Delisio v Santoro No. Scciv-00-790

DELISIO & ORS v SANTORO
[2002] SASC 65
Civil

BESANKO J: The plaintiffs and counterclaimant have each issued an application under Section 7 of the Inheritance (Family Provision) Act 1972 (“the Act”) for an order that provision be made out of the estate of the late Max Hess.
Introduction
Max Hess was born on 15 April 1915. He married Martha Hildegart Frank who was born on 9 July 1917. They had nine children, four girls and five boys. The four girls are Monika born on 3 January 1950, Margaret born on 14 May 1955, Angelika born on 5 June 1956 and Beate born on 20 November 1957. One of the sons, Wolfgang, was born on 11 February 1951.
Martha Hess died in 1988.
Max Hess died on 14 August 1999. Max Hess made a will on 30 January 1997. I will refer to Max Hess as the testator, and for convenience and without any disrespect, I will use the christian names of the other parties and members of their families.
By his will the testator left all his property, after the payment of funeral and testamentary expenses and debts, to his daughter Beate. Beate was also appointed the executor and trustee of the will.
The estate of the testator consists of various items of real and personal property. There is a dispute about whether a caravan paid for by the testator forms part of his estate. For reasons I will give, I have concluded that before he died the testator gave the caravan to Beate’s daughter, Cynthia.
A statement of assets and liabilities values the net estate excluding the caravan at $149,432.18. An affidavit of Beate sworn in her capacity as executor of the estate on 5 November 2001 was received without objection at the commencement of the trial in November 2001. It provides a valuation of the estate as at the date of the affidavit. The net value of the estate excluding the caravan is said to be $206,730.65. I was invited to proceed on the basis that Beate’s statements as to the value of the estate are correct.
Probate of the will was granted to Beate on 25 February 2000.
On 23 August 2000, Margaret, Monika and Angelika issued an application seeking provision out of the estate under s 7 of the Act. That section provides as follows:
“7     (1)    Where –
(a)     a person has died domiciled in the State or owning real or personal property in the State;
and
(b)    by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,
the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.”
On 21 February 2001, Wolfgang issued a counterclaim seeking provision out of the estate under s 7. He also sought an extension of time under s 8(2) of the Act. Wolfgang was initially represented by the same solicitors who represented his three sisters, but they ceased acting for him shortly before trial. He appeared in person at the trial, and conducted his own case.
Witnesses
I heard evidence from a number of witnesses. All but one of the witnesses swore affidavits before trial, and those affidavits were tendered as part of the evidence in chief of the relevant witness.
Margaret, Monika and Angelika each gave their evidence in a straightforward fashion and I have no hesitation in accepting their evidence.
Wolfgang gave evidence and I am prepared to accept most of what he told me. He had a poor recollection of some events and his evidence in relation to his application for an extension of time was unsatisfactory. In addition, I prefer Cynthia’s evidence that there were a couple of incidents when Wolfgang broke windows, although I do not think that these incidents are of any great significance.
Tricia Hess married Wolfgang in April 2001. Tricia gave evidence. She was a straightforward witness and I accept her evidence.
Beate suffered a nervous breakdown some years ago and she continues to suffer from anxiety. She appeared under stress in the witness box. She is very emotional about the case and some of the comments made about the testator’s character and conduct. In my opinion, she exaggerated certain aspects of her evidence particularly in the affidavit she swore on 12 February 2001. Having said that, many of the differences between her evidence and the evidence of other witnesses appear to me to be largely matters of degree, and, in some cases, perception.
Beate’s daughter, Cynthia, gave evidence. She is 17 years old. She was an impressive witness and I accept her evidence.
The other matter to note at this stage is that, as is common in cases of this nature, there was a great deal of evidence about various incidents and events involving the testator and his children. Evidence was given expressing views as to who was in the right and who was in the wrong. Beate did not suggest that any of the claimants were guilty of “disentitling” conduct within s 7(3) of the Act. In many cases, it is not possible for me to make findings as to the rights and wrongs of certain behaviour. Even if it was, I do not think such findings are critical to the determination of the applications. I take various pieces of conduct and behaviour to which I refer, into account in a general way but I do not think that any of the conduct is of sufficient import to affect the outcome of the applications.
Background Facts
There are certain facts which are not in dispute and which formed the background to the detailed evidence given by the various witnesses.
As I have said, the testator was born on 15 April 1915, and his wife, Martha, was born on 9 July 1917.
The testator and his family came to Australia from Germany in 1963 or 1964. There was some conflict in the evidence as to whether it was 1963 or 1964, but I do not think the precise year matters for present purposes.
Shortly after arriving in Australia, the family settled on a property at 11 Tolley Road, Hope Valley in the State of South Australia (“the Tolley Road property”). At that time the Tolley Road property consisted of three blocks. Many years later, one of the blocks was sold to Beate’s husband, and when Beate and her husband divorced it was given to Beate as part of a property settlement. She later sold the block.
In 1964 there was a house on the middle block, and a glass-house at the back of that block. The testator built a large shed on one of the other blocks. The third block was vacant.
The testator obtained employment as a spray painter. He also established a market garden business on the Tolley Road property. He grew cucumbers, flowers, tomatoes and other plants and vegetables in the glass-house, and mushrooms in the large shed. He grew strawberries on the vacant third block. The testator’s children helped in the business.
I am not able to make a finding as to the profitability or otherwise of the market garden business. I find that it was a commercial venture and a reasonably substantial operation, and to the extent that Beate’s evidence suggests otherwise, I reject such evidence.
The testator worked as a spray painter and in the market garden business for many years. Precisely when he retired was not made clear by the evidence.
Martha had employment outside the family home. The evidence is not clear as to what employment she had although it appears that for a time she worked in a restaurant.
At some stage, the testator started living in the shed. He came inside for his meals. Martha cooked for him and washed his clothes. When this arrangement commenced was not made clear in the evidence, but it had been the arrangement for a considerable time before Martha became ill in about 1981. I find that the decision to live in the shed was probably made by the testator, or at least (and I believe this is less likely) it was a joint decision made by the testator and Martha. All the evidence suggested that the testator was not the type of man who would have readily succumbed to the wishes of others. I reject Beate’s evidence to the effect that the testator was required by his family to sleep in the shed.
Martha became ill in 1981. It appears that she suffered a stroke. For a time she was in various hospitals, and then she had a short period at home when the testator tried to care for her. She was in a nursing home for most of the time between 1981 and her death in 1988.
