Drioli v Rover - [2005] SASC 395

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
DRIOLI AND ANOR v ROVER
Judgment of The Honourable Acting Chief Justice Perry
14 October 2005
SUCCESSION - FAMILY PROVISION AND MAINTENANCE
Claims by two adult daughters against the estate of their deceased father - he had separated from their mother when they were in their teens - they had virtually nothing to do with him thereafter - he remarried, but there were no children of the second marriage - a large part of his estate derived from gifts inter vivos from his second wife - consideration of differences of opinion expressed in the High Court of Australia as to whether it was proper to have regard to "moral" duty or obligation in determining family provision claims - observations as to the "two stage" process involved in considering such claims and relevant factors to be taken into account - claims allowed and provision made from the estate in favour of both plaintiffs.
Inheritance (Family Provision) Act 1972 s 7, referred to.
Re Allen (dec'd), Allen v Manchester [1922] 41 NZLR 218; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; [1938] 2 All ER 14; Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1978-1979) 143 CLR 134; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin and Ors (2005) 213 ALR 692; McCosker v McCosker (1957) 97 CLR 566; White v Barron and Anor (1980) 144 CLR 431; In re Allardice; Allardice v Allardice (1910) 29 NZLR 959; [1911] AC 730; Goodman v Windeyer (1980) 144 CLR 490; Delisio and Ors v Santoro Besanko J, 27 February 2002, judgment No [2002] SASC 65 (unreported); Fennell and Ors v Aherne Judge Withers, 22 July 2005, judgment No [2005] SASC 280 (unreported), considered.

DRIOLI AND ANOR v ROVER
[2005] SASC 395
Civil

PERRY J. The plaintiffs claim an order pursuant to the Inheritance (Family Provision) Act 1972 (“the Act”), that provision be made out of the estate of Lloyd William Rover deceased (“the deceased”) for their proper maintenance, education or advancement in life.
The deceased died on 31 May 2003, aged 75 years. His last will is dated 7 September 1984. In the will he left the whole of his real and personal estate to his widow, Janet Ann Rover, who is the defendant to the proceedings.
Probate of the will in common form was granted by this Court to her as sole executrix on 25 August 2003.
The statement of assets and liabilities attached to the application for the grant of probate disclosed a net estate as at the date of death of the deceased amounting to $443,337.16. The bulk of the estate comprised investments in shares in various publicly listed companies.
An affidavit sworn by the defendant shortly before the commencement of the trial, which began on 22 August 2005, confirmed that the assets which then constituted the estate of the deceased, represented in the main by investments in much the same share portfolio, was valued at $497,192.93.
The plaintiffs are adult daughters, being the only children of the deceased’s marriage to his first wife. The defendant was the second wife of the deceased. There was no issue of the marriage of the deceased and the defendant.
The trial proceeded on affidavit evidence, largely from the parties. In addition, oral evidence was given by both plaintiffs and the defendant.
The defendant opposed the plaintiffs’ claims. In the result, the issues at trial were whether any provision should be made in favour of the plaintiffs, and if so, how much.
Background
The evidence does not establish when the plaintiffs’ mother, Nola Ellen Rover, married the deceased.
The plaintiff Lyndall Ellen Drioli (“Mrs Drioli”) was born on 16 November 1957.
Her sister, the plaintiff Julie Yvonne Hillman (“Mrs Hillman”) was born on 29 June 1960.
They both spoke of a happy home life associated with a normal upbringing, until shortly before the deceased left their mother in 1973. Both plaintiffs witnessed a deterioration in their parents’ relationship leading up to their father’s departure.
A decree nisi for divorce between the deceased and Nola Rover became absolute in September 1975.
The deceased had supported the family from the earnings of a business which he conducted under the name Conn Organ Centre. He was the South Australian agent of Conn Organs, a United States company which manufactured electronic organs for church and domestic use. He conducted the business from a shop in King William Street, Adelaide.
Both plaintiffs spoke of the disruption to the household occasioned by their father’s departure and the increased stress placed on their mother in bringing up two teenage girls.
