Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 (9 April 1962)

HIGH COURT OF AUSTRALIA

PONTIFICAL SOCIETY FOR THE PROPAGATION OF THE FAITH v. SCALES [1962] HCA 19; (1962) 107 CLR 9

Testator's Family Maintenance

High Court of Australia
Dixon C.J.(1), McTiernan(2) and Taylor(3) JJ.

CATCHWORDS

Testator's Family Maintenance - Application by adult son fifty years of age and in good financial circumstances - Testator separated permanently from wife and son when son four years of age - No communication with them afterwards except by sending or causing to be sent to wife small monthly payments - Son having no recollection of father - No attempt by son to get in touch with him - Son helping to support his mother for eighteen years - Testator leaving a substantial estate - No provision for son in his will - Provision therein for payment to his widow of monthly sum for life - Residue of estate given to ten named charities - The Testator's Family Maintenance Acts, 1914 to 1952 (Q.), s. 3 (1), (2) (c).

HEARING

Brisbane, 1961, September 19;
Sydney, 1962, April 9. 9:4:1962
APPEAL from the Supreme Court of Queensland.

DECISION

1962, April 9.
The following written judgments were delivered:-
DIXON C.J. This very curious case has occasioned me a great deal of succeed. The appeal is by certain charities against so much of the order of the Supreme Court of Queensland (Philp J.) as varies the dispositions of a will so as to confer benefits upon the respondent. The will is that of David (Patrick) Scales, who died in Brisbane on 15th February 1960. He was eighty-six years old. The will - his last will - had been made on 24th March 1958. At the age of thirty-six, on 23rd February 1909, he married Mary Josephine Eiffe who was then twenty-nine years of age. They were married at Broken Hill. From Broken Hill they went down to Semaphore near Adelaide, whence not long afterwards they, or perhaps she, moved to a flat or apartment in Hutt Street near King William Street, Adelaide. There on 13th January 1910 the child of the marriage was born, Gerard Majella Scales: he is the respondent to this appeal. At the time of his birth the testator and his wife were drifting apart and when she registered the birth of the child, as she did on 7th February 1910, she gave the rank and profession of the father as "Farmer, Pinnaroo". In fact he and a brother conducted a farm at Pinnaroo. The son has no conscious recollection of ever seeing his father. He was brought up by his mother, who was eighty-one years of age at the death of her husband and joined with her son in an application under The Testator's Family Maintenance Acts 1914 to 1952 of Queensland for an order that an adequate provision be made for them out of the estate of the testator. The testator's estate had been sworn for probate at over 50,000 pounds gross, an amount which by death duties, liabilities and the like will be reduced, it is said, to 36,000 pounds odd. Subject to an annuity of 21 pounds a month to Mary Josephine Scales, his wife, the testator by his last will disposed of his estate in favour of ten charities, eight of them in South Australia, one in Western Australia and one in Queensland, each of the ten charities to take a tenth share. The Public Curator of Queensland was appointed executor and trustee. The respondent, Gerard Majella Scales, is not mentioned in the will at all. Philp J. decided that the widow should receive from the estate the income of 20,000 pounds during her life and should receive also a lump sum of 500 pounds "to allow her to buy things she wants and to tide her over the time which will elapse before she receives income". To the son he gave a lump sum of 3,000 pounds and a sum of 10,000 pounds out of the estate on his mother's death. There has been no appeal against so much of the order as makes a provision for the widow, but against that part of the order which makes the provision in favour of the respondent, Gerard Majella Scales, this appeal has been instituted by two of the charities. (at p13)