The testator developed diabetes and required below-knee amputations of both legs in 1994. He lived in a house at 60 Julian Road, MacDonald Park for nine months between September 1994 and April 1995. Angelika and her family lived next door at 62 Julian Road. Angelika cared for the testator during this period.
Other than for the nine month period between September 1994 and April 1995, and some short periods in hospital, the testator lived at the Tolley Road property from 1964 to the date of his death in August 1999.
For 18 months to two years after the testator returned to the Tolley Road property in April 1995, Wolfgang lived with the testator and attempted to look after him. In late 1996 the testator suffered a stroke. He was hospitalised for a couple of months, and when he returned to the Tolley Road property he was cared for by Beate and Cynthia until the date of his death. By this time Wolfgang had left the Tolley Road property.
Immediately after the below-knee amputations of both legs, the testator was fairly independent and was able to care for himself even though he was in a wheelchair. As time passed, he became more infirm and no doubt required a higher level of care in the period shortly before his death, and perhaps earlier.
I must say something about the testator’s character as revealed by the evidence. In doing so I recognise the limitations involved in making any assessment. The evidence upon which such an assessment is made is necessarily limited, and perceptions of various witnesses differ. Nevertheless, I find that the testator was an austere and dominating man. He liked to do things his own way, and, it would seem, was rarely willing to compromise. His relationship with his various children fluctuated in terms of contact and warmth. He would “fall out” with a particular child and they would not see each other for a considerable period of time. During that time another child (or other children) would have regular and close contact with the testator. The other point to note in this context is that some of the children were closer to their mother than the testator, and I think disapproved of the way the testator treated his wife particularly during the time she was in a nursing home.
There are two matters to be dealt with before I consider the merits of the various applications. First, there is the question of the ownership of the caravan. Secondly, there is Wolfgang’s application for an extension of time.
Ownership of the Caravan
Wolfgang asserts that the testator bought the caravan for him in 1996. Beate and Cynthia assert that the testator gave the caravan to Cynthia in 1998.
The present value of the caravan is approximately $12,000.
In February 1996, the testator paid for a caravan which was purchased from ABCO Caravans. The purchase price was $18,500. The sale contract is signed by the testator and Wolfgang. Their respective signatures appear in that part of the contract which contains reference to the “Buyer”.
The caravan was placed on the Tolley Road property. At or shortly prior to the time Wolfgang left the Tolley Road property in late 1996 early 1997 work to provide water and electricity to the caravan was completed.
Wolfgang gave evidence that the testator paid for the caravan. He said that the testator gave him the caravan for all the work he had done over the years. He said that prior to the purchase of the caravan, his father had offered him a sum of money. Wolfgang rejected the offer of a sum of money (at least at that stage). The testator then suggested that he buy Wolfgang a caravan in which to live.
Wolfgang said that he signed the sale contract at his father’s invitation, and that he then invited his father to sign as witness. He gave evidence as follows:
“Q Did you ever pay any money to him in relation to the caravan?
A      No, that was meant to be a gift to me for work I done over the years. I had a choice whether I take a certain amount of money from him or he’ll buy something for me so that I’ve got something to live in instead of the shed, that’s what it’s all about.
Q      Did you ever live in the caravan?
A      No, not once.
Q      Did you ever go into the caravan?
A      When it was in the caravan park, like where we bought it from okay, when we bought it home and I built the ramp up, then I went in, had a look in you know, and that was it.
Q      Why didn’t … ?
A      Because the plumbing wasn’t done then. Then we done plumbing for it to get it plumbed up and after that, because of my smoking habits, and this and that, things went sour and I just stayed in my shed and by that time Beate come along after, a roughly shorter time.
Q      You left the property then?
A      That’s when she took over and I left the property and that was that.
Q      There was a lock on the caravan?
A      Yes, it’s got a sliding door lock, that’s right.
Q      Who kept the keys?
A      My father kept them on the wall all the time.
Q      Inside the house?
A      That’s right, next to the fridge.
Q      Right from the start from the time that you bought the caravan he kept the keys inside?
A      They were always inside the house.”
I find that the testator paid for a caravan purchased from ABCO Caravans for the sum of $18,500. It is not clear why Wolfgang signed the sale contract. One possible explanation is that it was to recognise the fact that the caravan was earmarked for Wolfgang’s use and ultimately for his benefit. I do not accept Wolfgang’s evidence that the testator signed the sale contract merely as a witness. It follows that at best for Wolfgang he signed as a joint purchaser with the testator making a gift to Wolfgang of half the purchase price or a half interest in the caravan. I am not satisfied that this is what the testator intended.
The caravan was placed on the Tolley Road property and in late 1996 early 1997 work to provide water and electricity to the caravan was completed. I find that when the testator purchased the caravan, he did so contemplating that it would be a place in which Wolfgang would live. It was purchased at a time when the testator and Wolfgang were living at the Tolley Road property, and at a time when Wolfgang was doing his best to help look after the testator. I find on the balance of probabilities that it was the testator’s intention that Wolfgang have the immediate use and occupation of the caravan as if it was Wolfgang’s caravan. However, I am not satisfied that it was the testator’s intention to make a gift of the caravan to Wolfgang in February 1996. In my opinion it is more likely, or at least equally likely, that he was giving Wolfgang permission to use the caravan as if it was his own caravan. It is also likely that the testator envisaged that ultimately the caravan would go to Wolfgang. However, these matters fall short of a finding that the testator intended that as at the date of purchase the caravan (or any interest in it) would in law belong to Wolfgang. I note that he was never given the keys to the caravan.
There is no suggestion that after the date of purchase there was an occasion when the testator gave the caravan to Wolfgang.
I am not satisfied that the testator gave either the caravan (or any interest in it) to Wolfgang or the monies used to purchase the caravan.
Beate gave evidence that there was an occasion in 1998 when the testator handed the keys to the caravan to her and said that the caravan should be given to Cynthia. At the same time, he thanked Cynthia for all she had done for him by way of caring for him.
Cynthia gave evidence that on three or four occasions, the testator said to her that the caravan was hers. He said that it was for all the hard work that she had done for him. On one occasion in 1998 the testator gave the keys to the caravan to Beate saying “here Bear, give this to Cindy”. Cynthia said she studied in the caravan on a couple of occasions but “it was never really one hundred percent used”.