They found themselves in straitened financial circumstances. Their mother Nola Rover supported the family on a deserted wife’s pension until she re-trained in her former occupation of a hairdresser and obtained some work in that profession.
It appears that at some stage, under what was described in evidence as a “court settlement”, the deceased paid to the plaintiffs’ mother $25 per week maintenance, and as well met payments amounting to about $40 per month on a mortgage over the former matrimonial home.
When the deceased left the home, Mrs Hillman was aged 13 years and Mrs Drioli 15.
Mrs Drioli left home at the age of 17 years in 1975, two years after the departure of her father. She left school about a year before she left home. When she left school she obtained employment at The News newspaper.
According to her evidence, she found it “impossible to cope with the stress of family life” after her father had left the home.
She said in evidence that she left home as “I had had enough. I didn’t mind helping the family, my sister and my mum, but my friends weren’t doing it so I thought, ‘well, why should I?’”.
Mrs Hillman reacted badly to the separation of her parents. She contracted glandular fever, missing most of year 11. She left school before completing year 12, when she obtained work at a business known as Fotomart. She was then about 17.
She stayed at home longer than her sister, and did not leave home until she married in 1980.
Until then she paid board to her mother.
Both daughters helped their mother financially as and when they could.
It appears that once the deceased had left home, he had very little contact either with Nola Rover or his two daughters.
Mrs Drioli’s evidence of relevant events suffers from the after-effects of a head injury which she sustained in 1999, which she said had affected her memory somewhat. Her evidence was that she had no recall of any contact with her father from the day he drove out of the driveway when he left home, except on one occasion in 1986 before her mother died, when he came to The News with a bunch of flowers which he left for her.
Mrs Hillman was able to recall a little more contact with her father than her sister. She remembers that he saw her briefly when she was sick with glandular fever, and that he bought her a horse in 1975.
She said that she last saw her father when she was about 17. Between his departure and then she saw him “maybe four to six times a year. Sometimes he would come and pick my girlfriend and I up and bring us into his shop on King William Street and we would play the organs, because there was no organ at home anymore”.
She also remembered some contact with her father at the time when the sale of the former family home took place in 1986.
Looking at the matter broadly, it is clear on the evidence that apart from what I have just mentioned, both plaintiffs had virtually no contact with their father after he left the home, and furthermore, that neither they nor the deceased made any effort to initiate contact.
The defendant said in evidence that she had been told by the deceased that the plaintiffs’ mother had discouraged her daughters from seeing him, but neither of the plaintiffs agreed with that suggestion.
I think that the reality of the situation was that on the one hand, rightly or wrongly, the plaintiffs blamed their father for separating from their mother, and whether they were discouraged by their mother from doing so or not, they did not feel inclined to maintain any contact with him.
As for the deceased, it appears that after leaving his family, he led his own life, from which he virtually excluded them.
In 1981 Nola Rover was diagnosed with polyarthritis. Thereafter she remained in poor health. She later contracted breast cancer.
Towards the end of 1986, she became concerned that if something was not done about it, on her death, the former matrimonial home, which was owned jointly by her and the deceased, would revert to the deceased to the exclusion of her daughters.
Either as a result of an order made in the course of Family Court proceedings, or as a result of a settlement reached between them, the former matrimonial home was sold in December 1986 and the net proceeds of sale, about $80,000, were divided equally between Nola Rover and the deceased.
On 19 December 1986, shortly after the settlement of the sale of the former matrimonial home, Nola Rover died.
Following Nola Rover’s death, each of the plaintiffs received about $20,000 from her estate, no doubt derived from Nola Rover’s share of the proceeds of sale of the house.
At this stage I will address more particularly the circumstances of each of the plaintiffs in turn.
Mrs Drioli
Mrs Drioli left school shortly before she turned 16, when, as I have said, she obtained employment at The News. Soon afterwards, at the age of 17, she left home.
She met her husband-to-be when working at The News. At his suggestion, she gave up employment at The News and went into business with him running a small printing house. In 1978 she bore her first daughter. In 1979 they married. In 1981 she bore a second daughter.
