Fisher v Grove

[2003] WASCA 3

FISHER -v- GROVE & ORS [2003] WASCA 3

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 3
Court:	THE FULL COURT (WA)
Case No:	FUL:16/2002	Heard:	26 JULY 2002
Coram:	WALLWORK J ANDERSON J STEYTLER J	Delivered:	17/01/03
No of pages:	18	Judgment Part:	1 of 1
Result:	Appeal and cross appeal dismissed
Category:	A
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Parties:	BRIAN PETER FISHER KERRY ANNE GROVE NEIL DONALD FISHER SHIRLEY FRANCES FISHER SHIRLEY FRANCES FISHER and GEOFFREY ARCHIBALD FISHER as Executors and Trustees of the Will of DONALD ROBERT FISHER (DEC) FISHER (GLEN MUICK) NOMINEES PTY LTD as Trustee of the D R FISHER FAMILY TRUST
Catchwords:	Testator's family maintenance Adult son Adequacy of provision Discretionary considerations Estate mainly broad acres farmland Claim made 18 years after testator's death Relevance of delay Claimant having left the farm many years previously Eldest son remaining on farm Farm not capable of division into two economic units Principles
Legislation:	Inheritance (Family Trust and Dependants Provisions) Act 1972 (WA), s 6, s 7(2)
Case References:	Blore v Lange (1960) 104 CLR 124 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 Re Allardice [1910] 29 NZLR 959 Singer v Berghouse (1994) 181 CLR 201 Goodman v Windeyer (1980) 144 CLR 490 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Warren v Coombes (1979) 142 CLR 531 White v Barron (1979-1980) 144 CLR 431

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : FISHER -v- GROVE & ORS [2003] WASCA 3 CORAM : WALLWORK J

ANDERSON J
STEYTLER J

HEARD : 26 JULY 2002 DELIVERED : 17 JANUARY 2003 FILE NO/S : FUL 16 of 2002 BETWEEN : BRIAN PETER FISHER

Appellant

AND

KERRY ANNE GROVE
First Respondent

NEIL DONALD FISHER
Second Respondent

SHIRLEY FRANCES FISHER
Third Respondent

SHIRLEY FRANCES FISHER and
GEOFFREY ARCHIBALD FISHER as Executors and Trustees of the Will of DONALD ROBERT FISHER (DEC)
Fourth Respondents

FISHER (GLEN MUICK) NOMINEES PTY LTD as Trustee of the D R FISHER FAMILY TRUST
Fifth Respondent

(Page 2)

Catchwords:

Testator's family maintenance - Adult son - Adequacy of provision - Discretionary considerations - Estate mainly broad acres farmland - Claim made 18 years after testator's death - Relevance of delay - Claimant having left the farm many years previously - Eldest son remaining on farm - Farm not capable of division into two economic units - Principles

Legislation:

Inheritance (Family Trust and Dependants Provisions) Act 1972 (WA), s 6, s 7(2)

Result:

Appeal and cross appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Mr A P Hershowitz
First Respondent : No appearance
Second Respondent : Mr J C Curthoys
Third Respondent : Mr J C Curthoys
First-named Fourth Respondent : Mt J C Curthoys
Second-named Fourth Respondent : Mr B P Wheatley
Fifth Respondent : Mr J C Curthoys

Solicitors:

Appellant : Pullinger Readhead Stewart
First Respondent : No appearance
Second Respondent : Kaeser Kroon
Third Respondent : Kaeser Kroon
First-named Fourth Respondent : Kaeser Kroon
Second-named Fourth Respondent : Nicholson Clement
Fifth Respondent : Kaeser Kroon

(Page 3)

Case(s) referred to in judgment(s):

Blore v Lange (1960) 104 CLR 124
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494
Re Allardice [1910] 29 NZLR 959
Singer v Berghouse (1994) 181 CLR 201

Case(s) also cited:

Goodman v Windeyer (1980) 144 CLR 490
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Warren v Coombes (1979) 142 CLR 531
White v Barron (1979-1980) 144 CLR 431

(Page 4)

1 WALLWORK J: I agree with the reasons and conclusions of Anderson J and to the orders proposed by his Honour. There is nothing I wish to add.

