Patrick Joseph Hackett v Public Trustee of the Australian Capital Territory [1997] ACTSC 30 (2 May 1997)

SUPREME COURT OF THE ACT

PATRICK JOSEPH HACKETT v. PUBLIC TRUSTEE FOR THE AUSTRALIAN CAPITAL
TERRITORY
No. SC 172 of 1996
Number of pages - 20
Probate

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

HIGGINS J

CATCHWORDS

Probate - plaintiff seeking provision from estate of testator for his "maintenance, education or advancement in life" - Family Provision Act 1969 (ACT) - the Court's discretion, having regard to all the circumstances of the case, to make an order for the provision from a deceased's estate "for the proper maintenance, education or advancement in life" of a beneficiary, actual or potential - factor influencing the determination of the adequacy or otherwise of the provision - the testator's "moral obligation or duty" - two stage process - whether, as at the date of the order, adequate provision has been made for the eligible person and if not, what provision is to be made - the conduct and character of the plaintiff - the effect of provision from the estate on pension rights of the eligible person.

Words and phrases - "proper" - "adequate".

Family Provision Act 1969 (ACT), ss7, 8

Administration and Probate Ordinance 1929 (ACT)

The Holy Bible, King James Version, Luke 15:11-32, Matthew 20:1-16

Bosch v Perpetual Trustee Co [1938] AC 463

Blore v Lang [1960] HCA 73; (1960) 104 CLR 124

Singer v Berghouse (No. 2) [1994] HCA 40; (1994) 123 ALR 481

Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24

Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134

Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490

Delacour v Waddington [1953] HCA 64; (1953) 89 CLR 117

Wenn v Howard [1967] VR 91

Gorton v Parks (1989) 17 NSWLR 1

Re Hodgson (1955) VLR 481

Re Pope (1975) 11 SASR 571

Re Beard [1963] Qd R 90

Chapman v Elder's Trustee and Executor Co Ltd [1971] SASR 63

Bondelmonte v Blanckensee [1989] WAR 305

King v White [1992] 2 VR 417

HEARING

CANBERRA, 3-4 March 1997 (hearing), 2 May 1997 (decision)

2:5:1997

Counsel for the Plaintiff: Mr R J Arthur

Instructing solicitors: Peter Smyth Burnett & Co

Counsel for the Defendant: Mr T M Johnstone

Instructing solicitors: Higgins

ORDER

THE COURT ORDERS THAT:

1. The bequest to the plaintiff of $500.00 be increased to $60,000.00. 2. The executor make provision out of the estate accordingly. 3. The reasonable legal costs of the parties be met out of the estate.

DECISION

HIGGINS J

The application

On 24 April 1995, Desmond Patrick Hackett died. He was then aged 69 years. His Will, dated 27 August 1986, was admitted to probate on 10 July 1995.

At the date of his death, the testator was survived by three children. They were each adopted by himself and his wife who died in 1985. Nothing turns on the fact of adoption. For all relevant purposes, the rights and privileges of each of the children are the same as if they were the natural born children of the testator.

The Will of the testator appointed the defendant, the Public Trustee, as the executor and trustee of his estate. The Will provided, in effect, that the plaintiff should receive $500.00 out of the testator's estate and that the residue should be divided equally between the plaintiff's younger brother, Gregory Thomas Hackett, and their sister, Anna Maria Hackett. The plaintiff is aged 34 years, Anna 32 years and Gregory 30 years.

Not surprisingly, the plaintiff felt aggrieved by what he perceived to be an unfair division of his father's estate, which was then estimated to be valued at around $330,000.00. As at 24 September 1996 it was estimated by an officer of the Public Trustee to be valued at $396,371.80.

Accordingly, on 13 March 1996, the plaintiff took out an originating summons seeking an order making provision out of the estate of the testator for his "maintenance, education or advancement in life" pursuant to s8 of the Family Provision Act 1969 (ACT) (FPA).

The evidence

In support of that application, the plaintiff, by affidavit of 1 March 1996, deposed as to his personal circumstances in the following terms,

(a) I live in a de facto relationship with Bernadette Maree Benson also known as Bernadette Maree Hackett and we have 3 children, Veronica aged 7 years, Sarah aged 5 years, and Ned aged 3 years. (b) I live with my family in a rented house at 38 Spich [Spica] Street, Giralang, ACT. (c) I have a son Brett by my previous marriage, aged 18 years. (d) I am unemployed and receive unemployment benefits of $540.00 and Family Support Benefits of $330.00 per fortnight. (e) Estimated average weekly living expenses of myself and my family are as follows:- Food $175.00 Motor vehicle including registration insurance and repairs: 85.00 Electricity: 20.00 Rent: 55.00 Clothing: 100.00 Entertainment: 100.00 (f) The present assets of myself and my family consist of items of personal use which have little saleable value and a motor vehicle having a value of approximately $2,500.00. The refrigerator, washing machine and TV used by my family are on loan. Until recently we had a second motor vehicle which we sold for $400.00 and used the proceeds to pay bills. (g) I have present debts totaling $12,600.00 (Westpac $5,000, loans from my wife's family $5,000.00, and ACT Housing Trust $2,600.00). Those debts have arisen because of my inability to support my family due to the fact that I have been unemployed for long periods and my social security payments have not been sufficient to meet the necessary needs of my family. At the date of my father's death the amount of those debts were approximately $12,600.00.

By contrast, his brother and sister are both in apparently secure employment.

He deposed to a somewhat disrupted history. In 1975 he "got into trouble with the police" on a break and enter charge. He was sent to "reform school" for six months. On his return he did not resume school but started work.

Subsequently up to 1986, he tried to be financially independent but was unemployed for extended periods. He worked off and on as a furniture removalist or labourer. He acknowledged that, during his periods of unemployment, his father helped him out by giving him money. He estimated that may have been about $200.00 per month during that time.