Apart from a short spell in New South Wales, she and her husband continued to operate small printing businesses in Adelaide.
They bought a house in 1983 for $31,000, largely financed through a bank loan.
In 1989 she separated from her husband. She continued to live in the former matrimonial home and continued to work in the printing business until it collapsed in early 1990.
As well as losing the business, she lost the house. She moved with her two children to rental accommodation.
In 1991 she was declared bankrupt. Except for some casual work typesetting, at that stage she was supporting herself and her children on a single mother’s pension.
Later she obtained a job with a firm called Aussie Glass.
In 1997 she received a small inheritance of just under $30,000 from her grandmother. With the assistance of the inheritance and a loan of $94,000 from the Commonwealth Bank, she purchased a house for $105,000. She made some further borrowings from the bank for some renovations to the house. As at the beginning of 2004 she owed the bank about $115,000.
She then refinanced the house with Home Loans Ltd, extending the borrowings by enough to buy a second-hand motor car for $10,500.
Mrs Drioli’s evidence was that she experienced some difficulty in obtaining any contribution towards the maintenance of the two children after her husband had left her. Eventually she took out court proceedings, as a result of which for a short time he paid $55 per week. She said that he still owes about $3,000 by way of arrears in child support.
In 2001 she left Aussie Glass to take up a position with her present employer, A.L. Nalty Memorials. She said in evidence that last year, 2004, she received from them by way of wages about $10,000. That is a very low figure. She was not cross-examined on the topic.
I think that evidence was mistaken. She had previously sworn an affidavit in February 2004 in which she said that her income was $866 per fortnight. That is consistent with her statement in an affidavit sworn in May 2004 when she said that her income for the 2002-2003 financial year was $22,536 after tax, and that she expected approximately the same amount for the following financial year.
At the time of trial, she owed about $126,000 to Home Loans Ltd, and about $2,000 on a Visa card account. She has about $500 in a small savings account.
Her remaining assets are her equity in the house, valued as at August 2005 at approximately $250,000, the car, some furniture, and a superannuation credit of about $14,000.
Her children are grown up and are no longer dependent on her.
Mrs Hillman
Mrs Hillman gave evidence of how her responsibilities at home increased dramatically after her father had left. She would cook the main meal at least three or four times a week and help her mother in other ways.
While she was still at school she helped her mother work in a hairdressing salon in the Julia Farr Centre. Between leaving school in about 1977 and her marriage in 1980, she paid her mother board from her earnings from Fotomart.
Once she married, she gave up work.
Her first marriage lasted four years. There was one child of the marriage, a daughter, born in December 1981.
She divorced her husband in 1984. There was no property settlement of consequence.
By then her mother was quite ill. The breast cancer had taken a hold on her.
In late 1985 her mother underwent a mastectomy. Mrs Hillman stepped up the amount of time she spent helping her mother with housework and other chores.
Mrs Hillman remembers her mother speaking to her and her sister and expressing concern that unless steps were taken before she died, she would be unable to fulfil her desire to leave the proceeds of half of the former matrimonial home to her daughters. Mrs Hillman and her sister then approached Legal Aid. Although her recollection now is sketchy, she remembers what she described as “some sort of mediation” when her father was present, together with lawyers, the upshot of which was an agreement to sell the house and divide the proceeds.
As I have explained, following her mother’s death, her share was divided between the two daughters.
In the same year that her mother died, 1986, Mrs Hillman remarried.
At the time of the marriage or soon afterwards, her husband operated an engineering consultancy. She and her husband eventually decided to change the nature of the business into an engineering workshop, which they did in 1991. Together, since then, they have conducted the business through a company, SA Engineering Pty Ltd.
She is a director and secretary of the company. The company has two other full-time employees. The business is carried on from rented premises at Montacute Road, Lonsdale.
The company’s business is the manufacture of components for various industries such as the timber, mining and motor industries.
Mrs Hillman does the office work associated with the business, including bookkeeping. When required, she is also able to operate some of the machines.
Her husband has a daughter by a previous relationship. She and her husband shared her custody with the child’s mother. The child is now 21 and engaged to be married, as is Mrs Hillman’s daughter by her first marriage.