2 ANDERSON J: This is an appeal and cross-appeal from an order made by McLure J under s 6 of the Inheritance (Family Trust and Dependants Provisions) Act 1972 (WA). In an application brought by the present appellant and his sister Kerry Anne Grove, her Honour ordered that the will of the appellant's father be varied by providing:

"That there be paid out of the deceased's interest in the farm land:

(a) The sum of $171,135 to the [appellant] on 30 June 2002; and

(b) The further sum of $171,135 to the [appellant] on 30 June 2003."

3 The appellant seeks to have these monetary provisions increased. The cross-appellants seek to have them altogether set aside.

4 In its terms the order directs that "the deceased's interest in the farm land" is to be the source of the payments but it appears the order was intended to be simply an order that the money is to be paid out of the testator's estate, not from a certain part of the estate. Counsel did not suggest that the order should be interpreted as requiring that the deceased's interest in the land be sold in order to get $342,270 for the appellant.

5 Kerry Grove's application for an order that provision be made for her out of the estate failed and her application was dismissed. She did not appeal from that order and she is joined as a respondent in this appeal. The other respondents are the appellant's older brother Neil Fisher and his mother Shirley Fisher as well as the trustees of the will (one of whom is Shirley Fisher) and the trustee of a family trust to which some of the assets of the testator's estate have been distributed. It is Neil Fisher, Shirley Fisher and the trustees who cross-appeal.

6 For the sake of convenience and without intending any disrespect I will refer to Neil Fisher, Shirley Fisher and Kerry Grove by their first names.

(Page 5)

7 The appellant's father, the testator, died as long ago as 23 August 1983 and probate of the will was granted on 11 October 1984. The appellant's application was made by summons issued on 28 February 1997. By s 7(2) of the Act it is provided that no application shall be heard by the Court for provision out of the estate of any deceased person unless the application is made within six months of the grant of probate. There is however a proviso enabling the Court to extend the time for making an application even although the time limited for making the application has already expired. Pursuant to the power conferred by the proviso Master Sanderson made an order dated 26 September 1997 extending time. The applications did not come on for hearing until 6 August 2001 and McLure J had therefore the very formidable task of considering, 18 years after the testator's death, whether adequate provision for the proper maintenance of the appellant and Kerry had been made by his will and if not, what if any additional provision should now be made for them.

8 On the authority of Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 McLure J held that the first question to be determined was whether the provision made for the appellant was inadequate for his proper maintenance etc and that this question was to be determined as at the date of the death of the testator. On the authority of the same case she held, with respect correctly, that the delay in making the application was not a discretionary consideration relevant to the question whether provision should now be made: the order extending time having been made it was "the duty of the court disposing of the substantive application… to consider the matter upon the merits without regard to the delay that has occurred": Coates v National Trustees Executors and Agency Co Ltd (supra) per Dixon CJ at 505.

9 In my respectful opinion McLure J was correct to conclude that the appellant was left without adequate provision for his proper maintenance, support or advancement. He was of the age of 15 years at the time of the testator's death without independent means and one of three children of farming parents. The testator, whose estate was valued at about $880,000, made no provision for him at all in his will save for a gift of land which failed because the land was not the testator's to give. It is no answer to say that during the testator's life others such as the appellant's mother and the trustee of a discretionary trust, of which the appellant was a beneficiary, had been provided with means to enable them to properly support and maintain the appellant and could be expected to do so. The size of the testator's estate and the age and circumstances of the appellant and his likely future needs created a duty which was not discharged by making no effective testamentary provision at all for him. I would not

(Page 6)

uphold those grounds of the cross-appeal which plead that McLure J erred with respect to the jurisdictional question.

10 The jurisdictional question having been answered in favour of the appellant, the discretion which the Court had to exercise was to "order that such provision as the Court thinks fit" be made for the appellant. This discretion is not unfettered but is limited by the purpose and scope of the legislation. It is a discretion to give "what is adequate for proper maintenance in the circumstances as they have come to exist": Coates (supra) per Dixon CJ at 509.