I accept the evidence of Beate and Cynthia on this topic. I find that on three or four occasions in 1997 or 1998, the testator said to Cynthia that the caravan was hers and that it was for all the hard work she had done for him. I also find that on one occasion in 1998 the testator gave the keys to the caravan to Beate saying “here Bear, give this to Cindy”.
No party suggested that the caravan was other than personal property at all relevant times. The test for an effective transfer of personal property is clear. There must be a manifestation of intention on the part of the donor to give the property to the donee and sufficient acts of delivery[1]. In my opinion, the testator intended to make a gift of the caravan to Cynthia. Were there sufficient acts of delivery? In Olsson v Dyson[2], Windeyer J said at 385:
“This is simply the result of a general rule that to make a gift of anything the intending donor must actually give it to the donee in a way which the law recognises. The owner of the thing does not effectively give it away simply saying ‘it is yours as a gift’. He must not only say it is a gift, he must give it to the donee, who must, by words or conduct, accept it. How a thing can be given away depends on what it is. Since the decision in Cochrane v Moore, it is certain that if it be a chattel capable of manual delivery the donor must deliver it to the donee by actually handing it over, or else do some act which in the eye of the law amounts to delivery of possession, as for example handing over some indicia of ownership or the means of obtaining possession.”
[1] Corin v Patton (1990) 169 CLR 540 per Mason CJ and McHugh J at 558
[2] (1969) 120 CLR 365
In Knapp v Knapp[3] Mayo J said at 265:
“Unless the intended donee has present custody, actual or constructive delivery of the chattel is necessary to perfect the gift.”
[3] [1944] SASR 257
By handing over the means of access such as a key or something symbolic such as the documents representing the donor’s title, delivery may be accomplished.[4]
[4] Flinn v White [1950] SASR 195; Commercial and Personal Property Law S Fisher at para [11.23] et seq.
I think the handing of the keys to Beate on behalf of Cynthia was a sufficient act of delivery. I find that the caravan belongs to Cynthia. Therefore, it is not part of the testator’s estate.
Wolfgang’s Application for an Extension of Time
Section 8 of the Act provides:
“(1)Subject to this section, an application shall not be heard by the Court at the instance of a person claiming the benefit of this Act unless the application is made within six months from the date of the grant in this State of probate of the will, or letters of administration of the estate, of the deceased person.
(2)The Court may, after hearing such of the persons affected as the Court thinks necessary, extend the time for making an application for the benefit of this Act.
(3)An extension of time granted pursuant to this section may be granted-
(a) upon such conditions as the Court thinks fit;
and
(b) whether or not the time for making an application pursuant to subsection (1) of this section has expired.
(4)An application for extension of time pursuant to this section shall be made before the final distribution of the estate.
(5)Any distribution of any part of the estate made before the application for extension of time shall not be disturbed by reason of that application or any order made thereon.
(6)An application for the benefit of this Act shall be deemed to be made on the day when the summons by which it is instituted is served on the administrator of the estate.
(7)Where an application has been made for the benefit of this Act, the Court may, if it is satisfied that it is just and expedient to do so, permit at any time prior to the final determination of the proceedings, the joinder of further claimants as parties to the application.”

It is not necessary to set out the relevant rules of court. It is sufficient to say that the rules proceed on the basis that where one person has issued proceedings within time another person who wishes to issue an application outside the period of six months will seek an extension of time under s 8(2).
Probate of the testator’s will was granted on 25 February 2000. The application by Margaret, Monika and Angelika was issued on 23 August 2000 and is within time.
Wolfgang issued a counterclaim on 28 February 2001. In it he seeks an extension of time pursuant to s 8 of the Act and Rules 119.06 and 119.11 of the Supreme Court Rules. If the six month time limit applies, Wolfgang’s application is approximately six months too late.
I note that s 8(7) may provide an alternative to someone in Wolfgang’s position. On the face of it, Wolfgang could apply under s 8(7) to be joined as a party to the application issued by his three sisters. If the Court considered it to be just and expedient to permit him to be joined as a claimant then an order could be made under the subsection. It is likely that some of the considerations relevant to the Court’s decision under s 8(7) will also be relevant to the Court’s decision whether to extend time under s 8(2).
I am not aware of any authority on s 8(7) of the Act, and counsel told me that they were not aware of any authority. The other States and Territories deal with the possibility of multiple applications in a variety of ways. Some of the provisions of the other States and Territories suggest that the time limits applicable to the first application in a matter do not apply to subsequent applications in the same matter.[5]
[5] Family Provision in Australia 2^nd ed de Groot & Nickel para [5.11]
In my opinion there is no reason to read down the words of s 8(7). I think that it is still open to Wolfgang to make an application to be joined under that subsection.
I propose to address his application for an extension of time under s 8(2). However I do so bearing in mind that even now he could make an application to be joined under s 8(7).
It seems that in considering whether it is just to grant an extension of time the principal matters to be considered are the length of the delay, the reasons for the delay and any prejudice to the defendant.[6]
[6] In the Estate of Barry (1974) 9 SASR 439
There was a good deal of evidence about what Wolfgang knew before the time limitation expired about his right to bring a claim against the estate. Beate submitted that Wolfgang knew about his right to bring a claim against the estate not long after the testator’s death and at least by February or March 2000. He made a decision not to exercise his right to bring a claim. In those circumstances Beate argued that Wolfgang should not be granted an extension of time.
There were no pleadings in this matter. Each of the plaintiffs and Wolfgang filed affidavits setting out their respective cases. Beate filed an affidavit in response. The plaintiffs and Wolfgang filed affidavits in reply to Beate’s affidavit.
In his first affidavit sworn on 21 February 2001 Wolfgang said,
“I seek an extension of time to make this counterclaim. I was not aware until I received a Notice by certified post that proceedings had been issued by the plaintiffs. I consulted my solicitors with respect to my rights and was advised that I could make a counterclaim. By this time the six month limitation period had expired. Prior to this time I was unaware that I could make a claim on the estate.”
Beate responded to this assertion by putting forward letters which passed between a solicitor apparently acting for Wolfgang and a solicitor acting for her.
Mr G H Craig acted for Wolfgang in late 1999 and early 2000. He wrote a letter to Beate on 21 February 2000. In it he referred to correspondence he wrote on 2 September 1999. The letter suggests that he had advised Wolfgang of his right to make an application under the Act.