She and her husband have a son born in 1987. He has just turned 18 and is a full-time student at Urrbrae, studying year 12.
Mrs Hillman and her husband bought a block of land at Kangarilla in 1988. They built their family home on the land. The property is now valued at approximately $450,000, and is subject to a mortgage of about $24,000.
She has maintained her interest in horses. She runs two horses on the property.
Financial statements tendered at the trial indicate that the engineering business is profitable. It turns over between $400,000 and $500,000 per year. From the company Mrs Hillman draws about $1,200 per fortnight.
In July 2001, Mr and Mrs Hillman purchased two blocks of land on Kangaroo Island for $26,000. After buying the blocks of land, they purchased a fishing boat with the intention of converting it into a boat suitable to be used for fishing charters. They purchased the boat for $54,000. After rebuilding part of the boat, they ended up with an outlay in all of about $85,000 or $90,000.
The charter business was not successful and was run at a loss. They have now put the boat up for sale. At the time of trial, although they had not succeeded in selling it, they had a purchaser interested in buying it at about $90,000.
Mrs Hillman said in evidence that they presently “owe” on the boat about $70,000 or $75,000.
They closed the business sometime ago. They sold the two blocks of land in March 2004 for a total of $146,000.
According to Mrs Hillman, they have put aside the proceeds of sale of the two blocks of land against personal tax liabilities and group tax liabilities, including GST.
Mrs Hillman has a heart condition which causes an erratic heartbeat from time to time. She is having medical treatment for that, and was due to have some further tests shortly after the trial. She understood that the prospects of successfully treating the condition were good. She also suffers from arthritis.
The company owns two motor vehicles. Apart from the house mortgage, she does not have any other debts.
She and her husband have an entitlement to superannuation altogether of the order of about $22,500.
The defendant and the deceased
The defendant was born on 28 July 1935. She is now 70 years of age.
As I have said, the deceased was aged 75 years at the time of his death.
The defendant did not know the deceased before his divorce in 1975. She married him on 14 November 1976. The defendant had not previously been married, nor had she previously co-habited with anyone else.
At the time of her marriage, she lived at her family home at Everard Park with her father, her mother having died. After the marriage, she and the deceased lived at the Everard Park house.
The defendant was then employed with the Commonwealth Scientific and Industrial Research Organisation (“CSIRO”) as a senior technical officer. She had worked there since about 1957. She had lived a frugal life and had substantial savings.
When her father died , she purchased from her brother his share of the Everard Park home which her father had left to the two of them.
She then lived there with the deceased until February 1984, when the home was sold for $73,500.
From the proceeds of sale, she purchased a house at 3 Eurilpa Avenue, Everard Park, for $70,000. The house was placed in the joint names of the deceased and herself.
In 1987, she retired from the CSIRO. She received a termination payment of $165,000.
On her retirement, she lived on the income from her investments.
In December 2002, the defendant and the deceased bought another house, into which they moved, at 9 Morris Avenue, Marion. The purchase price was $250,000.
They placed the Eurilpa Avenue house on the market, and it was subsequently sold in June 2003 for $308,000. The defendant still lives in the Morris Avenue house.
In an affidavit sworn in April 2004, the defendant said that in addition to the Morris Avenue house, she owned assets worth approximately $800,000. This was largely in the form of investments in shares. She said that she had an annual income from those investments of about $40,000. An up-to-date valuation of her share portfolio as at 3 August 2005 indicates that its value had then risen to $1,120,949.
The defendant said that she did not know Nola Rover, and had no contact whatsoever with the plaintiffs. She said that until she was given notice of the proceedings, she did not know their surnames, or their whereabouts.
She was aware that the deceased bought a pony for one of his daughters. Apart from that, she was not aware of any contact between the deceased and the plaintiffs during their marriage.
There is no evidence that the deceased brought any substantial assets into the marriage. He was, of course, still conducting the business of the Conn Organ Centre. He was also the president of the Theatre Organ Society, which then owned, and still owns, the Capri theatre and organ.

Her evidence was that when she married the deceased, she was unaware of the financial position of the business.