Over that period, he had wandered from place to place seeking work. He married in 1978 and had a son named Brett, now aged 18 years. He and his wife separated in 1982 but have not been divorced. He acknowledges that he has not contributed financially to Brett's support.

In 1985, he commenced to cohabit with his present partner, Bernadette Hackett. They have three children, aged seven, five and three years respectively.

From about 1989, the plaintiff and his family lived in Townsville.

Until he left Townsville in November 1994 to return to Canberra, the plaintiff deposes, he was in employment "most of that time" as a furniture removalist.

His reason for leaving Townsville, he said, was,

... because my father was then ill and was keen for me to come back with my family, and because my wife's family all reside in Canberra and she was keen to come back to Canberra because of the children.

That move, he said, "cost us most of our resources". He has not since then been able to find work. He would like to do a spray painting and sign writing accreditation course to up-grade his skills. That would cost about $2,000.00. It would help to make him employable. Not only does he have debts of approximately $12,600.00, but, to provide a reliable vehicle and the usual household goods would cost about $13,000.00. Even to be accredited as a removalist would cost about $600.00 for an accreditation course. He was raised as a Catholic and given, until he left school, a Catholic education. He would like to do the same for his children but that would cost about $2,500.00 per annum.

He would also like to assist his now adult son Brett, but does not specify what assistance he would give, if any.

With respect to the relationship with his father, the plaintiff deposed as follows,

During the periods that I was away from Canberra I kept in contact with my father. When I was in Townsville I used to have frequent telephone conversations with him. In those conversations he talked about coming to Townsville to see me and my family. When I returned to Canberra I visited him regularly about once or twice a week, both when he was in hospital and at home. I mowed the lawns of his house and did whatever other jobs he wanted done. He gave me a key to his house. It did not seem that there was anything wrong with my relationship with my father before he died. Other than matters referred to in this my affidavit I do not know of any reason why my father left me only $500.00 in his will.

In reply, the Public Trustee tendered a number of affidavits.

The plaintiff's sister recalled that in 1972 the plaintiff got into trouble for stealing approximately $400.00 jointly with another boy from that boy's father. There was, in 1974, another incident at a school social. As a result, the plaintiff was taken out of his then school, St Edmund's College, and sent to St Patrick's College, Goulburn, a boarding school. The incident related to possession and/or consumption of alcohol. The plaintiff would then have been about 12 years of age.

During 1974, the plaintiff ran away from St Patrick's on two occasions. After a term and a half he returned to Canberra and was sent to Deakin High School. His attendance was irregular.

It was after that, in 1976, that he fell foul of the law and was ordered to attend a boy's home in Windsor, New South Wales. He completed Year 10 whilst in custody.

About that time, Ms Hackett deposes, the plaintiff stole things, especially money, from other family members. He stole a cheque book, she states, forging the testator's signature to obtain money. He fraudulently gained access to a trust account containing monies set aside for him for when he turned 18.

Then, in 1978, whilst he was still only 16, he announced that his girlfriend, then 18, was pregnant and they wished to marry. That announcement was at their parent's 25th Wedding Anniversary celebration.

They eventually did marry despite parental disapproval. Shortly after, the testator retired from the Australian Public Service on the grounds of ill health.

The plaintiff's parents, however, did provide financial assistance to the newly weds. They guaranteed some loans for vehicles, on one of which the plaintiff defaulted.

Then, in 1979, following a series of convictions including burglary, the plaintiff spent eight months in Cooma Gaol. He had then only recently turned 18.

The testator seemed particularly upset by this turn of events. He even appeared suicidal and turned to excessive alcohol consumption.

After the plaintiff's release, the testator and his mother continued to aid him financially. He was said to be very demanding. During this period, 1980-81, there was an allegation that money was being stolen, including a neighbour's 50cents coin collection. It was not proved that the plaintiff was guilty of those thefts but he was the prime suspect.

That situation continued during 1982. Ms Hackett alleged that the plaintiff stole his brother's coin collection, forged his father's signature to get money from his credit union account and pawned his father's war medals before he finally left Canberra for Queensland.

He was still sent money by his parents from time to time.

In 1985, the plaintiff's mother was hospitalised, suffering a heart condition. There was a letter from the plaintiff announcing that he would soon be released from Townsville Gaol. She died in June 1985, shortly after the plaintiff contacted her again for money.

Although the plaintiff's sister clearly suspects a link between these two events, it must be said, in fairness to the plaintiff, that there is no medical evidence before me to support that suspicion.

In December 1985, the plaintiff allegedly used the testator's car illegally. The police suspected drug involvement and searched the car thoroughly before returning it, slightly damaged by the search process. In 1986, Ms Hackett says, the plaintiff stole between $5,000.00 and $6,000.00 from the testator's Advance Bank account. The bank was obliged to reinstate the deficiency. Shortly after that the plaintiff left town leaving a number of creditors unsatisfied. The testator had to field their enquiries.

It was after that series of events that the testator executed his last Will.

After that, the testator continued to have intermittent contact with the plaintiff. He appeared to Ms Hackett to be apprehensive that the latter might offend again. He was concerned that the plaintiff might seek to move into his house.

The testator became ill in January 1995. He remained in hospital for four months until his death on 24 April 1995. Ms Hackett agrees that the plaintiff did visit his father in hospital but not regularly. Nor did he assume responsibility for the testator's care.

During that four month period, a heater and TV set went missing from the testator's home. The plaintiff agrees that he took them but says he had his father's permission. Ms Hackett believes otherwise.

The plaintiff's brother, Gregory Thomas Hackett, also provided an affidavit. He confirmed his sister's evidence, adding that in 1986, the plaintiff had been charged with stealing from an account of his.