2. Of the life of the testator during the period of forty-six years that passed between his last visit to his wife and his death, little appears. His last visit, according to her recollection, took place in 1914. His assets at the time of his death consisted of shares in mining companies and in an oil exploration company. He died in hospital in Brisbane and probably for upwards of twenty years he had lived in Brisbane, first in North Brisbane and later at the Kingsley Private Hotel, George Street. He made a will at the end of 1939 (29th December 1939) and another dated 1st September 1953, in each of which he named the Public Curator, Queensland, the executor and trustee. Counsel for that official, with concurrence of counsel for the other parties, informed the learned judge that in 1940 the testator had been taken to hospital very ill and required someone to conduct his affairs. Later in that year he gave a power of attorney to the Public Curator and instructed him to pay the testator's wife 1 pound a week as from 7th February 1940. As time went on, the amount of the payments was increased until in the end it was 23 pounds a month. Mrs. Scales sometimes sent a massive to her husband contained in an envelope addressed to the Public Curator. The inference was that she asked for a greater allowance. Sometimes she would ask the Curator directly to increase the amount of the payments. In each case the Curator would receive instructions from the testator directing him to make some specified increase in the rate. The Curator acted under the power of attorney until 1952: then he acted for the testator until his death under some other authority; its nature is not clear. The amount of the remittances went up to 21 pounds and then 23 pounds a month. The testator never seems directly to have communicated with his wife and, except as already stated, she did not communicate with him. The respondent, Gerard Majella Scales, never throughout his life attempted to see or communicate with the testator at all. Philp J. asked the respondent Scales, when he was examined as a witness, whether he ever got in touch with his father, and upon his replying "No", asked him why not. His answer was this: "Well, mainly because I think my mother discouraged me from doing so, in that she felt it might cause trouble if I chased after him. Secondly, at the same time I thought I might find something that I did not want to find. I thought it is a most unnatural set-up. I thought he could even have been living with some persons. He could have married again." When the testator left Pinnaroo is uncertain but it seems likely that it was in 1914 or 1915. He continued to send a small allowance to his wife who eked out a livelihood by letting part of the flat and by sewing for a tailor. The allowance was dropped at one stage and she said in her evidence: "He stopped the money. I said I was sewing and he assumed I had enough money and I put the police on to find his address. I told them to remind him that he had a wife and child in Adelaide and I wanted more assistance and straightaway he said to the policeman at the door 'I will send her some money now', and he did." When she gave evidence before his Honour she was eighty-one years of age but the learned judge in his judgment says of her: "Mrs. Scales is an intelligent woman apparently in good health but very deaf and difficult to question. I unreservedly accept the evidence given by her and her son." By collecting certain answers she gave to the appellants' counsel and to the learned judge, it is possible to obtain the picture she has preserved in her memory of her very short married life: "Have you lived with your husband at all since 1910? - I saw him before that. It was in 1914 when my son was four years old, but he was just in and out to the farm, and he came to visit me in 1914. He came in to see me and I saw him. He was sending me money. He last visited you in 1914? - I remember that, because the boy was four years old. Did you ever live with your husband? - Yes, I must have. Yes, we were married on 23 February and I conceived in April." "I take it that you and your husband lived together for about a year? - He was with me for a few months. I think that was all. He visited me regularly. He was out on the farm and he came up to Adelaide and I was in a room then. What year was that? That was in 1910, was it? - 1909 and 1910, yes. In 1909 was when I was sick and he came in and out a lot then. In 1910 he came and saw the boy and he saw the boy later." "He was such an