Fricano v Lagana

[2009] NSWSC 840

CITATION:	Fricano v Lagana [2009] NSWSC 840
HEARING DATE(S):	17/08/09
JUDGMENT DATE :	18 August 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Macready AsJ at 1
EX TEMPORE JUDGMENT DATE:	18 August 2009
CATCHWORDS:	Family Provision. Application for provision under Family Provision Act by a son who had not seen his father for 20 years. Rejection of son by his father not justified. Order for provision.
PARTIES:	Michael Fricano v Giuseppe Lagana
FILE NUMBER(S):	SC 1765/2008
COUNSEL:	Mr P Bolster for plaintiff Mr R Tregenza for defendant
SOLICITORS:	Marando's for plaintiff Malouf Solicitors for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 19 AUGUST 2009

1765/2008 - MICHAEL FRICANO v GUISEPPE LAGANA

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Francesco Fricano who died on 30 May 2007. He was survived by his former wife and his only child, a son, who are the plaintiffs in the proceedings. In the evidence there was some suggestion that the deceased may have had a second wife or partner of Filipino descent. Searches establish no marriage in New South Wales and efforts to find her have failed. I am satisfied that it is impractical to give her notice of the proceedings. The former wife has discontinued her part of the proceedings.

THE LAST WILL OF THE DECEASED

2 The last will of the deceased was made on 25 October 2006 in which he appointed a life-time friend, the defendant, as his executor. He gave the defendant, his wife, his two sons and his daughter the residue of his estate in equal shares. The only provision for the son was in Clause 4 in these terms:

“4. TO PAY to my son MICHELE FRICANO the sum of One Hundred Dollars ($100.00) only because I have not seen or spoken to my son since about 1987 and he has not sought to talk to me or see me since that date and he has not sought my company.”

ASSETS IN THE ESTATE

3 The estate consists of cash in the sum of $264,744. The costs involved in the proceedings are quite substantial. The defendant’s costs are as follows:

Solicitor’s costs $70,000
Counsel’s fees $22,000
TOTAL $92,000

4 These may be reduced if there are some costs recovered from the first plaintiff as a result of the costs orders made against her. The plaintiff’s costs are estimated to be $62,480. If there is recovery of some $30,000 the net estate is likely to be in the order of $130,000.

FAMILY HISTORY

5 The deceased was born in Sicily in 1945; his wife Maria was born in 1947. In 1971 they both met when they were living in Australia. They became engaged in 1972 and married a few months later. Their child was born in February 1973 and Michael is now thirty six years of age. Michael’s parents, the deceased and Maria, separated in 1975. Maria took Michael with her to live with her parents. Later that year orders were made for maintenance for both the wife and child. In 1976 there were custody orders giving Maria custody of Michael and final orders were made in respect of the deceased.

6 Michael started his education in 1978 at Our Lady of the Rosary, Fairfield. The deceased, in the meantime, had acquired in 1982 a property at Greenfield Road, Greenfield Park, next door to the family of the defendant. They were neighbours for a year or two and in 1984 the Laganas moved to Bossley Park. However, as I mention later, the close relationship between them continued over the years.

7 In 1985 Michael started high school at Patrician Brothers Fairfield when he turned 12. In that year his mother moved out of the parents’ house and bought a unit at Fairfield. In 1986 Michael received the only present he can ever remember receiving from his father; it was a radio-controlled car. The next year in 1987 Michael was picked up by his father and went with him for a few hours and he was then told by his father that he had to catch a train the next time he came to see him. Prior to that Michael would see his father probably about eight times a year. He was then fourteen and I will come to the details of that occasion later.

8 In 1990 Michael left school after completing Year 12 and was an apprentice for some years and then as an electrician. He worked as an electrical subcontractor for some years after that.

9 In 2003 the deceased sold his property at Bossley Park for $590,000 and went to Italy for a long holiday before returning a year later. About this time in 2004 Michael started having problems with gambling and his mother started to give him money to pay off his debts. He commenced his own company and business which lasted for a year or two. In that year the deceased also travelled to Sicily.