A schedule setting out the income of the deceased between 1966 and 2002 extracted from income taxation records, was agreed by the parties and tendered at the trial.
This indicates that at the time of the marriage between the deceased and the defendant in 1976, the deceased’s business was profitable and had been so for a number of years. The business was his sole source of income at the time they married in 1976, in which year he disclosed a taxable income of $24,158.
Thereafter the profits of the business declined, and losses are recorded from the early 1980s.
In 1979, the defendant and the deceased jointly purchased the King William Street property from which the business was operating, for a price of $110,000. The defendant’s evidence was that she paid the deposit of $25,000, and the balance of the purchase price was met by a loan of $85,000 from Custom Credit.
In April 1982, the property was sold for $180,000. After paying out the amount then owing to Custom Credit, the balance of the proceeds of sale amounted to a little more than $83,000, which the defendant shared equally with the deceased. The deceased’s share was invested in his name with Satisfac Credit Union.
The deceased’s agency for Conn Organs ceased in 1986. It was about then or a little afterwards that he took up paid employment with the Theatre Organ Society. His taxable income from the Theatre Organ Society varied between about $9,000 in 1987 to an average of between $20,000 and $25,000 between 1991 and 1997, after which there was a surge in the income to about $34,000 or $35,000 in the years 1998 and 1999. The last year in which he is shown as having received earnings from the Theatre Organ Society was 2000, when his earnings were a little less than $20,000.
Until 1999, the agreed schedule of income indicates relatively small amounts being earned by the deceased by way of income from investments. However, he is shown as having earned income from investments of about $20,000 in 2000, about $40,000 in 2001 and about $22,000 in 2002.
The evidence of the defendant was that after the deceased ceased operating the Conn Organ business, she decided that it would be beneficial for him to have an income of his own, rather than having to ask her for money to provide for his expenses, and to give him a degree of independence. Her evidence was that she arranged for some of the capital from the investments that she had made from her termination payment, to be transferred periodically into the name of the deceased.
She went so far as to suggest that the shareholdings shown in the schedule of assets included with the application for probate were all bought with money which she provided. She said further that she would not have transferred money and investments into the deceased’s name, had she known that any part of it would not have reverted to her in the event that he predeceased her.
An affidavit was tendered by the defendant from her long-standing financial adviser, David Johnston. He was a sharebroker and investment adviser employed by Macquarie Financial Services, which took over the company of which he had previously been a director, which traded as Day Cutten.
His affidavit confirms that the defendant has been his client since about the time of her retirement from CSIRO in 1988, when he assisted her with investment of her termination payment.
He deposes to the fact that he received instructions at one stage that the deceased’s employment by the Theatre Organ Society might be precarious. He remembers that the defendant told him that she wanted her husband to have some degree of independence, and that she was prepared to provide funds to purchase investments in his name.
She opened an account with Day Cutten in the name of the deceased on 1 July 1995. All of the instructions which he received relating to the deceased’s account from thereon came from the defendant.
In his affidavit, Mr Johnston then details various share purchases for the deceased which took place from 1995 onwards. In most instances, he deposes to the fact that the money for the purchase of investments in each instance came from the defendant.
That she established, from her own money, an investment portfolio in the name of the deceased is clearly confirmed by a letter from Mr Johnston to the defendant dated 5 October 1999, exhibited to his affidavit. That letter reads in part:
The investment program that we agreed with a view to establishing a replacement income for Lloyd [the deceased] following his retirement from the Capri is now virtually complete.
Rollover money has started arriving per the withdrawals that we initiated - $80,959.50 from Citicorp Life and $63,637.32 from BT Funds Management. … The following table is to provide you and Lloyd with an estimate of the likely flow of income from the investments in his name. … Notwithstanding the cash we had released from your superannuation rollover holdings to establish the above portfolio for Lloyd, considerable funds remain in rollover with ANZ, MLC and Legal and General.
There was no request by counsel for the plaintiffs to cross-examine Mr Johnston on his affidavit.
