Hallam v Maxwell

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No.1351 of 1998

FREDERICK DOUGLAS WILLIAM	Plaintiff
HALLAM
v
DOROTHY MAY MAXWELL	Defendant

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JUDGE:	Hansen J.
WHERE HELD:	Warrnambool
DATE OF HEARING:	12 - 14 October 1998
CASE MAY BE CITED AS:	Hallam v. Maxwell
DATE OF JUDGMENT:	13 November 1998
MEDIA NEUTRAL CITATION:	[1998] VSC 131

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ADMINISTRATION AND PROBATE - Family provision - Adult son - Special claim or need - Further provision

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. P. Tobin	Stringer Clark
For the Defendant	Mrs C. R. McOmish	Kempson & Co

HIS HONOUR:

This is an application by an adult son for further provision under Part IV of the Administration and Probate Act 1958 from the estate of his late father, William Lindsay Hallam, who died on 7 September 1997 aged 89 years. The defendant, Dorothy May Maxwell, is an adult daughter of the deceased. She obtained a grant of letters of administration of the deceased’s intestate estate on 28 November 1997.
The deceased married Florence Mary Blanche Hallam on 12 September 1931. She died in 1989 aged 78 years.
The deceased and his late wife spent their married life farming a property at Batchica in the State of Victoria . Batchica is located south of Hopetoun and is marked by a wheat silo. Activities conducted on the land were cereal cropping and cattle and sheep grazing as well as some dairy cows and pigs.
Five children were born of the marriage each of whom survived the deceased. They are Jean Ellen White who is now aged 66 years, Margaret Florence Hallam who is now 63 years, the defendant who has just turned 62 years, the plaintiff Frederick Douglas William Hallam who is now aged 56 years and Lindsay John Hallam who is now aged 50 years.
The inventory of assets and liabilities filed in connection with the application for letters of administration disclosed assets valued at $233,547.43 and no liabilities. The estate was made up as to $194,130.00 by the farm property and as to $39,417.43 by personal estate consisting of $13,132.43 held in the stock trading account with Westfarmers Dalgetty Limited at Horsham, $6,800.00 as the value of stock on hand, $9,485.00 for plant and machinery and $10,000.00 for furniture and household effects. The farm property is on several titles and apparently comprised in total about 702 acres. The defendant said in cross examination she believed that was the acreage. She had given a higher figure of 719 in an affidavit but nothing turns on the difference.
Under the intestacy provisions the deceased’s estate will pass in equal shares to his five children. In his closing address counsel for the plaintiff submitted that the plaintiff should receive the majority of the estate, although not a large majority, but an amount greater than 50% would be an appropriate recognition of his special need and moral claim which was established by his endeavours in relation to the deceased. Counsel for the defendant opposed any order for further provision. She submitted that the jurisdiction to make an order did not arise or, if it did, that in the circumstances it was not appropriate to make any order for further provision.
The farm and plant and equipment were sold at public auction at Warracknabeal on 23 February 1998. The farm was sold in four separate lots to four different purchasers. Deposits totalling $24,330.00 have been paid but payment of the balance, totalling $219,026.63, has been held up due to the fact that the duplicate certificates of title have been lost and pending the issue of new titles. The plaintiff had sought an injunction to restrain the sale of the farm on the basis that he sought the deceased’s farm and that he would not be able to afford to re-purchase the farm. On 19 February 1998 Beach J dismissed the application with costs. I am told by counsel that at what I assume to be an earlier time the plaintiff lodged a caveat on the title of the farm property on the basis of a claimed equitable interest, and that he voluntarily withdrew the caveat with an acknowledged liability for costs. I am told also that he lodged a caveat against a grant of administration but withdrew that after a short time.
The asset and liability position of the estate is accepted by the parties as now
being
Assets

Cash on hand $42,383.14

Balance of purchase $219,026.63
monies
Owed by L J Hallam $ 2,500.00
Cash held by plaintiff $ 650.00
Costs payable by

$ 6,120.19 $270,679.96
plaintiff

Liabilities

Agents Commission $7,712.24
Defendants costs of
proceedings estimated
at $45,000.00,