11 The circumstances which seemed to McLure J to be relevant to the exercise of her discretion are set out in her judgment. For myself, I would describe the relevant circumstances as follows.

12 The testator died at the relatively young age of 49 years after a long illness. For most if not all of his working life he had farmed the property known as "Glen Muick" about 245 kilometres east of Perth in the Shire of Kellerberrin. At the time of his death the farm comprised 3,782 hectares (9,344 acres) fully developed for cereal growing and sheep and cattle grazing. The testator lived in the main homestead with Shirley and the three children. The farm was in two blocks, off the North Bandee Road, the nearest boundaries of the two blocks being several kilometres apart separated by intervening farms and each block was comprised of a collection of separate titles in a total of four different ownerships. Some of the titles were held by the testator as sole proprietor, others by the testator and Shirley as tenants in common in equal shares, still others by the testator and Shirley as joint tenants, two titles were owned by Neil and seven titles were held in the name of the family trust.

13 By the time of trial Glen Muick had grown by acquisition to 5,278.2118 hectares (13,034 acres) in three blocks in a north south line separated by intervening farms. The main block (the most southern of the three) comprised 3,600.860 hectares (8,894 acres) some of which had been acquired by the family trust after the testator's death. The middle block comprised 996.8377 hectares (2,461 acres). The third and most northern block had been acquired by the family trust after the testator's death and comprised 680.5143 hectares (1,680 acres). No land was acquired in the name of the testator's estate after his death.

14 The relevance of all of this is that at the time of trial Glen Muick was made up in part only of land in which the estate held an interest so that only part of the land comprising Glen Muick was available to meet the

(Page 7)

appellant's claim. In the main block which was made up of 12 titles comprising, as I have said, 3,600.860 hectares the estate was the sole proprietor of only six titles comprising 1,358.5033 hectares. It was co-owner in equal shares with Shirley of another three titles comprising 649.9255 hectares and the balance (1,592.4315 hectares) was owned by the family trust. The middle block was made up of seven titles none of which were solely owned by the estate. It was co-owner in equal shares with Shirley of two titles comprising 404.6856 hectares the balance being held as to three titles by Shirley and as to two titles by Neil. Shirley had acquired her sole interest in the three titles (465.9149 hectares) by survivorship, these titles having been held jointly with the testator at the time of his death. The two titles held by Neil comprised 123.2367 hectares. The northern-most block is contained in a single title held, as I have said, by the family trust.

15 The land as a whole and its improvements, that is the farmland, had an aggregate value of $2,200,000 at trial. Of this, the value of the estate's interest was $920,044. The net value of the estate as a whole was at the date of trial $1,077,861 its other asset (the only other asset) being a debt due to the estate by the farming partnership.

16 Broadly speaking, the minimum viable farm size in this region of Western Australia is 3,000 to 3,500 hectares. In the particular part of the region in which Glen Muick is located, there was evidence that an area nearer to 3,500 hectares is required to enable a farming business to have a reasonable surplus after meeting operating costs, plant replacement costs, debt servicing and income tax obligations. It was not and never had been practical to consider dividing the estate land to create two economically viable farming businesses.

17 Neil had been working on the farm for about a year before the testator's death. He has lived on and managed the farm since the testator's death with some assistance from Shirley. He presently occupies the main homestead together with his partner, her three children and two infants of their own. The main homestead is on estate land. Shirley too lived on the farm until retiring to Busselton in 1996. Neil is some two or three years older than the appellant. The appellant and Neil do not always see eye to eye. They have experienced difficulties working together and it may have been obvious to the testator that they probably could not farm together. This is certainly obvious now. The affidavits sworn by the two brothers and by Shirley reveal deep-seated animosity of very long standing as between the appellant on the one hand and Neil and Shirley on the other.