unaffectionate man. He cared nothing for me, or the boy, or anything. Then after 1910, your husband stopped visiting you? - He never stayed with me or lived with me." "By his Honour: Why do you say your husband left you? - Because he was the strangest man in the world. He was a strange man and he was in poor health and I married him, and I think he was better off away from everybody and I think that might have been some reason for it. But you say you gave him no cause to leave you? - He started with his brother farming and from that time he seemed to like being away by himself. He was always a man like that. He never corresponded. Did he ever tell you why he was not living with you? - No, he never made any complaints. When the child was born he paid all the bills and bought me a little go-cart to use. That was a big surprise to me. When your baby was born, did your husband come to see you? Did he come to see you before your baby was born and after? - If you understand farming, it was just the middle of harvest and he had put money into that with his brother and he had to work hard and not forsake it, and that is why he did not come in in the middle of January. That is why he could not come in. How far away was this farm from where you were living? - Pinnaroo. I do not know how far out that was from Adelaide, but not very far. (In fact it is near the Victorian border.) He would get the express and come in. Did he come in while you were pregnant? - Before the baby was born? Yes, of course? - He came in several times. Did he come in after the baby was born? - Yes. How many times would he see the baby, would you say? - Off and on up until the boy was four years old. Did your husband ever suggest to you that the child was not his, that it was illegitimate? - Never. Never. He never gave me that idea at all. You know of course, that he left a document in which he says it was not his child? - It is his child. As I understood it, your husband finally left you? - He was a man who liked to live by his own self. He had no friends. He did not want friends. He wanted to live by himself. When did you last see him? You say you saw him in 1914? - He came down in 1914. When did you last see him after he left you somewhere about 1910? When did he finally cease to live with you? - About 1914. That is when he finally ceased to live with you? - Yes. I understand from what you told Mr. Gibbs that he had not lived with you since 1910? - No, never lived with me from the time I conceived. After the baby was born, how did you support yourself and the baby? - He was sending me some money. About how much? - Quite enough money at the time, and I had a flat where the baby was born. Why did you not take him to court to get maintenance from him? - He was giving me money and he was not affectionate, lovable, after that happened, and I sort of drifted away myself." Upon this evidence it seems to be clear enough that after the child was conceived they did not again cohabit, and that such matrimonial relationship as was maintained was very tenuous and came to depend, if it could be considered still to exist at all, upon a meagre, though perhaps regular, supply of money. No one except the testator seems ever to have expressed or entertained any doubts as to his being the father of the respondent and on very strong evidence it has been found that the testator was certainly his father. But from the beginning the testator seems to have taken little or no interest in his son and in the earliest document under his hand which we have in which his son is mentioned, he is pointedly described as Gerald (sic) Nygela (sic) Scales "the son of the said Mary Josephine Scales". That is in a will made on 29th December 1939, the first of the three wills in evidence. In this will the testator bequeathed three general pecuniary legacies of 300 pounds each to a niece and two cousins, about one of whom he expressed uncertainty as to his survival and whereabouts. He bequeathed 50 pounds each to six charities in South Australia and 1,000 pounds towards a fund to establish in Adelaide a home for orphan and neglected boys under the Salesian Order of Priests. The residue he devised and bequeathed upon trusts for conversion and to hold the proceeds upon trust to pay the income "to my wife Mary Josephine Scales during her life and from and after her death my Trustee shall stand possessed of the capital of the said trust fund upon trust for Gerald Nygela Scales the son of the said Mary Josephine Scales for his own use and benefit absolutely". (at p16)

