Fennell v Aherne - [2005] SASC 280

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
FENNELL & ORS v AHERNE
Judgment of Judge Withers a Master of the Supreme Court
22 July 2005
SUCCESSION - FAMILY PROVISION AND MAINTENANCE
Testator passed away leaving his entire estate to his partner - application for provision out of the estate under Section 7 of the Inheritance (Family Provision) Act 1972 ("the Act") by three adult sons and one adult daughter - all children estranged from deceased father.
Merits of application - whether an adult son must show an inability to support himself before he can make a claim under the Act - whether estrangement disentitling - whether plaintiffs left without adequate provision according to the Act - situation of each claimant considered - judgment for plaintiffs - provision to be made.
Inheritance (Family Provision) Act 1972 s 6, s 7; Supreme Court Rules 119.05, referred to.
Delisio & Ors v Santoro (Besanko J, 27 February 2002, unreported, [2002] SASC 65); Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; Vigolo v Bostin [2005] HCA 11; In re Sinnott [1948] VLR 279; Singer v Berghouse (1994) 181 CLR 201, applied.
Gorton v Parks (1989) 17 NSWLR 1; Luciano v Rosenblum (1985) 2 NSWLR 65, considered.

FENNELL & ORS v AHERNE
[2005] SASC 280

JUDGE WITHERS. The plaintiffs have issued an application under Section 7 of the Inheritance (Family Provision) Act 1972 (“the Act”) for an order that provision be made for each of them out of the estate of their father, the late Arthur John Fennell. At the same time the plaintiffs issued a Notice of a Preliminary Hearing pursuant to the provisions of Rule 119 of the Supreme Court Rules. The defendant is the executrix and sole beneficiary under the last Will of the testator. From hospital records tendered as part of the defendant’s case (Exhibit D3), it appears that the testator was born on 7 July 1927. He died on 1 December 2003. Probate of his last Will dated 24 May 1999 was granted to the defendant on 6 February 2004.
For the purposes of probate the net value of the testator’s estate was disclosed at $162,659.60. Following the granting of probate on 6 February 2004 the testator’s house property at Rostrevor, the major asset in his estate, was transferred into the name of the defendant and is still so registered. This was before there was any indication that the estate would be contested. The defendant received a further cheque from the solicitors instructed to finalize the estate in the sum of $4,904.52, being the balance monies after deduction of funeral and other expenses. The house property has been valued on 27 January 2005 at the sum of $250,000.
During the course of the argument the solicitors for the first, second and fourth plaintiffs through their counsel advised the Court that those persons who fell within the category of persons entitled to claim under the Act pursuant to Section 6 of the Act had been notified of these proceedings in accordance with the requirements of Rule 119.05. I later directed that an affidavit be filed to establish that this obligation had been met and that has occurred. Those persons are named in the affidavit of Geoffrey John Fennell sworn on 29 July 2004 and are as follows:
Erica Ethelwyn Fennell, the former spouse of the deceased divorced from him since September 1992 and now living with the second plaintiff.
Geoffrey John Fennell, a plaintiff in this matter.
Roger Eric Fennell, a plaintiff in this matter.
Beverley Kaye Mitchell, a plaintiff in this matter.
Mark Andrew Fennell, a plaintiff in this matter.
Michael John Fennell, the son of Geoffrey John Fennell.
Kelly Marie Mitchell, the daughter of Beverley Kaye Mitchell.
Christopher John Mitchell, the son of Beverley Kaye Mitchell.
Tracey Loren Mitchell, the daughter of Beverley Kaye Mitchell.
None of these persons, other than the plaintiffs, have sought to be joined to this action.
The information provided as to the early life of the testator and the circumstances of his marriage to Erica Ethelwyn Fennell is reasonably scant. It appears that the testator and his wife separated some time in the late 1960’s and were eventually divorced in 1992. All of the plaintiffs attest that they had a difficult relationship with the testator and were estranged from him for at least the last ten years of his life.
