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Hughes v National Trustees Executors & Agency Company of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 (20 February 1979)

CATCHWORDS

Practice (Vict.) - Costs - Appeal - Appeal costs fund - Testator's family maintenance - Allowance of plaintiff's appeal from order refusing provision - Costs of executors - Appeal Cost Fund Act 1964 (Vict.), s. 14.

* The relevant provisions of ss. 91, 95 and 96 of the Administration and Probate Act 1958 (Vict.) are set out at pp. 157-158 , [1979] HCA 2; (1979), 143 CLR 134

HEARING

DECISION

2. The learned primary judge decided that in point of fact the appellant had, by his conduct, forced the testatrix to leave the farm, which I might observe was her property and at the time the location of the only place for her to reside, and thereafter made no attempt at any reconciliation with her. She was then at least in her late seventies: his Honour "concluded that the appellant had deliberately left an elderly mother" - whom, incidentally, the appellant said was at the time very sick - "to cope on her own in her declining years while asserting the right to remain in possession of her property or to be paid compensation for leaving" it. (at p137)

3. If that were the fact, the primary judge was fully justified, in my opinion, in refusing to make an order under the Administration and Probate Act 1958 (Vict.), the appellant being an able-bodied man, as the primary judge found, "capable of working and supporting himself and his family". (at p137)

4. There were in evidence statements by the testatrix, consistently made to various credible persons, asserting that the appellant had in substance driven her from the house on her land. At least one of such statements was made in explanation of her reason for making no provision by will for the appellant. (at p137)

5. In the view I take of this appeal, it is not really necessary for me to discuss the admissibility of such statements or the use to which, being admitted, they may properly be used. But as others have expressed a view on these matters, I shall briefly state my own opinion. (at p137)

6. Evidence of the reasons given by a testator or testatrix for making or not making a provision by will are, in my opinion, admissible as evidence of those reasons. Such statements are not evidence of the facts they assert: they provide evidence only of the subjective attitude or beliefs of the testator or testatrix. Of these other facts, the evidence is technically classed as hearsay, though I must confess I find it to a degree odd that in an age when the hearsay rule itself is under attack and legislatures have been minded to enlarge the area of evidentiary material which judges may consider in arriving at conclusions of fact, that there should be any great insistence on the technicality, particularly when the tribunal of fact is a judge sitting without a jury. What matters, however, it seems to me, is not so much the admissibility of the statements as the use to which they may judicially be put. (at p138)

7. But however that may be, I must concede that, in any case, such statements do not afford any proof of the objective facts they assert. Nor does their admission into evidence alter in any respect the burden of proof otherwise appropriate to the case. However, in my opinion, the fact that the testator or testatrix entertained the expressed opinion or belief may afford the tribunal of fact warrant for examining the totality of the other evidence before it in order to form an opinion whether that evidence does support the expressed attitudes or beliefs. In other words, the evidence of the subjective attitudes or beliefs of the testator or testatrix may point to a possible view of the proved facts which, though no onus is thereby cast on an applicant, cannot be disregarded by the tribunal of fact. Thus, whilst it may properly be said that a failure to deny the facts asserted in such a statement does not amount to an admission, it would indeed be strange to my mind if the tribunal of fact did not probe the evidence to elicit an applicant's evidence as to the asserted facts. Such a use of such statements would, in my opinion, be proper and, in my opinion, consistent with expression of opinion in such cases as In re Paulin [1950] VicLawRp 74; (1950) VLR 462, at p 473 and In re Green, deceased; Zukerman v. Public Trustee (1951) NZLR 135, at p 141 . When attempting to decide what a particular testator or testatrix ought as a just and wise father or mother to have done, those reasons which that testator or testatrix actually entertained for his or her decision cannot, it seems to me, justly be ignored. Of course, if the evidence in the matter does not support such reasons, they cannot be acted upon simply because the deceased asserted or entertained them. (at p138)

8. In my opinion, the primary judge did not misuse the evidence before him of the statements attributed to the deceased. Nor did he fall into error as to where the onus of proof rested at the differing stages of the case. As I read his reasons, he founded his conclusions of fact, to which I have already referred, principally upon the fact that this elderly mother, suddenly and for no reason disclosed by the evidence, left the only abode she had, and that the appellant neither sought her out nor made any endeavour to placate her, even if in truth she had unreasonably taken offence and without justification left the house. His Honour found no explanation in the deceased's mental condition. There was, in fact, no evidence of instability on the part of the deceased. On the contrary, there was ample evidence of her mental alertness, though she was physically frail. If the fact be that the deceased's departure from the house sprang from her dislike of the appellant's wife, it would not, in my opinion, in the least justify the appellant's complete indifference to her welfare or his deliberate conduct in leaving her to fend for herself or to assert a title to her land, a title which presumably gave him the right to exclude her. So far from filial forebearance, if that was required, the appellant's attitude towards her was truculent and uncompromising. One might remark that it is little wonder that, when considering her will, the deceased's thoughts turned to the assistance of aged and homeless persons. (at p139)

9. The primary judge seems to have been willing to treat the appellant as one having been left without adequate means of support though perhaps it is not absolutely clear, to my mind, that he did. He might have been justified in thinking that the appellant was not so left. He was an able-bodied adult able to fend for himself. For my part, the fact that he had long trespassed on the indulgence of his parents gave him no claim on their continuing bounty. (at p139)

10. But his Honour was unwilling to make an order because of his view of the appellant's conduct towards his mother. In my opinion there was evidence on which he could reasonably find the facts which he did find and upon those facts he could properly exercise his discretion to refuse to make an order. (at p139)

11. For my part, if it matters, I would share the primary judge's reaction to the deceased's sudden and, so far as evidence goes, unexplained removal of herself from the farm house, the appellant's subsequent total neglect of her and his uncompromising attitude towards her and her property. Loyalty to his wife, however commendable, does not to my mind afford an acceptable reason for the utter neglect of an elderly frail mother, at whose hands he had received unrequited benefits since the death of his father. (at p139)