$50,000.00 $57,712.24

$50,000.00 say

Total $212,967.72

The figure for the defendants costs seems high and it may include costs of the administration in addition to costs of the proceeding. In any event, the plaintiff’s counsel did not dispute the figure. It is then necessary to note that the plaintiff’s costs of the proceeding on a solicitor client basis and excluding costs incurred by the plaintiff in respect of the application for an injunction and the caveat on title are estimated at $30,000.00 to $35,000.00, certainly not exceeding $35,000.00 to the end of the last day of the trial. On the basis of $35,000.00, that would produce a present net value of the estate of $177,967.72.
The above statement of the asset and liability position of the estate was accepted as such by counsel by the end of the trial. I have had marked as an exhibit two sheets handed up by counsel for the defendant and which bear some marking by me, which set out the position of the estate apart from the costs of the proceeding. This exhibit clarified the position of the estate as it had been set out in an affidavit sworn by the defendant and filed in purported compliance with an order of Master Evans made 18 February 1998 that the defendant file an affidavit setting forth the financial position of the estate so far as it is known to her. The affidavit purported to set out a statement of the administration of the estate to 6 August 1998. During the trial it emerged that in fact the statement in the affidavit included items of receipt and expenditure which had occurred during the deceased’s lifetime, indeed going back as far as 1993, and which had nothing at all to do with the administration of the estate. The defendant said in evidence that this was done on legal advice to show how she had dealt with certain money which the deceased had given her in his lifetime. Accepting the truth of that evidence, those items should have been recorded separately and not included as administration items. The receipt in question was $12,997.72 from Dalgety Farmers in 1993. The expenditures were made out of that sum and comprised six items which totalled $12,996.84. They were made up as to $2,768.99 for the Warracknabeal Hospital, $780 for Alan Parsons on account of repairs to the deceased’s utility, $1,374.00 for the defendant’s solicitors costs in connection with Guardianship and Administration Board hearings in 1992, 1993, 1994 and 1995, costs of $6,206.25 to Maddock Lonie & Chisholm re settlement of a car accident claim, $511,000 to Wesfarmers Dalgety for hay, and $1,356.60 for “administration expenses including travel, accommodation and telephone”. I have set these out so they are clearly identified as items which were paid prior to death and are not proper items in the administration.
I should say something further about the last item of $1,356.60. The defendant disclosed in her oral evidence that this item related to the period prior to the death of the deceased and was related to attendance’s by her upon her father. That is, the defendant said, it was calculated by reference to the cost to the defendant of motel accommodation, fuel and telephone that the defendant incurred in relation to attending upon or in relation to her father. On the evidence there was no agreement with the deceased that entitled her to be paid such amounts. She justified the recoupment on the basis of wear and tear on her car and on the basis that her father had given the plaintiff money for his fuel cost in driving for the benefit of the deceased. She thought any of the siblings should be able to so claim. The proposition seemed to be that a child can and should charge their parent the costs of and associated with visiting their parent and attendance’s on their behalf. Without more that proposition sits ill with the notion of filial duty. As the defendant had obtained recoupment in the lifetime of the deceased and she is the administrator of the estate no question of recovery arises and the recoupment is not to be upset. It is necessary, as a matter of fairness, to add that the plaintiff obtained some recoupment from his father of the cost of fuel in attending at his fathers farm or for his benefit. I conclude, in the overall perspective, that any such recoupment he received did not cover all such costs and was relatively insignificant in terms of the total burden borne by the plaintiff on that account.
There are some further aspects of the defendant’s affidavit which I must deal with. The first matter concerns the costs payable by the plaintiff on account of the injunction application and the caveat, for which an amount of $6,620.19 was claimed. During the hearing the parties agreed on the amount of $6,120.19 for this item. The next item is $2,500.00 for a table and equipment which the plaintiff’s brother Lindsay has kept from the deceased’s house. There was no proper valuation evidence for this and for myself I suspect the figure is too high in the sense that Lindsay is agreeing to bear too high a cost. But the result of the evidence is that he and the defendant agree that he is to bear that cost. The next matter is a claim of $20,000.00 for equipment of the deceased alleged to have been taken by the plaintiff. Counsel for the defendant abandoned this claim, correctly in my view. Not only was there no evidence to support the claim, including no valuation evidence, but the claim was denied by the plaintiff and on the evidence it would have failed. The final item of $650.00 (wrongly stated in the affidavit as $620.00) is the balance of an amount of cash found on the deceased at death, after allowing $20.00 as the cost of pyjamas in which the deceased was buried. The plaintiff accepts this amount.
The plaintiff put his case of the basis of the contribution he made to the maintenance of the deceased’s estate, and the care and assistance to his parents and in particular the deceased and on his need for further provision. It was submitted that an equal one - fifth share of the deceased’s estate was not an appropriate recognition of these matters and increased provision was sought as I have mentioned.
It is appropriate to note the basis on which the Court proceeds in applications under Part IV. The power in s.91 of the Act is to make an order that provision be made out of the estate of a deceased person for the proper maintenance and support of the widow, widower or children of the deceased. (The amendments made to Part IV by the Wills Act 1997 are not applicable in the circumstances of this case as the deceased died before those amendments commenced to operate.) It makes no difference whether the failure of the deceased to make such provision for that person was by way of a will or the operation of the intestacy provisions in the Act or both. In the case of an intestacy, such as the present case, the matter may be approached as though the deceased had made a will which distributed his estate as on an intestacy: see Re Russell [1970] QWN 22 at 56.
