The testator had been twice married. His first marriage was to Ilma in 1939 which produced four children including the plaintiff. The plaintiff, Paul Ian Walker, was born on 14 January 1950. The marriage ended in divorce in 1969. The testator then married Georgina in 1970. This marriage, which was childless, ended in divorce in 1976.

The testator's present nett estate consists of his house, to which I have already referred, $12,375 in cash and some military medals. A valuer has valued the collection of medals at $700. The second defendant has alleged that there were very many more including very valuable medals in the collection which the first defendant had appropriated. I will return to this matter in due course. Thus there is a total of $118,000 less the costs of these proceedings.

As at the date of death, the house was valued at $140,000, there was a car worth $3,400, money in hand of $16,194.18 plus the military medals. It would seem that the funeral account of $3,490 and some costs, presumably probate costs, have been paid to reduce the cash to its present level.

The plaintiff is a twice-divorced man now aged 46. His first marriage to Joanne Thoroughgood was in 1971. There was a child of this marriage, Paul, who is now 24 and the marriage ended in divorce in 1974. The plaintiff's second marriage was to Julie Purrer, which occurred in about 1983 and ended in divorce in 1988. This marriage produced two children, Jacinta (whose name is sometimes spelt in the evidence "Jacinda") who lives with her mother at Freeman's Reach on the Hawkesbury and who is wholly supported by her mother, and Luke who lives with the plaintiff and is wholly supported by him. To enable this to occur, both the plaintiff and his former wife receive a sole parent pension.

The plaintiff lives with his son and his mother in his mother's house at Cambridge Park. He pays $100 per week board for himself and his son. His pension is $235 per week and he supplements this as a part-time gunsmith. He says he only receives $550 per annum ($10.50 per week) from this work. His mother says, however, he works 30-40 hours per week in his workshop. The plaintiff has few assets. He has a motor car worth about $2,000, tools and equipment worth $2,600 and about $32 in the bank.

The plaintiff has not had regular work since about 1986. He had an accident at work some time in the early eighties. He says he has been unable to obtain a full-time job because his son goes to school at nine and returns home at three and there needs to be someone home to meet the son. I was not at all impressed by this evidence as it would seem that the plaintiff's mother is usually at home and the plaintiff, according to his mother's evidence, spends most of his day in the workshop with his guns.

There were discrepancies between the plaintiff's affidavits and his oral evidence, especially as to dates. However, doing the best I can, the following picture emerges. The plaintiff says his father, the testator, left the matrimonial home and the family about 1964. At that stage the plaintiff was about 14 years of age. He says he did not see his father very much after that. He recalls seeing his father in the main street of Blacktown about 1968 and speaking to him then, but his father did not recognize him until he spoke and indeed, his father could not even recall his son's name. He again met his father unexpectedly at Seven Hills two or three years later.

The plaintiff then says that in 1986 or 1987 the testator was working for the Blacktown Historical Society taking photographs of old buildings. The plaintiff was then working as a concrete finisher at Plumpton and the testator approached the plaintiff to ask who was the site foreman to get permission to take photographs. Once again the testator did not recognize the plaintiff until the plaintiff introduced himself. The testator took a photograph of the plaintiff. The plaintiff then said, "I gave him a cuddle and he gave me his phone number on a piece of paper. After that I used to ring him on odd occasions to keep in contact but a lot of the times I rang he was not there. I would have spoken to him on the phone on about three occasions after being given the number at about six monthly intervals. He was always distant when I spoke to him. I did not meet with him again after that until he was ill in hospital ... I ... visited my father on almost a daily basis during his final illness which lasted about 8 weeks. I would also take my son in to see him so that he could get to know his grandfather on my side of the family."

The plaintiff went into the witness box at the hearing. His evidence in chief was supplemented and he was cross examined. He acknowledged that at no stage after the testator left the home did he ever approach him on any occasion for the purpose of borrowing money. I accept this, even though the second defendant gave some evidence to the contrary.

The plaintiff was asked whether, after he saw his father in the street in what was put at 1968, but which could have been later, he made a decision that he would not want to renew contact. The plaintiff denied that this was so. However, he said, "being young and strong and being in a position where I was in control of the situation and as far as he had neglected me and given me a hard time all my life he couldn't do it anymore." However, he did not make this attitude known to the testator. He said the phone calls were simply "Hello Dad, it's Paul here" to which the testator would reply, "Oh, how are you?" The plaintiff would say "Good" and the conversations never went much further than that. Mr Bradford, for the second defendant, put, "You never suggested to your father that you go and have a beer or something?".

I should note that although the plaintiff said that he only earned $550 from his work as a gunsmith, he was asked to bring to Court his financial records but did not do so. He first said he forgot, but then said, "I didn't actually forget to bring it in, that's a bit of a fib there. I didn't think it was necessary because I brought the receipts that I submitted to the social security in."