12. But, quite apart from my own view of the matter, there is no reason, in my opinion, for which his Honour's order could properly be disturbed. There is no basis, in my opinion, upon which his conclusions of fact should be set aside. As I have said, there was material to support them and no error of law marred them. (at p139)

13. Further, there is no reason to disturb the discretionary order refusing relief. (at p140)

14. In my opinion, the majority of the Full Court of the Supreme Court were correct in dismissing the appellant's appeal to that court. His appeal to this Court should, in my opinion, suffer the same fate. (at p140)

GIBBS J. This rather difficult case comes to us by way of appeal from a decision of the Full Court of the Supreme Court of Victoria which, by a majority (Starke and Harris JJ.; Anderson J. dissenting), dismissed an appeal from an order of Dunn J. dismissing a summons by the appellant for relief under s. 91 of the Administration and Probate Act 1958 (Vict.). The appellant was the son of the testatrix, Hannah Mary Hughes, who died on 5th May 1975. Her age at the time of her death is shown in the documents prepared for duty purposes as seventy-seven, but according to the judgment of the Full Court it was eighty-one - it is immaterial which is correct. She was a widow and the appellant was her only child. Her net estate was valued for probate duty purposes at about $49,196. The principal asset was a farm property of about 75 acres at Whittlesea which was valued for probate purposes at $45,600 but which appears from the evidence of the valuer now to be worth considerably less than that. By her will, made on 14th November 1973, the testatrix after directing her trustee to set aside a fund for the maintenance of the graves of herself, her late husband and her late parents (cl. 4), gave the residue of her estate to her trustee upon trust after payment of debts, funeral and testamentary expenses, duties and taxes to pay the net residue to the Bethlehem Home for the Aged at Bendigo (cl. 5). (at p140)

2. The appellant was born on 30th June 1921. He attended school until the age of fourteen. He then served a term of apprenticeship as a result of which he became qualified as a boilermaker. For some time he engaged in that trade. In 1939 the appellant's father bought the land at Whittlesea which was then unimproved. A cottage for use at weekends was built on the land; according to the appellant, he and his father built it. In March 1945 the appellant moved onto the property. He said in evidence that he had suffered bronchial trouble from the dust and fumes associated with welding and that he had been told by his doctor that he should leave the construction industry because it was affecting his health. He said that his father had previously told him that the property at Whittlesea would one day be his, and that his father then suggested that he should live on the property. He has in fact lived there ever since. His father paid the rates, charged him no rent and allowed him to keep the income which he made from farming. That income is unlikely ever to have been large, for the farm is a poor one. It supports some cows and sheep, and formerly supported pigs. Most of it is unsuitable for growing crops. After the appellant went into occupation some improvements were effected on the property - a modest house, some outbuildings and fencing were erected and some clearing was done. The appellant claims that he effected these improvements without any assistance from his father but the learned primary judge, who formed a poor opinion of the appellant's credibility, doubted this claim. The buildings on the farm are now in poor condition and the farm is neglected; a valuer who saw the property in May 1976 expressed the opinion that it was then "in a deplorable state". (at p141)

3. On 18th May 1961 the appellant's father died. He left all his property, including the farm, to the testatrix. On 1st August 1961 she made a will (which she later destroyed) leaving all her estate to the appellant. She permitted the appellant to remain on the farm and continued to pay the rates. The appellant's father had been employed in Melbourne as the caretaker of a city building in which he was provided with a flat. After his death the testatrix took over the job as caretaker and continued to occupy the flat. In about December 1972 the building was demolished and her employment ceased. She then went to live with the appellant on the farm. (at p141)

4. In the meantime, Jacqueline Hughes had begun to cohabit with the appellant on the farm. Evidence was given by the appellant and by Jacqueline Hughes that they were married in a church in England on 24th February 1959, but the testatrix believed that no marriage had taken place. The appellant was unable to produce any marriage certificate, and searches have failed to reveal any entry of such a marriage in the register of marriages in England. It is clear that the appellant and Jacqueline Hughes have lived together as man and wife since 1959 and the judge rightly said that the only relevance of the question whether they were in truth married was in relation to the question of credit. Jacqueline Hughes had previously been married - her married name was then Lees - and there was one son, now aged over twenty-one, by the previous marriage. There is one child of the union between the appellant and Jacqueline Hughes - a daughter born on 15th December 1959 who was injured in an accident and is in consequence to some degree sub-normal. Jacqueline Hughes and the daughter have since 1959 lived with the appellant on the farm. The son formerly lived with them, but no longer does so. (at p142)

5. The testatrix was not happy on the farm, and did not remain there long. The appellant and Jacqueline Hughes in their evidence suggested that she was lonely, and did not like country life, but the appellant also said, and it can hardly be doubted, that the testatrix was antagonistic towards Jacqueline Hughes. It is no doubt possible that her feelings were reciprocated, but there is no evidence, other than the statements of the testatrix herself, to which I shortly refer, that Jacqueline Hughes either entertained or displayed feelings of animosity towards her. In about July 1973 the testatrix became ill, and was taken to hospital. When she was discharged, she apparently resented having to leave. She returned to the farm, but in about September 1973 she left. According to the appellant she left suddenly saying that she was going to stay with friends, but would not allow him to drive her to her friends or even to catch the bus. The appellant said that he attempted to find her by ringing the hospital and the Salvation Army, but he could not discover where she had gone; in fact he did not see her again before she died. (at p142)