As to the plaintiff's account of the services rendered to his father during the period 1994-95, Mr Gregory Hackett deposes,

... I say that I have never observed Patrick mowing the lawns of my father's house or doing any other jobs except for a period in November 1994 when Patrick mowed the lawns 4 or 5 times and he was paid $10 to $20 for each occasion. I have been mowing the lawns and maintaining the house for many years with the assistance of my sister Anna and her de facto husband.

A family friend, Douglas Noel Droop deposed to his long and close association with the deceased since 1948.

In 1986, the testator confided to Mr Droop that he had changed his Will to delete any bequest to the plaintiff because of the incident involving his car. That had been the culmination of many years of upset and anguish over the plaintiff's continuing bad behaviour. Later, he told Mr Droop that he had changed his Will so as to provide a minimal bequest.

Until his last illness, the testator had, from time to time, expressed his unhappiness with the plaintiff's behaviour.

In reply, the plaintiff provided a further affidavit. He was also cross-examined.

In his affidavit, the plaintiff denied some of the crimes attributed to him. He denied forging his father's signature and stealing his cheque book.

He admitted stealing some money from his brother but did not think he had stolen from his sister. He agreed he also "borrowed" money from his brother and sometimes failed to pay it back.

He denied stealing the 50cents coins, his brother's coin collection, pawning his father's war medals or stealing from the testator's bank account.

There was, it must be noted, no corroboration of the truth of any of those latter allegations.

The plaintiff did recount a conversation in 1979 or 1980 with his mother. She told him, in effect, he said,

"... your father thinks that you should not get anything until you have shown that you have earned it by doing the right thing. We are only leaving you $10,000.00 because we have been advised that if we leave you nothing you will be able to challenge that."

The plaintiff's mother's Will, bearing the date 18 July 1979, was tendered before me. It was admitted to probate on 3 July 1985. Her estate was valued at $15,320.43. Of course, assets jointly owned with the testator would have passed to his sole ownership on her death. She bequeathed all of her estate to the testator. Her Will provided that in the event of the testator's failure to survive her for 30 days, her estate was then to be divided amongst the three children but the plaintiff's share was limited to $10,000.00. In the event that none of the three children survived, the residuary legatee was to be the plaintiff's son Brett.

I would infer from those facts that the testator's previous Will was in complementary terms.

The plaintiff agreed that he had taken his father's car in December 1985 without permission but did not think his father would miss it. He had been moving some of his belongings back to Canberra from Campbelltown. He denied any drug involvement. Nor were any drugs found. He was later imprisoned for seven days on his plea of guilty to an offence involving illegal use of the motor vehicle.

He concedes that he was told by his father that police had searched the car for drugs and that, as a result of the search, it had "bits and pieces hanging off it". The testator did not seem otherwise upset.

He also conceded that he took his father's cheque book in 1986. He claimed, however, that he did so merely to find out about the $10,000.00 he thought his mother had left him. The cheque book was stolen from him. He did not forge or pass a cheque from it. The plaintiff states that, though charged with such an offence, no evidence was offered and the charge was dismissed. It is possible that the plaintiff did not understand the effect of mutual Wills where one partner only has died and genuinely believed that his mother had left him $10,000.00.

During 1987 and 1988, he said that he and his father worked together restoring the testator's parents' gravestones at Queanbeyan, and they often had a drink together.

Between 1989 and 1991 the plaintiff was, for the most part, in Queensland. He says that, from time to time, the testator expressed a desire to "put the water under the bridge".

That situation continued, the plaintiff says, even after he returned to Canberra in 1994. However, he denied that he had sought to stay with the testator though he conceded that the testator may have thought that he might.

He asserts that he did do cleaning and tidying of the testator's house and grounds in concert with his spouse. He visited his father, he says, as much as he could but agrees that, at times, and it might have been for periods of up to three weeks, he was inhibited by lack of money for petrol or bus fares. He denied stealing the heater or TV set, asserting they were taken with his father's permission.

He alleges that shortly before he left Queensland, his brother told him that the testator was considering reinstating him in his Will but their sister disapproved.

In cross-examination, the plaintiff was taken through his fairly lengthy criminal record. He had commenced his Court appearances at age 14 with numerous charges involving taking and using motor vehicles, breaking and entering and theft. He graduated to become an adult offender with numerous Court appearances between 1979 and 1991. Since then, although there were some outstanding breaches of community based orders dealt with in 1995, there have been no further convictions for dishonesty or drug offences. The last dishonesty offence was in 1986, dealt with in 1987. He did commit a drink-drive offence in December 1995. He had a history of drink-drive and drunkenness offences. He had last been sentenced to imprisonment, according to police records, in November 1984.

Bernadette Hackett deposed that she and the plaintiff commenced their relationship on 24 April 1986. They visited the testator thereafter from time to time. She confirmed the plaintiff's account of his relationship with the testator up to 1988. She referred to a $3,000.00 gift from him.

It seems that the testator gave $3,000.00 to each of his children, being proceeds from their mother's estate. Of course, legally, the money was the testator's.

She supported the plaintiff's denial that he had been the person who stole the $5,000.00 or $6,000.00 from the testator's bank account. It is not clear whether the testator believed that.

However, following their return to Canberra, Ms Bernadette Hackett supports the plaintiff's account of his relationship with his father up to his death.

A family friend, Mrs Irene Myrtle McEwan, was relied on by the plaintiff. She had a conversation with the testator in hospital during which he expressed the view that "Patrick has settled down, he has met a nice girl and he has got nice kids". She conceded, however, that she did not really discuss the testator's Will with him nor did she really know much about the plaintiff's criminal record nor the effect of his behaviour on his parents.

It is clear that from an early age, the plaintiff had been a sore disappointment to his parents. Irrespective of whether he committed all the misconduct of which, though suspected, he was not convicted, his behaviour, at least up to 1984, justified their decision not to provide for him, out of their joint estate, more than a token sum.