Wolfgang sought to deal with this assertion in his affidavit in reply sworn on 24 May 2001. He said,
“With respect to paragraph 2 and 3 of the affidavit I admit the contents therein but say that I did not understand the contents of the correspondence exchanged between the solicitors. I was twelve when I migrated to Australia with my family and I attended school for only six months intermittently for the next two years before I commenced working in the market garden at the age of fourteen. My understanding of English, particularly the written word is very limited. I was unaware that there was a six month time limitation from the date of probate in which a claim could be commenced. I say further that at the time that I received the notice in respect of the plaintiff’s claim I was in the Cadell Training Centre for six months for a driving under the influence charge. The notice was sent to my home address where it was faxed to Cadell by my partner. It was three weeks before the officers at Cadell handed the notice to me.”
As I have said, Wolfgang appeared in person at the trial. Until shortly prior to the trial he was represented by the same solicitors who represented his sisters before and at the trial (Carpenter and Associates).
In his evidence in chief, Wolfgang said that he could not understand what Mr Craig told him or the meaning of letters Mr Craig sent to him. This prompted an application from Beate during the trial for an order in the following terms:
“That the counter claimant, Wolfgang Hess, discover and produce to the defendant copies of all letters, notes and memoranda containing or referring to advice given to Mr Hess by his solicitor or counsel (excluding Carpenter and Associates and any counsel instructed by them) as to his rights and obligations (excluding any advices as to quantum) in relation to a claim or potential claim under the Inheritance Family Provision Act in relation to the estate of Max Hess, deceased.”
Pursuant to an order of the Court, relating to discovery, Carpenter and Associates had filed a list of documents on behalf of the plaintiffs and Wolfgang. Part 2 of the list of documents claimed legal professional privilege for the following documents:
“Correspondence between the plaintiffs and their solicitors and agents, notes and memoranda concerning communications between the same, legal opinions and notes made by the plaintiff’s solicitors for the purposes of this action together with the usual documents privileged from production on the grounds of legal professional privilege.”
It would have been open to Beate to make an application before trial seeking an order for the better description of the documents for which privilege was claimed, and an order for the production of certain of these documents. Nevertheless, in his evidence at the trial Wolfgang elaborated upon the matters contained in his affidavits, and I considered that it was appropriate that I entertain the application made by Beate during the trial. I made an order in the terms sought by her. At the time I made the order I indicated that I would give reasons when handing down judgment.
The provisions of the Act dealing with applications for an extension of time do not require the Court to consider the nature of any legal advice which might have been received,[7] nor is it a clear case of a person wanting to rely on part only of privileged material.[8] In one sense, Wolfgang does not seek to rely on any part of the legal advice which he received from Mr Craig. However, the question is whether he has put in issue his state of mind such that any legal advice he has received loses its privileged status.[9]
[7] Jones v G D Searle & Co Ltd [1978] 3 All ER 654
[8] Attorney General (NT) v Maurice (1986) 161 CLR 475 per Gibbs CJ at 481
[9] Thomason v the Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347 per Street CJ at 359
The relevant principle has been formulated in a number of ways[10]. In Southern Equities v Arthur Andersen[11], Doyle CJ said at 176:
“On this aspect of the case, I proceed on the basis that the issue is whether SECL’s pleading puts in issue its corporate state of mind in relation to the relevant transactions, and whether legal advice received by SECL is likely to have contributed to that state of mind.”
[10] Cross on Evidence 6^th Australian Edition J D Heydon para (25010)
[11] (1997) 70 SASR 166
Bleby J said at 193:
“In my opinion the cases show that it is not sufficient merely to demonstrate that a party’s state of mind or knowledge is in issue in order to succeed on an application that documents privileged from production on the ground of professional privilege be produced. If that were the case, privilege would almost always be waived in cases of misrepresentation, negligence and misleading and deceptive conduct where questions of a plaintiff’s reliance or state of mind was in issue, and a list of documents showed that at or about the relevant time the plaintiff had some sort of legal advice which might have had some bearing on the plaintiff’s state of mind. There must be something more from which it can be shown that the legal advice was relevant in the formation of that state of mind or belief or that the advice itself in some way becomes an issue in the action. This may be apparent from the pleadings or from some other document which has been produced in the course of discovery; it may be revealed by answers to interrogatories, or it may be self evident from the description of the document in question contained in the list of documents. In some cases it may not become apparent until a witness is giving evidence at trial.”
In my opinion, Wolfgang’s affidavits have put his state of mind in issue in terms of the application for an extension of time. Mr Craig’s letter and Wolfgang’s evidence support the conclusion that Mr Craig’s legal advice is likely to have contributed to that state of mind. In those circumstances, I made the order sought by the defendant. The order was complied with.
I now return to the merits of the application for an extension of time. I think the evidence supports the following findings of fact:
1.Wolfgang consulted a solicitor shortly after the testator’s death in August 1999. The solicitor continued to act for him at least until March 2000.
2.By at least February 2000, and probably as early as September 1999, Wolfgang knew he had a legal right to claim under the Act, but I am unable to find that he knew there was a time limit of six months after the grant of probate. Nevertheless, he did know as at March 2000 that if proceedings were to be issued it needed to be done urgently.
3.Wolfgang spoke to his sisters at some stage about bringing a claim under the Act. The effect of what they said was that it was too early for them to consider bringing legal proceedings. Thereafter Wolfgang did nothing for some considerable time. There was no real explanation for the delay. I do not know whether he was waiting for his sisters to bring proceedings, or could not afford to bring proceedings, or there was some other explanation for his inactivity.
4.The three plaintiffs instituted proceedings in August 2000. As required by the Rules of Court, they served a notice on Wolfgang in November 2000 by sending it to the address, 11 Welkin Street, Windsor Gardens in the State of South Australia. At that time, Wolfgang was in the Cadell Training Centre. He had been convicted of the offence of driving under the influence and was serving a sentence of imprisonment of six months. It appears that he was in gaol (Yatala and the Cadell Training Centre) from November 2000 to early February 2001. Tricia Hess sent the notice to the Cadell Training Centre but it was not passed onto Wolfgang for a period of some weeks. After that he instructed solicitors who issued a counter claim on 21 February 2001.
I do not accept Wolfgang’s evidence that he did not become aware that he could make a claim under the Act until after the six month period had expired. Nor do I think he provided any clear and satisfactory explanation for the delay between around February/March 2000 and February 2001. An explanation for part of the delay appears to be his reluctance to bring proceedings on his own. He wanted the support, and possibly guidance, of his sisters. Another explanation for part of the delay is his presence in the Cadell Training Centre. On the evidence, I am simply not able to be any more precise in terms of findings of fact.