10 In 2005 the deceased was hospitalised at Prince Alfred Hospital. He then started renting a unit. He apparently contracted cancer and by 2006 he knew that he had a very limited time to live and he discussed this with his friend, Joe Lagana. On 25 October 2006 he made his last will. At this time in 2006 Michael’s mother mortgaged her property for $75,000. This was apparently so that Michael could pay off his debts. Instead what happened was he gambled it all away and his mother was left owing $75,000. In 2007 there were further admissions to hospital and in late January the deceased gave each of Joe Lagana, Vincenza Lagana (his wife), Concettina Lagana, Serafina Oliviero and Joseph Lagana $20,000 each. The deceased also gave the defendant a Subaru Impreza car.

11 The deceased was in and out of hospital that year and on 30 May 2007 he died and the summons was filed on 7 March 2008 within time.

ELIGIBILITY

12 The plaintiff, being a son of the deceased, is an eligible person. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a court must take. At page 209 it said the following:

“The first question is, was the provision (if any) made for the applicant ‘inadequate for (his or her) proper maintenance, education and advancement in life’? The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ etc were explained in Bosch v Perpetual Trustee Co Limited. The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate or 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.
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 he 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. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors.”

THE PLAINTIFF’S SITUATION IN LIFE

13 The plaintiff is 36 years of age living in a de facto relationship and has no children. He lives with his mother and pays no rent. He presently works as a leading hand with a development site in Campbelltown and receives $750.00 per week net. He gives no details of his expenses. He has no savings and no property. He owes the tax office $20,014.88 and has no means to pay it. He expects to go bankrupt shortly. He admits to having a gambling problem between 2005 and 2007 and as a result his own business has failed. He described the amount he lost in terms of “hundreds of thousands of dollars”. Earlier I recounted how his mother has also lost funds because of his addiction. Although he says he no longer regards himself as a problem gambler he still plays footie tab on a “social basis”.

14 There is evidence in the report of a psychiatrist, Dr Westmore, which was a forensic report. He was not a treating psychiatrist for the plaintiff. His conclusions appear at the end of his report in these terms:

“ On balance, taking into account all the history noted above, I believe that Mr Fricano has, despite his denials, been significantly affected by the breakdown of his parents relationship and in particular the absence of his father from his life. The breakdown in his parents relationship may have had many different causes and I cannot comment on why that may have occurred. To what extent his mother’s negative attitudes towards the farther impacted on him and vice versa cannot be determined at this time but the very fact that there were continuing difficulties between his parents would almost inevitably impact on him as a boy in an adverse fashion.
I am therefore confident in expressing the view that the breakdown of his parents’ relationship impacted on Mr Fricano in a significant and sustained way and it continues to impact upon him. I am less able to say what the financial effects on Mr Fricano were as a result of his relationship with his father. Not all people who originate from dysfunctional families or broken families end up in financial difficulties, indeed some have been known to thrive and prosper. Each case should be considered individually. I have referred to his manner and presentation in this report and I think that is likely to have arisen because of his psychological problems and perhaps the presence of a chronic depressive state known as a dysthymic disorder. His presentation would certainly impact on colleagues and peers also he does report having "hundreds" of friends.
Further collateral histories from friends, family members, work colleagues and acquaintances might provide further insight and understanding about his personality characteristics and their potential impact on him from a business and financial perspective.
I would be recommending that Mr Fricano attend a psychiatrist. Not because he has a mental illness as such, but because there are so many deep seated and as yet unresolved issues arising from his early life which are impacting and will continue to impact on his mental state and his behaviour, possibly indefinitely unless some of them are resolved. He may even benefit from a course of antidepressants but that is only something which will be known after he has been longitudinally assessed perhaps over two to three months by a psychiatrist.”

15 One is left with no diagnosis although depression is likely. He frequently claimed this in the witness box. There is no attribution of fault in the breakdown by the psychiatrist. The incident that provoked the separation occurred when Michael was fourteen years of age. He described how his father said:

“Michael you are old enough now to catch a bus here. I do not want to pick you up from your home anymore. If you want to come and visit me you can catch the bus here”.

16 Michael was very affronted and he walked out of the home. He walked all the way back to his mother’s place and did not see the deceased again until shortly before his father’s death. There was a period of about twenty years that there was no contact.

