Family Provision Claims by Adult Children (Part 1)

A historical note

If we were to delve into history2, we would discover that the English common law system originally required that estates in fee simple and in fee tail general be bequeathed to the eldest son of the testator, with all other children being excluded; however, it was possible even in the earliest common law times to deprive an heir by inter vivos transfer.3  After The Statute of Wills was passed in 1540, a testator could also deprive his heir by will4 and after 1646 all children could be deprived of land inheritance. Widows were protected by the law of dower, which allowed a widow the use for her life of one-third of her husband’s real property, and widowers by curtesy, which allowed a widower with a child of the marriage the use for life of all of his wife’s land. Neither dower nor curtesy could be defeated by will or by inter vivos transfer.

As to personal property, at common law, all of a wife’s personal property passed to her widower absolutely, unless he consented to a different disposition in her will, or by inter vivos transfer. A deceased husband’s personal property was subject to forced (fixed) shares. A surviving wife was entitled to half of her deceased husband’s net personal property by forced share where there were no children of the marriage. This rule also applied where there were surviving children but no widow. The remaining half of the personal property could be left by will as the testator pleased. Where a wife and children survived, the wife was entitled to a one-third forced share, and the children to a one-third forced share, with the remainder to be disposed of by will as the testator wished.5 Forced shares were first recognised in 1215,6 but had largely fallen out of use in England by 1400,  in Wales by 1696, and were completely abandoned in all areas of England in 1724.7

As the 19th century progressed, the idea of testamentary independence became more embedded in the common law. The Dower Act 1833 (UK) allowed a husband to overturn his wife’s dower by will or by inter vivos transfer. In the absence of forced shares, this allowed husbands to leave their entire estates away from their widows and children if they so wished. After the Married Women’s Property Act 1882 (UK), wives could likewise leave all their property away from their widowers and children.

The modern forced share approach can be contrasted with that of statutes in a small group of common law countries which give a wide discretion to the Courts to divide an estate under dispute, commonly referred to as either family or dependants’ provision or testator’s family maintenance.

The notion of total testamentary freedom was a construct of the nineteenth century, an offshoot of the style of English laissez-faire liberalism that was fashionable at the time.  However, it was recognised late in the nineteenth century that testamentary freedom of this type allowed some testators to ignore their responsibilities to close family, particularly spouses and children. This a problem in the then newly developing, but wealthy, dominions of Australia, New Zealand and Canada, and was fanned by an indignant press which reported several notorious cases of wealthy men dying and leaving their widows and children unprovided for.8

Our Family Provision legislation originated from New Zealand legislation, the Testator’s Family Maintenance Act 1900, thought to be innovative and which attracted much attention in the common law world at the time.  It was copied for both testate and intestate situations in English law, and the provinces of Canada (other than Quebec).  It actually had its genesis in an 1877 Act which enabled illegitimate children under 14 to apply for maintenance out of the estate of deceased parents, the Destitute Persons Act 1894 (NZ), and the Native Land Court Act 1894 (NZ) which provided that Maori applicants were to be left with ‘sufficient land for their maintenance’ after claims alienating Maori land reserves to white settlers.

The 1900 Act was replaced by the Testator’s Family Maintenance Act 1906, which extended the time period for applications from six months to twelve months from the date of probate, and allowed for provision to be made in the form of either lump sums or periodical payments. This Act was in turn repealed and replaced by the Family Protection Act 1908 and the idea of family provision quickly spread throughout Australia, and eventually to Canada and the UK.

Queensland Legislation

In Queensland, Family Provision legislation confers rights on applicants, typically spouses, de facto spouses, children (including adopted and stepchildren) and specifically defined dependants9 to apply to the court to overturn bequests in wills which do not adequately provide for the maintenance and support of the applicants. This is clearly an interference with testamentary freedom, and is supported by both legislation and the courts on public policy grounds.

The relevant section of the Queensland legislation is s. 41:

(1) If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

…………

(8) Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made.

An often cited statement of basic principle underlying this legislation is that of Salmond J in In re Allen (deceased), Allen v Manchester:

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

It was adopted by the Privy Council in a New South Wales appeal in Bosch v Perpetual Trustee Co. That case, in turn, has been followed and applied many times.