The question is not whether the deceased acted fairly in the disposal of his estate, nor was he required to treat his children equally. Furthermore, mere judicial opinion may not be substituted for that of the deceased as the preferred way of distributing his estate. That statement may be thought to be more applicable to the case in which the deceased leaves a will, but, on the other hand, the deceased may have determined not to leave a will and to have his estate pass to his children equally under the intestacy provisions. But even if the deceased did not so consider the matter the above statement reflects how the court approaches the matter in the situation of an intestacy. In Bosch v. Perpetual Trustee Co (1938) AC 463 at 478 - 9, the Privy Council said that:
“... in every case the Court must place itself in the position of the testator and consider what he ought to have done in all of the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband and father”.
In Pontifical Society for the Propagation of the Faith v. Scales (1962) 107 CLR 9 at 19, Dixon CJ stated:
“It has often been pointed out that very important words in the statute are “adequate provision for the proper maintenance and support” and that each of these words must be given its value. “Adequate” and “proper” in particular must be considered as words which must always be relative. The “proper” maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is “adequate” must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions.”
See too In re Allen, deceased; Allen v. Manchester (1922) NZLR 218, where at 220 -
221, in a passage approved by the Privy Council in Bosch (at 479), Salmond J said:
“The Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.”
Each case must depend on its own circumstances: McCosker v. McCosker (1957) 97 CLR 566 at 576. Among these circumstances is the element of need, although that does not mean solely material need: White v. Barron (1979) 144 CLR 431 at 457 per Wilson J. A moral claim alone is not sufficient to warrant an order for further provision: In re Anderson (1975) 11 SASR 276 at 283 per Zelling J.
Good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the court. The measure to be applied is not what has been given to the one, but what the other needs for his or her proper maintenance: Blore v. Lang (1960) 104 CLR 124 at 134 - 5 per Fullagar and Menzies JJ. See also King v. White [1992] 2 VR 422 at 427 per Hedigan J.
In Hughes v. National Trustees Executors & Agency Co. of Australasia Ltd. (1979) 143 CLR 134 at 147 - 148, Gibbs J referred with approval to the following passage in the well-known judgment of Fullagar J in In re Sinnot (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.’ “
Gibbs J then said:
“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 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 an 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.”
See also Anderson v. Teboneras [1990] VR 527 at 536 and 538, per Ormiston J
In assessing whether there has been a failure to make adequate provision for a spouse or child, the circumstances of the applicant at the date of death of the deceased must be considered, including the applicant’s assets, his or her income and his or her capacity to earn income in the future: Blore at 128 per Dixon CJ and Anderson at 532 per Ormiston J. Once it is decided that the case is one in which the court may make an order providing for the applicant, the question of what provision ought to be made depends on somewhat different considerations, those being the circumstances that obtain at the time that the order is made: see Goodman v. Windeyer (1980) 144 CLR 490 at 499 per Gibbs J and Singer v. Berghouse (1994) 181 CLR 201 at 211.
A large number of affidavit’s was filed and relied upon at the hearing. Two affidavits sworn by the plaintiff (on 12 January 1998 and 9 April 1998) were relied upon together with thirteen other affidavit’s sworn by different deponents. Only one of those deponents, Ian Lindsay Carmichael, a stock and station agent, gave oral evidence. He gave evidence as to certain stock transactions. The plaintiff also gave oral evidence. The affidavits of the other twelve deponents covered a range of matters generally supportive of the plaintiff’s position.
The defendant swore three affidavits each of which was relied upon. In addition, the defendant relied upon three further affidavits sworn respectively by the plaintiffs brother Lindsay, and by friends of the deceased, Douglas Edward Vincent and Margaret Ellen Kennedy. Counsel for the defendant did not tender an affidavit sworn in Malaysia by the plaintiff’s sister Margaret on 10 October 1998, a copy of which had been received by the court on the morning of the first day of the trial by facsimile from solicitors other than the defendant’s solicitor. The matter of this copy affidavit was discussed in court and counsel for the defendant expressly declined to tender it or rely upon it. The transmission thus received remains on the court file but it was not tendered and neither counsel relied on it or referred to it in their case. I disregard it.
I do not propose in this judgement to rehearse all that is said by all of the deponents. In my view it is unnecessary to do so. I do have regard to all the evidence.
The deceased was born and bred in the Warracknabeal area. After leaving school he worked in a mill, lumped wheat in the wheat stacks in Warracknabeal, worked as a butcher and did sheep shearing, the plaintiff says from Queensland down to Victoria, the defendant says mainly in the Riverina, which meant weeks away at a time.
There is some difference between the plaintiff and the defendant as to when the deceased bought the farm lands at Batchica. Taking what the defendant says as correct ( she puts the times a bit later than the plaintiff), the deceased first purchased a 15 acre block in 1930 on which a home was erected two years later. This was followed by the purchase by the deceased and his wife of two adjoining blocks of approximately nine acres in 1938, two further adjoining blocks also of approximately nine acres in 1941, a six acre block in 1937, a 100 acre block called “Coutts” in 1944, and a further block of approximately 160 acres called “Pearsons” in about 1949 /1950. Finally, in 1954 they purchased a block of approximately 386 acres called “Schultz”. In addition the deceased leased 20 acres which he farmed and on which he built a dam for watering stock and erected a machinery shed.