The first plaintiff, Geoffrey Fennell, was born on 5 January 1952. He says that his parents separated in the late 1960’s and thereafter he did not see his father for long periods of time and any communication was mainly by telephone. Geoffrey Fennell was then in the army for 20 years from 1972. By the time he was discharged from the army in 1992 his parents were divorced. He had one or two occasions of contact with his father after that. He describes his relationship with his father as very poor with any communication usually ending in argument. He did not attend his father’s funeral. It is fair to say that he and his father were at arm’s length and went their own ways.
Roger Fennell, the second plaintiff, was born on 30 September 1953. He too had a poor relationship with his father and says that when he lived at home and his father was there his father was continuously abusive and critical. After his parents divorced in 1992 his mother came to live with him and has remained with him since. He has had no contact with his father at all since 1992. He received no approaches from his father and did not initiate any approaches himself. He too did not attend the funeral. He thought it would have been hypocritical of him so to do as he did not respect or hold his father in any high regard.
The third plaintiff, Beverley Kaye Mitchell, was born on 31 January 1957. She lived with her parents and siblings at the family home at Rostrevor. She says that her father was absent for long periods of time and that she did not have a close relationship with him. She describes her father as being “abusive towards my mother and towards myself and my brothers and on many occasions my father was affected by alcohol. My father’s attitude gave rise to friction between us and he appeared to be disinterested in my welfare” – see her affidavit 29 July 2004, paragraph 3. She married in 1980. She had no contact with her father from 1992 onwards and she too did not attend his funeral or attend on him on any of his periods in hospital. She too does not indicate any respect or regard for her father and suggests he had none for her.
The fourth plaintiff, Mark Fennell, the youngest child of the deceased, was born on 4 September 1964. He too asserts that he did not have a close relationship with his father as his father and mother separated when he was a child. He remained living with his mother at Rostrevor. He had virtually no contact with his father since 1992 following the divorce and little contact with him before. He did not attend his father’s funeral. He too did not hold his father in high regard or respect him and went on to develop his own life quite separate and apart from him.
Lynette Joan Aherne, the defendant in this matter, first met the deceased in 1993 through a mutual interest in dogs. She moved in with him shortly thereafter and stayed with him in what appears to be a de facto relationship until his death in December 2003. She was trained as an aged care worker. She helped to look after the deceased and during most of their relationship also worked shift work as a carer. She made a significant financial contribution to their relationship. She purchased a small motor vehicle for the deceased to use and contributed financially to the extent of about $13,000 for paving around the home at Rostrevor. She restored the garden. She noted the estrangement between the deceased and his four children and the very rare contact. She not only financially contributed to the home but also contributed significantly to maintaining and improving it. She continued to work until 19 September 2002. She was a financial contributor to their joint lives together over that ten-year period. She resigned from her employment to look after the deceased when his health was deteriorating as a result of lung cancer.
The evidence before the Court was as follows:
For Geoffrey John Fennell, affidavits sworn on 29 July 2004 and 9 May 2005. He was cross-examined by counsel for the defendant.
For Roger Fennell, an affidavit sworn 28 July 2004. He was cross-examined by counsel for the defendant.
For Beverley Kaye Mitchell, an affidavit sworn 29 July 2004.
For Mark Andrew Fennell, affidavits sworn on 29 July 2004 and 6 May 2005. He too was cross-examined by counsel for the defendant.
For Lynette Joan Aherne, the defendant, affidavits sworn on 9 September 2004 and 10 May 2005.
The three witnesses cross-examined, namely Geoffrey John Fennell, Roger Eric Fennell and Mark Andrew Fennell, all appeared to be endeavouring to truthfully respond to the questions put. There does not appear to me to be any significant conflict of evidence between the parties. There is no doubt that there was a severe estrangement between the deceased and his four children, the plaintiffs in this matter. Whether or not that estrangement was the fault of the deceased or the children or both is not of great importance in this particular application. All the children say it was the fault of the father. He is in no position to respond. The estrangement was there. It appears that the deceased demonstrated no particular interest in his children and they no particular interest in him. As counsel for the defendant said, the plaintiffs “have gone on and made their own lives, quite independently of the deceased” – see transcript p49.9.