In McCosker v McCosker, Dixon CJ and Williams J, referring to what is sometimes called the primary or jurisdictional question, said: 

“The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd) the word ‘proper’ in this collocation of words is of considerable importance. It means ‘proper’ in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.”10

Singer v Berghouse

In 1994, in Singer v. Berghouse,11 the High Court made the authoritive re-statement of the approach largely adhered to by the court when considering Family Provision applications.  The majority of that court made the following comments:

“In Australia it has been accepted that the correct approach to be taken by a court invested with jurisdiction under the legislation of which Act (Family Provision Act) (NSW)) is an example that was stated by Salmon J. [Re Allan v. Manchester (1921) 41 NZLR 218].  In that case His Honour said (at 220-221):

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

For our part 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”.

It is true that the Act is silent in respect of the terms “moral obligation” or “moral duty”.  The jurisdiction of the court is invoked only when, by the terms of Section 41(1) is satisfied, as a matter of exercise of its discretion, that adequate provision is not made from the estate for the proper maintenance and support of, in this case, the adult son of the deceased.

Singer, however, had its detractors. For example, in the Victorian Court of Appeal, Callaway JA took a different view when he said:

“[I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator’s dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator’s bounty and give it to someone else. In conferring a discretion in the wide terms found in s.91, the legislature intended it to be exercised in a principled way”.12

Grey was cited13 for the proposition that the jurisdictional pre-condition stated as part of the two-stage test in Singer’s case could not be made out unless the court was satisfied the deceased had failed, by his will, to fulfill his moral duty to a younger son.  The same sentiments were expressed by McDonald J in Coombes v Ward14 and the same path was been followed by Judges in Tasmania15 and Western Australia.16

Such a trend to debate the correctness of reliance on what was said in Singer can hardly be said to have extended to judicial writings in Queensland although in Chapman v. Chapman17 Cullinane J made it clear that, in his view, moral claim and moral duty, remain relevant. 

He said:

“the appellant accepted His Honour’s finding that the deceased owed a moral duty to the respondent which had not been satisfied by their bequest ..… on the other hand the moral claim of the appellant was a very strong one”.

Almost exactly ten years ago, at a QLS Succession Law Conference (now) Justice Alan Wilson in further developing a paper he had delivered at an earlier,  carefully examined these cases and other academic writings to show that the High Court’s dictum was wrong in that “it ignored the historical, societal and philosophic underpinnings upon which the remedy was constructed”.

What is clear is that, by its terms, Section 41 of the Succession Act is designed to protect eligible persons where inadequate provision (or no testamentary provision) is made for their proper maintenance and support in life.  Singer goes no further than this with what has become known as the ‘two stage process’.18 

There is a threshold test.  An applicant must show that he has a prima facie case that adequate provision has not been made. This is reflected in the Practice Direction.19

The need for the applicant to establish a moral claim to further provision became a matter of judicial debate and has clearly been endorsed as a useful perspective from which to assess the statutory criteria.  Gleeson CJ said in Vigolo v Bostin:

“In explaining the purpose of testator’s family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description “moral”. As McLachlin J pointed out in the Supreme Court of Canada, that is the way in which courts have traditionally described them. Attempts to misapply judicial authority, whatever form they take, can be identified and resisted. There is no occasion to reject the insights contained in such authority.”20

In Vigolo, a claim was made by an adult son who had worked for 20 years on his father’s farm. The stated inducement was that the son would receive the farm upon the father’s death. However, some years prior to the father’s death, there was a dispute between father and son, resolved by a Deed of Settlement entered into at arms length and on commercial terms.  At the time of the father’s death, no provision had been made for the son who sought further provision under the relevant statute.

The claim was not put on the basis of the applicant’s need because he was quite well off and in a much better financial position than his siblings. However the claim was put purely on the basis that the deceased had a moral obligation to the applicant bearing in mind his prior work in the family farming enterprise and promises (relating to the farm) made to him during the currency of that enterprise.