3. In the second will the name of the respondent, Gerard Majella Scales, is entirely omitted and the residuary gift to the testator's wife is replaced by a bare annuity of 20 pounds a month to her. There was a gift of residue in tenth shares to the same ten charities as in his last will. The will was dated 1st September 1953. He named his place of residence as Kingsley Private Hotel, George Street, Brisbane. When he gave instructions for the will of 1939 the testator is said to have stated that he had no children and that he and his wife had been living apart for some years. When he gave instructions for the will of 1953 he said that he had no children and that Gerald Nygela Scales, son of his wife, was not his son. At the office of the Curator there was received a note dated 10th September 1958, that is to say nearly six months after the making of his last will; it was addressed to the Public Curator, Brisbane, and it was signed by the testator. It said: "A person named Gerald Majalla Scales in the Government Service Canberra may claim my Estate. He is nothing to me. He is the illegitimate son of my wife. David Scales". There is nothing to show what prompted this communication. (at p17)

4. Turning to the life which the respondent, Gerard Majella Scales, has pursued and his present position, we get a picture of early devotion to his mother, steady advancement in the Public Service, marriage, the birth of children, and the proper discharge of all the obligations of family life and a praiseworthy career. Speaking of his early years, Philp J. says: "The son having left school when he was fourteen obtained employment in the Postmaster-General's Department and for many years gave practically all of his wages to his mother. He married in 1941 and continued to contribute to his mother's support until after his first child was born. He thinks that his father then at his mother's request increased her allowance. His mother continued to live with him until he was transferred to Canberra in 1956 when his mother went to live in a little rented cottage in Adelaide of which the rental was 15s. a week." He left school at the age of fourteen under the necessity of earning something and went into the Post Office. His mother took in tailoring work and his earnings slowly increased. Having passed the clerical examination of the Public Service he was appointed to the Customs Department. He and his mother continued to live together and when he was posted to Port Pirie for a time, he sent his contribution to her upkeep. Upon his marriage in 1941 they continued to live together and that went on until 1956 when he was posted to Canberra. At the time of the hearing before Philp J. he was a section leader in the Tariff and Nomenclature Branch of the Department of Customs. His gross salary was 2,200 pounds a year. To help in the education of their children and otherwise, his wife took employment and earned about 800 pounds per annum. At the date of the hearing their eldest child, a daughter aged eighteen, had entered the Public Service and a daughter and a son, both aged sixteen, had not completed their education. The respondent Scales had made no great savings but an uncle on his father's side had left him a legacy and they had been able to purchase a home, subject to a mortgage, and a motor car. (at p18)

5. The question is whether, in the circumstances disclosed by the foregoing narrative, there is any sufficient justification under The Testator's Family Maintenance Act of Queensland for varying in favour of the respondent, Gerard Majella Scales, the provisions of the testator's last will. The legislation of Queensland upon the subject is to the same effect as that of other States. It speaks of "adequate provision for the proper maintenance and support" of the wife, husband or children and, like the Victorian legislation, does not employ also the words "education or advancement in life" as does the statute in New South Wales, but that is not a matter of any importance, at all events in the present case. The Court may make a provision of a lump sum or of periodical or other payments. The Court may refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the Court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable. Again this provision has little direct bearing on the facts of the present case. The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. It seems certain that if at any time they had been brought face to face the son would not have known his father and the father would not have known the son. The mother may have been wrong in discouraging her son from getting in touch with the testator, as he says she did. Doubtless some reason lay under the feeling he ascribed to his mother that "it might cause trouble if he chased after him". But the result of that and of the testator's attitude was that neither would know the other or have any direct knowledge concerning him. In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator's death. (at p18)

6. Much has been written about the principles which should guide the Court in administering the provisions of the Testator's Family Maintenance legislation. But I do not think that any of the chief expositions give any foundation for applying the provisions to a case like this. It has often been pointed out that very important words in the statute are "adequate provision for the proper maintenance and support" and that each of these words must be given its value. "Adequate" and "proper" in particular must be considered as words which must always be relative. The "proper" maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is "adequate" must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words "proper maintenance and support", although they must be treated as elastic, cannot be pressed beyond their fair meaning. 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. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court. An observer of the course of development in the administration in Australia of such statutory provisions might be tempted to think that, unchecked, that is likely to become the practical result. Perhaps this Court and other Courts of Appeal have attached too much significance to the discretionary aspects of orders under appeal and have accordingly allowed orders to stand which no member of the Court of Appeal would himself have made, had he sat at first instance. (at p19)