I have mentioned the mixed nature of the farming. It was light land and the deceased earned money with work off the farm to support the family. Indeed, in cross examination the defendant said that the deceased supported the family principally with money he earned off the farm. When he was away on jobs his wife kept the place going. In addition to growing cereal, sheep were grazed and there was a Dorset Horn stud. There were also some seven to eight milking cows. There were also pigs for which water had to be carted from Coutts as there was no stock water near the house. The pigs were disposed of in 1967 as they were too much for the deceased’s wife to look after. At about that time the balance of the sheep were disposed of by order of the stock inspector as they had become lousy which the deceased had refused to do anything about. He then allowed the cattle numbers to build up, in time to over 100 head. The build up was achieved principally by allowing the dairy herd to increase with a new bull being purchased from time to time.
Crops were not regularly grown since the late 1960s. Approximately 200 acres were sown to barley in 1991 and approximately 100 acres to oats in 1992, by the plaintiff using old machinery of the deceased.
Over the last 30 years the deceased did not maintain the fences on the property. They deteriorated to a very poor condition and were inadequate to keep stock in.
The plaintiff said and I accept that over the last 20 years (I would infer longer) the deceased’s income included social security benefits which, when his wife was alive, included a carer’s pension as she had become legally blind. She also suffered from asthma, to the extent of requiring hospitalisation.
It is at this point pertinent to note that in the affidavits of the defendant and her brother Lindsay there is reference to the deceased having subjected them and their mother to physical and verbal abuse. Lindsay’s affidavit is very brief. The defendant’s affidavit of 17 March 1998 went into more detail. She said that her mother’s problems with her right eye were caused initially by an assault upon her by the deceased. She said that the asthma was caused by “nerves” which she attributed to the deceased who she described as a cruel man who verbally abused and beat his wife constantly, delivering blows to her body and head until she could not stand up. She said that he would also verbally abuse and beat herself and her sisters if he could catch them, and if he could not he would wake them from sleep and beat them. The deceased was described as a strong and tall man, about six foot as I recall the evidence. The defendant said that they asked people to help them but everyone was afraid of the deceased, even his parents. She said that she asked their grandparents, neighbours and the father of the witness Kennedy, and that there were people alive who knew but “people don’t want to be involved in this case”. Whether that be the position or not no such person gave evidence of any such complaint or of any knowledge they may have had of the alleged behaviour of the deceased. Further, the plaintiff denies this evidence of violence and the eldest sister Jean did not swear an affidavit or give oral evidence and, as I have pointed out, there is no evidence from the next eldest daughter, Margaret. Then, turning to the affidavit of the brother Lindsay, he said that he vividly recalled his father’s physical and verbal abuse as a child, that he would rave, rant, scream, yell and throw things and that he would be terrified and that:
“My mother was more often than not the recipient of both verbal and
physical abuse, but I received my share.”
The extraordinary thing about this evidence, so succinctly and clearly expressed in the affidavit, is that in the course of re-examination he said that he had never seen his father strike his mother. He further said that he had never seen his father punch his mother and that “she probably would have been still going if he had have hit her, because he was a huge man” and added that “I’m not saying that in all the things flying that she didn’t get struck or hit or whatever, but I have never seen him, say, for arguments sake, hold her down and physically beat her”. Certainly Lindsay gave evidence of being dealt with physically by his father, of his father being possessed of a bad temper and being subject to fits of rage, of being able to be cruel but also having a different side to him, but the present point is concerned with the evidence on the defendant’s side as to the deceased subjecting his wife to physical violence. There is evidence which I accept that in later years at least the deceased attended to his wife with devotion. Indeed, the defendant said that he looked after his wife to the best of his ability. It is to be noted that Lindsay is younger than the plaintiff so if the deceased beat his children as is alleged it is unlikely that he would not have so beaten the plaintiff.
In evaluating this aspect it is necessary to have some wider understanding of
life on the farm.
All members of the family worked hard on the farm. The children did their share. They - that is, all of them - had to. That was the way of things and it was how families operated in such circumstances. All this was made clear by the evidence. In all events that is how I find the situation to have been. In so far as the children were concerned, they worked before and after school and at other times in the way that children did in the circumstances of such a farming family. I am also satisfied that in their upbringing no child was preferred to another.
The children attended Warracknabeal High School. With the exception of Jean they left school after form four or five. On leaving school each took up employment, Jean at the age of 14 or 15, the others at the age of 16 or so. It seems that Jean worked in a clothing factory at Warracknabeal and lived at home until she turned 21. According to the defendant, while Jean was at home she contributed her wages to the family. When she left home she lived for a while with her grandparents at Mooroopna and then moved to Adelaide where she obtained employment and continues to live. Jean never returned to the farm and had no involvement with it after leaving the district, which was, it would seem, in 1953. The plaintiff and the defendant say that Jean had “little contact” with her parents, although they do not say - perhaps because they do not know and Jean has not sworn an affidavit - what constituted such contact. It may have been a euphemism for virtually nothing. I have no specific evidence that Jean ever again saw her father. The plaintiff does state that Jean saw her mother (and one might therefore have thought her father) when a grandparent died in 1957 but that for health reasons she did not otherwise see her mother, although for her part the defendant states that Jean visited her mother when she was in hospital.