(Page 8)

18 At the time of the testator's death and no doubt with the support and encouragement of the testator, the appellant was attending agricultural college at Cunderdin with a view to a farming career. He carried on with college after his father's death and completed the two year course in 1984. He went back to the farm intending to become a farmer but chose to leave after seven months mainly he said because of friction between him and Neil. He took up an apprenticeship as an auto electrician and successfully completed that apprenticeship in late 1989. During his apprenticeship he made periodic visits to the farm doing some paid work, usually during busy seasonal activities such as harvest. He participated in an agricultural exchange to the United States in 1990 and when that concluded, towards the end of 1990 or early 1991, he went back to the farm. It would seem that he was invited by his mother to live and work on the farm but chose to leave after about six months because of the poor relationship between himself and Neil. He went to work in the mining industry doing well for himself until December 1996, returning to the farm for short periods from time to time sometimes doing paid work and sometimes not. His average annual taxable income in the four years from July 1993 to June 1997 was a little less than $60,000.00, according to his taxation returns.

19 Between 1996 and January 2001 the appellant worked at various occupations outside the mining industry including as a farm supervisor working for his sister Kerry on a property which she and her husband John had purchased with the appellant's financial assistance. He also worked for a time as a heavy vehicle operator driving road trains carting grain and operating specialised trucks carrying bulk explosives.

20 The appellant has not married and has no dependants and lives alone in a rental property at Millendon, a semi-rural region not far from Perth. He has share cropping and share farming arrangements on small neighbouring or nearby properties and at the time of trial in August 2001 his net assets were in the region of $166,000 and he had just started up a business trading in used farm machinery catering for hobby farmers. He is now aged 35. Plainly he has acquired skills and possesses a work ethic which make him readily employable in a range of callings and he also has the capacity to undertake on his own behalf commercial activities related to agriculture.

21 The appellant's sister Kerry is about seven years older than the appellant, married with five young children. She had been left a bequest of $250,000 by the testator with the unusual provision that it be paid to her over a period of 17 years at a rate determined by her mother Shirley. None of this bequest had been paid to her at the time of trial although an

(Page 9)

advance of $45,000 had been made from the estate to discharge a mortgage on some property which she owned in Como. Her application for further provision failed because McLure J found that her needs were not such as to require an exercise of discretion in her favour. Taking a broad view of Kerry's circumstances her Honour found that:

"On the balance of probability… I conclude that as at the date of the hearing Kerry and John (directly and indirectly through associated entities) together have net assets exceeding $3,000,000 allowing for some exaggeration and inexactitude having regard to the source of the information."

22 As has been observed Kerry did not appeal against the dismissal of her claim.

23 McLure J decided that the provision that should be made for the appellant should be a sum of money equal to one half of the present value of those assets of the estate comprising land and improvements less the present value of improvements constructed by Neil since the testator's death.

The Appeal

24 The appellant does not challenge that decision. His complaint is that having so decided her Honour then failed to give effect to the decision in her final orders. According to the appellant this is because the Judge made two mistakes in her assessment of the final figure. First, if she intended to deduct from the present value of the land only the value of improvements made after the testator's death her Honour miscalculated the value of those improvements at $143,500 when the uncontroverted evidence was that they had a value of not more than $52,000. Alternatively, if her Honour intended to deduct the value of all improvements made to the land both before and after the testator's death she erred in principle. Secondly, it is pleaded in effect that her Honour misapplied a valuation method used by the valuer whose evidence she accepted.

25 The alternative grounds can be considered together.

26 It should be observed that the appellant does not challenge the proposition that the fair value of improvements carried out after the testator's death should not be included in the assets which are available to meet the appellant's claim. The challenge is only to the Judge's

(Page 10)

identification of those improvements. It is clear from the judgment as a whole that McLure J intended to deduct only the value of improvements constructed since the date of death and it is also clear that her Honour has simply misidentified those improvements and instead has, by mistake, deducted the value of all improvements on estate land including those which were there at the date of death. However, it is another question whether this should result in an amendment to the final order. I will deal with this in a moment.