6. On 8th October 1973 the testatrix consulted a solicitor, Mr. Bryan, and instructed him to prepare a new will. Mr. Bryan said in his affidavit that the testatrix instructed him that some months previously she had tried to return to her property at Whittlesea but had found that she was unable to endure conditions there, and that she had "in effect" been told to leave by the appellant and "the lady he said was his wife" who were living on the property. She said that when she had resided on the property her position had been rendered intolerable by constant fights with that lady, and that her son had refused to assist her in any discussions or arguments and that it was made clear to her that she should live somewhere else. She instructed Mr. Bryan that because of her son's hostile behaviour she wished to change her existing will because she no longer desired her son or "the lady in the house" to benefit in the slightest from her estate. As a result of these instructions the solicitor prepared the will which was executed on 14th November 1973. Pursuant to the instructions of the testatrix, the solicitor also commenced a correspondence with the appellant. On 18th October 1973 he wrote to the appellant requesting that all correspondence addressed to his mother which might have been received by him at the property be forwarded on to the solicitor. The letter concluded: "We would be grateful if you would deal with this matter promptly as our client at present feels unable to return to the property for a number of reasons of which you are acquainted." On 15th November 1973 the solicitor wrote requesting a reply to that letter. However on the preceding day, the 14th November 1973, the solicitor wrote a letter intended for Jacqueline Hughes, but addressed to "Miss J. Lees", care of the appellant. The letter demanded that Jacqueline Hughes vacate the property with her two children within fourteen days, and suggested that the testatrix would take legal action if this demand was not complied with. On 23rd November 1973 the appellant replied to these letters. He denied that he was acquainted with the reasons why the testatrix was unable to return to the property and said that she was not only aged but very sick. He in effect denied that he was holding mail addressed to the testatrix. The letter went on:
"If your client wishes us to vacate these premises, she may either find us suitable residence within a close range of this property or take it to a court of justice to see if she can interfere with peoples lives at free will. At the same time as I have lived upon, built up and worked this property for 30 years, and I had a most satisfactory agreement with my father. As your client wants to alter this agreement all of a sudden, it may be best if the court decide on compensation as she is not prepared to come to any mutual agreement whatsoever.
If you are not prepared to disclose your clients address, your client has had ample time to contact the senders of letters, if any; and change to your address if that's what she prefers."
A further correspondence ensued; it was rather acrimonious on both sides but the details are for the most part unimportant. On 28th November 1974 Mr. Bryan wrote to the appellant saying:
"Mrs. Hughes desires to make her will and she wants to clarify the position in relation to her property which you occupy. If you remain in possession without any definite arrangement with Mrs. Hughes as to your position then her Executors who may desire to sell the property would be forced to take action for recovery of vacant possession. We think that in the interests of all parties the matter should be resolved at this stage rather than perpetuate any family friction."
In fact, of course, the testatrix had made the will by which she left nothing to the appellant a year before this letter was written. It appears that Mr. Bryan could not be cross-examined on his affidavit because of his ill-health, but no objection was taken on that ground. When the appellant eventually replied to this letter, it was to say that the "only solution is the decision of the court". Mr. Bryan said in his affidavit that the testatrix, when she died, was considering taking legal proceedings in ejectment against the appellant, although in his opinion she was not physically able to stand the strain of a court case. (at p144)

7. On 7th February 1975 the testatrix consulted an officer of the Australian Legal Aid Office. She instructed him that when she had gone to live at the farm her son and "the woman he said was his wife" were very unpleasant to her. She said that she had told her son to leave the farm but that he had refused to do so and had threatened her with physical violence if she took steps to evict him, and that her position at the farm had become so difficult that she had come to Melbourne to live. She said that she wished to obtain possession of the farm and had already consulted Mr. Bryan about doing so. (at p144)

8. Affidavit evidence was also given by a Mrs. Read, manageress of a guesthouse at South Yarra in which the testatrix lived from 25th October 1974 until her death. Mrs. Read said that the testatrix told her that she had been forced to leave her clothes behind when she had been ordered off the farm by "the woman living there with her son"; she expressed great resentment at the way she had been treated and said that she had been betrayed by her son because he had stood by while she was forced out of her own home. She further said that she had told her son to leave the farm but he had refused to go. She said that she did not want her son to benefit from her estate after the way in which she had been treated by him. (at p144)

9. The appellant denied that he had behaved badly towards the testatrix or had forced her to leave the farm. He said that the testatrix left of her own accord, and without warning. He said that his wife attempted to avoid conflict with the testatrix, but that this was sometimes impossible; he admitted that he refused to assist the testatrix in her arguments - he avoided taking sides. However he did not make it clear to her that she should live elsewhere, and was prepared to look after her as long as she wanted to stay. (at p144)

10. The appellant was aged about fifty-four at the date of the death of the testatrix. So far as the evidence shows he was an able-bodied man. He appears to have virtually no assets except for a small herd of cattle and some sheep. At present he derives no income from the farm - he said that he had let things slide because of the uncertainty of his position. Jacqueline Hughes is in employment, and earns about $82.50 per week. (at p144)

11. In the course of his careful judgment the learned primary judge made the following observations:
"Without the advantage of seeing and hearing the testatrix it is difficult to form a confident opinion of where the truth lies. I have to bear in mind that the onus is on the plaintiff (the appellant) to satisfy me on the balance of probabilities of the necessary facts to justify an order in his favour.

I have come to the following conclusion:
1. Having seen and heard both the plaintiff and Mrs. Hughes in the

12. Some of these findings of the learned primary judge were not contested. We must accept his judgment as to the credibility of the appellant and Jacqueline Hughes. It does appear that in forming that judgment the learned judge was probably influenced by his suspicion that a letter produced by the appellant, and allegedly written to him by the testatrix in December 1973, was a forgery. There is insufficient evidence to support a positive finding to that effect, but whether or not the suspicion was well-founded the learned judge was entitled to form the opinion which he did on this question of credibility. It follows that the findings contained in pars. 2 and 3 of the passage cited from the reasons for judgment cannot be successfully attacked. It of course does not follow that all the evidence of the appellant must be rejected - much of it was uncontested and in accord with the case presented by the respondent. (at p146)