I am concerned that there is unacknowledged hearsay in the defendant’s evidence, just as the defendant’s evidence in her affidavit sworn 17 March 1998 that her mother’s problems with her right eye were caused initially by an assault upon her by the deceased was unacknowledged hearsay. This evidence appeared to be given from the defendant’s own knowledge but in cross examination she said she did not remember an injury to the eye and that her evidence had relied upon what Margaret had told her. She never said what it was that Margaret told her and I have no evidence from Margaret. This is one of several points that may be made in relation to the reliability of the defendant’s evidence. Not only do I reject the particular evidence and the allegation in it but the way in which it was put forward was misleading. It is convenient at this point to add that I found the defendant’s evidence to be infected with attitudes of defensiveness, self justification, and an unreasonable attack on the plaintiff. An underlying factor, in my view, was that the defendant perceived a need to explain if not justify the departure of the siblings (with the exception of the plaintiff) from the family home and the area in which their parents lived, and the little or no contact they then had with them. Perhaps this too, accompanied by a desire to defeat the plaintiff’s claim, lead to criticism’s of the plaintiff and attempts to establish issues against him that suffered from exaggeration, a lack of balance or a lack of substance.
The fact is that the siblings left home. They are not to be criticised for doing so. It was a natural event in the life of children maturing to adulthood and wishing to make their way in life. In my view, the defendant’s evidence as to the physical and verbal abuse of the deceased and the link between that and the sibling’s departure was exaggerated, un-supported by evidence from Jean and Margaret and significantly questioned if not dented by the evidence of Lindsay that he never saw his father strike his mother. I conclude on this issue by recording my finding that the deceased was a man possessed of a quick temper, who at times did deal with his children in a harsh physical way but he was also, perhaps increasingly so, idiosyncratic and difficult, while still being a loving father. I do not accept that the deceased struck his wife. I incline to the view that the plaintiff overlooked the deceased’s physical treatment of the children. The probability is that he was disciplined as his siblings were but in his position and with a recollection of events that may have changed and matured with a more developed understanding with the passage of time, and perhaps with an overall perspective of his parents and his father, in particular which his proximity to them brought, and out of respect for his father, he denied the behaviour alleged. In his view the way in which the deceased treated his children may in hindsight have been not altogether inappropriate, or out of the bounds, although harsh and productive of some fear in the children.
I return to a statement of Jean’s position. I have mentioned that Jean went to Adelaide where she continues to live and that she obtained employment. She married and was a partner in a business with her husband. The defendant said she was the book-keeper. She worked through till about 60 years of age. She has now retired. She and her husband receive the age pension. I find that for the purpose of this case the defendant or at least her solicitor did make an enquiry to ascertain Jean’s financial position. The defendant agreed that Jean had not instructed her that she had significant financial problems. They have one daughter who is not dependant on them. It is common ground that Jean has poor health. Apparently she has had a heart attack, suffers from a degeneration of the spine which requires her to use an aid to walk, and (to use the defendant’s expression) she has had a “breakdown”. The plaintiff believes that her health problems prevented her from seeing their mother and from attending her funeral. Nevertheless, it is to be noted that according to the plaintiff she was able to come across in May 1992. Save for this I have no evidence as to the financial circumstances of Jean or any better evidence of her state of health and needs.
Leaving school at 16 Margaret worked in a bank at Warracknabeal. She transferred her employment to Melbourne. Doing the best I can from the evidence, she left the home after Jean in 1953 but before Dorothy in 1955. She has lived out of Australia since 1960, and in the United States of America for about the last 25 years. She works as a travel agent in Houston. The plaintiff was otherwise unaware of her having any particular financial needs, and the defendant did not suggest any although her solicitor had spoken to Margaret about that matter.
The plaintiff said that the deceased gave Margaret financial assistance when she moved to Melbourne. The defendant seemed to deny this because she said that the deceased never gave Margaret any financial assistance. I accept the plaintiff’s evidence but I have no basis on which to make an inference as to the amount. That he gave her such assistance is consistent with the parental care he demonstrated when she was younger and suffered from bronchiectasis.
Since leaving Australia Margaret has not been involved with the family, as the plaintiff said. Nor did she ever return to see her parents. The defendant said that the deceased’s “harsh and abusive treatment” of Margaret “has affected her seriously in her adult life”. No particulars were given of this generalised statement and I have no evidence from Margaret as to it. Nor is there evidence that she is not in good health.
The defendant Dorothy obtained secretarial work at the Warracknabeal High School in 1955 after leaving school in 1954. She moved to Melbourne in July 1955 when she was about 18 and a half years of age. She married in Melbourne and worked until 1993. She worked at the Elwood Primary School for 30 years. She still lives in Melbourne.
Dorothy’s husband worked as a public servant. He retired in 1994 aged 65 years. He is now 68 years of age. They have an adult son who is not dependant upon them. They each receive a superannuation benefit and the age pension. She said it is “not a lot” but she did not state the actual details, in dollar terms, of their financial circumstances. Indeed when asked she said she had “no idea” what she received on superannuation. They own their own home which they brought for $19,750 some 26 years ago and which she thought they would be lucky to get $150,000.00 for. I do not regard that as accurate valuation evidence. They do not have other investments.
As to their health, the defendant said she had severe arthritis and had suffered breaks to her legs in 1993. Her husband has had three heart attacks and undergone quadruple bypass surgery. He had a stroke in 1994 which has left him partially paralysed.