Wolfgang’s explanation for the delay is unsatisfactory. However, it was not suggested that any part of the estate had been distributed or that there would be any prejudice to the defendant if I granted the extension of time. Although I would not put much weight on the point, it may be noted that Beate had early notice of a possible claim by Wolfgang by reason of the correspondence from Mr Craig.
I also have regard to the possible use of s 8(7) in circumstances where at least one application has been issued within the six month period.
In all the circumstances, and not without some hesitation, I am prepared to grant Wolfgang an extension of time under s 8(2). In those circumstances it is unnecessary to consider any further whether an order should be made under s 8(7).
The Merits of the Applications
Relevant Legal Principles
1.The Act requires the Court to carry out a two stage process[12]. First, the Court must decide if the applicant has been left without adequate provision for his or her proper maintenance, education or advancement in life. This question must be decided by having regard to circumstances at the date of the testator’s death whether known by the testator or not, and by what could reasonably have been foreseen by the testator at that time.[13] The second stage, involves the determination by the Court of what provision ought to be made out of the testator’s estate for the applicant. At the second stage, the Court may have regard to circumstances existing at the time it is proposed to make the order.[14]
2.It is doubtful whether it is appropriate or useful to analyse the issues in terms of a moral duty or obligation on the testator.[15] It is well established by the authorities that the use of the word “proper” in the subsection connotes something different from the word “adequate”, and requires the Court to have regard to all the circumstances including amongst other things, “the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.[16]
3.The Act does not give the Court a general power to rewrite the testator’s will in accordance with its own ideas of fairness or justice.[17]
4.The relevance of the relationship between the testator and the applicant seems to be that it may be taken into account in a general way as part of “the totality of the relationship between the applicant and the deceased”.
5.At one time it was considered that to succeed an adult son had to overcome a prima facie rule that he was able to maintain and support himself.[18] He had to point to some special need or some special claim. There has been much debate about the effect on this proposition of the subsequent High Court decision in Hughes v National Trustees, Executors and Agency Co of Australasia Ltd.[19] I do not think that Gibbs J (who wrote the leading majority judgment) in Hughes is to be taken to have disapproved of what Dixon CJ said in Scales, and of course it is for the High Court to indicate that a previous decision of that Court is not to be followed.[20]
Although I am not aware of any High Court authority expressly disapproving of a test which requires an adult son to prove a special need or special claim, the matters identified by Gibbs J in Hughes[21] as giving rise to a special need or special claim are so broad as to suggest that the approach in the case of an able bodied adult son is not that much different from that taken in the case of any other claimant.[22]
As it happens I think Wolfgang is able to make out a special claim or special need in the circumstances of this case.
6.An adult daughter is not required to show a special need or special claim.[23]
An applicant under the Act need not show that he or she is in necessitous circumstances in order to succeed. An applicant’s need may be for a little of the cheese and jam rather than the bread and butter of life.[24]
[12] Singer v Berghouse (1994) 181 CLR 201 per Mason CJ, Deane and McHugh JJ at 208
[13] In re McCaffrey (1982) 29 SASR 582 per Cox J at 585
[14] White v Barron (1980) 144 CLR 431 per Mason J at 441
[15] Singer v Berghouse per Mason CJ, Deane and McHugh JJ at 209; Goodman v Windeyer (1980) 144 CLR 490 per Murphy J at 504 – 505; Burke v Public Trustee (1997) 69 SASR 557 per Debelle J at 560
[16] Singer v Berghouse per Mason CJ, Deane & McHugh JJ at 210
[17] Hughes v National Trustees, Executors and Agency Co of Australasia Limited (1979) 143 CLR 134 per Gibbs J at 146
[18] Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 per Dixon CJ at 20
[19] (1979) 143 CLR 134 per Gibbs CJ at 147. See Hunter v Hunter (1987) 8 NSWLR 573; Gorton v Parks (1989) 17 NSWLR 1; Hawkins v Prestage (1989) 1 WAR 37
[20] Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 403
[21] at 147
[22] Authority in this State suggests that it is no longer appropriate to refer to a special need or special claim see Eckert v Starick (unreported judgment of the Full Court 15 June 1984 S4584) Lambeff v Farmers Cooperative Executors and Trustees Limited & Ors (1991) 56 SASR 323 per Matheson J at 328
[23] Re Sinnot [1948] VLR 279. As to whether there should be any difference in approach between an adult daughter and an adult son see In Re Anderson (1975) 11 SASR 276 and In the Estate of Vitch (1988) 147 LSJS 143
[24] Blore v Lang (1960) 104 CLR 124 per Fullagar and Menzies JJ at 135
I turn now to consider the position of each of the claimants including their respective financial circumstances, and the nature of the relationship each had with the testator. I will deal with the claimants in the order in which they gave evidence.
Angelika
Angelika is a 45 year old woman who is married with four children. She carries out certain tasks in her husband’s plumbing business and she cares for her mother in law. She receives a carer payment.
Angelika was about eight years old when the family migrated to Australia. She attended school in South Australia. She and her sisters were expected to help in the market garden business conducted by the testator. They worked after school and on weekends making compost, selling mushrooms from door to door and no doubt a range of other tasks. They were allowed to keep some of the money they received from selling mushrooms.
Angelika went to Modbury High School. She left school during or after year 10. She worked in a shop at the Tea Tree Plaza Shopping Centre for two years. After that she worked as a clerk at the Myer store in the city. While living at home and working she paid board to her parents.
Angelika married Mr Tapio Eliasson in 1979. They have four children, Timothy, Dieter, Marcus and Karrina. The sons are aged 22 years, nearly 21 years, and 17 years respectively. Karrina is aged 15 years. For about four years after her marriage, Angelika, Tapio and Timothy lived in the Hope Valley area and she had regular contact with her parents. From time to time Tapio carried out maintenance work on the house at Tolley Road.
Angelika and her family moved from Hope Valley to a property at Julian Road, MacDonald Park which she and Tapio had purchased jointly with Tapio’s parents. The property was about 10 acres in area. The property was subdivided into three blocks. Angelika and her family and Tapio’s parents lived in an existing house on 62 Julian Road. Angelika and Tapio built a house on 60 Julian Road and thereafter leased the property. The third block was sold.