It does seem to be true that, since the plaintiff commenced his relationship with his present de facto spouse, he has "settled down" though he remains unsatisfactory in terms of employment and consumption of alcohol.

Nevertheless, those to whom he hurt and caused distress, would require much persuasion to agree with even that qualified assessment.

There is no doubt in my mind that, following the incident with the testator's motor vehicle, for which the plaintiff was, on 3 August 1986, sentenced to seven days imprisonment, the testator wrote his Will as he did as a result of that incident. Thereafter, he remained open to be persuaded that the plaintiff had reformed. However, he had, it seems, not yet formed such a view prior to his last illness. It is, of course, possible that he did but failed to act on it. I think it more likely, however, that he had not been positively persuaded that the plaintiff was rehabilitated but did accept that he was improving.

The submissions

Mr Johnstone, for the Public Trustee, submits that no provision needs to be made for the plaintiff. Further, he contends that the plaintiff's past conduct should disentitle him to any further provision.

It is conceded that, objectively, the plaintiff would be more in need of assistance than the other beneficiaries, but it is submitted that there would have been no moral duty on a wise and just testator knowing the truth to make provision for the plaintiff. In any event, it was submitted, such further provision would be of no benefit to him and should be refused on that basis also. Provision should not be made, Mr Johnstone submitted, if it would only benefit creditors or relieve the State of the burden of providing social security benefits.

To demonstrate that the plaintiff had not given up his previous traits of dishonesty, self-indulgence and idleness, Mr Johnstone invited me to construe the plaintiff's evidence as blaming his parents for his pattern of criminal behaviour and his lack of achievement.

If that had been the plaintiff's attitude, it would have been unrealistic. I do not have the benefit of any psychological assessment of the plaintiff such as would usually be compiled in sentencing proceedings. I do not know what caused his criminal behaviour up to 1986. I do not, however, construe what he has said as blaming his parents for his present state of affairs. Nor do I believe that any such assertion could credibly be made.

In essence, Mr Johnstone submits the plaintiff was put on notice when he was 17 that he would receive only token recognition in his parents' Wills unless he mended his ways and he did not do so.

Although Mr Johnstone would not concede that there had been any change for the better in the plaintiff, I take his fall-back position to be that any reform has been too little and too late to persuade the Court to exercise its discretion in the plaintiff's favour.

Mr Arthur, for the plaintiff, argued that the plaintiff's need for assistance was manifest. In those circumstances, disentitling conduct would need to be very strong in order to exclude the making of any order. Whilst it is apparent that his siblings are not persuaded that an award should be made in his favour, the Court should conclude, he submitted, that after an unfortunate start to life, the plaintiff has now "turned the corner".

Both parties submit that it is a case which requires the application of current community standards of what is fair and just. They each differ as to what those standards require in their application to this case.

Not unnaturally, both parties were moved by way of analogy to refer to the parable of the prodigal son, see Luke 15:11-32. It is true that in each case the son wasted his resources and talents with "riotous living". However, there are several significant differences. The prodigal son received his share of his father's estate in advance of the latter's death and wasted it. The plaintiff, though he has received assistance from the testator during the latter's lifetime, was not granted at any time "his share" of the estate. The prodigal son displayed repentance and humility. He did not seek to be raised to equality with the dutiful son. He sought only forgiveness. Although the dutiful son resented the attention being paid to his younger brother and the forgiveness held out to him, he was reassured that his place and his inheritance of all the father's remaining estate was secure.

In the present case, there is no question of the plaintiff being restored to that share in the estate he might have received had his father not been moved to discriminate against him. There was no reason for the testator to give a share of his estate to the plaintiff simply to waste on, in the words of the parable, "riotous living". It was quite reasonable to wait for reassurance that he had, relevantly, repented. The law does not require that the plaintiff be granted a share equal to his siblings unless guilty of "disentitling conduct". He is entitled to no more than "adequate provision".

The law

Before Testator's Family Maintenance legislation, there was no challenge to a valid Will simply because beneficiaries, actual or potential, had been unfairly treated. The legislation referred to was designed to remedy that perceived injustice.

In this Territory, that legislation is the FPA. It is common ground that the plaintiff is a person entitled to apply within the meaning of s7.

Accordingly, the Court is granted jurisdiction to make an order for provision for such a person even if the testator had not done so.

According to s8(1), if "adequate provision" is not available under the terms of the Will from the deceased estate "for the proper maintenance, education or advancement in life" of such a person, then "the Court may in its discretion and having regard to all the circumstances of the case, order that such provision as the Court thinks fit be made ...".

Section 8(3) is relevant to the present case. It provides,

The Court may refuse to make an order in favour of a person whose character is such, or whose conduct is or has been such, as, in the opinion of the Court, disentitles him to the benefit of an order.

On 1 May 1996, s8 was extensively amended. However, those amendments were expressed not to apply in respect of an estate where probate had (inter alia) already been granted. It was conceded that this is such a case. It is not apparent that the new form of s8 materially alters the tests to be applied to an application for provision, but it is unnecessary now to consider that question.

The current provision is in a form almost indistinguishable from that introduced first in New Zealand in 1900 and in each State of Australia between 1906 and 1920. The New South Wales Act was considered by the Privy Council in Bosch v Perpetual Trustee Co [1938] AC 463. The United Kingdom had not then enacted such a law but the Parliament had a proposal before it at that time for such a law to be amended.

In interpreting the equivalent of s8, the Board emphasised the use of the word "proper" in conjunction with the word "adequate". As their Lordships advised, at 476,

A small sum may be sufficient for the "adequate" maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his "proper" maintenance. So, too, a sum may be quite insufficient for the "adequate" maintenance of a child and yet may be sufficient for his maintenance on a scale that is "proper" in all the circumstances.