27 The second ground of appeal is expressed as follows:

"The Judge erred in fact and in law in deducting 10% of the value of the estate farmland from the sum of $920,044. The evidence established that the 10% deduction would only be applied if the entire farm land and property was sold as one unit to a single purchaser."

28 The background to this is that in the valuation evidence which was accepted by her Honour the valuer stated his final conclusion in the following terms:

"The aggregate fair market value of the subject properties is $2,200,000. As previously advised, if the whole property was to be sold to one buyer a 10% discount would be not unreasonable or a value of about $2,000,000."

29 To my mind this methodology has its difficulties. It is a curious way to arrive at the value of farming land if I may respectfully say so. There is no obvious reason why the prospect that a sale might be made to a single purchaser should adversely affect market value. However, it is the methodology used by the valuer and accepted by McLure J and it is not now contended that it is wrong. The appellant submitted only that it was wrong to apply the 10 per cent discount to obtain the true value of the estate land. The valuer's evidence, so it was contended, went no further than that a proper valuation of the land and improvements comprising the farm as a whole should be arrived at by applying a 10 per cent discount. It was submitted on behalf of the appellant that because the estate land made up only part of the whole the valuation methodology which was appropriate for the whole could not be applied to the estate land. I am not persuaded that this is so. Although there was no expatiation in the valuer's evidence of the reason why the land value should be discounted for the prospect of a sale to one buyer, the explanation may be that a reasonable vendor would sacrifice a portion of theoretical value to avoid

(Page 11)

the inconvenience of having to enter into several transactions involving possibly protracted negotiations with different parties. If this is the justification for applying the "one buyer" discount (and I can think of no other) and if it is valid (and it is not now challenged) I do not see why the same principle would be any less valid in arriving at a true value of the estate land. The lots comprising the estate land are not all in one block and comprise a large area in the aggregate. Nine titles owned or partly owned by the estate are in the main or south block. Whilst seven of these (Avon locations 17987, 18418, 24300, 19262, 21039, 22090 and 20908) are contiguous, the other two (Avon locations 14585 and 11394) are separated from them by intervening lots not owned by the estate. The balance of the estate land (Avon locations 12187 and 21027) is not in the main block but is in the middle block, several kilometres from the main block. It should also be observed that of the 11 titles making up the estate land only six are held by the estate as sole proprietor. The other five are co-owned with Shirley. Any sale of those lots would depend on finding a purchaser or purchasers willing to purchase an undivided half interest, that is, willing to enter into co-ownership of broad acres farming land with a stranger. Commonsense and the ordinary experience of life would suggest that the prospects of that would be only fair unless the purchaser could get a decent discount.

30 In my opinion, the degree of dislocation together with the fact that some of the land is co-owned by Shirley provides ample support for the application of at least the same discount as was applied to the theoretical value of the farm land as a whole.

31 I would not uphold this ground of appeal.

The Cross-Appeal - Exercise of Discretion

32 Shirley, Neil and the trustees as cross-appellants challenge the exercise of discretion resulting in the order in favour of the appellant. They say he should have got nothing.

33 I note in passing that Mr Geoffrey Fisher, who is co-trustee of the testator's will, sought to be separately represented and sought to take a position different from that of Shirley in this appeal. Leave to be separately heard was refused and the appeal proceeded on the basis that the trustees of the will of the testator were cross-appellants as to all of the grounds set forth in the cross-appeal filed in their name.

(Page 12)

34 In her consideration of the jurisdictional question, that is, in considering whether the appellant had been left without adequate provision for his proper maintenance etc, her Honour decided that he had because a wise and just testator in the position of the testator as at the date of his death would have left his interest in the land making up Glen Muick equally between the two boys, with postponement until Shirley's "death or… earlier retirement". She said:

"202. Although the value judgment is not without its difficulty, I have concluded that, having regard to the nature and value of the estate, a wise and just testator would have made provision from his estate for Shirley and each of his three children. That is, I conclude that Brian (and Neil) should have had an entitlement under the will.