17 Shortly before his father’s death he found out from other people who had been in touch with his father that his father had cancer. He was told that he should, if he wanted to, go and see his father because he was dying. He went there to the hospital and asked some of the staff to take him to see his father as he wanted their support. When he came into his father’s room his father said “Take this gentleman away, I don’t have a son”. He says that he became upset and said to his father “You have always been a coward and you are still a coward”. This was reported in some other terms probably slightly more derogatory by the deceased to a friend. Until this occasion neither Michael nor his father made any attempt to resume contact except for this last occasion when Michael went to see his father.

18 It is necessary to look at the statutory provisions and the cases in order to see the correct approach in these situations. Section 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person “it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made to be made for the maintenance, education or advancement in life of the eligible person”.

19 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows:

“This conclusion directly raises the question of whether the word ‘ought’ in s 7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator’s Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts.

...

It seems plain from the comparison of the two Acts, and particularly from s 3 of the 1916 Act and s 7 and s 9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose.
The Act draws a distinction between the eligible persons referred to in par (a) and par (b) on the one hand and par (c) and par (d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life, would, prima facie, be persons to whom the deceased person spoken of in s 3 of the 1916 Act and s 7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased.
In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: See Bosch v Perpetual Trustee Co Ltd (1938) AC 463 at 478-479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin JJ both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that 'many cases suggest that an applicant must show a moral claim ...', he went on to say that this was a gloss on the Act that was unwarranted and inconsistent with the language of the legislative scheme.
It seems to me that the introduction into s 7 of the present Act of the word 'ought’ in replacement of the words from s 3 of the 1916 Act 'as the court thinks fit' shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word 'ought’ seems to be deliberately adopted, in the present Act, from what Gibbs J. called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par (c) and par (d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par (a) and par (b) although it is unnecessary to decide that in this case."

20 Meagher JA (NSWLR at 57) agreed with Priestley JA.

21 Meagher JA had previously expressed a view in Hughes v Hughes Court of Appeal unreported 6 June 1989 (an adult daughter case) that the duty arose to make provision as established in that case as follows:

"Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right , but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be.” (Emphasis added).

22 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.

23 In Benney v Jones, Mahoney JA at 560 said:

"Whether an order should be made raises (as it has been described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: See also Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1.
Where the applicant is a member of the deceased’s family, as referred to in the earlier paragraphs of s 6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear”.

24 In Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. In the course of doing so, his Honour noted:

“It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation."

25 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales’ case) (1962) 107 CLR 9. Scales’ case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18):

“ The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. ... In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator's death."

26 In Gorton v Parks (1989) 17 NSWLR 1 at 9-10, Bryson J sought to distinguish Scales’ case. He said:

"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. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate all were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; ... Under modern legislation parental duties are not distinguished according to acknowledgement or legitimacy. The idea that acknowledgement by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962."

27 Bryson J in any event distinguished Scales’ case (p 11) on the basis that on the facts before him the plaintiffs:

"In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relation. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. ..."

28 In Walker v Walker (unreported 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton’s case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows:

"In Singer’s case, a widow who had been married less than one year to a 68-year-old man, failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at p 208 and following that to assess a claim under the present Act there is a two-stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that 'we doubt this statement provides useful assistance in elucidating the statutory provision. Indeed, references to ‘moral duty’ or ‘moral obligation’ may well be understood as amounting to a gloss on the statutory language’. They then say '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.”

29 Young J also observed;

"In Fraser’s case, Kirby P. at p 29, said that 'I do not consider that it would be safe for this court, or other courts in this State, to disregard the obiter dicta in Singer v Berghouse concerning 'moral duty'. However, his Honour's decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law 'either by the observations of the majority in Singer or by the High Court’s reference, in the footnote to what Murphy J. said earlier (p 27)’.
Handley JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words 'moral claim' in decisions under this Act.
Sheller JA again did not consider that the High Court’s suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p 42, 'the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant's case but not alone sufficiently to justify an order in the claimant's favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order.

30 The concerns expressed about any change in the law as a result of Singer v Berghouse were recently put to rest by the High Court in Vigolo v Bostin (2005) HCA 11 at 25, 74-75 and 121.

