conduct over many years. On the sixth page she accused her father of sexually abusing her when she was 12 or 13 years old by fondling her crutch and breasts on many occasions. The other letter comprised two pages, began with appropriate comments about her father's cancer, and then descended to a series of arguments about their relationship and past events. The testator responded by fax on 3 May 2002, saying that he had only that week opened the letter sent by the applicant in February. He denied the allegation of sexual abuse. The applicant sent in a four-page response on 6 May 2002. It was almost entirely argumentative, but she did mention that she was "gut wrenchingly upset" that he was ill, and asked for his doctor's telephone number. Six months went by. On 1 November 2002 the applicant wrote to her father, by fax, proposing that she would telephone him every second day to "establish some remnants of contact" if he wished that, and asking him to telephone her if he was agreeable. He did not respond.

23 On 7 May 2003 the applicant wrote to her father, telling him that Mr Rowley was a chronic alcoholic who could die at any time, that she would be opening a carpet store on 19 May, and that she might need to ask for financial help. She asked her father to let her know whether he would be willing to provide financial assistance if she asked for it. It was three days after that letter, on 10 May 2003, that Mr Rowley left the matrimonial home. On 14 May 2003 the applicant sent her father an email, which contained the following:

"Unfortunately I have an emergency financial situation and have no other option but to request some help from you. I am opening a new retail floorcovering store on Monday of next week and I am expecting to be able to draw a wage from it within three months. I have spent a year setting this store up so that I could provide financial security to my children and divorce John in the process. He however, has, last Saturday secretly absconded ...

I have attempted to ring Centerlink [sic] however they require copies of the children's birth certificates. Every shred of paper work was taken by John so I cannot provide this. To attain [sic] copies of the paper work I need passports, utility bills etc, of which he has. He cleared out everything while I took the children out as I always do every Saturday. He is very ill from alcoholism and his doctors are saying that apart from the brain damage he has sustained he will most likely be dead within a year.

I am sorry to ask but this is an emergency and I have no other options. ..."

24 Her father did not respond. She did not try to contact him again prior to his death which, as I have said, occurred on 4 July 2003. His last communication to her was his fax of 3 May 2002. On at least two occasions before his death, she wrote to the Registrar of Births, Deaths and Marriages in Hobart to find out whether he had died.

25 The applicant's assertion in the email of 14 May 2003 that she had "no other options" but to request the testator's financial assistance was a lie. She had a credit card with an available credit of over $3,000. She had a business bank account which, two days previously, had had a credit balance of $19,243. Some $12,000 of the funds in that account resulted from the sale of artwork during April 2003, and there was more artwork that she could sell. In response to her husband's attempts to take control of the assets of Soundequip Pty Ltd, she had opened a new bank account in the name of that company, into which she deposited cheques for $3,545.08 on 16 May 2003, though one cheque, for $1,267.20, was subsequently dishonoured. She had $4,000 that she had won at a racecourse in cash in a tin at her home. She had a car which she sold in June 2003, the equity in which was sufficient for her to purchase a $14,000 car and have $9,100 left over. She commenced receiving Centrelink payments on 22 May 2003, only eight days after her email. The first payment was for $3,837.38, but she did not send her father another email saying that her situation had improved.

The testator's reasons for making no provision for the applicant

26 Under the TFM Act, s8A(1), "the Court or judge may have regard to the deceased person's reasons, so far as they are ascertainable, ... for not making any provision ... for any person ...". In this case I have copies of the testator's earlier wills, a six page memorandum signed by him on 27 February 2002, the day he made his last will, two further memoranda signed by him on 28 February 2003, and evidence of things said by him.

27 On 30 April 1987 the testator made a will by which he left the applicant a legacy of $250,000. He made another will on 5 July 1996, at which stage he had not heard from the applicant for about a year. By that will he directed his executors to set up a fund consisting of the sum of $500,000 and any income added thereto from time to time, which they were to hold upon a discretionary trust for the applicant and her children, with power to make payments of income and capital. On the applicant's 55th birthday, or her earlier death, the balance remaining in the fund was to be divided equally among her children. On 26 November 1997, after his 60th birthday party but before his second wedding, he made another will, in contemplation of his marriage to the first respondent, which contained an identical clause providing for the applicant and her children.