The principles upon which it is to be determined that provision is or is not "proper" were said by their Lordships to be, at 477,

(1) That the Act is something more than a statute to extend the provisions in the Destitute Persons Act; (2) that the Act is not a statute to empower the Court to make a new will for a testator; (3) that the Act allows the Court to alter a testator's disposition of his property only so far as it is necessary to provide for the proper maintenance and support of wife, husband or children where adequate provision has not been made for this purpose; (4) that in the case of a widow the Court will make more ample provision than in the case of children, if children are physically and mentally able to maintain and support themselves.

The latter observation would have been applicable to the plaintiff's siblings. However, it is the plaintiff's need which must be considered, not theirs. Their shares are not to be reduced simply because they have no demonstrated need for them. The approach to be taken by the Court was accepted as being, at 478,

... in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father.

Thus, if the son was a wastrel, whilst a fond father might make provision for him, it may be that a wise father would not. Their Lordships were careful to include, as one of the relevant circumstances, the reasons for the testator making the provisions, or lack of them, in question. There is, in this case, no doubt that the testator deliberately failed to provide more for the plaintiff than he did. Nor is it possible to conclude that the testator, by the time of his last illness, had positively resolved to increase the provision he had made.

It may be, and I would be prepared to accept, that the testator had begun to see hopeful signs that the plaintiff had, indeed, begun a process of rehabilitation. I cannot, however, find that the testator had reached the point, nor that the plaintiff had reached the point, where the testator would or should have determined to raise the provision he had made to equality with the dutiful son and daughter.

Nevertheless, given my favourable impression of Bernadette Hackett, I would make no adverse finding concerning the plaintiff's behaviour in recent times. I would not have been so satisfied, however, on his evidence standing alone. He was not a convincing witness and I do consider his initial affidavit to have been disingenuous at least, if not misleading.

In Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 the testator divided his estate amongst five only of his eight children. The applicant, his eldest daughter, was solely dependent on her husband having no separate means. She had two dependent children. An order that she receive [sterling]5,000.0.0 was made. The executor appealed.

It was considered to be a case in which, at 129,

... for no declared or ostensible reason the testator had omitted entirely from his dispositions a dutiful daughter whose deserts were not small, who shared, as it seemed in his affections and who had exchanged her youthful robustness for a very different physical condition.

That the testator had failed to honour his "moral obligation" to her was, therefore, rightly concluded.

The question of "adequate provision" was further and more recently considered by the High Court in Singer v Berghouse (No. 2) [1994] HCA 40; (1994) 123 ALR 481.

The Court by majority (Mason CJ, Deane and McHugh JJ), cautioned against too much reliance being placed on "moral duty" as a touchstone for determining adequacy or otherwise of the provision made. The process, in their Honour's opinion at 487, should be as follows,

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.

The second stage, although involving a consideration of the same factors, focuses upon the extent of the provision which should be ordered.

It is apparent that a consideration of the conduct and character of the plaintiff will be relevant at each of those two stages.

This apparent drift away from the "moral duty of the wise and just testator", was considered by the NSW Court of Appeal in Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24.

Kirby P (29-31) considered that, in the light of Singer's case, the traditional test may be too narrow. Thus, his Honour counselled, at 31,

... it would be wise if references to "moral duty" and "moral obligation" fell out of this lexicon. They should be replaced, where appropriate, by the phrases actually used by parliament in the Act. This will ensure that the statute is not "glossed" and that the decision-maker's attention is kept upon the application of the stated statutory criteria to each case. Furthermore, such a course will replace potentially confusing and sometimes controversial notions of moral obligation with the attention which the present Act requires upon the inadequacy of the provision for the claimant not at the time of death but at the time of the court's order.

Sheller JA, whilst proposing the orders with which Kirby P agreed, found that a recent alteration to the legislation had changed the focus of enquiry from the time of the testator's death to the time the order, if any, is to be made. Hence, it has become inappropriate to determine what moral obligation lay upon the testator at the time of his or her death and whether he or she had fulfilled it.

In his Honour's view, the proper test, whilst not excluding consideration of the concept of "moral obligation or duty" focuses more on "speaking for the feeling and judgment of fair and reasonable members of the community" (46).

Handley JA dissented as to the reasoning, but not the result. The traditional view was that not only must there have been a moral claim on the testator's bounty, but there should also be a demonstrated need. In his Honour's opinion, at 36,

There is no difficulty in applying the moral duty test under the new Act by considering what the hypothetical wise and just testator would have done at the date of hearing and in the light of the facts established by the evidence.

His Honour declined to follow the dicta in Singer v Berghouse (supra).

It may be observed that the applicable Territory law does not, as did the previous New South Wales law, refer to an eligible person being "left" without adequate provision out of the estate of the deceased. It is couched in the present tense, referring to the Court being satisfied that "adequate provision is not available". It is, therefore, indistinguishable, for present purposes, from the provisions considered in Fraser's case (supra).

Section 8 of the FPA replaced s110 of the then Administration and Probate Ordinance 1929 (ACT). That section, until the current Act was made in 1969, had referred to the specified eligible persons being "left without adequate provision" as had the previous New South Wales legislation.

Thus, Fraser's case is, therefore, directly applicable. It is a considered decision of an appellate Court of a State and the latest pronouncement on the matter. Although not bound by it, as a single judge of this Court, it is my duty to follow it unless it appears inapplicable for some good reason.

The difficulty is that, whilst the result was approved unanimously, the reasons of the members of the Court for doing so varied. Nevertheless, it seems to me that the reasoning of Kirby P and that of Scheller JA are broadly consistent. They support the application of the obiter of the High Court in Singer's case and the implicit acceptance in that obiter of the opinions of Murphy J in Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 158-9 and in Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 504-5.

In the opinion of Kirby P, the test is better based on dependence and need rather than moral duty. The latter remains relevant but is to be regarded as neither a necessary or a sufficient condition for the making of further provision.