However, the defendant was subjected to aggressive and lengthy cross-examination designed to demonstrate, contrary to her assertion that the shareholdings now comprising the estate of the deceased were derived from moneys which she provided, that in fact she provided no funds for that purpose. That assertion is, of course, quite contrary to the letter which I have just quoted.
That the deceased made some contribution to his investment portfolio seems clear enough by reason of the fact that, for example, in December 1986, he paid $29,000 into an Allianz Holdings account, which moneys were no doubt the proceeds of the sale at about that time of the former matrimonial home which he had owned with Nola Rover.
I am satisfied also that his share in the net proceeds of sale of the King William Street property, was invested on his behalf.
It is clear that funds sourced from both the deceased and the defendant became intermingled. There was at least one occasion proved in evidence, when the defendant attempted to dissect the balance of a particular investment in accordance with the proportions reflecting contributions made by her on the one hand and by the deceased on the other. Notes which she admitted were in her handwriting on a Credit Union statement of account dated 19 October 1990, in which a current balance if shown of $78,374.38, indicate that she attempted to apportion it in part to the deceased and in part to herself in the proportion of amounts which were apparently contributed to the account by each of them.
I accept the defendant as a witness of truth. But I think that she is now mistaken as to the extent of the contributions made by the deceased to the share portfolio in his name. Some answers to questions in cross-examination were a product of confusion rather than an attempt to mislead.
On the whole of the evidence, I am satisfied that while the deceased made some payments into the investments which are now represented by the share portfolio constituting the estate, a substantial proportion of the moneys now represented by those investments were derived from the defendant rather than the deceased. It is not possible on the evidence to make any precise division between the two, but I am satisfied on the balance of probabilities that something over one half of the estate of the deceased is likely to have been derived from moneys advanced by the defendant.
Relevant legal principles
It has clearly been established by authority that the determination of family provision claims involves a two-stage process.
The first stage involves consideration of the question, to use the language of the South Australian Act, whether the applicant has been “left without adequate provision for his proper maintenance, education or advancement in life”. This is sometimes described as the jurisdictional question. Absent an affirmative answer to that question, it is unnecessary to proceed further, and the claim will fail.
If that question is answered in favour of the applicant, the second question is as to what, if any, provision should be made.
The two questions overlap, and the same considerations may be relevant to both.
What has been described as a statement of general principle underlying the legislation is the dictum of Salmond J in Re Allen (dec’d), Allen v Manchester:[1]
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.
[1] [1922] 41 NZLR 218 at 220-1.
That statement was cited with approval by the Privy Council in Bosch v Perpetual Trustee Co Ltd,[2] and has been endorsed as an accurate statement of principle in the High Court on many occasions since then.[3]
[2] [1938] AC 463 at 479; [1938] 2 All ER 14 at 22.
[3] See, for example, Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 515, Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20, Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1978-1979) 143 CLR 134 at 147, Singer v Berghouse (1994) 181 CLR 201 at 221 and Vigolo v Bostin and Ors (2005) 213 ALR 692 at 697.
As to the jurisdictional question, the observations of Dixon CJ and Williams J in their joint judgment in McCosker v McCosker[4] are apposite:
The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd)[5] the word “proper” in this collocation of words is of considerable importance. It means “proper” in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance, education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.
[4] (1957) 97 CLR 566 at 571-2.
[5] Supra.
The jurisdictional question is addressed by reference to the circumstances as they existed at the date of death of the deceased.[6] If that question is answered in the affirmative, the discretion to make an order in favour of the applicant is exercised by reference to all of the circumstances as they exist at the date of the order.
[6] White v Barron and Anor (1980) 144 CLR 431 per Mason J at 441.
Reference has been made from time to time in the context of family provision legislation to what has been described as the testator’s “moral” duty or obligation or to “natural claims” upon the testator’s bounty.
I have already referred to the well known dictum of Salmond J in In Re Allen (deceased) in which he refers to the “moral duty” of a “just and wise father”. Earlier in the same judgment, he said:[7]
The Act is … designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty.
[7] Ibid at 220.