Section 7 of the Inheritance (Family Provision) Act 1972 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.
(2)…
(3)The Court may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Court thinks sufficient.
(4) – (6) …
Besanko J in the matter of Delisio and Others v Santoro, [2002] SASC 65, considered at length the application of Section 7 of the Inheritance (Family Provision) Act. In paragraph 80 of his judgment, his Honour sets out the relevant principles:
Relevant Legal Principles
1.The Act requires the Court to carry out a two stage process. 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. 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.
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. 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.
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.
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. 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 [(1979) 143 CLR 134]. 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.
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 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. …
6.An adult daughter is not required to show a special need or special claim.
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.
In the matter of Hughes to which Besanko J referred, Gibbs J said (at p 147):
In some cases a special claim may be found to exist because the applicant has contributed to building up the testator’s estate or has helped him in other ways. In other cases a son who has done nothing for his parents may have a special need. This may be because he suffers from some physical or mental infirmity, but it is not necessary for an adult son to show that his earning powers have been impaired by some disability before he can establish a special need for maintenance or support. He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependants who rely on him for support which he cannot adequately provide from his own resources. There are no rigid rules; the question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances—that is, on all the facts that existed at the date of the death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts.
I turn now to each of the plaintiffs and the defendant. For convenience I will refer to them by their first name only. No disrespect is intended.
Geoffrey
As earlier noted, Geoffrey did not have a close relationship with his father. They were at arm’s length. In 1972 he joined the army where he served for some twenty years. On and since his discharge he has suffered a disability to both knees caused by his service in the army. After discharge he went into partnership with his brother Mark as a fencing sub-contractor and continued that partnership for some three years. In 1995 he and Mark agreed to dissolve the partnership. Geoffrey then did a course in earthmoving for an eight-week period and started work with an earthmoving company. He worked with them on a full-time basis thereafter. On 25 May 2004 Geoffrey suffered a back injury in the course of his employment. He has had ongoing pain and disability and has been in receipt of medical and like treatment. He was for a period of time in receipt of Workcover benefits. His weekly earnings were $658.25.
In September 2004 Geoffrey attempted to return to his normal duties and his Workcover payments ceased and he received ordinary wages. In November 2004 he resigned from his employment due to ongoing back pain. Geoffrey asserts that he has been unemployed since November 2004 and has received no income from Workcover since November 2004. He may well have an entitlement to pursue income maintenance or other payment from Workcover but that is another matter. He is currently seeking work.
Geoffrey receives an army pension of $140.00 per fortnight together with a Veterans’ Affairs disability pension of $179.00 per fortnight for the disability to his knees. He is married to Carmel, who works as a clerk earning approximately $52,000 per annum. Geoffrey and Carmel jointly own a house property at Mount Barker with a current value of approximately $225,000 subject to a mortgage of $147,000. In November 2004 he and Carmel loaned their son $73,000, which is an amount due to them by their son but in respect of which there is no written or oral agreement for payment nor is there any documentation evidencing the loan. That money was provided by them borrowing on the security of their equity in their house property and is reflected in the $147,000 due under the mortgage. The money was used by the son to purchase a clothing business in Western Australia. Geoffrey and his wife jointly own furniture and household effects to the value of approximately $20,000 and have two motor vehicles valued in all at approximately $30,000. They have a quarter interest in a scrub block near the Murray River with a value of $5,000.
Roger
Roger is presently 51 years of age and is single. He works as an administrative officer and has been employed in stable employment since 1970. He currently earns $48,542.69 per annum. Roger owns a house property at Modbury valued at approximately $178,000, on which he currently owes about $9,000. He has furniture and household effects to the value of approximately $13,000. He owns a Daihatsu Charade vehicle worth approximately $2,500 and a Volkswagen motor vehicle worth approximately $1,000. He enjoys good health.