Consistently with the reasoning of the majority in Fraser's case, the question is whether as at the date of the order, which must practically equate with the date of hearing, it appears to the court that adequate provision has not been made for the "proper" maintenance etc of the eligible person and, if not, what provision is to be made, if it is available.

That conclusion is strengthened by the provisions of s8(3), entitling the Court to refuse an order by reason of conduct or character which "disentitles" the applicant. That assumes that, but for that character or conduct, an order for further provision would be made.

In the present case, the plaintiff is in a permanent relationship. He has children he cannot, but ought to, support. His circumstances can be described broadly as below whatever the poverty line may now be. He has little or no employment skills which are readily marketable. He is in debt to a moderate but, given his circumstances, significant degree. He could not, from his own or his partner's resources or income, liquidate all his debts in the foreseeable future.

By contrast, insofar as "proper" maintenance can be judged, his brother and sister are and were in comfortable circumstances with established careers and homes.

The estate of the deceased is substantial. It is possible for more substantial provision to be made out of it for the plaintiff without disturbing either the basic intent of the testator or the substantial benefits accruing to the other beneficiaries.

The relationship between the deceased and the plaintiff is the most obvious negative factor here. However, that is embraced by s8(3) FPA which will require careful consideration in this case.

But for that consideration and the wider aspects of the plaintiff's character and conduct, it is clear that adequate provision for the plaintiff's "proper" maintenance etc is not "available" out of the estate of the testator. The legacy of $500.00 clearly does not answer that description. It is, in my view, unnecessary and, indeed, inappropriate to consider whether, had the testator been aware of all relevant matters as at the date of hearing, it would have been a breach of some "moral duty" imposed on him to provide adequately for the plaintiff. The issue is, really, whether the plaintiff's "character and conduct" should disentitle him from any such provision. That is, then, to apply the words of the statute rather than a gloss on the provisions of s8(1).

Conduct and character of the plaintiff

In this case the adverse aspects of the character and conduct of the plaintiff are directly relevant to his relationship with the testator as well as the other persons with "legitimate claims".

Up to the beginning of 1986, it would unhesitatingly have been the view of any fair-minded observer that the plaintiff was a person of bad character whose criminal and anti-social conduct had brought direct and indirect suffering to all his immediate family members.

He had wasted all opportunities offered to him for education or rehabilitation. Like the prodigal son, he had "wasted his substance with riotous living" (Luke 15:13).

After 1987, having commenced his relationship with Bernadette Hackett in April 1986, and particularly since the first of their three children was born, the plaintiff has not been involved, so far as the evidence goes, in any serious criminal conduct.

Since 1994, I am satisfied that the plaintiff had sought to improve his relationship with the deceased. Whilst he had not metamorphosed into a dutiful son, he at least had ceased to be a positive embarrassment and provided some welcomed companionship and assistance to the deceased.

I do not mean to convey by that, that so far as the deceased was concerned all was forgiven and forgotten. It is my impression that he probably continued to regard the plaintiff with suspicion and reserve. The plaintiff had not yet proved to the testator that he had turned over a new leaf.

Indeed, he has not done so completely. He has done nothing effective to better his circumstances, though he pleads lack of resources to do so.

He was convicted in 1996 of offences relating to driving whilst under the influence of intoxicating liquor. His licence had been cancelled in 1982. He had failed to obtain a restoration order. As a result, on 28 December 1995, the date of the offences, he had also been guilty of, and pleaded guilty to, driving whilst a disqualified driver. He remains disqualified.

That event does indicate that he has yet to obtain full control of his life, though, in fairness, driving under the influence, though serious, does not indicate a return to his previous criminal ways. To this may be added the less than full and frank disclosure of his prior relevant conduct in his original affidavit and his less than satisfactory explanations for that omission in his oral evidence.

Disentitling conduct, even absent the express provision by s8(3) FPA, was always regarded as a relevant matter justifying a refusal to make further provision.

In Delacour v Waddington [1953] HCA 64; (1953) 89 CLR 117, the deceased, husband to the applicant, left her. He then invited her to join him. She considered that his request was a sham, designed to found a refusal to pay maintenance to her. He then returned briefly to her, deserting her again after about 14 months. He again invited her to join him. She declined, offering to abandon all claims against him, if he would pay her an allowance of [sterling]3.0.0 per week.

The deceased did so but after two years ceased payments, citing her refusal to join him as a reason for so doing. About four years later he died, leaving the applicant an annuity of [sterling]156.0.0. Myers AJ increased it to [sterling]416.0.0.

The High Court rejected the proposition that disentitling conduct under Testator's Family Maintenance legislation could be equated with circumstances disentitling a wife to claim maintenance from her husband though that conduct might well be relevant. The question was whether the conduct removed any moral obligation the deceased might have otherwise had to make provision for her.

The disentitling provision, similar to s8(3), was interpreted by the Court, at 127, as referring to,

... character or conduct of such a nature as to entitle the court to say that the applicant has forfeited or abandoned his or her moral claims on the testator.

The increase in provision from [sterling]3.0.0 to [sterling]8.0.0 per week was seen as conforming to the need for adequacy. The applicant's agreement in 1944 then to accept [sterling]3.0.0 per week did not disentitle her to more.

It is not the testator's view of the character or conduct of the applicant which is relevant.

In Wenn v Howard [1967] VR 91, the testator declined to make provision for three of his children on the ground that they had ceased to adhere to the religion which he had followed and in which they had been brought up.

McInerney J reviewed previous authority noting that adultery, desertion, abandonment of filial obligations, making unfounded allegations against the deceased had been held (between 1910 and 1929) to have been disentitling conduct. Perjury in support of the application, spousal separation without fault, marrying without parental consent and refusal to bring children up in a particular religion had been held (between 1913 and 1946) not to be disentitling conduct.