31 In Walker v Walker (p 27) Young J noted:

"I do not consider that there is any purpose in analysing whose fault it was that the state of non-communication came into place. In family relationships, hurts are often inflicted or suffered some times consciously, some times unconsciously. Sometimes a young child is brainwashed by a custodial parent to consider that the other parent has inflicted some harm, which is all in the mind of the custodial parent. It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fourth of either or whether it has come about by factors too strong for either to control or somewhere in between.
The important matter is not fault but whether in all the circumstances it would be expected by the community that the testator would have to make a great of benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.
Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant ...”

32 These words were recently approved by Ipp J in Palmer v Dolman; Dolman v Palmer (2005) NSWCA 361 when he said:

"112. I agree with his Honour's remarks, although I would express the rider that, often, where an applicant is a person within paragraphs (a) or (b) of the definition of ' eligible person' in s 6(1) of the Act proof that the applicant is a person in need will be sufficient. I accept however that there must be a full investigation into all the facts and circumstances as his Honour expounds."

33 This view was reinforced recently in Nicholls v Hall & Ors (2007) NSWSC 356 where the court said:

“43 There are some statements in the cases that could be understood as meaning that, if there is nothing more than ‘bare paternity’ in factor (1), the relationship between the applicant and the deceased, then the applicant cannot succeed. In our opinion, such an understanding would be plainly wrong. Even if a deceased never even knew of the existence of a child, if that child had a strong case on the other factors (that is, needs, size of estate and lack of competing claims), a court could find that the child was left without adequate provision for proper maintenance.
44 Such a view is supported by what Holland J. said in Kleinig v Neal (No 2) (1981) NSWLR 532 at 540:
‘If it is a case of a parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned for the child’s welfare’.
We should make it clear that, in this discussion of ‘bare paternity’, we are not intending to include a mere sperm donor: in terms of Holland J's statement, it is the persons who make use of the sperm rather than the sperm donor who are responsible for bringing a child into the world.
45 Our view is also supported by what Bryson J. said in Gorton v Parks (1989) 17 NSWLR 1 at 9-10, to the effect that 'the bare fact of paternity' is 'of very great importance in morality'. We agree with Bryson J's justification for departure from what Dixon CJ said on the matter in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 18-20, as conforming to changing beliefs in the community about moral duties to children.

46 It is supported also by what Ipp JA (with whom Tobias JA and Basten JA agreed) said in Palmer v Dolman (2005) NSWCA 361 at 112, to the effect that where an applicant is a child, proof that the applicant is a person in need will often be sufficient to justify an order.

47 We accept there is a suggestion to the contrary in the Hughes v Hughes (NSWCA 6 June 1989) where Meagher JA (with whom Hope JA and Samuels JA concurred) said this: ‘Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right, but from the general circumstances of the case: namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her early trips and in her professed and continued willingness to be of whatever assistance to her father she could be'.
48 We do not understand an applicant to have a 'right' in any clear sense, in any event. It is only if an applicant satisfies the court that he or she has been left without adequate provision for proper maintenance, and satisfies the court that provision ought to be made, that it then can be said, in a loose sense, that the applicant has a right to an order. However, that right must depend, not merely on matters concerning the relationship between an applicant and the deceased, but on matters concerning the other three elements that we referred to, namely the applicant’s needs, the nature and extent of the deceased’s estate, and other legitimate claims. We do not think that passage from Hughes v Hughes should be read as meaning that entitlement can never be established if the only factor that appears in the relationship aspect of the claim is the bare fact of parenthood.

34 It is that line of territory

35 Before dealing further with this aspect I will refer to the situation of the other persons having a claim on the bounty of the deceased. These are the residuary beneficiaries under the will. None of them has put forward any evidence of their financial circumstances so the court can assume they do not want the court to take these into account. It is plain from the evidence that the defendant’s family formed a close relationship with the deceased when they were neighbours between 1982 and 1984 and when they moved away they still kept contact but it became less until 1990.

36 In 1990 when the circumstances brought them closer together the relationship continued on a more frequent basis. As mentioned after he sold his home the deceased went to Italy and on his return the association continued on a close basis throughout. He did, of course, appoint the defendant as executor and made gifts to him, his wife and children, already referred to. Plainly the deceased regarded the residuary beneficiaries as people of special significance in his life. It is unfortunate he did not have the same regard for his son. The evidence shows a complete and steadfast refusal to make contact with his son without any good reason for this refusal.