In White v Barron and Anor[8] Stephen J said:
A trial judge has to place himself in the position of the testator and to consider what that testator “ought to have done in all the circumstances of the case”:[9] No doubt this requires him to recognize and to apply prevailing community standards of what is right and appropriate since it is by those standards that the content both of the moral duty owed by a just husband and father to his wife and children and of departures from it will be measured:[10] (emphasis added)
[8] (1980) 144 CLR 431 at 440.
[9] Citing Bosch v Perpetual Trustee Co Ltd (supra) at 478.
[10] Citing In re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 973; [1911] AC 730 at 734-735.
The question whether it is appropriate to refer to the testator’s “moral duty” or obligation has resulted in a division of opinion amongst the judges of the High Court.
For example, in Singer v Berghouse,[11] after referring to the dictum of Salmond J in Re Allen (supra) to which I have referred, Mason CJ, Deane and McHugh JJ in their joint judgment said:
For our part, we doubt that this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to “moral duty” or “moral obligation” may well be understood as amounting to a gloss on the statutory language.[12]
[11] (1994) 181 CLR 201 at 209.
[12] Citing Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 158 and Goodman v Windeyer (1980) 144 CLR 490 at 504-505.
In Hughes v National Trustees, Executors & Agency Co of Australasia Ltd,[13] Murphy J said:
I am satisfied that the appellant was left without adequate provision for his proper maintenance and support in that the distribution of the estate was not such as to make adequate provision … and the inadequacy was not made up by independent means. Many cases suggest that an applicant must show a moral claim as well … this gloss on the Act is unwarranted and inconsistent with the language and with the legislative scheme.
[13] (1978-1979) 143 CLR 134 at 158.
The question whether the concept of “moral duty” or “moral obligation” has a part to play in the consideration of claims under the family provision legislation was addressed in Vigolo v Bostin and Ors.[14]
[14] (2005) 213 ALR 692.
In that case, the majority was in favour of the view was that moral considerations may properly be taken into account in exercising the discretion conferred by the legislation.
After referring to a number of authorities in which the question had been examined, Gleeson CJ expressed his conclusion in the following terms:[15]
[25]In explaining the purpose of testator’s family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description “moral”. As McLachlin J pointed out in the Supreme Court of Canada, that is the way in which courts have traditionally described them. Attempts to misapply judicial authority, whatever form they take, can be identified and resisted. There is no occasion to reject the insights contained in such authority.
[15] Ibid at 700 par [25].
In their joint judgment, Callinan and Heydon JJ said:[16]
[113]We would not be reluctant, at least in some cases, to use the expressions “moral duty” and “moral obligations”, and to apply the concepts underlying them, which include the idea of “moral claims”. …But … we should make it clear that a moral claim cannot be a claim founded upon considerations not contemplated by the Act. Nor can it be a claim based simply upon the fact of a preference shown by a testator in his will for another or others, although there may be cases in which disparities in dispositions may be relevant.
[16] Ibid 719 par [113].
Later they said:[17]
[121]For many years therefore several justices of this court have found it convenient and generally useful to resort to concepts of a moral duty and a moral claim in deciding both whether, and how much provision should be made to a claimant under the Act. In our respectful opinion they have not been wrong to do so. These are not concepts alien to, or in any way outside, the language of … the Act.
[17] Ibid 721 par [121].
Gummow and Hayne JJ in their joint judgment dissented on this question.
Although I must accept the view expressed by the majority,[18] unassisted by authority, I would have been inclined to align myself with the view that reference to moral considerations amounts to a gloss on the statutory provisions.
[18] Dicta to the contrary in recent decisions of this Court must now be regarded as wrong: see Delisio and Ors v Santoro, Besanko J, 27 February 2002, judgment No [2002] SASC 65 (unreported) and, for example, Fennell and Ors v Aherne, Judge Withers, 22 July 2005, judgment No [2005] SASC 280 (unreported).
I tend to think that in the pluralist, multicultural society in which we now live, it is difficult to identify a single, commonly accepted set of moral precepts. Differing cultural, religious and other beliefs and practices may well give rise to quite different but honestly held views as to what may be regarded as the appropriate manner in which a testator should make provision for his family.