13. Two main issues fell to be decided by the learned primary judge. The first was whether the distribution of the estate of the testatrix effected by her will was "such as not to make adequate provision for the proper maintenance and support of" the appellant; if so, the court had power to order that such provision as it thought fit should be made out of the estate of the testatrix: s.91 of the Administration and Probate Act 1958. The second question was whether the character or conduct of the appellant was such as in the opinion of the court to disentitle him to the benefit of any provision: s. 96 (1). (at p146)

14. It has long been established that in exercising the power given by a section such as s. 91, the court is not entitled to re-write the will of a testator in accordance with its own ideas of fairness or justice. According to the classical statement in Bosch v. Perpetual Trustee Co. (1938) AC 463, at pp 478-479 :
". . . 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."
Their Lordships went on (1938) AC, at p 479 to cite with approval the following passage from the judgment of Salmond J. in In re Allen, deceased; Allen v. Manchester (1922) NZLR 218, at pp 220-221 :
"The Act is . . . designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. 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 is well settled that these general principles apply to the case of an adult son as well as to other cases. The age of an applicant is however material and if a son is mature, able-bodied and capable of supporting himself he may in those circumstances be in no need of maintenance or support. In In re Sinnott Fullagar J. said (1948) VLR, at p 280 :
"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 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."
More recent cases confirm the view there expressed: see Stott v. Cook (1960) 33 ALJR 447, at p 448 ; Pontifical Society for the Propagation of the Faith v. Scales [1962] HCA 19; (1962) 107 CLR 9, at pp 19,24 ; Re Buckland, deceased (No. 2) [1967] VicRp 1; (1967) VR 3 ; Re Adams, deceased, [1967] VicRp 115; (1967) VR 881 . In some cases a special claim may be found to exist because the applicant has contributed to building up the testator's estate or has helped him in other ways. In other cases a son who has done nothing for his parents may have a special need. This may be because he suffers from some physical or mental infirmity, but it is not necessary for an adult son to show that his earning powers have been impaired by some disability before he can establish a special need for maintenance or support. He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependants who rely on him for support which he cannot adequately provide from his own resources. There are no rigid rules; the question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances - that is, on all the facts that existed at the date of the death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts. (at p148)

15. In the present case the learned primary judge has found that the appellant has done little or nothing for his parents but has on the contrary received benefits from them. That finding, as I have already said, cannot be challenged. Moreover the appellant is able-bodied and could no doubt work if he could find employment. However there is no evidence that any other employment is available to him, and it cannot be assumed that a man aged fifty-four, who has not practised his trade for over thirty years, could readily find employment. The farm provided the appellant not only with a home but also with an occupation. It is too much to say that the appellant supports Jacqueline Hughes and their daughter, for in truth Jacqueline Hughes appears to provide the money needed to support the family, but the appellant has a moral obligation to support them, and the farm at least enables him to provide them with a dwelling in which to live. It would be futile to speculate whether it would have been better for the appellant if in 1945 his father had not made the farm available to him. In fact he was allowed by his father, and later by the testatrix, to live on the farm and treat it as his own. He has since acted on the assumption that the farm would be his and was led to do so by the conduct of his parents, if not by their express promises. Wise and just parents, having allowed him to base his life on that foundation, would not years later attempt to deprive him of what had become necessary for the support of himself and his family. Clearly enough he has not been a successful farmer - perhaps he has been lazy and improvident - but an order under testator's family maintenance legislation is not made as a reward for effort or success. As Philp J. said in his dissenting judgment in Re Hatte (1943) St R Qd 1, at p 26 :
". . . I do not think that the Legislature intended that provision under the Act should be given rather to those who are efficient and successful than to those who are not. A just father's moral duty is to assist the lame ducks amongst his offspring, provided they be not morally or otherwise undeserving."
The appellant is in very poor financial circumstances. His deserts may be small, but his needs are considerable. There were no competing claims on the bounty of the testatrix, who owed no moral duty to the Bethlehem Home for the Aged at Bendigo. The onus of course lay on the appellant to establish that the testatrix by her will failed to make adequate provision for his proper maintenance and support. In my opinion he has discharged that onus. (at p149)

16. I am inclined to think, as did Harris J. in the Full Court, that the learned primary judge was of the same opinion. If that is so, the reason for his dismissal of the application must have been that he considered that the appellant had been guilty of conduct disentitling him from relief. Even if I were incorrect in so thinking, it is clear that the finding that the appellant had been guilty of such conduct as to forfeit all moral claim to any benefit from the testatrix had an important influence on the conclusion of the learned primary judge that no provision should be made in favour of the appellant. By s. 91 of the Act the Court is "given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all": Pontifical Society for the Propagation of the Faith v. Scales (1962) 107 CLR, at p 19 . A court of appeal will not interfere with the exercise of such a discretion unless it is satisfied that it is erroneous: Worladge v. Doddridge [1957] HCA 45; (1957) 97 CLR 1, at p 11 . However, whether or not it is right to say that this appeal was from a discretionary judgment, the decision of the learned primary judge cannot stand if it was erroneous for him to find that the appellant by his conduct had forfeited all moral claim to any benefit from the estate of the testatrix. (at p149)

17. To enable that question to be considered, it is necessary to decide what effect should be given to the evidence of the statements made by the testatrix as to the conduct of the appellant, and as to the reasons why she deprived him of any benefit under her will. It is clear that under the rules of the common law a statement by a testatrix that her son has been guilty of misconduct, and that for that reason she has excluded him from any benefit under her will, is not admissible to prove that the son was in fact guilty of misconduct. What the testatrix said about the son's conduct is hearsay, and no exception to the rule against hearsay which is recognized by the common law allows the statement to be given in evidence to prove the facts stated. Such a statement is admissible as original evidence to prove the knowledge, motive or other state of mind of the testatrix should that be relevant. It is however difficult to see how the state of mind of the testatrix can be relevant in an application under testator's family maintenance legislation, unless the will has been made because of some mistake or oversight on the part of the testatrix. If she made her will because she believed that her son had been guilty of unfilial conduct, and the belief is shown to have ill-founded, that may support the appellant's claim, but if the belief is shown to have been well-founded, it is the fact that the appellant was guilty of disentitling conduct, rather than what the testatrix believed, that is relevant. (at p150)