DISCUSSION

37 It is plain in that the deceased rejected his son for no good reason and maintained that all his life. You would have thought that Michael, once becoming an adult, would have tried to contact his father but he did not do so.

38 The psychiatrist's report does not explain this and he seems to have maintained the hurt he felt as a young teenager. This is an aspect which does detract from his claim but, in my opinion, does not totally remove it. He was, after all, the deceased’s only son and he was his closest living relative.

39 Here the estate is a small one and there are no other strong legitimate claims upon it. Notwithstanding the friendship with the defendant and his family, Michael's claim is one which should take priority if he has an appropriate need.

40 I turn to what is said by the plaintiff in respect of how he has been left without any adequate provision for his proper maintenance, education and advancement in life. In this regard I am reminded of what was said by Sheller JA in Singer v Berghouse on 23 July 1992. There his Honour had the following to say”

"I must say that I find it extraordinary that the appellant presented scant or no evidence as to her present income and outgoings or as to her intentions or needs for the future or as to what lump some provision applying appropriate discount tables would be required to meet these claims or needs, if they existed. In my opinion, in the circumstances of this case, for the court, in the absence of any such evidence, to make an order for the payment to the appellant of a lump some is to do no more than act on speculation and, contrary to the prohibition contained in s 9(2) of the Act, to alter the deceased's disposition of his property in the absence of proof that he has inadequately provided for the appellant."

41 Nothing was suggested in evidence as a need and, for instance, there was no suggestion of the present financial expenditure of the plaintiff only that he received a weekly wage of $750 per week. In submissions it was suggested that he might need a home, however, there was absolutely no evidence of the costs of any home, his borrowing capacity or other matters of this nature which are usually and properly before the court if the court is to consider his proper needs. One self-evident need in this case. It is for some fund to allow for good psychiatric help for the plaintiff. Plainly, from the report and from the way he presented in the witness box, the plaintiff is in need of long-term psychiatric help to help him overcome his present problems. The psychiatrist has, in fact, suggested that this is important and, of course, such help is never cheap and normally is quite expensive. Thus, at least in this respect he has demonstrated need and in my view he has been left without proper provision for his maintenance and advancement in life.

42 The next question is what might be appropriate provision and this brings into question the tax debt of $20,014.88 owed to the tax office. There are a number of decisions under the Testator's Family Maintenance and Guardianship of Infants Act 1916 which stand for the proposition that an order should not be made which would merely have the effect of relieving the public revenue of a charge without conferring a benefit on the Applicant. See Re WS Duff 48 SR 510 and the cases there referred to by Sugerman J. It often arises where a claimant is still bankrupt at the time of the hearing. See McLeod v Johns (1981) l NSWLR 347. In this case the provision of funds to the plaintiff, which merely go to relieve his liability to the tax office, might be said to be of no benefit to him.

43 There is the problem of the plaintiff's gambling. Despite his protestations I am not satisfied that there is still not a problem. This is particularly so as the only evidence which I have is the plaintiff’s own protestations about having solved his addiction. However, he has not completely given up gambling.

44 It seems to me that any provision for the plaintiff should be held for him on protective trust to be used as his benefit. On the question of who should be the trustee is a troubling one and certainly his history would exclude his mother as one of the trustees. Such a provision would be for his future benefit and it would not be contrary to public policy.

45 In my view, the plaintiff should receive a legacy of $85,000 and the legacy should be held upon terms of a protective trust which also allows capital to be advanced for his benefit.

46 I will leave it to the parties to formulate the terms of the protective trust and the trustees or the Public Trustee. I will settle the terms if not agreed at some future time.

47 As far as costs are concerned, the plaintiff’s costs on the ordinary basis and the defendant’s costs on an indemnity basis can be paid or retained out of the estate of the deceased. Interest will run on the legacy if it is not paid within 28 days and it will run on and from that date if not paid at the rate provided for under the Probate & Administration Act 1898.

48 The matter will be in my list on Thursday 3 September 2009 at 10.00 am and the exhibits may be returned.

**********