It was also clear from the oral evidence which the plaintiff gave that he had had an overseas holiday in California "a couple of years ago" and had also been holidaying in Victoria on two or three occasions in recent years. He said that one could have cheap excursions when one was on a sole parent pension.

The plaintiff said that apart from the occasions when they bumped into each other by chance, he hadn't seen or socialised with his father for 33 years. However, when Mr Bradford asked, "He hadn't been part of your life at all?" the plaintiff denied this saying, "He will always be a part of my life. He is my father."

In the instant case, the plaintiff seeks to put all the fault for the strained relationship on the testator. Doubtless that is how it started, but from the chance meeting in the late 1960s or early 1970s until 1993, there was plenty of opportunity for the son and the father to socialize. Both apparently chose not to do so. The plaintiff also has not been particularly convincing as to his current income position. He failed to produce details of his gunsmith business. His evidence makes it fairly clear that he has chosen to adopt his present lifestyle in which he is apparently fairly comfortable.

I must confess I did not form a particularly favourable view of the plaintiff. Having read his evidence and seen him in the witness box, I formed the very strong impression that he was quite content to live the life that he was leading at the moment, living in his mother's home, drawing a sole parent pension, not having to work and being able to spend 30 to 40 hours a week on what must be more of a hobby than a business in his work shop as a gunsmith. Furthermore, he is able to take a holiday out of Sydney, at least on an annual basis.

However, it is true that his mother is now getting on in years and if the mother's wish is carried out, the house will on her death be sold and the proceeds divided equally amongst the plaintiff and his three siblings. Furthermore, the plaintiff does not have any spare money. He finds himself hard-pressed to pay for Luke's clothing and he also buys some clothes and spends some money on Jacinta when he visits her for access visits. Of course, it is said that the plaintiff could improve his position by actually working. Whilst there is truth in this submission, the probabilities are that in the current labour market, as the plaintiff has been out of it for ten years and has a suspect back, he is not likely to obtain a job at the age of 46, so that his prospects of getting further money are not likely to be very great.

The second defendant in the early 1980s was in trouble with an alcoholic husband. She has four children and she says that her mother gave her advice that she should move in with the testator as his housekeeper to get away from her then husband. She says that she did so in early 1983. She lived in his house until 1984 when her sister, June Rex, bought her a house to live in. She still lives in that house paying some rent to her sister. The testator then had meals with her from 1984 until 1988, but he always paid for his own food. In 1988, the testator became ill with prostrate cancer. He came and stayed with the second defendant for about 12 months during which she said she nursed him back to health and he was strong enough to go back to his own home. She says that the first defendant was the only member of the family who ever called on the testator and she, the first defendant and the testator would go to church together each Sunday.

The second defendant says she remarried in 1990. The testator was admitted to hospital in August 1993 and she and her husband would visit the testator two to three times a week. During this time the first defendant's attitude towards the second defendant changed and he ordered her out of the intensive care unit as she was not family.

She says that she has recently suffered from breast cancer and has had surgery. She does not know her prognosis. Her husband and herself receive a combined pension of about $259 per week and virtually all of this goes on living expenses. She has $32 in the bank, but has also a loan from the State Bank of $1200. As I have noted, she lives in a house owned by her sister.

The first defendant is also a pensioner. He is a retired butcher now aged 76. He resides with his wife in a house at Merrylands which is about 60 years old and unencumbered. He only has $5,000 in the bank and his only income is the pension. He is in poor health under constant medical attention from a cardiologist.

The first defendant says that he had a conversation with the testator while the testator was in hospital in which the testator said that he was going to change his will. However, on the following day, the testator mentioned the matter again and said that he had decided not to change his will.

The plaintiff's mother said that she had a conversation with the testator in hospital along these lines:

The plaintiff's mother said that she arranged for a solicitor to visit the testator, but the testator died a few days after she had arranged for the solicitor to visit him.

The second defendant was also cross examined about her potential for income. It came out during cross examination that in addition to her pension she received moneys under a "Party Plan" in which she would get commission for sales of products made to her acquaintances. She also was working up until recently for one of her sons as the person who answered the phone in connection with a washing machine repair business. Her credit was affected by a document which, if her evidence in these proceedings is correct, contains some misrepresentations. Indeed, as counsel so directly put it, it was "cooked up" between the testator and the second defendant to ensure that the social security benefits continued to flow to the second defendant.

However, a Mrs Young gave evidence that she became quite friendly with the testator and visited the second defendant with the testator on many occasions between 1991 and 1993. The testator had mentioned to her how the second defendant had taken him into her own home and looked after him until he regained his strength and often spoke of the second defendant as "my family" and said his children hadn't contacted him for 30 years. She also remembers the testator saying, "I haven't included the children in my Will because I don't want anything to do with them. They've never contacted me or visited me for 30 years."