Roger’s mother has lived with him since 1992 and she does not pay rent. She is in receipt of the age pension, being born on 4 March 1929. Her health is poor. She is a diabetic with reduced mobility. Roger has committed himself to caring for her for the rest of her life. His mother contributes to electricity costs and the telephone bill but he otherwise pays all household expenses.
Beverley
Beverley is 48 years of age. She married in March 1980 and has three children, Kelly, Christopher and Tracey. Her husband is 52 years of age. Before her marriage she worked for a furniture removalist group. Her husband was the head storeman at the same company and she worked in the accounts section. In 1987 Beverley and her husband moved to Robertstown where she managed a hobby farm while he worked for an Industry Training Committee. Between 1989 and 1991 she and her husband lived in Whyalla where he managed the Whyalla office of the removalist company and she worked in that office as a secretary. Between 1991 and 1995 Beverley and her husband lived in Tasmania, where again her husband managed a branch for the same removalist and she worked on a part-time basis as a secretary for that organisation.

On 14 February 1994 Beverley’s husband suffered a heart attack and as a result was not able to resume his ordinary work. He underwent a triple bypass procedure. They lived at Clayton in South Australia while he recovered from his ill health. He started receiving a social services disability pension on 25 April 1994 and she also began to receive a disability support pension.
In 1996 while living near Goolwa an opportunity arose for Beverley and her husband to purchase a hotel/motel. They bought those premises in 1997 and lived there but experienced financial difficulties in managing the business as a result of inadequate cash flow and expenditure higher than that anticipated. In November 2000 their involvement with that business ceased but because of debts that had been incurred they were declared bankrupt on 2 July 2001. They were discharged from bankruptcy on 3 July 2004.
Beverley’s husband presently receives a disability support pension and she receives a wife’s pension. That amounts to approximately $380 each per fortnight. Beverley and her husband rent premises near Murray Bridge. They do not own any real property. They own a motor vehicle worth approximately $1,000 and their only other assets are household furniture and effects worth approximately $2,000. They have no savings and they pay rent of $52.50 per week. Their three children are not financially dependent on them. She has a small superannuation policy with Care Super of $2,430. Beverley enjoys good health but her husband continues to suffer poor health due to his heart condition and diabetes. She spends her time caring for her husband. She is a volunteer ambulance officer for SA Ambulance at Tailem Bend and a CFS volunteer. She does not receive any income from that work.
Mark
Mark is the youngest child of the deceased born on 4 September 1964. He works as a fencing contractor in conjunction with receiving a disability pension. Mark was born with a partial spina bifida condition but this did not affect him in his early years. As a teenager he used to help the deceased in his truck sales yard washing trucks and moving vehicles and received what he described as petrol money for his contribution.
Mark did a four-year apprenticeship as a diesel mechanic, qualifying as same in 1986. In 1989 he stopped working as a diesel mechanic and then started work as a driver for a removalist company, work that he obtained through his sister Beverley. He followed Beverley and her husband to Tasmania but only stayed there for six months. On return to Adelaide he changed his occupation from driving to fencing and worked in partnership with his brother Geoffrey. They worked together for three years.
In about 1999 due to his spina bifida condition Mark started experiencing difficulties in the nature of weakness of his legs and a loss of control of his bladder and bowel. He also experienced severe fatigue. A cyst was detected on his lower spine and in 2002 he had an operation to drain the cyst. By reason of this he was unable to continue full-time work and he began to receive a disability pension, which continues to this day. He receives disability benefits totalling $515 per fortnight comprising the disability pension plus rent assistance and some further medical benefits.
Mark continues with the fencing contracting business but works irregularly and infrequently. He was only able to complete three part-fencing jobs in the period July 2004 to March 2005. In April 2005 he commenced performing some welding work on a sub-contract basis for an organisation which he has continued to do on a periodic basis. This produces some income for him but it is very modest.