…

204. … a wise and just testator would after Shirley's death or her earlier retirement, leave the Estate's interest in the farm land ("Estate farm land") to such of his children who, at the date of his death, intended to be farmers (reflected in their education and training and no doubt influenced by family expectation) and if more than one, in equal shares. Such children would have an incentive to work together with Shirley. On the evidence in this case only Neil and Brian fall within this category. The value of a 50 per cent interest in the Estate farm land in 1983 was around $319,000."

35 Her Honour then examined the course of events in the years since the testator's death and it is apparent from her reasons that she did so mainly to see whether anything had happened since the testator's death which, as her Honour put it, might "disentitle" the appellant to an equal share in the estate's farming land. In so doing her Honour said:

"214. Brian's financial position at the date of the hearing is such that he is not in a financial position to fulfil his continuing ambition to farm on his own account in a viable wheat and sheep farming operation. I accept ( and find) that Brian has not utilised his full income earning potential since 1997. He is a qualified auto electrician whose ability to earn income does not depend on a significant capital base. However, that does not disentitle

(Page 13)

him from receiving what I have determined as adequate and proper provision for his future at the time of his father's death.

215. Brian does not have the ability from his own resources to establish a viable broadacre farming operation. Although there is no evidence as to the amount of capital required to establish himself in such a position, I infer from the valuers' evidence and the farm consultant's evidence on viability that Brian would require more than what he could expect to receive from the Estate having regard to its size and the legitimate claims of others.

216. However, there have been significant developments since the testator's death. Neil has managed and worked on the farm for 18 years for an average annual net benefit from the partnership (drawings and advances) of approximately $32,000. Of course, that figure fails to bring to account the distributions to Neil from the Family Trust, which has at all material times since the testator's death had a 50 per cent interest in the partnership. Neil alone of the three children assumed the responsibility, with Shirley's assistance, to generate the income for Shirley's maintenance and support. The farm is continuing to pay Shirley's expenses following her retirement in 1996. Shirley has rewarded Neil by giving him control of the Family Trust, which has net assets of around $534,000 and her Wesfarmers' shares currently conservatively valued at around $237,212. Neil has not made application under the Act because as it stands, he will, in effect, inherit all of the Estate's farming assets via the Family Trust.

217. However, the outcome at the discretionary stage in relation to Brian's application is largely determined by my conclusion at the jurisdiction stage. That is, I formed the view that it was the moral duty of the testator to provide primarily for Shirley during her lifetime or until her retirement from the farm. This was achieved in part by Shirley being in control of the Family Trust and in a position to reward those who worked together with her in their joint interests. I do not regard it is appropriate to increase Brian's proposed 50 per cent share of the Estate

(Page 14)

farm land because Neil has been compensated by his mother (even if generously) for his efforts following the death of his father. On the other hand, except in relation to improvements to the Estate farm land, there is nothing that Neil has done since the testator's death which justifies a reduction in the provision for Brian. Neil and Shirley have had sole regard to their joint financial interests in that period. Neil has received or has control over income and capital benefits from the partnership and the Family Trust. The remaining 50 per cent share of the Estate farm land will continue to go to the Family Trust."

36 Counsel for the respondents, Mr Curthoys, submitted that these passages in the judgment show that having decided what was a fair distribution of the testator's estate between the members of his family as at the date of his death in order to determine the question of jurisdiction, her Honour then simply carried that conception forward to the date of trial looking at the course of events since 1983 for the limited purpose of seeing whether anything had happened in the intervening years to disentitle the appellant to that share. Mr Curthoy's submitted that this was not the correct approach especially in a case in which so much time has elapsed since the date of death.

37 It is of course well settled that the purpose of the Act is to remedy breaches of a testator's duty to make adequate provision for the proper maintenance of those with claims on his estate - in this case his wife and children. It is not the Court's function, in the exercise of the discretion conferred by the Inheritance Act, to remake the testator's will simply to make it fairer. As Fullagar and Menzies JJ said in Blore v Lange (1960) 104 CLR 124 at 135:

"The Testator's Family Maintenance Act is legislation for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of what may appear to the Court to be a fair distribution of a deceased person's estate among the members of his family. As has been said in another context, the Act is to provide maintenance, not legacies. Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instance, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same."