Dorothy had no contact with her father until the 1990’s, she says because of his conduct when she lived at home. The contact commenced in 1992 when the plaintiff sought a guardianship or administration order in relation to his father from the Guardianship and Administration Board. I will return to this matter and subsequent events. Previously she had visited her mother on occasions, mainly in school holidays it would seem, when her mother had been a patient at Warracknabeal Hospital. But she did not return to the farm until 1992, as distinct from driving around it on occasions when she went to Warracknabeal. At the same time she had contact with the plaintiff on a more regular basis than she did with the other siblings. It seems that when he was in Melbourne on work the plaintiff would catch up with the defendant.
As I have mentioned, the children assisted with work on the farm, and this was a particular point made by the defendant. In this respect it is to be noted that, as the defendant said and which I accept as being correct, none of the girls worked on Schutlz’s block as it was not acquired until 1954. The defendant said that her father was buying it when she left home. The significance is that it accounted for over half of the total farm acreage and the boys did work on it, and the girls did not.
The plaintiff left school after form five and commenced an apprenticeship as a cabinet maker. He left that after about three months for employment at a plaster works in Warracknabeal. He was in that employment for about one and a half years. He was still living at home although the plastering job required him to be away in the country during the week. He married in 1963 and then lived at Patchewollock. He was then about 21 years of age. He and his wife lived on a block she had purchased from her father. The plaintiff had various employments including the railways with whom he finished in 1971, since when he engaged in farming. In 1975 or 1976 they purchased a 695 acre block from her father which they farmed to wheat. Patchewollock is located about 100 kilometres in a northerly direction from Batchica. That proximity enabled him and his family to visit his parents, which he and they did. The plaintiff also said in evidence that in addition to working on the farm while he lived there, after his marriage he regularly attended at the deceased’s farm and assisted with work. He was the only sibling that remained in the area and the only one that returned to the farm after they departed. He said that after his brother Lindsay left home he was the only sibling who visited their parents.
After leaving school Lindsay had employment with the PMG for a period and left home in 1966 when he was about 18 years of age. He left Victoria, going first to South Australia and travelling doing “many things” as he said. He has settled in Queensland at a place called Capella which is located in the central highlands. It is a town of about 900 people. He said that for 13 - 15 years he did not have a great deal of contact with his parents, from time to time sending a christmas card or some note of that nature. He said that he left home in circumstances that were not “pleasant” which was a reference to the temper of the deceased and the tensions caused thereby. There was a suggestion that the deceased may have regarded Lindsay as having kicked over the traces in some way or other including by the partaking of alcohol. It is unnecessary to make a finding as to that because there is no criticism to be made of Lindsay in leaving home and nor it is suggested that the deceased did not owe a moral duty to Lindsay in making provision for him out of his estate. Lindsay said that in approximately 1981 he re-established a relationship with his parents, although seeing them was occasional because he lived so far away. In more recent years in the 1990’s when the plaintiff made his guardianship and administration applications Lindsay came down and on occasions stayed with his father on the farm.
Lindsay has been employed at the BHP Gregory Mine since 1981. It is an open cut coke and coal mine. He is paid about $55,000.00 per annum. The mine is about 55 kilometres from his home. As I have said, he is multi-skilled and at the mine does a variety of work including operating heavy equipment such as bulldozers and trucks. In addition he owns and operates a motel and service station at Capella. He described himself as a self-motivated and ambitious sort of person and I find that he is. He also impressed me as a resourceful person. He borrowed and built the motel complex. The service station part he bought first in 1985, it consists of some 3,000 square metres of land on which was situated a “petrol bowser and a shed, sort of thing”. He seemed to say that he paid that off. In 1996 he borrowed $270,000.00 and built the motel. It has ten units. He has considered building another eight units, but that proposal has been put aside. He said that approximately $235,000.00 remains owing. He also has an overdraft.
Lindsay lives with a defacto partner. He said that he had a heart attack in 1994 for which he takes medication and has a regular check up.
Lindsay also owned or at least had an interest in a hairdressing salon in Rockhampton. His partner’s daughter worked in it and still does. The deceased provided him with financial assistance to acquire the salon. He sold the salon two or three years ago. This financial assistance may well have been the amount of $20,000.00 which the deceased lent Lindsay in about 1990. It was provided in cash which is how the deceased handled money. Lindsay said that he repaid the loan in cash in 1996 and that his partner, his sister Jean and her husband were present when he made the payment. There is no evidence from his partner, Jean or her husband. I accept Lindsay’s evidence that he repaid the $20,000.00. There also seems to have been an advance by the deceased to Lindsay of $750.00.
Much evidence was given as to the character and personality of the deceased. The picture that emerges is of a physically strong, strong-willed man who suffered from idiosyncratic views and a bad temper. The idiosyncratic side of the man found several manifestations. To his family he manifested mood swings and a bad temper, the sort of temper that one should not lose. Further to what I have already said, I accept that his mood swings at home could be sudden and express themselves with excess physical discipline (I make no comment on the matter of parental discipline) of the children, and damage to physical objects which must have induced a degree of tension and fear in the house, including in his wife. But at other times he was a kind and considerate person. On one aspect in relation to his children, he was concerned for their education and that they had employment when they left school. I conclude too that the departure of his children from the farm, as the departures occurred, caused him distress. He was not however a person to approach his children after they left; he left that to them. As to his relations with other persons, the evidence indicates that with the exception of “authority” he was courteous to women and was generally regarded as a likeable character.