In essence, in the judgment of Gleeson CJ and the joint judgment of Heydon and Callinan JJ, the secure financial position of the applicant was not determinative of the issue. Gleeson CJ noted that the fact that the applicant had been financially advantaged by his father (by being included in the farming enterprise) and had been adequately compensated for his extensive efforts upon dissolution of that enterprise was “significant”. Heydon and Callinan JJ held that adequacy of provision was not to be assessed simply in light of whether the applicant had the independent means to live comfortably, but was to be assessed in all of the circumstances, including promises of the kind made to the applicant and the circumstances in which those promises were made. Gummow and Hayne JJ also appeared to consider the promises significant.

Taken as a whole, the judgment appears to contemplate that applicants may succeed on a claim even if they have more than sufficient resources of their own, on the basis that all relevant factors must be balanced to arrive at a conclusion as to whether “adequate” provision has been made. In short, it is again confirmed that significant wealth will not be an insuperable hurdle to a successful claim.

Adult children

My brief for this paper was to consider claims competing with variously described entitled persons by applicants within the category adult children. This has always been a contentious category, especially, at least in earlier times, that of adult sons.  The position was first discussed in the New Zealand decision of Allardice v Allardice.21

In that case, the testator had been married twice, with four adult married daughters and two adult sons by his first wife, and a widow and six children from his second marriage. He left his entire estate to his second family, with no provision for the adult children. At first instance, the Supreme Court denied any provision to all of the six adult children of the testator’s first marriage; however, on appeal to the New Zealand Court of Appeal, three of the married daughters were granted provision of small amounts by monthly instalments. The court was not entirely dismissive of the claims of the adult sons, but felt that they should be self-supporting, stating:

‘As to the sons, I have doubts whether some provision ought not to be made for them. They are, however, physically able…If they had any push, they should, considering their age, have ere this done something for themselves, and to settle money on them now might destroy their energy and weaken their desire to exert themselves.’

 In Australia, the adult son issue was discussed by Fullager J in In re Sinnott:22

‘No special principle is to be applied in the case of an adult son. But the approach of the Court must be different. In the case of a widow or an infant child, the Court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported. But the 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.’

McTiernan J in Pontifical Society for the Propagation of the Faith v Scales23 stated that:

…the fact that an applicant is an adult son does not necessarily mean that relief in applications of this character must be refused.  But such cases present special difficulties and, of course, before relief can be granted it must appear that the circumstances are such that the applicant is …left without ‘adequate provision for his proper maintenance and support’. But what is ‘adequate’ and what is ‘proper’ must be determined in the light of all the circumstances of the case’.24

We know that any special need requirement has been lessened.  In Hughes v National Trustees, Executors and Agency Company of Australasia Ltd, Gibbs J said:

‘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 and 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…’.25

Later cases have established that there are no strict principles in awarding provision to adult sons, or to adult children generally26 but that each case is subject to judicial discretion with the circumstances of the adult child, whether of health, finances or any other relevant issue, being discussed in some detail before the judge awards whatever provision he or she thinks ‘proper’.

About twenty years ago a number of practitioners, apart from those who appeared for the executors, were surprised by an order made by Shepherdson J in Mayne v Perpetual Trustees Queensland Limited27 when the younger of two sons succeeded in an application for further provision out of the estate of their late father.  It was a contest between a 56 year old son, Bill, for whom no provision was made in the will, and his 63 years old brother, John, a co-executor and the residuary beneficiary.  The net value of the estate after payment of legacies to two daughters which reduced it by $300,000 was $1.36 million. Both the applicant and the respondent had been taken into a grazing partnership with their father, without paying for it, although they both worked for the benefit of that partnership and another company in which they each held a B class and C class share respectively.  By the time the residuary beneficiary was in his early 50’s and the applicant in his mid 40’s, the partnership was dissolved and arrangements were made such that the applicant no longer was a member of it or a shareholder in the company.  The testator formed a new partnership with the residuary beneficiary and they both continued on as shareholders in the company.  Disputes arose between the two sons concerning finalisation of accounts.  At the time of the hearing, the applicant’s net asset worth was said to be some $510,000.  His brother’s net worth was said to be about $1.04 million.