(Page 15)

38 When there has been a breach of duty by a testator the Court's duty is to remedy that breach but that is the limit of its power. There is no authority to do any more than is sufficient to achieve that result: Re Allardice [1910] 29 NZLR 959 at 972; Bosch v Perpetual Trustee Co Ltd [1938] AC 463.

39 I would accept that it does appear from the judgment of McLure J that she approached the case by first deciding what would have been a fair will as things stood in 1983 and that fairness required that the boys be treated equally and that her Honour then looked to see whether anything had happened since 1983 to disentitle the appellant to equality. Notions of testamentary fairness as at the date of death do appear to have governed or at least heavily influenced her Honour's final disposition of the matter. The criticism made by counsel of this approach is two fold. In the first place, it was submitted that in so far as the approach gives primacy to the idea of fairness it overlooks the limitations on the Court's authority, which is to correct breaches of the testator's duty to provide proper maintenance, not to reformulate the testator's will to make it fairer: Blore v Lange (ibid). Secondly, it was submitted that to look only for matters that may be said to have effected a disentitlement is to fail to take properly into account all of the circumstances as they have come to exist since the testator's death. In my respectful opinion, both submissions must be accepted. I will not repeat what I have already said concerning the limitation on the Court's authority. As to the second point, I do not overlook the statement made by Mason CJ, Deane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201 at 210 where the Justices said:

"The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant."

40 The articulation in this passage of the idea that the first stage judgment as to jurisdiction "will largely determine" the second stage judgment as to adequate provision was not intended to be a pronouncement of a rule which is to be rigidly applied in all cases. I do not believe their Honours had in mind a case such as this where 18 years separated the death of the testator and the trial of the applicant's claim. I think that in a rare case such as this, where so many years have passed since the testator's death the Court's approach to the second stage should

(Page 16)

be to try to adopt the standpoint of a wise and just father as if the time had come to evaluate afresh the claims of each member of his family in determining what provision he should make for the proper maintenance of the particular claimant. The question would be not so much whether anything had happened to disentitle the claimant to what was adequate provision for his proper maintenance 18 years before. The question would simply be what is now adequate provision for his proper maintenance in all of the circumstances including those which have come to exist since the testator's death. The distinction is perhaps a fine one but I think that nevertheless it is a real distinction.

41 If what I believe to be the correct approach is taken in this case, the following would appear to me to be the more important matters to consider. Both Kerry and Shirley were adequately provided for. Both were out of the picture in the sense that there was no need to consider their respective claims in considering what provision should be made for the appellant. It was the respective claims of Neil and of the appellant that were in contest in the sense that the appellant's claim had to be determined with Neil's situation in mind. The appellant's chosen or preferred calling is farming or engagement in businesses associated with farming. However, it would not be sensible to make a provision that would require the two brothers to farm the estate land jointly not only because they do not get on well enough but because the estate land could not support two ownership entities.

42 It was therefore proper that a choice be made as to which of the two brothers should be on the farm, so to speak, and which of them should be otherwise provided for. Neil has made the farm his life and his home. He has a family including two young children. The appellant has no dependants nor so far as appears is he in a relationship that will produce children in the foreseeable future. He left the land many years ago and has pursued other occupations. There is no finding that he was forced to do so. Whilst he has kept in touch with the family and with the farm his relations with Neil and his mother are not good. His connection to agriculture has been episodic and although it is presently his wish to take up farming full-time his skills and qualifications in other fields suit him for other occupations and may again take him away from the land. Neil has no skills or qualifications except as a wheat and sheep farmer. There is evidence that he has managed Glen Muick well through good times and bad although there is more than a hint of an accusation in the appellant's affidavits that Neil should have managed the farm better. Nevertheless, it has been Neil's only home right down to the present and he has worked the farm and maintained it and kept it going through thick and thin in a

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harmonious relationship with Shirley who continues to retain an interest in the farming land and in the farming partnership.