Mr Woods, solicitor, gave evidence that on or about 7 October 1993, he attended on the testator for the purpose of seeing whether he wished to make a new will. He said that the testator told him that he hadn't decided whether he wanted to discuss making a new will. The testator said that he was going to leave everything to the second defendant, though the first defendant would have his car, "but the children have now come on the scene. They have never recognized me as their father ... Since then the children have come on the scene and made themselves known to me in reconciliation and everything being fixed up, it has put a different kybosh on it." He then continued, "I have a friend, Shirley, who has looked after me when I was sick. I got prostrate cancer and I got cured of that after seven weeks in Westmead. Shirley nursed me through that when I came home from hospital. I thought I would give her the house in return. ... I have been a like a half brother to her, helping around the house. I've given her that as repayment. When I come out, it is beyond me what I have got. I gave it that the will was to stand. Now the children have come on the scene, and Ilma. She wants to be still part of my life. She would like the home to go to her and the children. I'm going to upset Shirley if I don't go to her house when I get out, if I go to my brother's house." The conversation ended by the solicitor saying, "Thanks for taking the time to talk to me today. If you change your mind and decide that you do want to make a new will just let them know to contact me. It will be no trouble to come back and fix this up for you."

Mr Eassie for the plaintiff, says that the testator only had to consider the plaintiff and the second defendant as the persons who were deservous of his beneficence. He says that the testator recognized in his last days that he had not made adequate provision for the plaintiff. Mr Eassie points to the last three lines of the will which say, "I have not provided for my children because I have not received any communications from them for a substantial period of time." Mr Eassie puts that whilst that may have been true in 1989, it was not true in 1993 when the testator was dying. He also points to the testator's 1983 will which is in evidence, which provided in clause 6 that as the testator had not heard from his children for 12 years and "they have not extended to me the love and affection reasonably expectant of a parent and I have no knowledge of their whereabouts or whether they are in fact alive". That problem had been resolved by the reconciliation shortly before death. Mr Eassie does not deal with the fact that indeed the statement was incorrect in both wills because there had been some contact between the plaintiff and the testator in the streets of Blacktown or Seven Hills by accident. I must confess I read the clauses as being merely clauses which a prudent solicitor puts in wills where no property is being left to children in the hope that the testator's wishes will prevail over the claims of children.

Mr Eassie says he does not deny that the second defendant provided nursing assistance and some provision should be made for her, but the overriding obligation was to the plaintiff and a fund is required by the plaintiff to shield him from some of the vicissitudes of life.

The second defendant says that as far as she is aware, the estate is worth more than $118,000. She says that she knew that the testator kept bank notes in jars buried under the house and he also had a very extensive collection of military medals including "Victoria Crosses, George Crosses, Distinguished Service Medals for Gallantry and medals dating back to the Boer War". She thought that the cash in jars was about $15,000 based on what the testator told her. She is sure in her own mind that the first defendant raided the home and removed the money and the medals and has not accounted for them. She would desire me to make a finding to that effect when valuing the amount of the estate that is available for possible distribution to the plaintiff in these proceedings. For reasons set out later, I find that the money was all included in the estate total.

The first defendant admits that he collected the testator's medals from the house while the testator was in hospital. He says he took them for safekeeping. He says they have been valued at $700 and there are no medals that he has appropriated.

Having seen the second defendant cross examined in the witness box, it was quite clear that she did not have any real knowledge of what the medals were. She admitted in cross examination that she knew nothing about medals, nor had she sufficient knowledge to be able to identify them. I do not have the material from which I can conclude, on the balance of probabilities, that the medals were more valuable than the first defendant has disclosed.

As to the money in jars, the second defendant says that the testator dug up one jar in her presence from under the house and then reburied it. She could see it was a glass jar with a rusty lid and it had notes in it.

The first defendant gave evidence that he did find cash in glass jars under the house. However he says that it was not buried in the ground, it was above ground. He says he removed the cash at the testator's request and after the testator's death, deposited it with his solicitors. It was strange that the first defendant retained the money for some weeks before leaving it with his solicitors.

The first defendant was too ill to be cross examined at the hearing; the parties preferred to have the case finished in the one day to save costs. I think, despite this, I should accept his evidence. One reason for doing this is that the amount he handed to his solicitors, $12,704.18, is close to the second defendant's estimate of $15,000, bearing in mind the difficulty of estimating money stored in glass jars. The money in hand of $16,194.18 referred to earlier included the $12,704.18.

Mrs Stewart, for the first defendant, puts that all the assets in the house had been disclosed together with the money, but in any event, as the first defendant has the residuary gift and the second defendant is only given the house and its contents, it does not matter. Mrs Stewart puts that "contents" does not include money buried under the house. Thus, she says, any money in jars would have passed to the first defendant.