His Honour found that Bill and John had each contributed significantly to the acquisition and build up of the testator’s assets yet the testator completely excluded Bill from his bounty. The reasons for this were set out in the will as follows:-

“I HEREBY DECLARE that I have not provided for my son WILLIAM  STEWART COLBURN MAYNE because by reason of the dissolution of the family partnership of Mayne and Sons and my acquisition of his shares in the Mayne Cattle Company I am convinced that my said son has already received a full share of the family assets and therefore is not entitled to any portion of my remaining estate which is required to provide my wife my daughters and my son Walter John Colburn Mayne with an inheritance and also to reimburse my said son for practical management of my interest in pastoral pursuits and as a co executor of my estate.”

Despite argument that weight should be given to the testator’s reasons expressed in that clause in the will,28 His Honour found nothing that reflected on Bill’s character or going to conduct which could cause him to find Bill disentitled to an order in his favour.  The finding that drew some interest in the appeal against His Honour’s decision was that at the date of death the applicant, Bill, was in a situation of special vulnerability in that if for any reason he was unable to continue to work his properties, his and his wife’s business would probably collapse and his son may not complete his education and that the testator must have known or should have foreseen that when he made his will success for graziers in the area was subject to the vagaries of the weather and that his grandson had not completed his education.

His Honour, in view of the size of the estate, relied on Adam J’s reference, in Re Buckland (Deceased)29:-

“The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance”.

His Honour made provision for the applicant in the sum of $550,000 at an interest rate to that which had been provided for from the date of death by the testator in his will for the legacies for his daughters.  Now, while His Honour made reference to Hughes‘ case30 which had established that there are no rigid rules applicable to an application by an able-bodied adult son and that the need to show some “special need or special claim” may generally speaking be required but it is not essential in every such case, depending on the circumstances.31

On appeal, both Fitzgerald P and de Jersey J, in a joint judgment, were critical of the reasoning of Shepherdson J’s approach to the clause explaining why the testator had excluded the applicant and his emphasis on the possibility of a recurrence of a back problem but they fell short of finding a sufficient basis for overruling the decision that adequate provision had not been made by the testator though they had difficulty in determining what matters had influenced his exercise of discretion in arriving at what they referred to as “the substantial sum of $550,000”.  They said that the superior financial position and his relative lack of need did not justify an increase of what may be ordered in favour of the respondent applicant which was limited to the amount which was adequate for his proper maintenance and support.  Allowing the appeal, the sum of $300,000 was substituted for the original figure. 

Pincus JA also took the view there was no sufficient evidence to justify the significance attached to the circumstances concerning the contingency of the respondent’s prior back problem returning and interfering with his work capacity.  He disagreed with the trial judge’s view that the respondent’s position at the date of death was one of “special vulnerability” but the finding with respect to building up the estate had justified a view that there was a moral claim which the testator should have recognised.

Even with the reduction of the value of the order for provision by the Court of Appeal, many Succession lawyers thought the floodgates had been opened, not only because of the size of the award, though reduced, but because it might otherwise have been thought that there was a serious question as to whether the applicant was entitled to any relief in light of the earlier authorities that suggested that a special need or special claim must be shown to justify intervention in favour of an adult son.32

This can be contrasted with a decision of McMeekin J in Dawson v Joyner,33 less than twelve months ago. The relevant facts can be summarized as follows.  The testator died on 15 April 2009 aged 79 years. His marriage had ended in divorce in 1985-86 and a property settlement reached. The applicant, Garry, the testator’s elder son was born 25 January 1962, (49 at trial, 47 at time of his father’s death). He fell out with his father at the time of his parents’ divorce and remained estranged, at least, for the next 22 years. The respondent, Mr Leigh Joyner, the executor of the estate, opposed the application with support from the only other child of the deceased, Ross Dawson. Another beneficiary under the last will was not served as there was no intention that her entitlement would be affected in any way by any order made. Ross was born on 4 December 1963. Both sons were married although Garry, the applicant, separated from his wife Wendy in April 2010. The separation was said to be irreconcilable.

Both Garry and Ross have children — Garry’s were aged 23, 21 and 18. They were all employed. Ross has two children aged 26 and 13. The younger child, Kasey, was still a dependent student. Both Garry and Ross were in good health, as were their children, and without special needs.