As I have said, the testator’s wife spent most of the period between 1981 and 1988 in nursing homes. Angelika visited her regularly. She also continued to visit the testator from time to time and there were family gatherings at Christmas and for birthdays.
At the time of his below-knee amputations in 1994, the testator asked Angelika if he could come and live at 60 Julian Road after he left hospital. She agreed. Tapio proceeded to renovate the house at 60 Julian Road to make it suitable for a person in a wheelchair.
The testator lived in the house at 60 Julian Road for about nine months and he paid rent of $150 per week to Angelika and Tapio. Angelika cooked and cleaned for the testator and took him shopping and to his medical appointments.
The testator paid for ducted airconditioning to be installed in the house at 60 Julian Road. At some point within the nine month period the testator indicated to Angelika that he wished to sell the Tolley Road property, and Tapio and his sons carried out work on that property, in effect, renovating it for sale. Angelika said that the testator was difficult to please in terms of the work to be carried out on the Tolley Road property.
After about nine months, Angelika “fell out” with the testator. The testator said he wanted to go back to the Tolley Road property.
At about this time, there was a dispute between the testator on the one hand and Angelika and Tapio on the other about the ownership of the ducted airconditioning installed in the house at 60 Julian Road. This dispute eventually led to court proceedings. The court proceedings were resolved when Tapio paid the testator the sum of $400. The last time Angelika saw the testator before his death was during a visit to his house when she and Tapio were trying to resolve the dispute about the airconditioning.
Tapio is a plumber. Angelika is a partner in the business, and assists in the business by answering the telephone, preparing taxation returns and things of that nature. The net profit of the plumbing business for the financial year ended 30 June 2000 was just under $30,000. The net profit of the business for the financial year ended 30 June 2001 was in the region of $20-25,000.
As I have said Angelika cares for Tapio’s mother. She receives a carer payment which totalled $6,978 during the financial year ended 30 June 2000, and is presently $382 per fortnight.
Angelika’s taxable income for the financial year ended 30 June 2000 was $21,432 comprising income from the plumbing business, carer payments and rent.
The property at 60 Julian Road was recently sold for the sum of $160,000. Before sale, Tapio was required to, in effect, restore the house to its original condition. The property was subject to a mortgage in the sum of $101,000. The net amount received on sale was approximately $50,000.
Angelika estimates that the value of the property at 62 Julian Road is between $170-180,000. For rating purposes, the capital value of the property is $129,000. The owners of the property are Angelika, Tapio and Tapio’s mother.
After selling the property at 60 Julian Road, Angelika and Tapio purchased another property at 76 Littler Drive, Fairview Park for $92,000. The purchase was funded partly from the proceeds of the sale of the property at 60 Julian Road and partly by way of mortgage over 62 Julian Road. The debt secured by the mortgage is in the order of $50,000. Angelika and Tapio are presently renovating the property with a view either to leasing or selling the property.
Angelika and Tapio have small amounts of money in the bank. They own two motor vehicles, a Toyota Hi Ace and a Commodore. The Toyota Hi Ace is used in the plumbing business and was purchased in 1995 for approximately $15,000. The Commodore was purchased in January 2000 for approximately $23,000. It was purchased with the assistance of a loan from the St George Bank Limited and the total repayments under the loan agreement are $18,549.60.
Angelika is in good health. She said that Tapio is not in the best of health. He takes medication for anxiety and panic attacks. Angelika said that any money she received from the court proceedings would be used either to pay off the mortgage or to assist in her daughter’s education, hopefully in due course, at university.
Angelika’s financial position is modest but reasonably secure. There must be some concerns about Tapio’s health, but whether that causes a problem in the future is unknown.
Angelika is one of the testator’s daughters. The estate is a relatively small one. There are other claims on the estate, and there are the financial and other circumstances of Beate to be considered.
I do not think there is anything in Angelika’s conduct towards the testator which suggests that her claim ought to fail. I reject the submission made by Beate that Angelika sought to financially exploit the testator by offering him a one-third interest in the property at 60 Julian Road for $70,000. In my opinion, the evidence does not support a finding that Angelika and her husband were trying to financially exploit the testator.
Applying the relevant legal principles to the facts, I find that Angelika has been left without adequate provision for her proper maintenance, education and advancement in life.
I note at this point that there is no material difference between Angelika’s financial position as at 14 August 1999, and her financial position as at the date of trial.
Margaret
Margaret is a 46 year old woman who has had four children from three relationships. Two of her children live with her.
Margaret was about nine years old when the family migrated to Australia. She also assisted in the market garden business at the Tolley Road property in much the same way as Angelika.
Margaret also went to Modbury High School. She left after year 10. She obtained employment as a receptionist. She paid board to her parents. She said that when she started work she was paid $28 per week. She paid board to her parents of $20 per week.
Margaret married when she was 21 years old, and she and her husband went to live in Highbury. She continued to see her parents on a regular basis, particularly her mother. She had a close relationship with her mother. There were family gatherings for Christmas and birthdays.
Margaret visited her mother in the nursing home on a regular basis. She visited the testator occasionally, although at some stage fairly early on in the period her mother was in the nursing home, she had a “falling out” with the testator. She was upset about the way the testator treated her mother.
Margaret visited the testator in hospital when he was there to have his below-knee amputations.
Margaret visited Angelika (and therefore the testator) regularly during the time the testator was living next door to Angelika. After the testator returned to the Tolley Road property in April 1995 Margaret visited him on a couple of occasions. She last saw the testator about a year before he died. She said that she had had a “falling out” with Beate.
Margaret married in 1976 and was divorced in 1992. As part of the divorce settlement, Margaret received $40,000 after solicitors’ fees were paid. She purchased furniture with at least some of the money. She still owns the furniture. Margaret had two children by her marriage, Nathan who is about 20 years old and Carla who is about 16 years old. She has had two further children as a result of different relationships, Catherine who is about eight years old, and Cassandra who is about ten months old.
Nathan was involved in a serious motor cycle accident in November 1999. He is a tetraplegic. He receives a disability pension. By and large, his father supports him although Margaret provides him with clothes and money from time to time. Nathan lives in a house at 49 Valley View Drive, Highbury. The house is owned by Margaret and her ex-husband who hold it on trust for Nathan and Carla. The trust was established as part of the divorce settlement. Nathan and Carla become entitled to the property when Carla turns 21 years. Margaret pays the council rates on the property.