There are a series of cases dealing with the meaning of the words "contents of a residence". In Re Harvey [1962] NZLR 524, Woodhouse, J analysed the various cases and said at p 526, "The word `contents' taken by itself is, of course, unambiguous. It means that which is contained in something. Any difficulty of construction arises from the fact that a generic expression of this type receives a degree of definition from its context. The contents of a workshop, and the contents of a cash box, suggest different general categories of things. In the context of this bequest the word is related to the testator's house property. In that context it appears to have a wide application." His Honour said that in the case before him the word "suggests those tangible assets and effects which normally are used or enjoyed in or in association with the home and daily living and which are kept in or about the home." Accordingly he held it would not include valuable securities or choses in action; see eg Cole v Cole 51 SE (2d) 491 (1949) (NC) where the contents of a safe were not included.

There are cases, however, where the word "contents" does include banknotes and securities; see for instance Popham v Aylesbury [1748] EngR 405; (1748) Amb 68; 27 ER 40; Brooke v Turner [1836] EngR 473; (1836) 7 Sim 671; 58 ER 995 and Re Abbott [1944] 2 All ER 457. See also a weaker case referring to contents of a desk, Re Robson [1891] 2 Ch 559.

In Victoria, it was held that "contents of a house" also included a car in a detached garage; see Re Rankin [1938] VicLawRp 68; [1938] VLR 339, though a different result has been reached on similar wording in other cases. However, in cases such as Re Craven (1908) 99 LT 390, it has been held that choses in action did not pass under a gift of contents and in Re Oppenheim (1914) 111 LT 937, it was held that what had become fixtures to the house did not pass under a gift of contents of a house.

The gift in the instant case is not just the gift of the contents of the house, but of the house and contents. The gift of the house was plainly intended to be a devise of the real estate on which the house is erected. Should anything be buried in the soil, then the soil and its contents would pass with the devise of the real property. Money or other property buried in the soil prima facie belongs to the owner of the soil, see Elwes v Brigg Gas Co (1886) 33 Ch D 562; Ranger v Giffin (1968) 87 WN (Pt 1) (NSW) 531 and Gray v Official Trustee (1991) 29 FCR 166.

However, the money in jars was not buried, but was merely stored in jars under the house, so that the cases referred to in the previous paragraph do not assist.

Although there is no decision exactly on point, it seems to me that if what is inside the house is "contents", and what is buried under the house or in the walls is "house" then it would be anomalous if what was resting on the soil under the house would pass otherwise than under a gift of "house and contents."

This, however, begs the question as to what passes under the gift of contents. Whilst I would be quite sure that a child's outside toys or garden tools and equipment stored under a house would pass as "contents", I view money in jars otherwise. I adopt the test stated in Re Harvey which I have set out above. The money in jars is not used or enjoyed in or in association with the home and daily living. Thus the money in jars does not pass to the second defendant.

Having dealt with that diversion I should now revert to the mainstream of the case.

Mr Bradford for the second defendant, strongly submits that the plaintiff's claim was without merit. He puts that the plaintiff played no part in his father's life and had made a conscious decision not to have anything to do with his father. He never remembered his birthday or attempted to see him or even send a Christmas card. Any obligation there may have been by reason of paternity had been extinguished.

Mr Bradford also points to the opportunity that the testator had to change his will and the circumstances that he thought about it and then decided against it. His family appeared on the scene in his last hours. They affected him emotionally, but not sufficiently to make him change his will. It is to be noted that there were eight weeks of these visits which failed to have any decisive effect on the testator. Thus Mr Bradford puts that to speak of "reconciliation" is really a figment of imagination.

Mr Bradford puts that no provision should be made for the plaintiff. The testator's house should not be sold. Even if I were otherwise convinced that the plaintiff should receive some order, this was clearly a case of conduct disentitling a plaintiff from any relief.

Mr Eassie in reply puts that the second defendant had no reasonable expectation of receiving the house. She had been replaced as the testator's companion by Mrs Young and had herself married. Mr Eassie recognizes that the second defendant provided nursing assistance, but there were stronger claims on the testator's bounty. He refers in particular to Gorton v Parks (1989) 17 NSWLR 1 at 10.

It seems to me that, before examining Gorton v Parks, it is useful to examine the leading decisions on the present Act or its predecessor made over the last 50 years.

The first significant case in point of time was the decision of Fullagar, J in Re Sinnott [1948] VicLawRp 48; [1948] VLR 279 at 280 where his Honour said, "No special principle is to be applied in the case of an adult son. But the approach of the Court must be different ... 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."