7. In the present case the application for a provision for maintenance and support is by an adult son. In In re Sinnott (1948) VLR 279 in the course of what is perhaps the soundest and most illuminating of all the discussions of the statutory provisions, Fullagar J. remarked: "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 dependant 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" (1948) VLR, at p 280 . In the course of a well-known judgment Salmond J. in In re Allen dec'd. (1922) NZLR 218 said: "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 (1922) NZLR, at p 220 ." This view has been repeated frequently and has been adopted in the Privy Council (Bosch's Case (1938) AC 463, at p 478 ), though with the somewhat important change of requiring the Court to put itself in the position of the testator, not of requiring it to assume a just and wise man fully aware of all the circumstances. The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator is dead and cannot tell his. It may be that if the testator in this case could tell his no valid or plausible defence of his conduct to his child in 1910 and for some years thereafter would or could be made by him. But that is a long time ago and cannot determine once for all his duty forty years later to make a testamentary provision for a son to whom he himself has always been nothing. One must not confuse the question with his duty to his widow. That depends on other considerations. It is dealt with by the order of Philp J. and is not before us. "Duty" no doubt does not afford an exclusive test, indeed it is not right to treat it strictly as a test at all. It is but an element, however important an element, that is to be taken into account in weighing all the considerations. One consideration here is that the son has made his way in life and though, like most people, he would find more money an advantage, he is not in need. If one really considers the situation of this old man in the closing stages of a long life in which his son has played no part at all, a son to whom his father has meant nothing and who did not even know him, it is hard to see why the testator, in the interest of his son, should be deprived of his complete freedom of testamentary disposition. (at p20)

8. It is on these grounds that I think the appeal should be allowed. I would discharge the order in favour of the respondent, Gerard Majella Scales, but allow his costs of the application to the Supreme Court and the costs of all parties to the appeal out of the estate. (at p21)

McTIERNAN J. I agree in the order proposed by the Chief Justice and in his reasons and I have nothing to add. (at p21)

TAYLOR J. In this appeal we are asked to review, in part, a discretionary order made by the Supreme Court of Queensland (Philp J.) pursuant to The Testator's Family Maintenance Acts, 1914 to 1952 (Q.). By his order the learned judge of first instance directed that the widow of the appellant should be paid out of the estate of the testator the sum of 500 pounds and, further, that she should, during her lifetime, receive the income of a fund of 20,000 pounds provided out of the estate. At the same time provision was made for the son of the testator, Gerard Majella Scales, and this was based upon his Honour's decision to direct that there should be paid to him 3,000 pounds immediately and, upon his mother's death, one-half of the fund the income of which was directed to be paid to her during her lifetime. In the result, however, the final order did not provide for payment of the sum of 3,000 pounds. In lieu thereof securities to that value were, apparently by agreement, directed to be transferred. There is no appeal against the order in so far as it relates to provision for the testator's widow and the appeal against the order, in so far as it makes provision for the testator's son, raises the question whether a case for relief under the Act was made out and, secondly, whether the order which was made was excessive. (at p21)

2. Philp J. regarded the case of the respondent as a difficult one and it was, as he said, unique. At the time of his father's death on 15th February 1960 the respondent was fifty years of age. He had been married for approximately nineteen years and he had three children, a son and daughter each aged sixteen years and another daughter two years older. The elder daughter was employed in the Commonwealth Public Service and the younger children were still at school when the application was made but the younger girl commenced work about a fortnight before the hearing. At that time the respondent was receiving a gross salary of 2,200 pounds a year. Upon these bare facts it would not be possible to justify an order pursuant to the statutory provision but they are by no means the whole of the relevant facts. (at p21)

3. The respondent's parents were married at Broken Hill about eleven months before he was born. This latter event occurred in Adelaide on 13th January 1910. His parents had moved from Broken Hill and had obtained accommodation at a boarding-house in a suburb of Adelaide. But the testator lived there for a few months only and then commenced farming with his brother at Pinnaroo, some distance from Adelaide. During the next four years he came to Adelaide many times and saw his wife and son and during this period he supported them. But in 1914 he went to Sydney and, ultimately, to Brisbane. For a time he sent some small sums of money to his wife but he ceased to do this a little later. Thereafter until he was traced by the police he seems to have sent nothing though later he sent further small sums until the respondent, at the age of fourteen years, commenced work. Whether the testator intended to leave his wife permanently when he went to Sydney and then to Brisbane does not appear. Nor is there the slightest indication of any reason why he left. But there is nothing in the case to suggest that there was any fault on the part of his wife and certainly there was not on the part of the respondent who was then only four years old. The fact is, however, that the testator never returned home and never thereafter concerned himself in the slightest about the welfare of his wife and child. From the time when the testator left his wife struggled to bring up the child. He received some secondary schooling and then commenced work. From then until his marriage the respondent made regular contributions, small at first but increasing as the years went on, towards the maintenance of the home. After his marriage his mother lived at his home until he was transferred to Canberra in 1956. She is now eighty-three years of age and is living at a home for old people at Randwick. After her son's marriage she managed to obtain some assistance from the testator, first of all at the rate of 1 pound a week, then at 2 pounds per week and in later years about twenty-one or twenty-three pounds per month. (at p22)

