The plaintiff's situation
14 The plaintiff is 60 years of age, she is single and has no dependents. She has been single for some years and does not anticipate any relationship in the future. She has a birth deformity that affects both arms and she only has part of one hand. Notwithstanding this deformity, she occupies a position as a clerical assistant at the Mater Hospital at Brisbane and receives a salary of $33,666.00 per year. At this stage she hopes to continue working until she is 65 years of age. Her net salary per week is $654.49 and she has outgoings, which have been reduced from those shown in her affidavit as she has now repaid the mortgage on her home. Her weekly outgoings are in the order of $515.00 per week. She is able to meet her expenses and indeed she has a surplus, which she is contributing to her superannuation.
15 The plaintiff owns her property at 41 Donatello Street, Fig Tree Pocket, Queensland. The property is worth $200,000.00 and is unencumbered. She also has a Mitsubishi Lancer Station Wagon which is insured for $18,000.00 although it is worth somewhat less. Her shares in Westpac Bank are worth approximately $10,000.00. She has bank accounts of about $12,000.00
16 The plaintiff is a member of a superannuation fund and her interest at the moment is valued at $161,761.66. By the time she retires it is likely to yield an amount of $214,687.00 which she can take as a lump sum or as an allocated pension. If she takes a pension it would be in an amount of between $15,000.00 and $20,000.00 per annum which would last for some ten to fifteen years.
17 The plaintiff has made her own way in life without any help in a financial way from her parents. At one stage she asked her father for assistance but he was unable to help her because of his own financial difficulties. She has not contributed to the build up of the estate of the deceased in any financial way. Her contributions by working on the property were only for a year after she had left school.
18 An important matter is the relationship that existed between the plaintiff and the deceased. It appears to have been a normal relationship up until the time of the death of the plaintiff's mother in 1977. Although the plaintiff lived in Sydney she was able to keep in contact with her parents and, indeed, frequently visited her mother when she was in hospital for treatment for cancer. The deceased remarried in 1978 somewhat to the surprise of the plaintiff who was happy for him to do so. However, difficulties soon arose and over the years the plaintiff only saw the deceased on a few occasions. The plaintiff sought to keep in contact with her father by mail but several things occurred which led to an estrangement. The points of friction appear to have been the spreading of some rumours about the deceased's second wife wearing the deceased's first wife's jewellery and an occasion when the plaintiff picked up two duffle bags from home which contained a number of her possessions. According to the deceased he thought these bags contained silver which belonged to his first wife. There was also an incident when the first defendant, the deceased's second wife, kept from the children the fact that the deceased had been in hospital and was being treated for a serious heart condition. Although she said she did this on the advice of the doctor it led to a sharp exchange between her and the plaintiff. The plaintiff immediately apologised to her father and offered to apologise to his wife but she would not speak to the plaintiff. Thereafter the deceased refused to speak to the plaintiff and would not let her visit him at the property at Bellingen.
19 As I have recounted in the chronology, the plaintiff only saw the deceased two or three times in the last sixteen years of his life. One occasion was in 1984 and the other 1989 when the deceased was in Brisbane. On this occasion the meeting was cordial and they seemed to get on well together. The default provision in the deceased's will probably reflects the fact that there was a reconciliation in the later years of the deceased's life.
20 Section 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person "it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person."
21 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows:
"This conclusion directly raises the question of whether the word 'ought' in s 7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator's Family Maintenance and Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts.
…..
It seems plain from the comparison of the two Acts, and particularly from s 3 of the 1916 Act and s 7 and s 9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose.
The Act draws a distinction between the eligible persons referred to in par (a) and par (b) on the one hand and par (c) and par (d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who in the ordinary course of family life would, prima facie, be persons to whom the deceased person spoken of in s 3 of the 1916 Act and s 7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life, as being likely to be made the subject of provision by the deceased.
In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 and Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason J and Aickin J both agreed. However, there was a differing view, expressed by Murphy J in the same case when, after commenting (at 158) that 'many cases suggest that an applicant must show a moral claim …', he went on to say that this was a gloss on the Act and was unwarranted and inconsistent with the language of the legislative scheme.
It seems to me that the introduction into s 7 of the present Act of the word 'ought' in replacement of the words from s 3 in the 1916 Act as the court thinks fit shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word ought seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par (c) and par (d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par (a) and par (b) although it is unnecessary to decide that in this case."
22 Meagher JA (NSWLR at 570) agreed with Priestley JA.
23 Meagher JA had previously expressed a view in Hughes v Hughes Court of Appeal Unreported 6 June 1989 at 4 (an adult daughter case) that the duty arose to make provision as established in that case as follows:
"Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right , but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be." (Emphasis added).
24 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.
25 In Benney v Jones, Mahoney JA at 560 said:
"Whether an order should be made raises (as it has been described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal, 5 December 1984, unreported) and Gorton v Parks (1989) 17 NSWLR 1.
Where the applicant is a member of the deceased's family, as referred to in the earlier paragraphs of s 6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear."
26 In Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, His Honour noted:
"It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation:"
27 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales case) (1962) 107 CLR 9. The Scales case was an unsuccessful claim by an adult son. Dixon CJ said (at 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.… In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator's death."
28 In Gorton v Parks at 10, Bryson J sought to distinguish the Scales case. He said:
"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 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 has no duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; … Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. 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."
29 In any event Bryson J distinguished the Scales case (at 11) on the basis that on the facts before him, the plaintiffs:
"In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away, they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relations. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Calcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way..."
30 In Walker v Walker (Unreported 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton v Parks in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows:
"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 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 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."
31 Young J also observed:
"In Fraser's case, Kirby P at 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 (at 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) 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 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."
32 In Walker v Walker, Young J noted:
"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.