This passage was taken up by Dixon, CJ in Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9. The facts were that the testator was aged 86 when he died. The plaintiff was then aged 50. The testator had not seen his son for 46 years. The son had supported his mother and was now in a middle ranking position as a Commonwealth public servant and had a wife who managed a frock shop for income. He had no recollection of his father and had never attempted to get in touch with him. Philp, J in the Supreme Court of Queensland made an order in the son's favour but this was reversed in the High Court by Dixon, CJ and McTiernan, J with Taylor, J dissenting. The Chief Justice said at p 18, "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 have not 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 ... ". His Honour then referred with approval to what Fullagar, J had said in Sinnott's case and said at p 20, "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." Taylor, J thought that the reasons of the trial judge were within the limits of a sound discretionary judgment.

Scales' case was never distinguished as far as I am aware until the decision in Gorton v Parks in 1989. The only time that the noting up material showed it was distinguished was in Re Rowe [1964] QWN 46, where Mack, J said that the case before him differed from Scales' case "in which, in the opinion of the majority of the court, the fact of birth alone was the only link between father and son. On that finding the adult son's claim could not succeed."

Adult sons' claims did succeed from time to time as they did in Re Rowe, in Re Adams [1967] VicRp 115; [1967] VR 881 and again in Kleinig v Neal [1981] 2 NSWLR 532, to give three examples.

In the lastmentioned case, Holland, J (when considering factors a court must take into account) said at p 540, "... another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned for the child's welfare. A wise parent will recognize that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed."

In Goodchild v James (1994) 13 WAR 229, the testator left his whole estate on trust for his dog Blackie. He said he made no provision for the plaintiff, his adopted son, because he had shown no concern as to whether the testator was alive or dead. Ipp, J considered that the existence of a moral claim was relevant to the question of his jurisdiction. It appeared that the separation came about through an argument between the testator and the plaintiff's wife as to whether Blackie could sleep inside the house owned by the plaintiff and his wife in which the testator was then living. The plaintiff's wife virtually told the plaintiff that he had to choose between his wife and his father. He chose the former and the testator moved out and never spoke to his son again. At p 239 Ipp, J considered the separation was mainly the fault of the testator, but notwithstanding the estrangement allowed the plaintiff's claim. Ipp, J found that the plaintiff should have received about one-third of the estate, he having undertaken to care for Blackie.

In Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, Gibbs, J at p 147 first set out the general principles from a judgment of Salmond, J in Re Allen [1922] NZLR 218 at 220-221, that "The Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and desserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty."

Gibbs, J then said, "It is well settled that these general principles apply to the case of an adult son as well as to other cases. The age of an applicant is however material and if a son is mature, able-bodied and capable of supporting himself he may in those circumstances be in no need of maintenance or support."

He then quoted the words of Fullagar, J in Sinnott's case, referred with approval to other cases such as Scales' case and continued, "In some cases a special claim may be found to exist because the applicant has contributed to building up the testator's estate or has helped him in other ways. In other cases a son who has done nothing for his parents may have a special need. This may be because he suffers from some physical or mental infirmity, but it is not necessary for an adult son to show that his earning powers have been impaired by some disability before he can establish a special need for maintenance or support. He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependants who rely on him for support which he cannot adequately provide from his own resources. There are no rigid rules: the question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances ... ".

Mason and Aickin, JJ agreed with Gibbs, J. Murphy, J did also, though he introduced the idea that there was an "unwarranted introduction of the notion of moral claim" into the simple operation of the sections. His Honour thought that an applicant should not fail merely because he failed to prove a moral claim but only if he failed to establish that the distribution of the estate is such as not to make adequate provision for the plaintiff or other set grounds. Barwick, CJ dissented. He thought the decision of the court below to refuse relief could be justified on a number of grounds including that the plaintiff had not shown he was left without adequate means of support and that "he was an able-bodied adult able to fend for himself". His Honour then said, "For my part, the fact that he had long trespassed on the indulgence of his parents gave him no claim on their continuing bounty."

In Gorton v Parks, Bryson, J considered that Scales' case depended on a finding that the plaintiff in that case had no need. With great respect I am unable to agree with this analysis of Scales' case. In view of the fact that Philp, J found a need and that Taylor, J thought that this was within the scope of a sound discretionary judgment and that Dixon, CJ did not say that Philp, J was wrong in this finding, it is difficult to see how one can really rationalise away what Dixon, CJ said on the basis of a finding of fact that the appellant had shown no need. This difference of views on the exegesis of Scales' case is, however, of little moment.

In Gorton v Parks, Bryson, J at the bottom of page 9 and onto page 10 makes a statement which has become a favourite for counsel appearing for what might be called "non-dutiful children" in applications under this Act. His Honour says, "The observations (of Dixon, CJ about paternity) ... seem to involve a view of the moral obligations of a parent which differs I would think from the almost universal view of the Australian community; the view involved seems to have been that the moral obligations of a parent can be limited, and can possibly be escaped, by steadfastly maintained repudiation or evasion. Dixon, CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been large changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he had no duty towards them. ... The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962."