4. When the testator left Adelaide he was not possessed of any substantial means, but when he died his estate was valued for the purposes of death duties at an amount in excess of 50,000 pounds. We are told that after payment of death duties and administration expenses there will be a net estate of approximately 36,000 pounds. There is no evidence in the case to indicate how, or in what manner, the testator managed to acquire an estate of this magnitude. But the fact is that he did and that he managed to do so while constantly disregarding his obligations to his wife and child and without affording them any inkling of his financial prosperity. Apparently, by the end of 1939 he was a person of some substance for in that year he made a will leaving the residue of his estate to the respondent subject to the payment of the income thereof to his wife during her life. This gift of residue followed legacies of 300 pounds to each of three relatives, legacies of 50 pounds to each of six religious organizations and a legacy of 1,000 pounds to the Roman Catholic Archbishop of Adelaide "as a nucleus of or bonus towards a fund to establish a home for orphans and neglected boys" . This was followed by another will in 1953 by which he gave to his wife an annuity at the rate of twenty pounds per month. Nothing was left to the son, the residue being given in equal parts to each of ten religious or charitable organizations. Then in 1958 the testator, at the age of seventy-eight or seventy-nine years, made his last will. By it he gave to his wife an annuity at the rate of twenty-one pounds per month, the residue being bequeathed in equal shares "for the purposes" of each of the ten organizations specified in his second will. This will was dated 24th March 1958 and in giving instructions for its preparation the testator stated that he had no children; he said that the respondent, "Gerald Nygella Scales", was not his son, and on 10th September 1958 he signed a document stating that "a person named Gerald Majalla Scales . . . may claim my estate". The document went on to say "He is nothing to me. He is the illegitimate son of my wife". (at p23)

5. It should be said at once that there was no evidence in the case which threw the slightest doubt on the respondent's parentage. On the contrary, there is every indication that there was no justification whatever for the testator's assertion that he was not his father. As already appears the testator and his wife were married in February 1909 and the respondent was born on 13th January 1910. His birth was registered by his mother on 7th February 1910 and the testator appears on the register as his father. It is not surprising that the mother registered the birth for the respondent was born whilst harvesting operations were going on at Pinnaroo. But, as already appears, during the next three or four years the testator supported his wife and child and came to see them many times. The assertion that the respondent was the product of adulterous intercourse during the first two months of the marriage is, in itself, strange enough but it is impossible to believe that the testator during this period had any cause whatever to think that he was not the respondent's father. Nor was any such suggestion made by him when he left Adelaide to come to Sydney and Brisbane or when pressed, on subsequent occasions, to contribute to his wife's support. It is, perhaps, sufficient to add that the respondents to the application did not, in any way, attempt to support the testator's assertion. (at p24)

6. The signed statement, itself, is no evidence of the truth of its contents (Re Richard Edward Jones (1921) 21 SR (NSW) 693; 38 WN 206 ; Re G. Hall (dec'd) (1930) 30 SR (NSW) 165; 47 WN 65 ; and In the Will of Jolliffe (1929) QSR 189 ) though statements made by a testator in his lifetime may provide some evidence of the reason why he has disposed of his estate in a particular way. Whether or not the statement in question here discloses why the testator thought it proper to exclude the respondent from any testamentary benefit is impossible to say. But if it does it is apparent that in his latter years he entertained a completely unfounded belief which led him to disregard every parental obligation. On the other hand, if he did not entertain that belief, his statement represents no more than a senile attempt to justify the terms of his will. In that case also his will was executed with complete disregard for any moral obligation which he had towards the respondent. (at p24)