But I suppose the same difficulty applies if one confines oneself to the words “adequate provision” and “proper maintenance, education or advancement in life”. No doubt such differences may be taken into account in applying those words to particular cases.
It may be that the application of the expressions “moral duty” and “moral obligation” in giving content to the statutory test, may likewise be a sufficiently flexible process to allow for such differences to be taken into account.
However the matter is approached in determining what is “adequate” or “proper”, regard must be had to all relevant factors, apart from any question of “moral duty” or “moral obligation”, which include:
… 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.[19]
[19] Singer v Berghouse (1994) 181 CLR 201 per Mason CJ, Deane and McHugh JJ at 210.
Such matters must be considered in light of prevailing community standards.
At times, Mr Milazzo for the plaintiffs pitched his submissions in terms which suggested that changes in community attitudes in recent years strengthened his clients’ moral claim on the estate of the deceased.
I do not accept that submission.
The last fifty years or so has seen a progressive weakening of family ties and a marked tendency for children to disengage from what are regarded as the restraints imposed by family life; a heightened desire to lead an independent existence at an earlier age; and a decreased expectation that children will recognise an obligation to support their parents in their declining years.
This case is an example of two young women who were clearly determined to lead their own lives from an early age and who recognised no obligation nor felt any desire to rekindle the ties they had enjoyed with their father before their relationship with him was ruptured by his departure from the family home.
Conclusions

Considerations peculiar to this case of the kind to which I have just referred have caused me to pause hard and long on the question whether or not the plaintiffs have satisfied what I have described as the jurisdictional test.
While I suppose it was always open to the deceased to try to maintain, or to revive, some relationship with the plaintiffs, the long estrangement between the parties and the fact that the plaintiffs made no attempt to share their lives with the deceased, does not create a particularly favourable backdrop against which to consider their claims.
Although I can understand that the plaintiffs may have felt some antagonism towards the deceased arising out of the circumstances in which he left the matrimonial home, it would be wrong of me at this interval of time, and given their death, to attempt to ascribe any blame as between the deceased and the plaintiffs’ mother with respect to their separation.
On the other hand, whatever may have led to the separation of the plaintiffs’ parents, the deceased owed a continuing obligation to maintain his former wife and his children, at least until they became self-supporting.
Although in one sense they became self-supporting relatively soon after his departure from the home, in ordinary circumstances, even where the parents have separated, one would not expect such a sharp cut-off between support from their father and a cessation of that support.
It is doubtful whether what provision he made following his departure was sufficient even to maintain his wife, let alone his children. Furthermore, they received none of the kind of assistance which might have been expected to be forthcoming when they married.
Vis-à-vis the deceased, the plaintiffs were very much left to make their own way in life. However much that might have been a product of their unwillingness to have much to do with the deceased, more could fairly have been expected of him, at least in the early years when they moved out of the family home into marriage and child bearing.
In all the circumstances, but particularly bearing in mind those considerations, I have reached the view that the plaintiffs have established their case for provision to be made for them from the estate of the deceased.
In reaching that conclusion, I recognise that the claim of the plaintiff Mrs Drioli might properly be regarded as somewhat stronger than the claim of Mrs Hillman. This is because Mrs Drioli has lived in more straitened circumstances than her sister, and Mrs Hillman has reached a position where her means can fairly be regarded as much more adequate for her maintenance and advancement than is the case with Mrs Drioli.
While both qualify for a grant, the differences between their circumstances justify some distinction as to the amount of the provision to be made for each of them.
I have already commented upon the fact that a substantial component in the estate of the deceased is a reflection of the contributions made by way of gifts inter vivos by Mrs Rover for her husband. Notwithstanding that, however, a substantial part of the estate can properly be regarded as being derived from him alone.
In determining the amount of the provision to be made for the plaintiffs, I have regard to the present value of the estate, rather than the extent of the estate at the time of death.
I order that provision be made out of the estate of the deceased for the plaintiff Lyndall Ellen Drioli in the sum of $125,000 and for the plaintiff Julie Yvonne Hillman in the sum of $75,000.
I will hear the parties as to costs.