His Honour then says at p 11 that there cannot be fixed systems of moral values which are to enure forever "Over a span of time measured in generations these interpretations can be expected to change, but in any one age the divergencies of interpretation are unlikely to be very wide or to produce gross anomalies ... in the concepts of what provision ought to be made, what provision is adequate, what are the moral duties of testators or what constitute needs, held among the judges .... . These judges share with all members of the community access to the current moral beliefs of the community of which this legislation makes them the spokesmen: see Mahoney J (dissenting) in Kearns v Ellis (Court of Appeal) 5 December 1984 unreported at 7-8)."

In Eggler v Mitchelmore - Court of Appeal, 11 November 1992, unreported, a married daughter made an application under the Act. There were no other competing claims on the deceased's bounty. An award of $80,000 at first instance was increased to $250,000 on appeal.

Sheller, JA said at p 12 that he did not accept that a wise and just testatrix in the position of the deceased with an estate of $800,000 to distribute and aware of her only child's substantial moral claim upon her bounty would think it right to leave that child who to her own disadvantage had cared for the deceased over so many years an amount of no more than $80,000. His Honour then said, "No longer are children required to show `some special need' in order to claim provision under the Act ... See also the illuminating judgment of Bryson J in Gorton v Parks ... particularly at 7-12."

There is no doubt at all that the trend of authority is to the effect that "The previous rule that an `able-bodied son' was disentitled to a claim ... for that reason alone ... has now been abandoned in this State" (per Kirby, P, Goloski v Goloski 5 October 1993, unreported). Indeed, I said the same thing myself in Stewart v McDougall - 19 November 1987, unreported and have followed that opinion since. However, counsel seem to have grasped what Bryson, J said as authority for the proposition that if it can be shown that the testator had no other claims on his moral bounty, the mere fact of paternity entitles the applicant almost as of right to an order and the court should not look at the circumstances of the son or the circumstances of the relationship. This is neither the law, nor did Bryson, J ever say it was.

It should be noted that in Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24, Sheller, JA recited without adverse comment the decision of Master McLaughlin in that case at first instance that "The mere fact of paternity creates a moral duty in a testator to provide for his children: Gorton v Parks ... Eggler v Mitchelmore." I cannot myself see anything in Eggler's case which is authority for that proposition.

Submissions along the lines I have noted are usually reinforced by reference to the decision of the High Court of Australia in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 and the decision of the Court of Appeal in Permanent Trustee Co Ltd v Fraser.

In Singer's case, a widow who had been married less than one year to a 68 year old man failed in her application under this Act in this Court, in the Court of Appeal and in the High Court. The majority of the Court said at p 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that "we doubt that this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to `moral duty' or `moral obligation' may well be understood as amounting to a gloss on the statutory language." They then say, "The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty."

In Fraser's case, Kirby, P at p 29 said that "I do not consider that it would be safe for this Court, or other courts in this State, to disregard the obiter dicta in Singer v Berghouse concerning `moral duty'." However, his Honour's decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law "either by the observations of the majority in Singer or by the High Court's reference, in the footnote, to what Murphy J said earlier." (p 27).

Handley, JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Knott [1994] HCA 23; (1994) 68 ALJR 509, the High Court was itself using the words "moral claim" in decisions under this Act.

Sheller, JA again did not consider that the High Court's suggested abandonment of concepts of moral claim or moral obligation changed the task of the Court. He said, with reference to decisions of Murphy, J at p 42, "The point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant's case but not alone sufficient to justify an order in the claimant's favour. Thus in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. ... The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ [In re Allardice (1910) 29 NZLR 959, 970] will not alone suffice to empower the court to make an order."

His Honour then said at p 46, "In deciding whether the provision for an eligible person is inadequate for that person's proper maintenance education or advancement in life the court should be guided by consideration of the provision which, in accordance with prevailing community standards of what is right and appropriate and in the circumstances mentioned in the Family Provision Act and then obtaining, ought to be made in favour of the eligible person ... . I do not think this approach produces any different result from that reached by reference to the concept of moral obligation or duty as that expression had generally been understood or used by the courts. However it avoids doctrinal and inflexible judge made rules and fulfils the court's function, adverted to by Mahoney JA [in Kearns v Ellis at p 8], of speaking for the feeling and judgment of fair and reasonable members of the community."

Finally, I should mention Re Jennings [1994] Ch 286, a decision of the English Court of Appeal. In that case an adult son's parents had divorced in 1947 and until his death in 1990 the father had made no contact of any kind with the plaintiff. The trial judge accepted the plaintiff's case that as the father's obligations had not been performed in infancy, it was unreasonable for the father to have made no financial provision for the plaintiff in his son and awarded the plaintiff [sterling]40,000.0.0. The Court of Appeal reversed this decision. The members of the Court spoke in terms of moral obligation not having been referred to recent, or indeed any, Australian authority.