For the last two and a half years, Carla has lived with her father at 45 Valley View Drive, Highbury.
Catherine and Cassandra live with Margaret. Margaret pays for out of school care for Catherine and child care for Cassandra.
Margaret has lived in rental accommodation for some years. In August 1999 she paid about $170 per week in rent. Since that time, she has moved to a different property and she currently pays $250 per week in rent.
Margaret purchased a property at Highbury in 1998. She sold the property in August 2000 for $93,500. After paying out a mortgage she received about $10,000 on the sale of the property. That money has been spent.
Margaret has worked as an employee advocate for WorkCover since April 1998. In August 1999 she earned a little over $30,000 per annum after tax and she presently earns about $35,000 per annum after tax. For about eight years, she was a director of the Statewide Superannuation Trust, and in the last four or five years of that period, she was paid for that work. At the time she finished as a director of the Statewide Superannuation Trust in October 2001, she was earning about $1280 per month. Margaret has certain superannuation entitlements with Statewide Superannuation Trust ($18,576.70) and Super SA ($12,613.98). She has insurance policies presently valued at $43,576.70.
Margaret owns a Ford Taurus motor vehicle which she values at $25,000. She financed the purchase of the motor vehicle through a loan from Savings and Loans Credit Union (SA) Limited. It is not entirely clear from the documents what the monthly loan repayments are, but in her affidavit Margaret swore that they were about $430. That figure was not challenged by Beate and I will accept it as correct.
Margaret has borrowed money from the CPS Credit Union for various purposes, and there is a current balance owing of $6,344.94. In addition, she has purchased various items through Radio Rentals and repays the sum of $80 per month on a loan account. Margaret has a small amount of money in the bank.
Margaret said that if successful in these proceedings she would use any money as a deposit on a house. She would like to get out of the rental market.
Margaret has a responsible well paid job with WorkCover. She has modest assets largely consisting of superannuation benefits. She has two young children to support.
Margaret is one of the testator’s daughters. The estate is relatively small. There is nothing in Margaret’s conduct towards the testator which suggests her application should not succeed. The fact that Margaret sided with her mother and does not appear to have had a close relationship with the testator is not a factor which I think is of particular significance. Beate submitted that Margaret could seek support for Catherine and Cassandra from their respective fathers if she wanted to. The evidence is not clear about whether support could be obtained. Although there might be a prospect of some support from Cassandra’s father, I am not satisfied that whatever action Margaret took, it would alter the fact that the bulk of the burden of raising Catherine and Cassandra is going to fall on her.
Again applying the relevant legal principles to the facts, I find that Margaret has been left without adequate provision for her proper maintenance, education and advancement of life.
I note at this point that there is no material difference between Margaret’s financial position as at 14 August 1999 and her financial position as at the date of trial.
Monika
Monika is a 52 year old woman who is married with a son aged about 24 years.
Monika was about 14 years old when the family migrated to Australia. She attended Vermont Technical High School until year 10 and then commenced an apprenticeship as an embroiderer. She gave all her wages to her parents. She helped her mother in the house and was not involved in helping in the market gardening business in the same way as Angelika and Margaret.
Monika left home in 1972 and married Uwe Gehrke in 1975. They have one son, Torston, who was born in 1977.
Monika visited her mother frequently while her mother was in the nursing home. She had a “falling out” with the testator in about 1983. The “falling out” resulted from a disagreement about the way the testator was treating her mother before she went into the nursing home. There was a reconciliation a couple of years later, and between 1985 and 1995 she took the testator shopping every week and cooked for him.
Monika visited the testator when he was in hospital for his below-knee amputations. After he moved to 60 Julian Road, Monika had a disagreement with him. Again there was a reconciliation after a period of time, and Monika saw the testator occasionally during his last years at the Tolley Road property.
Monika runs a modest embroidery business called “Monika’s Fashion Embroidery”. Her husband is a partner in the business. The net profit of the business for the financial year ended 30 June 2000 was $23,800, and for the financial year ended 30 June 2001 the net profit was $22,656.
Uwe presently works as a tour guide. Monika and Uwe own their own house at 10 Dillon Street, Redwood Park which for rating purposes has a capital value of $103,000. Monika’s estimate of the value of the property is $130-140,000. There is no mortgage over the property. Monika and Uwe have two motor vehicles and small amounts of cash in the bank and with a credit union. Monika holds superannuation benefits which at present total $22,287. Her husband has life insurance and superannuation benefits with AMP and some shares in that company.
Monika said that if she is successful in the court proceedings she would use the money to do repairs on the outside of her house.
Monika is in a reasonably sound financial position. However, her circumstances are by no means affluent. For similar reasons to those which I have identified in the cases of Angelika and Margaret I find that she has been left without adequate provision for her proper maintenance, education or advancement in life.
Wolfgang
Wolfgang is a 52 year old man who admitted to a drinking problem, and to the fact that he has spent periods of time in gaol.
Wolfgang was 12 years old when the family migrated to Australia. He attended school for a short time and then obtained work selling newspapers. After about a year, he obtained labouring work at a market garden in Paradise. He gave the bulk of his salary to his father.
Wolfgang was in the army from about 1970 to 1973. He gave part of his wage to his mother. Thereafter, he worked on and off in various labouring jobs. For many years he received unemployment benefits. Except for a period of about three years, Wolfgang lived at the Tolley Road property between 1973 and 1997. During those years he assisted his father with various building projects around the property.
Wolfgang assisted the testator to move from 60 Julian Road back to the Tolley Road property in April 1995. He looked after the testator between April 1995 and some time late in 1996 or early 1997. Late in 1996, Wolfgang asked Beate if she could help him look after the testator. The testator bought a motor vehicle for Beate and she began looking after him. Wolfgang left the property. According to Wolfgang, Beate tried to prevent him from visiting his father during the period Beate was looking after him.
Wolfgang married Tricia in April 2001. He is presently unemployed. He receives unemployment benefits of $364.60 per fortnight. He has no assets. He was paying rent of $90 per week but he is no longer doing so as he is living with Tricia in her house.
Wolfgang has three children from two relationships. He does not provide any financial support for the children.
There was a great deal of evidence about how Wolfgang treated his father and his father’s property. There is no doubt they argued from time to time. It is likely the testator considered that Wolfgang was irresponsible and, at times, a nuisance. Despite that, I think that there was a fairly strong bond between them.