7. Cases such as In re Sinnott (1948) VLR 279 ; McCosker v. McCosker [1957] HCA 82; (1957) 97 CLR 566 ; and Stott v. Cook (1960) 33 ALJR 447 make it clear that the fact that an applicant is an adult son does not necessarily mean that relief in applications of this character must be refused. But such cases present special difficulties and, of course, before relief can be granted it must appear that the circumstances are such that the applicant is, in the language of the Queensland Act, left without "adequate provision for his proper maintenance and support". But what is "adequate" and what is "proper" must be determined in the light of all the circumstances of the case. It is, of course, contended strongly that the respondent was not in need of maintenance or support. He was in receipt of a salary of 2,200 pounds per annum which left him, after payment of tax, with a net salary of somewhere about 1,800 pounds or 1,900 pounds per annum. He has a motor car and a home upon which he owes 3,000 pounds. His income is considerably more than that of the appellant in Stott v. Cook (1960) 33 ALJR 447 , but his capital position is no better. He is, according to the learned judge of first instance in "moderately good circumstances" but he has had nothing to spare in bringing up his family. Indeed, for a period of five years prior to the application his wife found it necessary to obtain employment in order that the children might be educated. Moreover, the support which the respondent gave to his mother for many years, in relief of the testator, undoubtedly contributed to the diminution of his own resources and to the enlargement of those of the testator. The conclusion is, I think, inevitable that had the testator made any reasonable attempt to fulfil his marital and parental obligations the respondent and his family might well have been enjoying now a higher standard of living than that which his present means permit. He is not, of course, destitute but this is beside the point; in all the circumstances of the case he had, in my view, sound grounds for thinking that the testator was not morally free to dispose of his estate without regard to his claims. Was he not in the circumstances set forth entitled to say that, in the absence of any other claims on the testator's bounty, there was a moral obligation on the testator to restore him, in some measure at least, to the standard of living which might otherwise now have been available to him? Philp J. was firmly of the opinion that he was and when I ask myself, in the language of Kitto J., in Stott v. Cook (1960) 33 ALJR 447, at p 450 whether the testator, if he had been "wise and just without necessarily being also affectionate could . . . have sat down to dispose of an estate of" 50,000 pounds "without feeling driven - not by a sense of fairness for that would be irrelevant - by a sense of moral obligation to make some provision" towards the alleviation of the respondent's position, I find some difficulty in denying the respondent's title to some relief. I do not overlook the fact that the testator and the respondent lived entirely separate lives and that the bonds which normally exist between father and son were entirely missing. The existence of this state of affairs is, of course, of considerable importance in the case and its weight is not greatly diminished by the fact that its origin is to be found in the testator's conduct. But, important as it is, it is but one feature of a case which, having regard to the whole of the circumstances, is quite unusual. Nevertheless it is a circumstance which weighs heavily with me. But when I take into consideration the whole of the facts of the case I am not prepared to hold that, in making an order in favour of the respondent, the learned judge of first instance travelled beyond the bounds of a sound discretionary judgement. The order which he made was undoubtedly generous and it is probable that his Honour, in making it, was to some extent influenced by the fact that there were no competing claims. But since two other members of the Court are of the opinion that the order should be discharged it is unnecessary for me to go further and express an opinion as to whether the provision made by the order was excessive. (at p25)

ORDER

Appeal allowed. Order that all parties be paid their costs of the appeal out of the estate.

Discharge so much of the order of the Supreme Court dated 22nd December 1960 as makes a provision out of the estate of David Scales deceased for the applicant Gerard Majella Scales that is to say: strike out of par. 1 of the said order the words "and Gerard Majella Scales"; strike out par. (b) of the said order; strike out par. (c) (ii); strike out of par. (c) (iii) the words "the balance of"; strike out of par. (d) of the said order the words "and Gerard Majella Scales".

Confirm the order as to costs in par. 2 of the said order.