28 The codicil dated 2 July 2003 related only to superannuation and was apparently executed in order to minimise tax. It was by the will dated 27 February 2002 that the terstator disinherited the applicant and her children. The accompanying document that he signed on that day contained the following:

"This is to set out my reasons for not making any provision in my will for my daughter, Sonia Rolley [sic] or my son, Daniel Bouwmeester.

This is not a sudden reaction or a whim or the result of any particular recent circumstance in their life or mine. It is something I have wanted for many years and have recently become determined I should do what I can to ensure they are not beneficiaries of my will. The following is something I have been wanting to detail and sign for some time now.

Over the past few years I have become more resolved that Sonia and Daniel should not receive any benefit from my estate. They have both disowned me. Sonia has not instigated any contact with me over the last twelve or thirteen years. Danny has not instigated contact with me, except when he has needed something from me, for more than fourteen years. He has made no contact at all the last three years. I have been deeply hurt and have suffered greatly because of their rejection of me. It has only been in the last few months that I have been able to tell myself to stop hoping that things would be different with them, that they would make contact with me and we could have a good relationship. I have only recently decided that I have to stop grieving for their loss and get on with my own life and enjoy what I can of it.

* Sonia left home when her mother was ill with cancer. She left in a manner that was deceitful and which caused her mother and myself an enormous amount of worry for her safety. She sent back letters her mother wrote to her. Sonia leaving in the circumstances she did, with deceit and by stealing from her parents and sister, caused her mother great grief and increased her suffering as she battled cancer.

* After my wife died it took me some time to make contact with Sonia. It was I who did this. After a couple of meetings I agreed to try to accept John Rolley [sic] if he would apologise to me. He never did this.

* There was a party for my 60th birthday in November 1997. I was re-married in December 1997. My present wife wrote to Sonia to say she would be receiving two invitations, one to my birthday party and one to the wedding; that I would be delighted if she could attend one or both of these events; however John Rolley [sic] would not be welcome.

* Both invitations were sent back to me unopened. I heard nothing from Sonia in regard to these events. I have heard nothing from her for some years prior to 1997.

* I have been deprived of contact with Sonia's four children, my grandchildren. She has never informed me of the birth of any of the grandchildren. In January 2001 Sonia, John Rolley [sic] and the children spent two weeks at Grosvenor Court in Hobart. This is the property I built. I was advised they were staying there by the present owner. For the two weeks I hoped Sonia would make contact. Finally I asked my daughter, Tania, to phone Sonia. Tania asked Sonia if she intended to make contact with me. Sonia said that there was not contact when she was in Melbourne, why should she make contact with me when she was in Hobart. She claimed I did not care about herself or her children.

* It was after this that I decided I had to find a way to stop hoping to have a relationship with Sonia and my grandchildren and accept that I had to live my life without them.

* I believe John Rolley [sic] who has shown no respect for myself or Sonia's mother, has a fair amount of control over Sonia and would benefit from anything I might give Sonia.

* I believe Sonia has disowned me and cut me out of her life. I have no knowledge of my grandchildren and do not see any point giving anything to persons I have not even met and have not had the opportunity to develop any kind of relationship with.

The above details, which are not pleasant for me to give, explain why I believe Sonia and Danny should not benefit from my estate. They have disowned me. They have cut me out of their lives. I do not see why they should be included in my will.

I do not wish either of my children, Sonia Rolley [sic] or Daniel Bouwmeester, to be beneficiaries in any way shape or form, of my will. I believe I have the right to make this decision and want to make it very clear that this is my clear intention and wish it to be carried out."

29 Twelve months later, on 28 February 2003, the testator signed two further documents setting out reasons why he did not want the applicant or her brother to benefit under his will. The longer of the two documents ends with a summary which includes the following:

"I most emphatically do not want to make any provision for Sonia in my will.

I do not want to make provision for Sonia and I believe I have no moral obligation to do so since she has effectively cut me out of her life and has made false accusations which amount to an attack on me at a time I needed support.

The circumstances in which Sonia left the family home caused enormous pain to my wife while she batted [sic] cancer. I suffered because of the same circumstances and because of the pain they caused my wife.

Sonia had recently made serious and horrific allegations regarding me. These were made at a time when I was extremely vulnerable and in need of support, not to be attacked by false accusations. I believe these allegations which were made shortly after Sonia heard I had cancer, are part of a preparation to contest my will should she find herself not included. Her doing this and the timing of her doing it show she has no regard for me as a person.