The application failed.  His Honour dismissed the application and said in the penultimate paragraph of his reasons for judgment:

“I can see no reason in justice why the Court should intervene here to abridge the Testator’s “freedom of testation”. In my view the applicant has failed to demonstrate that the jurisdiction of the Court is enlivened.”34

This followed a direct reference to what Young J had said in Walker v Walker35

“… 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…”

The net value of the estate was assed at about $2.7million, the principal asset being a freehold grazing property of some 3000 acres valued at just under $ 2 million. It was part of an aggregation of three properties on which the deceased had conducted grazing operations with his brother Keith (until his death in 20030 and with Ross and his wife Marcia.

[12] The remaining assets of the estate were cash of approximately $141,000, livestock (around $156,000), shares in AMP, and a one-third interest in a grazing partnership conducted between Ross, his wife Marcia and the testator, with an estimated value of $490,000.

The testator’s will provided that, apart from a small legacy to a named beneficiary, his estate was to go to his son Ross. No provision was made for Garry.

Since he left school when he was 15, Ross lived and worked full time on the properties. Ross and his wife Marcia lived on the principal grazing property “Spotswood” for their entire married lives from March 1989 and only 200m or so from the testator. He did not remarry. Marcia did all his shopping for him and he ate with Ross’ family most nights. There was no contest that the testator became very difficult to manage in his later years. His behavior became erratic. Quite apart from the contribution made to the conservation and preservation of the family grazing properties His Honour found that Ross and his wife had made an obvious significant contribution to the testator’s welfare and happiness during his lifetime and under trying circumstances.

Until he was 23 the applicant Garry had the same relationship with the testator as did Ross. Both worked on the property as children for modest payment. Garry was sent off to Agricultural College with the intent that he return and work on the property whereas Ross stayed. As adults they were paid an award wage together with benefits such as fuel, free meat and milk, accommodation, and groceries to be charged to the testators’ account up to $30 per week.

Garry had accepted that he would work in the family business. The intention was that the aggregation would be built up by their joint efforts to enable their two families to live off the properties and that they would one day inherit them. When Garry and Wendy married they lived and worked on the property.

A property located at Dingo was bought in Garry and Wendy’s names for $164,000 in June 1984 financed partly by a loan and partly by the testator putting monies into the purchase from the family trust ($8,315), which he controlled, and a substantial sum that he had inherited from his own mother’s estate ($63,000). Ross contributed $5,000 but Gary none. 

When  the testator and his wife separated in April 1984. Garry thought that his father treated his mother inappropriately. The mother brought property settlement proceedings and the testator needed to raise money Garry received a letter from his father’s solicitors demanding repayment of a “loan” said to be owing in respect of the purchase of the property at Dingo.

Whether the demand was to put the testator in funds, or whether the testator perceived Garry was aligning himself with his mother in the family dispute, or whether the testator genuinely thought that an amount was owing from Garry was unresolved but within days of receiving the letter Garry had left the family property never to return. Garry claims in his evidence that when he challenged his father about the alleged loan he was threatened with violence.

Garry intervened in the family law proceedings seeking both a declaration that he did not owe any monies and an order that the testator pay him $150,000 a claim apparently based on the assertion that he had “contributed substantially to the production of income and particularly to the improvements to the properties, and to stock,  plant and equipment.

That dispute was resolved by a Deed dated 19 November 1986 between the testator, his wife and Garry. So far as Garry was concerned the Deed recorded the fact of the dispute about the existence of the loan and that the parties agreed that each “severally releases his or her rights to make an application for provision or further provision under the Testator Family Maintenance provisions of the Succession Act 1981” acknowledging that the terms agreed were to their respective advantages. 

The respondent contended that whilst the clause was void in so far as it purported to preclude the applicant from pursuing his entitlements under the Succession Act 1981 it nonetheless informed the Court as to the intention behind the settlement reached — namely that Garry was severing all ties and claims on his father.

There was no communication of any sort between Garry and his family and the testator until 2007 — a period of 22 years since Garry had left the property. In 2007 the applicant commenced to visit the testator in a nursing home having been advised by Ross that their father had suffered from dementia and could no longer stay on the property but there was uncontested evidence that the testator lacked the capacity to form or maintain relationships from January 2007.