18. In some jurisdictions the rules of the common law have been modified by statutory provisions, which allow the court to have regard to evidence as to the reasons given by a testatrix for making the dispositions which she had made by her will. Legislation of that kind has been enacted in the United Kingdom, New Zealand and some parts of Australia. No such legislation has however been enacted in Victoria or indeed in most of the Australian States. Nevertheless in Australia for many years the courts have admitted evidence of statements made by a testatrix explaining why she made her will as she did. In taking this course the courts have no doubt been influenced by a desire to be informed of the reasons which actuated the testatrix to make the dispositions she had made, and by the consideration that in cases of this kind a claim is made against the estate of a person who is deceased and can no longer give evidence in support of what she has done. It is doubtful whether, in most cases, such evidence is relevant, but usage justifies its reception. The question is for what purpose it may be used, once admitted. The balance of authority clearly favours the view that it is admissible only to provide some evidence of the reason why the testatrix has disposed of her estate in a particular way, and that it is not admissible to prove that what the testatrix said or believed was true: Re Jones (1921) 21 SR (NSW) 693, at p 695 ; In re Smith (1928) SASR 30, at p 34 ; In the Will of Joliffe (1929) St R Qd 189, at p 193 ; Re G. Hall, deceased (1930) 30 SR (NSW) 165, at p 166 ; In re Green, deceased; Zukerman v. Public Trustee (1951) NZLR 135, at pp 140-141 (a case decided before the amending legislation was enacted in New Zealand). This view was accepted as correct by Taylor J. in Pontifical Society for the Propagation of the Faith v. Scales (1962) 107 CLR, at p 24 ; Taylor J. dissented in the result in that case but there is nothing to suggest that his opinion on this point differed from that of the majority of the Court. (at p150)

19. There have however been some cases in Victoria in which the judges, while not going so far as to say that evidence of this kind is admissible to prove the truth of the matters stated, have nevertheless striven to give it some effect. In In re Duncan [1939] VicLawRp 51; (1939) VLR 355, at p360 , Lowe J. said that if the facts were as the testatrix had alleged in her statements, it could not be said that she had disregarded any moral duty by omitting the applicant from her will, but he did not make it clear what effect if any he gave to the statements. In In re Ruxton [1946] VicLawRp 52; (1946) VLR 334, at pp 335-336 , Fullagar J. said:
"I do not regard the case of In re Duncan [1939] VicLawRp 51; (1939) VLR 355 as establishing the proposition that proof of statements made by a testator regarding the conduct of an applicant throws on the applicant's shoulders the burden of disproving the truth of those statements. And my own opinion is that the burden of proving that the character or conduct of the applicant is such as to disentitle him or her to the benefit of the Act is on those who resist the application. In this I would agree with Shand J. in the case of In re K. (1921) St R Qd 172, at p 179 . On the other hand, I think it is necessary for an applicant to show some moral claim on the testator, though I should think that the mere fact that the applicant is the testator's widow raises a prima facie case of the existence of the moral claim. Statements by the testator, which explain his reasons for the provisions in fact made by his will, appear to be held admissible, and, in the absence of any denial or qualification of facts so stated which would justify the testator's treatment of the applicant, it could, I think, be held that the applicant failed to establish the moral claim."
On the other hand Herring C.J., in In re Scott; Scott v. Union Trustee Co. of Australia Ltd. [1950] VicLawRp 19; (1950) VLR 102, at p 106 , said that it was for the court to determine whether the grounds for any belief on the testatrix's part were true or not, and that this question must be determined on evidence. In In re Paulin [1950] VicLawRp 74; (1950) VLR 462 , Sholl J. after a full review of the authorities, formulated a number of propositions including the following (1950) VLR, at p 473 :
"(4) If evidence of allegations or reasons of the testator is tendered, an explanation by the applicant may reasonably be called for. If none is forthcoming, or if it is unsatisfactory, the applicant may be taken to have admitted by inference the truth of the allegations, and if they are such as to defeat the claim, the applicant fails - In re Duncan [1939] VicLawRp 51; (1939) VLR 355
(5) If, however, the applicant offers a denial or explanation by her own or other evidence, which cannot be rejected then, even though the Court cannot find positively that the testator's allegations are untrue, there is no admission by inference; indeed there is no legal evidence remaining against the applicant; and the prima facie case of the applicant is not destroyed - In re Scott [1950] VicLawRp 19; (1950) VLR 102 ."
Gillard J., in Re Buckland, deceased (No. 2) (1967) VR, at pp 5-6 , said that the "statements per se do not prove the truth of the facts being asserted", but nevertheless went on to say that "the effect of the admission of such evidence may be to cause a shifting of the onus of proof in the course of the proceedings". With the greatest respect, I cannot accept all of these statements in In re Ruxton (1946) VLR 344 , In re Paulin [1950] VicLawRp 74; (1950) VLR 462 and Re Buckland, deceased (No. 2) [1967] VicRp 1; (1967) VR 3 as completely satisfactory. How can evidence of this kind shift the onus of proof, unless it is evidence of the facts stated? If it neither shifts the burden of proof, nor can be regarded as evidence of the facts asserted, how can it have the effect that, unless those facts are denied or qualified, the applicant should be held to have failed to establish a moral claim? And, as Lucas J. asked in Re Taylor (1968) Qd R 385, at p 391 : "... why should the applicant be taken to have admitted the truth of the allegations, when the evidence of the allegations is not itself admitted as evidence of their truth?" (at p152)