Beate pointed to various incidents showing (she said) how badly Wolfgang treated the testator. For example, Wolfgang used the testator’s wood chipper to raise money without telling him. Another example occurred when the testator was in hospital in late 1996. Wolfgang went to visit him. It would seem that he was affected by alcohol, and he created a disturbance in the hospital. A further example is the evidence of two incidents in 1997 and 1998 when Wolfgang went to the Tolley Road property to see his father. On these occasions, Wolfgang broke windows at the property. I accept that these incidents occurred.
In contrast to these matters I note that it was Wolfgang who tried to care for the testator in 1995 and 1996. In addition Wolfgang helped the testator with work on the Tolley Road property over many years. His financial position is poor, although it may have improved somewhat by his marriage to Tricia. I think that Wolfgang establishes a special need or special claim and I find that Wolfgang is a person who has been left without adequate provision for his proper maintenance, education and advancement in life.
Beate
Beate is the sole beneficiary under the testator’s will.
Beate was born in 1957. She was about seven years of age when the family migrated to Australia.
Beate lived at home until she married Clino Santoro in 1976. Beate and her husband separated after five to six years. There is one child of that relationship, Jason Santoro. Jason lives in Brisbane. Beate has not seen him for at least five years.
Shortly after the separation from her husband, Beate met and formed a relationship with Stan Tudorovic. Cynthia is the daughter of Beate and Stan Tudorovic. The relationship did not last very long.
The defendant received approximately $15,000 at the time of her separation from Clino Santoro. She did not receive any money at the time of her separation from Mr Tudorovic. The money received from Clino Santoro was invested in a small restaurant business. About three years after she had invested the money in the business, Beate had a nervous breakdown. At a time not clearly identified in the evidence she commenced work for Pieroth Wines. She continued in that employment for little over a year. She then suffered injuries in a motor vehicle accident. She commenced receiving the supporting mothers pension while Cynthia was at school. Some considerable time later she worked in a management role at a fashion boutique for about a year and a half. There followed short term employment working in a chicken shop and in a fish and chip shop.
Beate does not own any assets apart from furniture and effects and a Ford Laser motor vehicle which she shares with Cynthia. The Ford Laser motor vehicle is the vehicle given to her by the testator. She does not have any savings. She does not own any real estate. She suffered a slipped disc in her back due to heavy lifting and she is under the care of a specialist.
The Provision that should be made
I find that each of the plaintiffs and the counterclaimant has established that they and each of them have been left without adequate provision. The next question is what provision ought to be made. It seems that similar considerations are relevant to this issue as are relevant to the first stage of the inquiry, and indeed the assessment of what is a proper level of maintenance and what is adequate provision largely determines the order to be made.[25]
[25] Singer v Berghouse Mason ACJ Dean and McHugh JJ at 210
Although there are differences in the circumstances of each of the plaintiffs and the counterclaimant, the amounts I have in mind are not such that it is appropriate to try and reflect these differences in the amounts to be awarded.
In my opinion, I ought to allow a provision of $15,000 for each of the plaintiffs, and $15,000 for the counterclaimant.

The orders I propose to make are as follows:
1.Pursuant to s 8(2) of the Inheritance (Family Provision) Act 1972 I extend the time within which Wolfgang Hess may make an application for the benefit of the Inheritance (Family Provision) Act to and including 21 February 2001;
2.Pursuant to s 7 of the Inheritance (Family Provision) Act 1972 I order that provision be made out of the estate of Max Hess (deceased) to the following persons in the amounts indicated.
Angelika Eliasson              $15,000
Margaret Delisio               $15,000
Monika Gehrke                  $15,000
Wolfgang Hess                  $15,000
I will hear the parties on costs and any other relevant orders or matters. I will direct the parties to prepare minutes of order embodying the orders to be made.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.Corin v Patton (1990) 169 CLR 540 per Mason CJ and McHugh J at 558
2.(1969) 120 CLR 365
3.[1944] SASR 257
4.Flinn v White [1950] SASR 195; Commercial and Personal Property Law S Fisher at para [11.23] et seq.
5.Family Provision in Australia 2^nd ed de Groot & Nickel para [5.11]
6.In the Estate of Barry (1974) 9 SASR 439
7.Jones v G D Searle & Co Ltd [1978] 3 All ER 654
8.Attorney General (NT) v Maurice (1986) 161 CLR 475 per Gibbs CJ at 481
9.Thomason v the Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347 per Street CJ at 359
10.Cross on Evidence 6^th Australian Edition J D Heydon para (25010)
11.(1997) 70 SASR 166
12.Singer v Berghouse (1994) 181 CLR 201 per Mason CJ, Deane and McHugh JJ at 208
13.In re McCaffrey (1982) 29 SASR 582 per Cox J at 585
14.White v Barron (1980) 144 CLR 431 per Mason J at 441
15.Singer v Berghouse per Mason CJ, Deane and McHugh JJ at 209; Goodman v Windeyer (1980) 144 CLR 490 per Murphy J at 504 – 505; Burke v Public Trustee (1997) 69 SASR 557 per Debelle J at 560
16.Singer v Berghouse per Mason CJ, Deane & McHugh JJ at 210
17.Hughes v National Trustees, Executors and Agency Co of Australasia Limited (1979) 143 CLR 134 per Gibbs J at 146
18.Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 per Dixon CJ at 20
19.(1979) 143 CLR 134 per Gibbs CJ at 147. See Hunter v Hunter (1987) 8 NSWLR 573; Gorton v Parks (1989) 17 NSWLR 1; Hawkins v Prestage (1989) 1 WAR 37
20.Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 403
21.at 147
22.Authority in this State suggests that it is no longer appropriate to refer to a special need or special claim see Eckert v Starick (unreported judgment of the Full Court 15 June 1984 S4584) Lambeff v Farmers Cooperative Executors and Trustees Limited & Ors (1991) 56 SASR 323 per Matheson J at 328
23.Re Sinnot [1948] VLR 279. As to whether there should be any difference in approach between an adult daughter and an adult son see In Re Anderson (1975) 11 SASR 276 and In the Estate of Vitch (1988) 147 LSJS 143
24.Blore v Lang (1960) 104 CLR 124 per Fullagar and Menzies JJ at 135
25.Singer v Berghouse Mason ACJ Dean and McHugh JJ at 210

[2002] SASC 65

27 February 2002