The testator had sworn a declaration in August 1992, explaining his decision to make no provision for Garry in his will prepared then, where he said that he considered that in the Family Court proceedings Garry had obtained benefits that “far exceeded” his then entitlement and that the manner in which the proceedings had been conducted against him by his wife and Garry was “malicious, vexatious and partly fraudulent”.  He had not included Garry in any of his three wills, the last being made on 20 October 2005. No meaningful reconciliation took place. While he preserved his faculties the testator displayed no wish or intention that he be reconciled with Garry, nor did Garry attempt to be reconciled with the testator.

The applicant’s financial situation

At the time of the trial, the applicant worked as a drag line operator at a mine. He earned about $150,000 p a before tax. His wife worked in the Public Service earning $1250 per fortnight. The applicant estimated his net asset position to be about $740,000 but because of the separation from Wendy, he had halved his interest in their jointly owned assets on the assumption that there would be a division of property. The respondent argued that the  separation may not necessarily have been permanent pointing out that despite 20 months passing since their separation neither party had taken any step towards resolving property issues, even to the extent of consulting a lawyer. They maintained their joint interest in a partnership in a small herd of cattle, they remained amicable and Wendy retained access to a joint bank account and credit card. They also had a cane farm valued at $960,000 on the market at $1.4M.

His honour determined that the applicant’s net asset position in the sense of assets to which he had access, at the time of death, was in the order of $1.5 million and the fact that there was  no evidence that, at the date of the testator’s death, the relationship was likely to come to an end was some serious relevance as the jurisdictional question was to be decided as at the date of death with the notional “wise and just testator” bringing into account all relevant facts and those that are within “the range of reasonable foresight.

Ross’ Financial Position

Ross and Marcia were comfortably off with a net asset position of about $9M. The main property worth between $6.3M and $7.3M was gifted to them by the testator during his lifetime.   They also had two thirds interest in the grazing partnership valued at between about $600,000 and $1M. They also owned a news agency worth more than $1M.  Their businesses were profitable.

Contribution to the Estate

Garry made no contribution to the estate at least since he left in 1985. To that time his contribution equalled his brother’s although Garry went away to College for two years and Ross didn’t. In 1985, at age 23, Garry took with him, unencumbered, the property at Dingo to which he had made no financial contribution. Ross on the other hand made a substantial contribution. He’d lived and worked on the properties all of his life as a third generation of his family to work that land.

The Jurisdictional Issue

So, to the question ‘was “inadequate provision” made for the “proper maintenance and support” of Garry?   In accordance with Singer His Honour had to have regard to  Garry’s financial position, the size and nature of the estate, the totality of the relationship between Garry and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his bounty.

His honour agreed with the respondent’s argument that each of those matters, save for the size of the estate, were against and not for the applicant.  The size of the deceased’s estate was not insubstantial, the nature of it such that it formed part of the agricultural enterprise which the deceased conducted with Ross since Garry’s departure 26 years before. Arguably, there was no relationship between the Deceased and Garry whereas the relationship between the deceased and Ross, as his sole beneficiary, was one of years of mutual support. The deceased and Garry had clearly agreed to permanently separate their personal and commercial affairs. The deceased was clear as to why he was making no provision for Garry and Ross and Marcia had made substantial contributions to the build-up of the estate; Garry had made none.

For the applicant, two things were stressed in argument – firstly, the implications of the word “proper” in the phrase “proper maintenance and support ” and secondly, that due regard ought to be had to the concept of the testator having a duty to bear in mind the “advancement of life” of the applicant.

His Honour referred to the judgment of Callinan and Heydon JJ in Vigolo:36

“The use of the word “proper” means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the “station in life” of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.”

His Honour said that his statement that Garry is not in need is not intended by me to be an attempt to reinstate the view of the law espoused by Fullager J in Re Sinnott37 and said there was no requirement in the legislation that an adult son show some special need or claim before becoming eligible to apply; but that “that  is not the same as saying that the fact that an applicant is an adult son and well able to care for and provide for himself is irrelevant.

McMeekin J ordered the applicant to pay the respondent’s costs.