20. In my opinion consistently with principle it is impossible to treat a statement of this kind as evidence of the truth of the matters said. Unless the statement is admissible to prove that what was said was true, it cannot shift the onus of proof. It is admissible only to prove the reasons which actuated the testatrix in making her will. I would respectfully agree with what was said by Gresson J. when giving the judgment of the Court of Appeal of New Zealand in In re Green, deceased; Zukerman v. Public Trustee (1951) NZLR, at p 141 :
"If reasons are given by the testator reflecting on the character or conduct of that child, the court must, in considering the sufficiency or otherwise of the reasons, endeavour to decide upon the truth or otherwise of the allegations. But the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting a claim. In our opinion, the reasons given by a testator for excluding a child (or a widow) go no further than to concentrate attention on the question whether there is or has been character or conduct operating to negative the moral obligation that would otherwise have lain upon the testator. If the court is quite unable to arrive at the truth or falsity of the allegations, so that they must be regarded as neither proved nor disproved, but merely unproven, then sub-s. 2 of s. 33, which authorizes the court to 'refuse to make an order in favour of any person whose character or conduct is such as in the opinion of the court to disentitle him or her to the benefit of an order,' has no application." (at p153)

21. In a recent discussion of this question, in Tausz v. Elton (1974) 2 NSWLR 163, at p 171 , Mahoney J. raised for consideration some further matters that do not appear to have been discussed in earlier cases. He said:
"Moreover, a statement of fact which prima facie is merely hearsay and, therefore, not probative of the fact stated may become probative of that fact if, in appropriate circumstances, it is admitted into evidence. The circumstances in which such a hearsay statement, once admitted, is evidence of the facts stated has not been definitively determined: see for example Walker v. Walker [1937] HCA 44; (1937) 57 CLR 630 ; McLennan v. Taylor (1966) 85 WN (Pt 1) (NSW) 525 , but in such a case as this, if the function to be served by admitting the deceased's statement be that to which I have referred, that of having before the court 'the testator's side' of the story, then such statements, once before the court, should be accepted as probative of the facts stated."
There are no doubt some cases in which inadmissible evidence, having been admitted, may be treated as evidence for all purposes; for example, where one party by his conduct at the trial has led the other to believe that evidence, although hearsay, may be treated as evidence of the facts stated, and the other in reliance on that belief has refrained from adducing proper evidence, the former party is precluded from objecting to the use of the evidence to prove the facts stated. However, in general it is the duty of a judge to reach his decision on evidence that is legally admissible, and to put evidence only to those uses which the law allows. When a statement is admitted, not as evidence of its truth but simply as original evidence, the mere fact of its admission cannot enable it to be given an additional probative value which the law denies it. A second question raised by Mahoney J. was whether a statement by the testatrix, if in writing, would under s. 14B of the Evidence Act 1898 (N.S.W.), as amended be evidence of the facts stated in it; he held that it would. Since the statements in the present case are oral I need not consider that question. (at p153)

22. I accordingly hold that the statements made by the testatrix to Mr. Bryan, Mrs. Read and the officer of the Australian Legal Aid Office were not evidence that the appellant and Jacqueline Hughes had acted in the way which the testatrix described. It should however be observed that the statements were not altogether consistent. According to Mr. Bryan, the testatrix said that she had "in effect" been told to leave the property by her son and by Jacqueline Hughes. The officer of the Australian Legal Aid Office was not informed by the testatrix that she had been told to leave the farm, but that her position had become so difficult that she had left. Mrs. Read's version was that the testatrix said that she was ordered off the farm by Jacqueline Hughes. Of course, the evidence of all these witnesses suggests that the testatrix found conditions very unpleasant on the farm, mainly because of her unhappy relationship with Jacqueline Hughes. (at p154)

23. It is not altogether clear whether the learned primary judge did give any evidentiary weight to the statements made by the testatrix in reaching his conclusion that the appellant had been guilty of disentitling conduct. However the question for us to consider is whether there is any evidence, apart from those statements, upon which his finding can be supported. He indicated, in par. 5 of the passage from his judgment which I have already quoted, part of the reasoning by which he was led to his final conclusion. He considered that there were two possible explanations for the departure of the testatrix from the farm - one, that she was in some way mentally unstable or aberrant, and the other that her son had been guilty of treatment that drove her out. He accepted evidence that the testatrix seemed mentally quite normal and alert, and therefore concluded that the latter of these alternative explanations was correct. Even if the testatrix was in full possession of her mental faculties, it is possible that age or nature had rendered her capricious or unreasonable, and that this explained why she left. There is, however, another explanation for her departure, namely that she had developed a strong dislike for Jacqueline Hughes, and could not tolerate living with her. The evidence strongly supports the conclusion that this was the case. The very fact that on the 14th November 1973 the solicitor for the testatrix wrote to "Miss J. Lees", requiring that she and her two children vacate the property, but not suggesting that the appellant should also leave, indicates that the testatrix was antagonistic to Jacqueline Hughes but not to the appellant. (at p154)

24. There is no evidence that Jacqueline Hughes was to blame for the fact that the testatrix disliked her and felt unable to live on the farm, or that the appellant was at fault in refusing to take sides in the arguments between them. It is not unprecedented for an elderly mother-in-law and her daughter-in-law to find it difficult to live in amity in the same household, nor is a son necessarily lacking in proper filial sentiments if he fails to intervene on his mother's behalf in disputes that arise in that situation. There is nothing in the correspondence to which I have already referred that provides any evidence that the appellant wished or endeavoured to get rid of the testatrix from the farm. Although his letters indicate his concern with his own position and a lack of concern for his mother's, they do not suggest that he had been in any way responsible for her departure. There is no evidence that while the testatrix was on the farm the appellant in any way failed in his duty towards her. The finding that the conduct of the appellant forced the testatrix from the farm cannot in my opinion be sustained. (at p155)