His Honour's view of it, at 95, was that,

... the matter to be resolved is whether the conduct of the applicant is such as would, in the eyes of the right thinking and reasonable members of the community, disentitle the applicant to relief: it is not to be tested solely by reference to the question whether it evoked or was likely, having regard to testator's own character and antecedents, to evoke his disapproval. It is not to be tested by whether the applicant's conduct would incur the disapprobation not only of the testator but also of all sincere and reasonable people of his Church.

Whilst the testator would doubtless have regarded the conduct of the applicants with disapproval, nevertheless, given Victoria was "a pluralist society", it could not be said that "the community generally" would regard their conduct as involving "moral turpitude".

In Hughes' case (supra) the plaintiff had some of the characteristics of the present plaintiff.

Though able-bodied, he was unemployed. He had failed to acquire any assets though aged 54. He and his dependent child were supported by his de facto wife.

The testatrix (the plaintiff's mother) complained that the plaintiff and his wife had forced her to leave the family farm. The plaintiff had not seen her for about three years before her death.

The testatrix's complaints, though probative of her reasons for not making provision for the plaintiff, were not probative of the substantive truth of the matters complained of.

That the plaintiff may well have been lazy and improvident and neither efficient nor successful was not regarded as a disqualification. Indeed, an applicant well motivated, mature, able and capable of supporting himself or herself, might be unable to demonstrate any need for support so as to qualify for further provision.

It is important to draw a distinction between evidence which proves the testator's state of mind and evidence which establishes the truth of any adverse view the testator may have had.

It follows that, in determining whether the plaintiff is guilty of disentitling conduct, only those facts proved on the balance of probabilities by admissible evidence may be taken into account. That may well lead to conclusions quite contrary to the apparently firm beliefs of the deceased and other family members.

In Hughes' case, it was accepted that the plaintiff's conduct "fell short of what might have been expected of a dutiful son" (155).

Gibbs J, indeed, considered that the conduct of the plaintiff was "worthy of censure". Nevertheless, in his Honour's opinion, at 156,

The question whether conduct is sufficient to disentitle an applicant to relief must depend not only on the nature of the conduct itself, but also, to some extent, on the strength of his need or claim to provision from the estate of the testatrix. The stronger the applicant's case for relief, the more reprehensible must have been his conduct to disentitle him to the benefit of any provision.

In his Honour's opinion, the conduct of the applicant, on balance, "although not meritorious", did not disentitle him to further provision.

Murphy J agreed, emphasising that once need for adequate provision was established, a person asserting disentitling conduct bears the onus of proving it. That had not occurred. Mason and Aickin JJ agreed with Gibbs J. Barwick CJ dissented.

The plaintiff has acknowledged that he caused great distress to his parents by reason of his previous criminal behaviour.

He denied, however, committing offences of dishonesty in relation to his parents', siblings' or neighbour's property, save perhaps some minor theft when a juvenile. There is no admissible evidence to the contrary.

Only one clearly reprehensible and more recent event involving the testator directly is admitted. The plaintiff conceded that he borrowed his father's car without permission in 1985. No doubt because of his criminal record it was searched for drugs when the plaintiff was apprehended. None were found. The police did cause minor damage to the vehicle in searching it. That caused the deceased, not unnaturally, some additional annoyance and distress. It would be unfair to blame the plaintiff for that aspect of it.

The major reason for the exclusion of the plaintiff from a share of the estate was the shame and disgrace his criminal behaviour caused. As at 1986, that would have warranted exclusion of the plaintiff from the testator's estate, particularly as it could not then be said with any confidence that he had abandoned his criminally offending behaviours.

Since then, however, the plaintiff could not be said to have pursued a criminal lifestyle. His past behaviour has, nevertheless, contributed to his present state of need and, of course, to the low opinion the testator had of him.

However, I do not believe that community standards would support the rejection of the clear and strong claim for provision the plaintiff presently has.

The parable of the prodigal son is again apt. The prodigal son had a prior criminal history. He had fallen on hard times as a result. He expressed remorse and sought forgiveness. Whilst not dispossessing the dutiful son, the father forgave the prodigal son and, it may be inferred, provided at least for his proper maintenance and support.

I can only act on the proven facts of this case. I cannot act on mere suspicions and unproven allegations concerning the plaintiff. His unsatisfactory evidence is not, of itself, disentitling conduct. I am satisfied on all the evidence that the plaintiff has, at least since 1987, resiled from his previous criminal conduct and attempted to become a useful citizen. He has substantially, though not completely, succeeded. His improved conduct, I have no doubt, is largely due to the beneficial influence of his de facto spouse, Bernadette Hackett. Since 1994, he has attempted to reconcile with his father, not with a view to gain but simply out of acknowledgement of his past unsatisfactory conduct and a desire to come to a rapprochement with him.

In those circumstances he is, I consider, not disentitled to further provision beyond the nominal sum provided by the testator's Will.

Extent of provision

No doubt, any eligible claimant excluded from a testator's bounty, or given without obvious reason much less provision than others in a similar relationship to the testator, will feel an injustice has been done.

That is, of course, an incorrect perception. There are two reasons for that. One is that a testator may make whatever provision he or she pleases. Freedom of testamentary disposition, like freedom of contract, is an important principle deserving of respect. Another parable, that of the labourers in the vineyard, illustrates that point in relation to freedom of contract, see Matthew, 20:1-16. However, both freedom of contract and freedom of testamentary disposition are modified by statute law. In the case of testamentary disposition, that result is achieved by the FPA.

Whilst that Act enables the Court to modify the effect of a testator's disposition, it permits that modification only to the extent necessary to achieve, so far as it can or should, the proper maintenance etc of the person for whom provision should be made. It requires a balance between the established claims of named beneficiaries, the needs of the applicant, the size of the estate and, of course, the benefits provided otherwise to the applicant and others with legitimate claims on the testator's bounty.

As Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, 6, it is not appropriate to endeavour to achieve a "fair" disposition of the deceased's estate. It is not part of the Court's role to achieve some kind of equity between the various claimants, see also Re Hodgson (1955) VLR 481. The Court's role goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance etc of an eligible applicant.

On present indications, each of the two children of the testator sharing the residuary estate will receive approximately $175,000.00-200,000.00. To receive less will cause neither any hardship nor, had the testator decided to divide his estate equally amongst his children, could any of those children have claimed that inadequate provision had been made for them. It is unnecessary to consider other possible permutations which the testator may have decided upon.

The present needs of the plaintiff are not large. It must be taken into account that he has received some benefits from the testator prior to his death, even recently. The heater and TV set previously referred to, though not major items, must also be taken into account. The earlier provision of funds from time to time, albeit in small amounts and some time ago, must also be considered. The $3,000.00, although intended by the testator to represent a share of the mother's estate, is also relevant.

The plaintiff says, notwithstanding those previous benefits, he now has debts of $12,600.00. Approximately $5,000.00 of that is, he says, "from my wife's family". It is probably not repayable unless the plaintiff has a windfall. He has no significant assets. The usual household items, refrigerator, washing machine, TV (the TV from his father no longer functions), are "on loan". It is not clear who the lender is, nor the terms of the loan. To become accredited to undertake removal work would cost the plaintiff about $600.00. To return to Townsville where his prospects for work would be better, would cost $6,000.00-8,000.00. A retraining course would cost about $2,000.00.

Other expenses which the plaintiff would wish to incur are referred to in his affidavit. Those matters were not the subject of challenge.

It was submitted, and I accept, that the award to be made should not exceed "adequate provision" nor should it interfere more than is necessary with the testator's disposition nor should it render the dispositions made to other eligible persons less than is proper for their adequate maintenance, education or advancement.

A further submission was that provision should not be made for the maintenance etc of the plaintiff if the effect of doing so would be to benefit creditors by payment of debts or the State by reducing or avoiding dependence on social security benefits.

Some support for that view in relation, at least, to relieving the State of a financial burden, is derived from the judgment of Bray CJ in Re Pope (1975) 11 SASR 571, 574. His Honour, referring to an applicant, said,

I could give her an annuity to be paid out of income and, insofar as income is insufficient, out of capital, leaving the residuary gift to the hospital to stand. Such an annuity would have to be of a greater amount than $32.40 a week or it would merely replace the pension without conferring any real benefit on her. I do not think that I ought to regard the right to the pension as a substitute for the obligation on the deceased to maintain her, though it is a fact to be taken into account ... Nor do I see why I should make an order which would operate primarily in relief of the taxpayer.

As a result, his Honour considered that the widow should be granted,

whatever she needed to make a comfortable home for herself in her widowhood without disentitling herself to the pension.

In both Re Beard [1963] Qd R 90 and Chapman v Elder's Trustee and Executor Co Ltd [1971] SASR 63, the Court held that a repatriation pension paid to the widow in consequence of the death of the testator and not affected by an assets or means test, should be regarded as part of the provision made by the testator. In the latter case, Mitchell J expressed herself, at 69, as follows,

It may be, however, that as the pension is paid in consequence of the deceased's war service, it should be regarded as a provision which the deceased has made for the benefit of his widow ... At all events it is something in the hands of the widow which the Court should take into consideration.

However, in Bondelmonte v Blanckensee [1989] WAR 305, the view that receipt of a pension by the claimant was relevant was expressly rejected by a Full Court. In that case, there was a large estate with no other moral claim competing with that of the claimant. Malcolm CJ, at 312, held that the approach to "proper" maintenance should not be directed to ensuring that pension rights were unaffected. Wallace J, at 318, expressed the view that,

... there is a moral duty upon a father to provide for his daughter, greater than his neighbour's (that is society's) duty to provide. In other words, welfare payments made to a daughter do not relieve a father of his moral responsibility to her, especially when he has a substantial estate with no other moral claims upon it.

Nicholson J agreed.

It is clear from Wallace J's reasons and, particularly, the form of relief approved by him, that the effect of provision from the estate on pension rights should not be ignored. However, the primary source of "proper" maintenance is the estate, so far as it is adequate to do so without denying other competing moral claims.

In King v White [1992] 2 VR 417, Hedigan J at 423-424, made two points. First, that the availability of a government pension or benefit should not relieve the moral obligation perceived by the law to rest upon the testator. Second, that such benefits cannot be assumed to continue to be adequate even if they may be presently taxpayer funded benefits, are subject to political vagaries and, usually, to assets and means tests which also may vary over time.

It seems to me, therefore, that I should follow the reasoning adopted more recently by a Full Court of a State and followed in Victoria in preference to, if there be a conflict, the reasoning of Bray CJ in Re Pope (supra). The case of pension rights provided as a result of the testator's death is clearly distinguishable. It is, in essence, no different to another non-testamentary benefit even if provided unintentionally by a deceased. Relief from debt cannot be seen as of benefit only to a creditor.

In any event, it seems to me that in this case the need for adequate provision will be met by a lump sum sufficient for the plaintiff to be in a position to improve his own lot in life and provide an opportunity for him to better himself. That may have some effect on his entitlement to unemployment benefits in the short term but that seems unlikely to be significant. In any event, the purpose of the further provision is to enable him to become self-sufficient and better able to support his family in a proper manner from his own earnings.

In my opinion, that objective will be served, without disturbing the testator's Will unduly, by increasing the bequest of $500.00 to $60,000.00.

I order that the executor make provision out of the estate accordingly.

In the circumstances, the reasonable legal costs of the parties should be met out of the estate.