43 Whilst a wise and just testator would recognise the claims of his younger son to a share of his bounty in order to assist him to pursue a career in agriculture it would not be just to make a provision for him which would seriously jeopardise Neil's situation.

44 It should however be recognised that Neil is now in a much better overall financial position than the appellant. Neil has been given full control of the family trust. The value of the trust's assets is $533,962. The trust is the major beneficiary under the testator's will and in that capacity the trust will in due course inherit all of the estate land. Neil's independent assets are valued at $598,528. For his part the appellant has not accumulated substantial assets. Whilst her Honour found that he had not fully utilised his earning capacity as an auto electrician the uncontradicted evidence of the appellant is that he has been in regular employment throughout his life since leaving the farm, doing the best he can with such skills and abilities as he has. There is no suggestion and no evidence of profligacy, indolence or anything of that kind.

45 These being the circumstances I am not persuaded that her Honour was in error in so far as she determined that the appellant was entitled to a substantial monetary provision from the testator's estate. It is a substantial estate. The concept of "proper" maintenance involves giving due regard to all of the circumstances of the case including the size of the estate: Bosch v Perpetual Trustee Co Ltd [1938] AC 463 per Lord Romer at 478.

46 A matter that must not be lost sight of is that from the net assets of the estate there must be paid to Kerry the sum of $250,000 plus interest. This has not been brought to account in computing the net value of the estate as being $1,077,861 as at the date of trial. I am not suggesting that it should have been brought to account but the fact remains that it is the estate which must pay the legacy to Kerry. A sum of a little less than $255,000 has now been paid to Kerry being her legacy plus interest calculated from the date of her Honour's judgment until the date of payment. If that amount is deducted from the net assets of the estate, ie $1,077,860 some $823,000 is left.

47 As has been noted, the amount which her Honour considered appropriate to be paid out of the estate to the appellant is $342,270 in two equal annual instalments. Both sides have succeeded in demonstrating

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that there are grounds on which to criticise her Honour's reasons for judgment. The appellant would rightly say that her Honour got some figures wrong and that in order to give effect to her determination that the appellant should have a sum equal to half the present value of the estate land, the sum of $342,270 should be increased by at least half the difference between the correct figure for post-death improvements ($52,000) and the figure used by her Honour of $143,500 so as to produce a lump sum to the appellant of $388,020. For their part the respondents have persuaded me that it was not in the first place a correct exercise of discretion to simply in effect divide the value of the estate land equally between the two boys. For the reasons which I have tried to explain, I would accept that Neil does have a stronger claim to the estate land than does the appellant in the events which have happened since 1983. But the fact is that the award which her Honour actually made represents less than half the value of the estate land and is about 40 per cent of the net present value of the estate as a whole after meeting Kerry's claim. I think provision of the sum actually awarded by her Honour does recognise the strength of Neil's claim and is enough to satisfy the requirements of s 6 in so far as the appellant's claim is concerned and I would not increase it notwithstanding that it is apparent that but for the mistake that she made about the value of the improvements her Honour would have awarded more. It is a provision which will supply the appellant with a sum of money that will enable him, without too much borrowing, to develop and perhaps expand his agricultural machinery business and to purchase some land suitable for hay or crop growing by which he might augment his share farming and share cropping activities. Her Honour obviously considered the question whether the making of the provision would seriously jeopardise Neil's position and deprive him of his just deserts and she concluded that it would not do so, having regard for Neil's overall situation. It is not now contended that this decision was wrong.

48 This is an appeal and a cross-appeal against a discretionary judgment in the form of an order for the payment of a sum of money to the appellant. Neither the appeal nor the cross-appeal can succeed unless one or other of the contestants persuades the Court that the order should be set aside or varied. Because I am not so persuaded I would dismiss both the appeal and the cross-appeal.

49 STEYTLER J: I have had the advantage of reading the reasons for decision of Anderson J. I agree with them and with his Honour's conclusion. There is nothing I wish to add.