25. I do however consider that after the testatrix left the farm the appellant's conduct fell short of that which might have been expected of a dutiful son. If, as he said, she was old and sick it was his moral duty to endeavour to see her, and to ensure that she was living in conditions in which she was properly looked after and if possible to effect a reconciliation with her. However, it does not appear that the efforts which he made to find the testatrix were very persistent or strenuous. In the letters which he wrote to the solicitor he did not suggest that he wished the testatrix to return to the farm and he did not inquire about her whereabouts or well-being. (at p155)

26. The final question is whether this lack of concern by the appellant for the well-being of the testatrix after she had left the farm and his failure to take positive steps either to effect a reconciliation or to ensure that she was being properly cared for amounted to conduct which was such as to disentitle him to relief. The learned primary judge did not decide this question, since his conclusion that the appellant was guilty of disentitling conduct depended in part on his finding that the appellant by his conduct had forced the testatrix from the farm. We must therefore form our own opinion on the matter. (at p155)

27. Although the conduct of the appellant is worthy of censure, there are some circumstances of extenuation. Almost immediately after the departure of the testatrix from the farm he began to receive from the solicitor the letters written on her behalf. The facts that the testatrix had consulted a solicitor, and that the solicitor did not suggest that she was in need of help, might well have caused the appellant to believe that she was being properly cared for. There is indeed no evidence whatever that her living conditions were other than comfortable, or that she in fact needed any assistance. The solicitor's letters were unfriendly in tone and that written on 14th November 1973 to Jacqueline Hughes, demanding that she and her children vacate the property within fourteen days, was calculated to disturb and annoy the appellant. The tone of the correspondence was not such as to incline the appellant to seek a reconciliation. The suggestion of the solicitors in the letter of 28th November 1974 that the matter should be resolved rather than perpetuate family friction was made in the context of the statement that if an arrangement were not made the executors of the testatrix might be forced to take action for recovery of vacant possession. Viewed from the appellant's position, the testatrix had acted unreasonably in leaving the farm, and having left was making threats to disturb the possession which he had enjoyed for decades and to which he obviously considered himself legally entitled. This explains, if it does not justify, his attitude. (at p156)

28. 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. The appellant has made out a strong case for relief. His conduct, although not meritorious, consisted in a failure to take positive steps to see and assist his mother rather than in any actual wrongdoing and was contributed to by the actions of the testatrix, which from his point of view were unreasonable and unfriendly. On balance, and having given careful consideration to all the circumstances, I have reached the conclusion that his conduct was not such as to disentitle him to relief. (at p156)

29. Once that conclusion is reached it seems to me that the proper provision to be made for the appellant out of the estate of the testatrix should be such as would allow him to have the farm on which he has lived for so long. In the circumstances this can only be achieved by giving him the entire net estate after the fund mentioned in cl. 4 of the will of the testatrix has been created. (at p156)

30. I would allow the appeal. In lieu of the order of the learned primary judge I would order (1) that the following provision be made for the appellant out of the estate of the testatrix, namely that in lieu of the trust in favour of the Bethlehem Home for the Aged at Bendigo, there be created a trust to pay the net residue of the estate to the appellant, and (2) that the costs of both parties of the hearing at first instance be taxed as between solicitor and client and paid out of the estate. (at p157)

31. The respondent should be ordered to pay the appellant's costs of the appeals to the Full Court of the Supreme Court and to this Court. In my opinion, notwithstanding what was said in Re Pennington, deceased [1972] VicRp 102; (1972) VR 869, at pp 876-877 , it would be proper in the present case for the respondent to have a certificate under the Appeal Costs Fund Act 1964 (Vict.), and that circumstance should be considered in deciding upon the proper order to be made as to the costs of the appeal. In case any further question arises as to costs, I would grant liberty to apply. (at p157)

MASON J. I agree with the reasons for judgment which have been prepared by Gibbs J. Accordingly, I would allow the appeal and order that in lieu of the trust in favour of the Bethlehem Home for the Aged at Bendigo there be created a trust to pay the net residue of the estate to the appellant, that the costs of the hearing at first instance of both parties as between solicitor and client be taxed and paid out of the estate and that the respondent should be ordered to pay the appellant's costs of the appeals to the Full Court of the Supreme Court and to this Court, with liberty to apply as to costs. (at p157)

MURPHY J. The appellant seeks an order in his favour under s. 91 of the Administration and Probate Act 1958 (Vict.) which provides:
". . . where . . . any person (hereinafter in this Part called 'the deceased') dies, and the distribution of his estate effected by his will . . . is such as not to make adequate provision for the proper maintenance and support of the deceased's widow widower or children the Court may, on application by or on behalf of the said widow widower or children, order that such provision as the Court thinks fit shall be made out of the estate of the deceased for such widow widower or children. . . ."
Section 95 provides:
"In granting or refusing any such application and in fixing the amount of the provision to be made under this Part for the widow widower or children or any of them the Court shall have regard (inter alia) to -

(a) the net value only of the estate of the deceased . . . and
(b) whether the widow widower or children or any of them are entitled to

2. The testator made no provision for the appellant in her will although he was the only child of her marriage with his father who had predeceased her. The will (apart from a provision for maintenance of the graves of the testator and her late husband and for repair and maintenance of her mother and father's graves) left the estate to the Bethlehem Home for the Aged. The facts are set out in Gibbs J.'s judgment. (at p158)

3. The appellant's application under s. 91 was dismissed by Dunn J. in the Supreme Court of Victoria on the grounds that he did not have a moral claim to any provision under s. 91 and was disentitled under s. 96 (1) by reason of his conduct. The Full Court of the Supreme Court of Victoria (Starke and Harris JJ., Anderson J. dissenting) dismissed his appeal from Dunn J.'s order and dealt with it as if it were a discretionary judgment. It was not a discretionary judgment; it was based on a determination of matters of fact or mixed fact and law (that is, whether the appellant was left without adequate provision, whether he established a moral claim to provision, and whether his conduct disentitled him to any provision) and cannot be regarded as a discretionary judgment unless the concept is extended to encompass almost all judgments. Dunn J. did not reach the stage of exercising any discretion under s. 91. It is unnecessary therefore, to consider the nature of a true appeal from a judgment which involves an element of discretion except to observe that the concept of discretionary judgments must not be allowed to undermine the appellate process. (at p158)