The next matter to mention is that the house on the farm in which the family lived had no light, power, running water or sewerage. In every respect - internal and external - the house was disgraceful. I am satisfied that it was the deceased who suffered that such be the living conditions. By the time he died the condition inside the house was deplorable.
Then, he had a dislike of authority and from as far back as the 1950’s had a record of aggression and ill -considered and wrongful acts. Lindsay described how in the 1950’s when the SEC put the power lines through the property he objected and “there was all hell to pay over that”. As I have mentioned he did not - indeed, it is obvious, refused - to have the power connected to the family house. In summary, he could be a very difficult person to deal with, or reason with, assuming he would reason at all, on any matter on which he had his own idea including in particular the matter of his farm, and the care and control of his stock and fencing. As I have mentioned, over the years the fences on the property fell into such disrepair that they long ago became ineffective to keep the stock in. It was of course the deceased’s responsibility to maintain his farm including the fences but he did not do so. He did not spend money in that direction or on his house. There is ample evidence, and I so find, that in such matters he was mean and would not spend money.
Another feature of the deceased is that he did not use a bank in the normal way of having an account, or a cheque book, but dealt in cash. He distrusted banks. It was suggested that cash he hid may one day be found at the farm, but that is speculation. There is also evidence that he did not properly care for himself, at least in later years.
A further feature of the deceased, as I find on the evidence, is that he could harbour feelings about a person, including his children, when what he felt, might, objectively considered, be unreasonable. That might not be altogether unusual in a family situation, or in human relationships generally, but it is part of the make up of the deceased and it is an aspect commented on in the evidence. It is connected with the deceased having his own ideas and sticking to them. I mention one piece of evidence which Lindsay gave. He was asked if there “were problems on and off between your father and Doug, and you would expect that to have occurred with anyone trying to have regular contact with your father?”, to which he answered “Yes, anyone. Yes, I’ve got no problem with that”.
Having carefully considered the evidence and had the singular benefit of observing witnesses I make some further observations. I accept the evidence of Carmichael. He was an honest witness with a good recollection of matters on which he gave evidence. I have no hesitation in finding that the attack on the plaintiff over the stock transactions that Carmichael gave evidence about was without substance and totally fails. I might add in respect of the bull that was taken from the deceased at his request after three or four weeks, that that was a substantial period in which the bull might have covered the deceased’s herd of cows, and on the evidence I would not accept that the bull was “mad” as was apparently stated by the deceased.
The evidence of Vincent and Kennedy suffered considerably, in my opinion, from its dependence upon their acceptance of the truth of statements made to them by the deceased. I have regard to all of their evidence in arriving at my conclusions. In part I accept evidence they gave but overall their evidence suffers from this aspect and from an intention on their part to support the defendant’s case against the plaintiff. Vincent concluded his affidavit with a paragraph which states:
“That the Plaintiff kept his cattle on his father’s farm free of any agistment charges and in my opinion the Plaintiff used his father for his own ends.”
Remarkably, when one reads this affidavit and his oral evidence, one finds in answer to the very last question in his re-examination when he was asked if he ever saw the plaintiff and the deceased together, he could not swear he had, that he honestly did not know, maybe at the post office “that would be about the only time I’ve seen them together”. That is not to overlook that earlier in the affidavit he said that he had witnessed an exchange between the plaintiff and the deceased at a guardianship hearing in about 1994 or 1995, which indicated animosity between them. In his oral evidence he said he attended two of those hearings. Apart however from witnessing that exchange, which he described as “extremely unpleasant”, I do not accept that he ever saw the plaintiff with his father or that he could speak of his own knowledge of the two of them together as father and son or in their family situation. Vincent’s evidence was otherwise based on what he said that the deceased had said to him and on his claimed observations. Returning to the last paragraph of his affidavit, I asked Vincent on what he based his statement that the plaintiff used his father for his own ends. His answer was:
“In regard to the cattle and not doing the fencing, and using Bill’s feed to feed his cattle so that he could made money out of them, and return nothing back to the person who was supplying everything”.
On analysis, in my opinion, nothing that Vincent said here justified the extremely critical statement that the plaintiff used his father for his own ends. The statement is but a reflection of the biased attitude which Vincent brought to his evidence. I deal below with the matter of the cattle, which belonged to the deceased and in respect of which the plaintiff assumed a measure of responsibility for the benefit of the deceased. The fencing is related to that but it is the fencing to the deceased’s property that is in question. That is, the fencing to 702 acres which was the responsibility of the deceased to maintain and which he did not maintain, indeed, as I find, refused to maintain. He just would not undertake any expenditure and never authorised the plaintiff to undertake it. Vincent’s criticism is based on the premise that the plaintiff should have remedied the fencing, which means that the plaintiff should have paid the cost of doing so, even without re-imbursement from his father, for in my view his father would have cursed him for doing so and may well not have re-imbursed him. Further, the plaintiff is a man of humble means as I mention below. The next justification of Vincent’s criticism is that the plaintiff used the deceased’s feed and did not return anything back to him, meaning, I think, by way of a fee for agistment. In my view this aspect of the criticism is without substance. It is also totally lacking in fairness in all the circumstances to which I refer below. It is I think based on claimed statements of the deceased that the plaintiff did not pay a fee for agistment. Let us however have regard to the reality. The deceased was a strong-willed person used to getting his own way in matters concerning his land. If the plaintiff had cattle on his land they were there, I find, on terms that the deceased approved. If he wanted an agistment fee he would have demanded it, and received it, failing which, in my view, the plaintiff’s stock would have been removed. I have dealt at length with this part of Vincent’s evidence because it is a convenient and readily demonstrable way of pointing out the judgmental and partial nature of his evidence.
I should add a further finding in relation to the deceased. That is that he was capable of forming a set against a person in his mind, and that the more a person was involved with him the greater would be the likelihood of this happening, and of him expressing it to other people in conversation. Thus, when the plaintiff sought to assist his father and undertook a responsibility in relation to his beloved cattle, he committed himself to a situation in which he was likely to have difficulty and confrontation with his father and achieve his father’s displeasure which would be communicated to others. This is just what happened. Whether there was substance in the deceased’s criticisms of, say, the plaintiff, was altogether a different matter.
Kennedy had known the deceased for 60 years. Her affidavit was confined to conversations with the deceased when she drove him to Warracknabeal and complaints he made about the plaintiff. She concluded her affidavit with the statement that her :
“overall impression was the deceased did not have a good relationship with Doug and would certainly not wish him to get a greater share in the estate than any of his other children”.
This broad observation was based entirely on conversations with the deceased and not at all on any observations of the plaintiff and the deceased. In her cross examination she said she had known the plaintiff as a young man. It is evident that she had not known him since then and certainly not spoken to him about his father’s complaints. She said that the deceaseds main complaint was that he had given the plaintiff money and that the plaintiff wanted more. I deal below with the matter of financial assistance to the plaintiff for it was relied on by the defendant. While the deceased may have said something on these lines to Kennedy I am not satisfied on the evidence that it was fairly said or that the facts justified the criticism. The other criticism was that the plaintiff would not help his father at different times when he asked for help. Kennedy said that the deceased did not elaborate on what that help was. She went on to agree in cross examination that the majority of these conversations occurred after the deceased had lost his licence to drive in about 1994, that is, mainly in the last three or four years of his life. It is clear on the evidence that the deceased’s capacities deteriorated in these years. But, even before those last several years and during them there were times when trouble was caused by the deceased’s cattle wandering onto the road, and other matters.
It is worth recording evidence which Kennedy gave at the commencement of her re-examination as to the deceaseds complaints. It also bears on the nature of the deceased, his self imposed problem of inadequate fencing and the lack of merit in his criticism of the plaintiff for not rectifying the fencing. The evidence is:
“Ms Kennedy, you’ve said that Bill was highly critical of Doug? - - -
M’mm
Can you tell us what he said? - - - He would say at different times, ‘I only wish he’d come down and give a hand with the fence’, and then I said to him, ‘Oh, perhaps he’s busy, Bill”, and then he’d say, ‘But the trouble is, if he comes, he’ll want money, and I’ve given him enough now’. That was his words to that effect. Said, ‘If he comes down, he’ll want money for it’, and he said, ‘I’ve given him enough now’.
Did he tell you how much? - - -No, he didn’t. And then another occasion he told me that he’d recently given him $2000, and it made me wonder where Bill got $2000 from. But I think if he said he’d given it, that he would be quite sure about it.
You said he complained about what Doug wouldn’t do with the
fencing? - - - Yes.
What did he say then? - - - Well, he said then, ‘I need a new fence’, but he said, ‘I can’t get one’. He said, ‘If Doug would come down’, he said, ‘But I - but he just won’t do anything’.