Sonia has disowned me. I feel no obligation to make any provision for her no matter what her circumstances are or maybe. I have worked hard all my life. I looked forward to peace in retirement. My illness has prevented me from enjoying the retirement I looked forward to. Sonia's contact since she has heard of my illness has been a source of distress and greatly hindered my efforts to free myself of stress and focus on fighting the cancer.

Her support would have been a help. In the times I have thought of the situation should I not win the battle with cancer, the fact that Sonia, the daughter I loved and continue to love, has disowned me and attacked me with false accusations and lies has made this thought even hard to face.

I feel no obligation to her as a result of her behaviour towards my wife and myself. I have come to see she is possible of elaborate deception. I do not want her to be able to have my will changed in her favour by this means."

30 According to the first respondent, the testator's attitude to the applicant changed after she visited Hobart without contacting him in January 2001. I have no reason to doubt that evidence.

31 I am not able to make a finding as to whether or not the applicant was sexually abused by her father. Her allegations were denied by her father before he died. Her allegations have not been corroborated in any respect. I do not consider her to be an honest witness. She lied to her father about her financial position in the email of 14 May 2003. When cross-examined as to the various financial resources that she had at that time, she attempted to assert that each of her various sources of funds was unable to be used by her, and that there was nothing inappropriate about her email. I think her explanations were blatantly dishonest. Her affidavit material was misleading as to the amount of money she had been receiving from Centrelink, in that no mention was made of a number of large and irregular payments. When cross-examined about that, she tried to blame the solicitor who had drawn the affidavit. Having observed her in the witness box on three consecutive days, I think it quite possible that she invented the allegations of sexual abuse, knowing that her father was suffering from an illness that was likely to be terminal, and knowing that he was likely to be extremely upset as a result of her making those allegations to him. But that is only one possibility. It is also possible that what she alleged was true; that she had repressed the truth for many years; that she is a deeply troubled individual; and that she felt compelled to confront her father with his past conduct in February 2002 despite knowing he had cancer. I cannot exclude the possibility that the allegations are true, but they are not proven.

32 The power to make an order under the TFM Act is conferred by s3(1), which reads as follows:

"(1) If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit."

33 This subsection requires the Court to approach a case of this nature in two stages. It is first necessary to consider whether the deceased left the applicant "without adequate provision" for his or her "proper maintenance and support". If so, the Court should then go on to consider what provision should be made from the estate for the applicant. See Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209 - 210. The Court may then properly make the provision "which a just and wise father would have thought it his moral duty to make ... had he been fully aware of all the relevant circumstances": In re Allen (deceased), Allen v Manchester [1922] NZLR 218 at 220 - 221; Bosch v Perpetual Trustee Co [1938] AC 463 at 479.

34 The conduct of an applicant can warrant the refusal of an application under the TFM Act, s8(1), which reads as follows:

"(1) The Court or judge may refuse any such application if the character or conduct of any person by or on behalf of whom the application is made is such as in the opinion of the Court or judge should disentitle him or her to the benefit of any provision under this Act."

35 As long ago as 1918 it was held, in relation to similarly worded New South Wales legislation, that a testator's daughter did not become disentitled to the benefit of the provisions of that legislation as a result of marrying a man of whom the testator did not approve: In re Harris (1918) 18 SR (NSW) 303. Apart from eloping with Mr Rowley and marrying him against her parents' wishes, the applicant contributed to the estrangement between her father and herself by making practically no effort to keep in touch with her father from about 1992 onwards, by sending back the birthday party and wedding invitations in 1997, and by becoming argumentative when she contacted her father in relation to his final illness. However, her resentment, hostility, and lack of contact were substantially the product of resentment, hostility and lack of contact on the part of her father over many years.

36 In Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, the appellant was the son of the testator. The testator had permanently left his wife and the appellant when the appellant was 4 years old. The appellant was 50 years old when the testator died, and had not seen him during the intervening 46 years. His application failed at first instance. The High Court, by majority, dismissed his appeal. However, it appears from the judgment of Dixon CJ - the principal judgment in the case - at 9 that the appeal was dismissed because the appellant was "not in need".