4. I am satisfied that the appellant was left without adequate provision for his proper maintenance and support in that the distribution of the estate was not such as to make adequate provision (s. 91) and the inadequacy was not made up by independent means (see s. 95). Many cases suggest that an applicant must show a moral claim as well (see, e.g., Bosch v. Perpetual Trustee Co. Ltd (1938) AC 463 ; this gloss on the Act is unwarranted and inconsistent with the language and with the legislative scheme. The statutory specification of a deceased's spouse and children as persons entitled to claim if the distribution of the estate does not make adequate provision (s. 91) is a legislative judgment that such persons have a claim unless disentitled under s. 96 (1) or unless they are adequately provided for by independent means (see s. 95). (at p159)

5. If, however, it is necessary for an applicant to show a moral claim as well, the facts of this case show that (i) the appellant was left on the farm for thirty years by arrangement firstly with his father and then with his mother and (ii) apart from the disagreement in the last two years of his mother's life, the two had a long-standing relationship and (iii) there were no competing family claims. (at p159)

6. Complaints by the testator about the appellant's conduct were introduced before the trial judge. A testator's complaints are not evidence of the truth of the facts or circumstances complained of and are not admissible to prove disentitling matters stated in s. 96, but may explain the dispositions. They have been held admissible to show a testator's reasons for excluding an applicant from an estate or reducing what provision might otherwise be made (see In re Green, deceased; Zukerman v. Public Trustee (1951) NZLR 135 ; Pontifical Society for the Propagation of the Faith v. Scales [1962] HCA 19; ; (1962) 107 CLR 9, at p 24 (Taylor J. dissenting)). If the matters complained of are proved to be correct, they may or may not provide grounds for disentitlement under s. 96 (1); they may disclose only irrationality or petulance. (at p159)

7. If it is intended to show character or conduct disentitling an applicant under s. 96, the onus is on those who assert it to prove it. An applicant should not be required to disprove, as part of his case, the substance of any complaints against his character or conduct. In this case, the trial judge erroneously required the appellant to disprove, as part of his case, the matters complained of. (at p159)

8. Difficulty arises from the unwarranted introduction of the notion of moral claim into s. 91, from which it follows that the appellant must establish his moral claim; in effect, his character and conduct must qualify him for the benefit of provision out of the estate. In this case, Harris J. (with whom Starke J. agreed) stated:
". . . evidence may be relevant both to the establishment of a moral claim by an applicant, which is part of his case, and also to character or conduct disentitling him to a benefit. In this case, the evidence considered by the learned Judge was clearly relevant to the question whether the appellant had a moral claim upon the bounty of the deceased. In my opinion, what the learned Judge did was to say that the onus lay on the appellant to establish his claim (part of which was to establish a moral claim) and to say that, having considered all the evidence, he was not satisfied that the appellant had a moral claim. In my opinion, the learned Judge did not place on the appellant any burden of proof which did not lie on him." (at p160)

9. In my opinion, this confuses the simple operation of the sections. Section 91 specifies the conditions of qualification; s. 96 specifies the conditions of disentitlement of disqualification. To bring himself within s. 91, the appellant does not have to establish any moral claim or qualification other than those specified in the section. Where the estate is more than enough to make adequate provision for all others within the specified class, refusal of an application by someone within the class specified in s. 91 should not be attributed to the appellant's failure to prove a moral claim but rather to failure to establish that the distribution of the estate "is such as not to make adequate provision for" the appellant: to disentitlement under s. 96, or to the fact that the appellant is adequately provided for by independent means (see s. 95) which I take to include his or her own earning capacity. (at p160)

10. I am not satisfied that the appellant's conduct disentitled him entirely or at all. Obviously his mother did not get on well with his wife and I infer that she left the farm because of this. The correspondence between the appellant and his mother's solicitors shows that she was acting irrationally or at least petulantly. (at p160)

11. In this case, there is no applicant or beneficiary within the specified class; the estate is not more than enough to make adequate provision for the proper maintenance and support of the applicant. In these circumstances, the legislative intent is best carried out by providing that substantially the whole estate go to the appellant. I agree with the order proposed by Gibbs J. (at p160)

AICKIN J. I agree with the reasons for judgment prepared by my brother Gibbs and with the order which he proposes. (at p160)

ORDER

Order of the Full Court of the Supreme Court of Victoria set aside and in lieu thereof make the following orders:
1. That the appeal be allowed.
2. That the judgment appealed from be set aside, and that in lieu thereof it be ordered -
(i) that provision be made for the appellant (plaintiff) out of the estate of the testatrix by deleting the provision in the will of the testatrix by which the net residue of the estate is to be held on trust for the Bethlehem Home for the Aged at Bendigo and substituting therefor a provision that the net residue of the estate be held upon trust to pay the same to Thomas William Hughes;
(ii) that the costs of both parties of the hearing at first instance (including reserved costs) be taxed as between solicitor and client and paid out of the estate;
(iii) that it be certified that the matter was a proper one for the attendance of counsel;
(iv) that a certified copy of this order be made upon the probate of the will of the deceased.
3. That the respondent (defendant) pay the appellant's (plaintiff's) costs of the appeal to the Full Court of the Supreme Court, taxed as between solicitor and client.

Further order that the respondent pay the appellant's costs of the appeal to this Court, taxed as between solicitor and client.

Further order that such of the appellant's costs of the appeal to the Full Court of the Supreme Court and to this Court as are paid by the respondent to the appellant and are not paid from the Fund under the Appeal Costs Fund Act 1964, as amended (Vict.) and such of the respondent's costs of those appeals as are not paid from the said Fund, be taxed as between solicitor and client and paid to the respondent out of the estate.

Grant liberty to apply as to costs.