Mark does not own any land. He rents premises at Modbury. He owns a tradesman’s Ford utility worth approximately $4,000 and tools worth approximately $2,000. His household contents would be worth approximately $2,000. He owns a second motor vehicle, a Commodore station wagon worth $1,500. He has no savings and no superannuation. Mark is single with no dependants.
Lynette
Lynette was born on 18 January 1950 and is presently 55 years of age. She is married but she separated from her husband some 14 years ago. There are no children of that marriage. On separation she went to live with her mother.
Lynette met the deceased in September 1993 while working as an aged care worker. She and the deceased were attracted to each other and she soon moved in with him in what appears to be a de facto relationship. She continued to care for her mother while living with the deceased. She looked after the home and the deceased and contributed her own monies towards their ongoing living expenses. They jointly contributed to a pool of funds necessary to meet outgoing expenses.
Lynette contributed to the maintenance and improvement of the home property by generally renovating the garden and by doing some paving, planting lawn and various plants. She says that the deceased did not enjoy good health as he had undergone a triple bypass and he returned to hospital periodically during her time with him. Towards the end of 2002 the deceased deteriorated with what proved to be lung cancer. She gave up her work on 19 September 2002 to care for him. She continued to look after him and nurse him until his death.
In May 1999 she and the deceased attended a solicitor to draw up new wills. Her will left any estate she had to the deceased or in the event that he pre‑deceased her to the deceased’s four children, who are the plaintiffs in this matter. She attests in her affidavit of May 2005 as to the lack of contact between the deceased and the plaintiffs. There is no contest about that between the parties. Some objection was taken to some paragraphs of the defendant’s affidavit of 10 May 2005. While I allowed the affidavit to be admitted in whole, I place little weight on the content of those contested paragraphs. As I earlier said, I do not think there is any relevant significant conflict between the parties on the evidence.
When Lynette went to live with the deceased she had $20,000 in the bank. By September 2004 she owned a Mazda Metro 121 motor vehicle worth approximately $10,000 and had $17,601 in the bank. She had another bank account of $2,000, an entitlement to superannuation of $13,000 and a debt owed by a friend of $5,000. Her income was from a wife’s pension of $385 per week.
The defendant worked through most of her time with the deceased. On 10 July 2001 she had purchased the Mazda Metro motor vehicle for $19,000 for the deceased to use. She paid some $13,000 for paving around the home. At the present time she values the Mazda motor vehicle at approximately $10,000 and now has money in the bank of $3,014 and a superannuation entitlement of $14,963. She is unemployed. Her only income now is the widow’s allowance in the amount of $405.10 net per fortnight. The defendant meets her day-to-day expenses with some difficulty.
Lynette is anxious to avoid selling the home at Rostrevor as she has lived there for some twelve years and feels emotionally attached to it as it is the home that she shared with the deceased. I accept that she and the deceased were fortunate to have a genuinely strong and affectionate relationship. Her father died on 2 September 2004 and she expects to receive a legacy of something less than $100,000 from his estate.
Lynette has suffered ill health since the death of the deceased. She has been diagnosed with depression. She suffers panic attacks and various symptoms related to that. She takes medication for this.
I have little doubt that the will of the deceased in May 1999 reflected his intention at the time to ensure that Lynette was left with a home. However, that is not the issue that falls to the Court to decide. Rather the Court must decide whether or not the deceased failed to make adequate provision for the plaintiffs and, if so, determine what would be proper provision in the light of the present circumstances.
The High Court has recently reconsidered the concept of moral duty in the matter of Vigolo v Bostin [2005] HCA 11. That case dealt with a matter where the appellant was an adult son who was financially very secure and who had received benefits reflecting his contribution to the family business as a result of a Deed of Family Arrangement involving the deceased. In the end analysis the Court rejected the appeal and the claim of the adult son was dismissed. Gleeson CJ noted that in the Hughes case, Gibbs J, with whom Mason and Aickin JJ agreed, approved the words of Fullagar J in the Supreme Court of Victoria in In re Sinnott [1948] VLR 279 at 280:
No special principle is to be applied in the case of an adult son. But the approach of the Court must be different. In the case of a widow or an infant child, the Court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported. But an adult son is, I think, prima facie able to “maintain and support” himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act.