May, J said at p 41 of the English equivalent of the Family Provision Act, at pp 302-3, the "Act was passed `to make fresh provision for empowering the court to make orders for the making out of the estate of a deceased person of provision for ... child of the family or dependant of that person.' It was not passed, in my opinion, to enable a court, perhaps many years after the event, to make retrospective reparation to a person in respect of whom a deceased had failed, years earlier, to comply with a legal or familial or moral obligation, where any effect of that failure had not continued up to the deceased's death." Nourse, LJ held that as the plaintiff's two companies provided him and his family with a comfortable standard of living, it was not unreasonable for the testator to have ignored his son when making provision in his will and the court could not properly conclude that the plaintiff reasonably required further financial provision even though, of course, more money would be nice to have.

That decision must be read sub modo. First it should be noted that the applicant's counsel in Jennings' case conceded that an adult son because of the decision of the English Court of Appeal in Re Coventry [1980] Ch 461 had to show some special circumstances beyond the mere fact of paternity. As can be seen, this is a concession that no Australian counsel should properly make. Secondly, the case was one where the effect of a father's neglect in early years had become exhausted before his death and thirdly the son did not demonstrate any need.

Although there do not appear to be any reported Australian cases on the point, there have been decisions such as Smith v Woodward (Master Macready 9 September 1994 - noted in Leslie's Equity and Commercial Practice), where orders have been made in favour of adult sons who have had no contact with their deceased father for a long period of time.

I do not consider that there is any purpose in analysing whose fault it was that the state of non-communication came into place. In family relationships, hurts are inflicted or suffered sometimes consciously, sometimes unconsciously. Sometimes a young child is brainwashed by a custodial parent to consider that the other parent has inflicted some harm which is all in the mind of the custodial parent.

It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.

The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.

Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally; see for instance Scales' case at p 19.

I must mention three other decisions before coming back to the facts of this particular case. The first is the decision of Ormiston, J in the Supreme Court of Victoria in Collicoat v McMillan 30 October, 1995, unreported. In a masterly exposition of the principles of the Act, his Honour comes to the view that if the words "moral obligation" are a gloss on the Act they are certainly in accordance with principle and do not undermine the administration of the Act. In view of what the Court of Appeal said in Fraser's case, not everything that Ormiston, J said could be applied in NSW, but his judgment should really be required reading for anyone who practises in this field. It is a great shame that it has never been reported or even indexed in the Australian Current Law Digest.

Reference should also be made to Baird v National Mutual Trustees Ltd, Supreme Court of Victoria, Harper, J, 22 November, 1995.

In Niehoff v Niehoff [1995] VicRp 61; [1995] 2 VR 356, Eames, J held that although adult sons may have an order under the Act, the moral obligation to a son who has diligently cared for a testator was not sufficient to make it improper for a testator to divide his estate equally between the plaintiff and a son who had done nothing for the testator where the applicant was relatively wealthy.

Mr Eassie puts that the present is a case where the mere fact of paternity and the abrogation of the testator's duty to the plaintiff when he was adolescent means that there must be an order for the plaintiff. With respect, I disagree. The fact of paternity is something to take into account, but it must be taken into account with all the other facts and circumstances of the case and the question asked, would the community think in all the circumstances that a wise and just testator should have made provision for his child?

Of course, one of the relevant circumstances is as Holland, J said in Kleinig v Neal at p 537 that the testator has considered his obligation to his named beneficiary and the effect on that beneficiary if the benefaction was reduced or eliminated in order to provide for the plaintiff.

In the present case, the estate appears to be worth only $118,000. With costs likely to absorb at least $30,000, if a substantial order is made the principal asset, the house, will need to be sold. It may be able to be mortgaged, though one would wonder how the second defendant could afford to pay the interest on a mortgage. Her counsel, however, puts this as a possibility. The second defendant gave little evidence as to her accommodation needs in her evidence in chief. Indeed she was less than forthcoming. It came out in cross examination from counsel for the first defendant that she pays her sister, Mrs Rex, $50 per week and her husband pays a further $50 per week, but that she receives $70 a week from her son Brad and his girlfriend Cassandra who are also living in the house.

However, Mr Eassie asked at least one question too many in cross examination and elicited the information that Mrs Rex has the property up for sale and that the second defendant and her associates will have to vacate in the foreseeable future. He also elicited the fact that the second defendant had been relying on moving into the testator's house to solve her accommodation problem.

There are some matters of need that the plaintiff either has now or shortly will have. First he is a little hard-pressed to find cash for the purpose of visiting his daughter. Secondly, he has no financial nest egg, and thirdly, he is going to be in real problems when the time comes for his mother to sell her present home, or alternatively, when his mother dies. However, his mother at the moment is in good health, and should she survive for another six years which is more than likely, by that stage the plaintiff's son will be 18 and his daughter 16 and his obligations to provide for his children will have diminished. Of course, when that happens the single parent's pension will cut out and the plaintiff will at 52 (ie six years from now) be too young to obtain an old age pension. The plaintiff also, having been out of the workforce for a long time, will find it extremely difficult to get a job. However, that is the lifestyle on the evidence before me that he has chosen. There is no evidence to suggest that there is some current medical condition which limits the plaintiff's ability to earn.