(Continued in Part 2)

Footnotes

1. Max West, ‘The Theory of Inheritance Tax’ (1893) 8(3) Political Science Quarterly 426, 429.
2. For example, see the excellent paper: Every Player Wins a Prize? Family Provision Applications and bequests to Charity, M McGregor-Lowndes and F Hannah,  Australian Centre for Philanthropy and Nonprofit Studies, QUT, 2008
3. In the period between 1290 and 1540. See generally: William F. Fratcher, ‘Protection of the Family against Disinheritance in American Law’ (1965) 14(1) The International and Comparative Law Quarterly 293, 294
4. Ibid. The land which could be left elsewhere was two-thirds of land held by military tenure and all land held by socage. After 1660, all military tenure was converted to socage, so that all land could be left away from the heir by will.
5. Forced shares for widows could be reduced by jointure or settlement, both of which were commonly used, and by advancements for children.
6. Magna Carta Ch 26: ‘If anyone holding of us a lay fief shall die, and our sheriff or bailiff shall exhibit our letters patent of summons for a debt which the deceased owed us, it shall be lawful for our sheriff or bailiff to attach and enroll the chattels of the deceased, found upon the lay fief, to the value of that debt, at the sight of law worthy men, provided always that nothing whatever be thence removed until the debt which is evident shall be fully paid to us; and the residue shall be left to the executors to fulfill the will of the deceased; and if there be nothing due from him to us, all the chattels shall go to the deceased, saving to his wife and children their reasonable shares.’
7. The only remaining area where these applied after 1696 was in London.
8. James Mackintosh, ‘Limitations on Free Testamentary Disposition in the British Empire’ (1930) 12(1) Journal of Comparative Legislation and International Law (3rd Series) 13, 13.
9. any person who was being wholly or substantially maintained or supported by a deceased  (other than for full valuable consideration) at the time of the person’s death being a parent of that deceased person; or the parent of a surviving child under the age of 18 years of that deceased person; or a person under the age of 18 years: [s.40]
10. (1957) 97 CLR 566 at 576
11. (1994) 181 CLR 201-209
12. Grey-v-Harrison [1997] 2VR 359 per Callaway JA at 366
13. In Blair v Blair (2002) VSC 95 per Harper J
14. (2002) VSC 202
15. Re Mackinnon (2002) Tas SC 3
16. Vigolo v Bostin (2001) WASC 335
17. (2001) QCA 465
18. Firstly, whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance and support of, in this instance, the deceased’s adult son.  This is a jurisdictional question which is determined at the date of death of the deceased.  Secondly, if the first question is answered in the affirmative, the court in exercising its discretion to make such a provision as it thinks fit, must take into account the relevant facts existing at the time of making the order. 
19. Practice Direction No 8/2001, Clause 7(a).
20. Vigolo v Bostin (2005) 221 CLR 191@ 204 [25]
21. (1910) 29 NZLR 959, at 969-975.
22. (1948) VLR 279, at 280.
23. (1961-62) 107 CLR 9, at 18.
24. See also on the same point: McCosker v McCosker (1957) 97 CLR 566; Stott v Cook (1960) 33 A.J.L.R. 447; Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134.
25. (1979) 143 CLR 134 at 147.
26. Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37; Wilson v Wilson (1993) unreported judgment, Supreme Court of Western Australia; Banks v Seemann [2008] QSC 202.
27. Re The Will of Mayne, BC 9202415
28. In reliance upon In re Green (Deceased) (1951) NZLR 135 and especially on the passage in the judgment of the Court of Appeal at page 141. The reference in that case was to Section 33(2) of the New Zealand legislation which finds its equivalent in the Queensland Act in Section 41(2).
29. (1966) VR 404 at 415.
30. Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1978-9) 143 CLR 134 per Gibbs J at pages pp. 146-8.
31. Supported by the view of Holland J in Kleinig v Neal (No.2) (1981) 2 NSWLR 533 at 543.
32. In re Sinnott (1948) VLR 279 at 280; Hughes v National Trustees, Executors and Agency Company of Australia Limited (1979) 143 CLR 134 per Gibbs J; Anderson v Tebonera (1990) VR 527 at 539 per Ormiston J; and see judgement of Pincus JA in Mayne
33. [2011] QSC 385
34. Paragraph [78]
35. Unreported, NSWSC, 17 May 1996 at 31
36. (2005) 221 CLR 191 at [114]
37. [1948] VLR 279 at280 where his Honour, Fullager J, 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.”