Fullagar J went on to say at page 281:
The discretion given by the Act is obviously intended to be very wide. The size of the estate is always important, and there will commonly be needs and claims other than those of the applicant to be considered. But it is always, I think, primarily a matter of estimating need and moral claim. Often need and moral claim will co-exist.
…
In the case of an adult son, who has received an education and is well able to earn his living, the father’s moral obligation can probably in most cases be regarded as discharged, and a wise and just testator may well feel himself at liberty (to use the words of Sir John Salmond) “to do what he likes with his own”.
In that particular matter where the appellant was seized of an estate in excess of $2 million and the estate of the deceased was a little less than $2 million, Gleeson CJ found (para 37):
… it is impossible to conclude that the testator left the appellant without adequate provision for his proper maintenance and advancement. The finding that the appellant was adequately compensated for his contribution to the family farming business and, indeed, advantaged by comparison with his siblings is significant.
Gummow and Hayne JJ in their decision in that matter noted that the correct approach to the construction of the first “jurisdictional” limb of the provisions was that indicated in the joint judgment in Singer v Berghouse (1994) 181 CLR 201. Their Honours at 209-210 said:
The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
Callinan and Heydon JJ in considering the issue of adequacy said (at para 122):
We do not therefore think that the questions which the Court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.
Finally, I was referred to the judgment of Bryson J in Gorton v Parks (1989) 17 NSWLR 1 where his Honour particularly commented on the approach to be taken where the plaintiff and deceased were strongly estranged. In that matter the deceased was a “disconnected” father who contributed little either in a money sense or in encouragement or resources towards (see page 5, para C):
…launching any of his children into a career. He saw little of his children and his exercise of parental authority was limited to giving some of them music lessons, and delivering occasional blows and rebukes. It is not surprising that some of his children had nothing or next to nothing to do with him in adult life; it is a surprising testimony to the human potential for generosity of spirit that some of them did. Those who did not should not be regarded as having failed their father in any filial duty. There were interruptions, sometimes of many years, in the contact maintained with the testator by some of his children during their adult lives.
In that matter Bryson J spoke of “the moral obligations of a parent” in commenting on the decision of Dixon CJ in the matter of Pontifical Society for the Propagation of the Faith v Scales at page 9, paragraph G. His Honour said:
Dixon CJ seems to have regarded a relationship consisting of the bare fact of paternity and no other mutual relation as capable of supporting an order for provision. Dixon CJ did not accept what appear to have been groundless assertions by the testator in that case that the applicant Mr Scales was not his son.
The observations which I last cited seem to involve a view of the moral obligations of a parent which differs I would think from the almost universal view of the Australian community; the view involved seems to have been that the moral obligations of a parent can be limited, and can possibly be escaped, by steadfastly maintained repudiation or evasion. Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgement of the obligations or of the child appears to me to be an idea from a distant age.
Further at page 12, paragraph B, his Honour said:
The testator’s best opportunities to help them are past and cannot be recovered; those were his opportunities during their years of education and trade training. It cannot really be known what benefits they would have obtained from a few more years of schooling or more support during apprenticeship; but it is obvious ordinary human experience that even small assistance at early stages in life can transform a person’s economic opportunities later. None of the testator’s children had such assistance and none of them tormented himself with hopes or futile attempts to embark on academic study or anything but the most practical of training; as a result none of them can point to any specific schemes or hopes defeated by penury; it would have been pointless even to form such hopes. Although the best opportunities to help them in a fatherly way have long passed, each stands in need of provision which can serve to augment incomes and in a modest way to advance them in life, in three cases in their positions as social welfare recipients.