37 Counsel referred me to two unreported cases concerning claims by estranged children in which judges have taken the view that estrangement may operate to reduce the entitlement of a child of a testator, or to extinguish it, depending on the circumstances. The first was Leek v Friedman (McLelland J, Supreme Court of New South Wales, 16 October 1992, Butterworths' unreported judgments BC9201547). Speaking of the two applicants in that case, McLelland J said (BC9201547 at 9):

"I do not consider that in either case the entitlement otherwise arising should be regarded as having been totally extinguished by their neglect of the deceased over the last 11 years of her life although the measure of entitlement should certainly be treated as having been reduced by that circumstance."

In Browne v Macaulay (Supreme Court of Western Australia, 2 November 1999, Butterworths' unreported judgments BC9907204), Murray J said the following at par19:

"... an estrangement, particularly in later years, of the plaintiff from the deceased may well weaken substantially the moral force of the asserted claim if it does not destroy the claim entirely."

38 In Re Buckland, deceased [1966] VicRp 58; [1966] VR 404 at 413, Adam J said:

"It is now well recognized that in determining the strength of the moral claim of an adult child upon its parent, and correspondingly the measure of proper maintenance to be provided by a testator in all the circumstances, it is proper to take into account the conduct of the claimant towards the testator and their mutual association and the closeness of the bond existing between them."

I see the comments that I have quoted from McLelland J in Leek v Friedman and from Murray J in Browne v Macaulay as applications of that principle. Long estrangement between an applicant and a testator may reduce the applicant's moral claim, without totally extinguishing it. Whether the moral claim is totally extinguished or merely reduced, and the extent of any reduction, depends on all the circumstances of the case.

39 The appropriateness of evaluating an applicant's claim by reference to the strength of his or her "moral claim" was considered by the High Court in Vigolo v Bostin [2005] HCA 11. The majority (Gleeson CJ at par25; Callinan and Hayden JJ at par121; cf Gummow and Hayne JJ at par73) took the view that resort to such a concept was appropriate.

40 I do not think that the applicant's conduct towards her father should totally disentitle her to the benefits of the TFM Act. If I had made a finding that her allegations of sexual abuse were false, I might have taken a different view, but I have not been able to make a finding as to that issue. Because the testator was primarily responsible for the applicant's estrangement from him, I do not think her reaction to his hostility, resentment, and lack of contact over many years should be regarded as disentitling conduct. However I do think that the lack of contact over many years, and the hostility demonstrated by the applicant in her correspondence during her father's final illness are factors that weigh substantially against her, and operate to reduce the strength of her moral claim substantially.

41 At the time of the testator's death, the applicant had new and substantial financial needs as a result of the breakdown of her marriage. Her husband's property claims under the Family Law Act were likely to result in the Brighton house having to be sold, or perhaps mortgaged to secure a substantial loan to enable her to buy her husband out. Substantial legal fees were likely to be incurred. The applicant had decided to go into business. The future of the business was uncertain. There was a risk that it would fail. The applicant had four children to support. The youngest of them will not reach the age of majority until the year 2016. The husband whom the testator had despised for so many years had left his daughter, and left her with new financial needs. Because of those circumstances, I consider that the testator ought to have provided for the applicant in his will; that he left the applicant without adequate provision for her proper maintenance and support after his death; and that this application should succeed.

42 In Cooper v Dungan (1976) 50 ALJR 539 at 542, Stephen J said:

"It is notorious that in this particular jurisdiction courts must be vigilant in guarding against a natural tendency to reform the testator's will according to what it [sic] regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant."

See also Pontifical Society for the Propagation of the Faith v Scales (supra) per Dixon CJ at 19.

43 Despite the size of this estate, I think the appropriate course is to make an order requiring a payment to the applicant in the nature of a legacy in a sum far smaller than the share of either of the two principal beneficiaries in the residuary estate. I think that a just and wise testator in the position of the applicant's father, following the breakdown of her marriage, would have left her a sum of money sufficient for it to be possible for the applicant and her four children to be adequately housed, though not necessarily in Brighton, provided the Family Court proceedings and her business ventures did not go too badly for her. Having regard to her financial position, and the strengths and weaknesses of her husband's claim under the Family Law Act, but also to the degree of estrangement that existed, I think the applicant should receive $200,000 in the nature of a legacy from the estate of the testator.

44 I understand that counsel may wish to make further submissions as to the form of the final orders, especially in relation to the power of the Court to impose terms and conditions under the TFM Act, s8(2). I will therefore hear counsel as to the orders I should make.