In all these circumstances, would the community expect that a father who had only had intermittent contact with his son up until his deathbed illness to make any provision for his son?

My answer to this question has changed several times as I have been considering this application. What happened in the last week or so of the testator's life is of considerable significance. He had quite considerable pressures put on him, it would seem to me, by members of the family and by the first and second defendants. The case for changing his will in favour of his children, particularly the plaintiff, was eloquently put by his first wife and the first defendant, and even the solicitor who went down to see the testator. They even succeeded in removing the second defendant a little from the testator's affections. Notwithstanding this pressure, and after considering what were all the moral claims on him, the testator thought that the obligation he owed to his friend, the second defendant, in view of the care she had shown him during his illness a few years back, outweighed any obligation he had to the son with whom he had little to do until shortly before his final stay in hospital.

The way in which a testator evaluated these matters is, of course, not binding on the Court when it is making a decision under the Act, but when the Court can see that there is a testator who has put his mind to the problems, and has apparently evaluated the claims carefully, the Court should respect his views and his freedom of testation unless his decision is contrary to community standards. It must be remembered that the testator was far more likely to have in his mind all the details relevant to the respective claimants on his bounty than the Court which only is given such details as the parties have chosen to put before it.

The inclination not to make any order in the plaintiff's favour is increased by his failure ever to send his father a birthday or Christmas card and by his choice to adopt a life style of dependence on his mother rather than striving to make an effort to support himself. Furthermore, any substantial order will mean the testator's house will have to be sold and the second defendant will experience accommodation problems.

However, the plaintiff is now 46 and virtually unemployable. Once his mother dies or is unable to cope with a house, the plaintiff will have very real accommodation problems particularly if this occurs before his son Luke leaves school. He has no financial buffer at all. The separation from his father has had an effect on his financial well being in that his father has never assisted him. Furthermore, there are no other kin who are within the class whom the testator would be expected to have in mind for benefaction.

In the ultimate, I have reached the view that in all the circumstances, the testator ought to have made provision for the advancement in life of the plaintiff. In view of the relative smallness of the estate the only provision that can be made is the provision of a capital sum to assist the plaintiff with accommodation in the future and to act as a buffer against the vicissitudes of life. I believe that $35,000-$40,000 would be close to an appropriate sum in the circumstances.

Under the will as I have construed it, the house worth $105,000 passes to the second defendant and the cash and medals to the first defendant. In my view it is appropriate under s 13 of the Act that the burden of the order be borne by the gift of the house and contents. The testator's intention of providing accommodation for the second defendant cannot be effectuated because of a lack of assets and there is no moral or logical reason for her to receive the whole of the estate to the exclusion of the testator's brother.

Before framing orders, I should deal with the question of costs.

Section 33(3) of the Act makes it clear that a successful plaintiff does not necessarily receive costs.

As to the first defendant's costs, the second defendant submits that he should receive no costs because he has not played a significant role as executor and were the second defendant not joined, there was great danger in the first defendant siding with the plaintiff. I do not consider that sufficient has been shown to demonstrate that the perceived danger was real for the executor to be deprived of his costs. Accordingly, the costs of the first defendant on the indemnity basis should be paid out of the estate.

The second defendant was involved in this case at her own risk as to costs. Her counsel was able impressively to cross examine the plaintiff. The money that the second defendant spent on her legal representation was probably money very well spent. I do not, however, consider that her position as a beneficiary needed to be safeguarded in this case in the way in which the second defendant feared.

I realize that the plaintiff's costs may exceed the second defendant's costs, but I consider that the fair way to proceed is to have the house sold and the nett proceeds divided equally between the plaintiff and the second defendant with each to bear their own costs. This should net the plaintiff about $40,000 on the values given to the Court. If that value has increased by the time of sale, I consider the plaintiff should share in the increase.

I consider that under s 10 of the Act, I need make a consequential provision that in lieu of the gift to her by the will of the testator, the second defendant receive one half of the nett proceeds of sale of the testator's house at 23 Charlton Road, Lalor Park.

By "nett proceeds" I mean the gross proceeds after payment of -

(a) The first defendant's costs of these proceedings;

The plaintiff and the second defendant must bear their own costs of the proceedings.

I direct the plaintiff's counsel to bring in short minutes of order to reflect the above. I will list the matter at 9.50 am on 11 June 1996 for that purpose. Should some other date that week be more convenient to counsel, provided my Associate is contacted by 4 June 1996, another date may be substituted.