The obligation on the Court is to consider all of the circumstances and the circumstances of those who are genuinely entitled to compete for the testator’s bounty in determining whether the deceased made adequate provision for the plaintiffs. The discretion is broad. As Callinan and Heydon JJ said in Vigolo (supra) at para 122:
The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.
Beverley is the testator’s daughter. She lives in parlous circumstances. While she was along with the rest of her siblings completely estranged from her father her conduct towards the testator is not such as to disentitle her pursuant to Section 7(3) of the Inheritance (Family Provision) Act 1972. Indeed I accept the submissions of counsel for the defendant that the “… estrangement could not be in all circumstances a disentitling matter. What it is is a factor to be taken into account …” – see p50 of transcript. I find that Beverley has been left without adequate provision for her proper maintenance, education and advancement in life.
Mark has suffered from a congenital condition of partial spina bifida since birth. While he chose to go his own way and was completely estranged from his father along with his siblings, he nevertheless has not achieved financial security and is a welfare recipient. His spina bifida caused disabling symptoms from 1999. His health is poor and no provision was made for him at all. Again, applying the relevant legal principles to the facts I find that Mark has been left without adequate provision for his proper maintenance, education and advancement of life.
Geoffrey has more successfully pursued his path in life and enjoyed secure long-term employment until he resigned from same in November 2004 following an injury at work. He receives a permanent pension from his time with the army along with a Veterans’ Affairs disability pension. His wife is securely employed. They have accumulated reasonable assets to the extent that they were prepared to loan $73,000 to their son without security or without any form of written agreement recording an obligation to repay the loan. However, his assets are modest and he may face future difficulties associated with his physical injuries. At the time of the deceased’s death he had existing disabilities from his service in the defence forces. In all the circumstances I am prepared to find that Geoffrey has been left without adequate provision for his proper maintenance, education and advancement of life, albeit that his circumstances are somewhat better than those of Beverley and Mark.
Roger has been the most successful of the siblings in a financial sense. However, he has taken on the obligation of caring for his aging mother. His estate is and was better than the estate of the testator. He is in secure well-paid employment. Nevertheless, applying all the relevant principles and considering the competing claims on the bounty of the testator, I am prepared to find that Roger was left without adequate provision for his proper maintenance, education and advancement of life.
Lynette, who is the sole beneficiary of the testator’s Will has few assets apart from the house in which she resides and has resided for the past twelve years. As Lynette says in her affidavit she has experienced difficulty in meeting her legal expenses. While an order may be made for provision for the plaintiffs and that the legal expenses be paid out of the estate, the reality is that as the estate consists solely of the house this will result in her having to find the money to pay those awards and expenses if she wishes to retain the house. She made significant financial and non-financial contributions to the property itself during the course of the relationship with the deceased. She has also provided extensive care for the deceased during his last ten years and that must be taken into account.
I am mindful of the words of Powell J in the matter of Luciano v Rosenblum (1985) 2 NSWLR 65 at page 69-G when he said:
It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.
The Provision that should be made

I find that all of the plaintiffs have established that they and each of them have been left without adequate provision. There are different circumstances between them. In determining the provision to be made I adopt the words of Besanko J in Delisio v Santoro (supra) and:
… 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.
I find that the position of the plaintiffs Beverley and Mark to be very similar. The position of Geoffrey and Roger is less necessitous but nevertheless deserving of an award. In my opinion I ought to allow a provision of $25,000 for each of the plaintiffs Beverley and Mark and $10,000 for each of the plaintiffs Geoffrey and Roger.
The orders I propose to make are as follows:
1.That pursuant to Section 7 of the Inheritance (Family Provision) Act1972 I order that provision be made out of the estate of Arthur John Fennell to the following persons in the amounts indicated:
Geoffrey John Fennell  $10,000.00
Roger Eric Fennell  $10,000.00
Beverley Kaye Mitchell  $25,000.00
Mark Andrew Fennell  $25,000.00
2.I will hear the parties on costs and any other relevant orders or matters.
3.I direct the parties to prepare Minutes of Order embodying the orders to be made