HIS HONOUR: Did you ever suggest to him that he get a
contractor in to do it? - - - Yes, but he was a very proud person and he didn’t like anyone on his property at all, because it was his property. Wouldn’t get a contractor.

He’d have to pay them too, I suppose? - - - Yes, and that was another problem. You couldn’t tell him to do anything very much, because he was - as I said before, he was his own man and he knew what he wanted and what he would do.”

I have mentioned that the plaintiff relied on affidavits sworn by Carmichael and twelve other deponents. None of those twelve were cross-examined. In the main the evidence goes to the relationship between the plaintiff and his parents, and to the assistance which the plaintiff gave to his parents and to the deceased after his mother’s death. I accept the evidence along with that of the plaintiff as establishing that the plaintiff (and his family) did regularly see his parents, that there was a good relationship between them, and of assistance on the deceased’s farm.
I have mentioned that the plaintiff and his wife lived at Patchewollock where they conducted a farm. Life has not turned out well for them. A farming venture failed and the plaintiff and his wife lost their land in 1989 when it was sold by their bank. The plaintiff said the farming had been affected by some poor seasons, and time taken up with his wife for nearly six months while she had treatment for cancer in Melbourne, and “running after” her father and their own family. He also said he attended at his parents farm on a “very regular basis”. In the result the plaintiff became a bankrupt in, it seems, 1989. He said that he was discharged from bankruptcy the following year when creditors were paid out. The plaintiff was cross examined as to whether the bankruptcy was re-instated, but the plaintiff denied it was.
Their financial situation was such that from 23 December 1989 the plaintiff and his wife lived in a caravan in a caravan park. The plaintiff had no assets, and he has not been in employment since 1991 when he commenced to receive unemployment benefits. He said that he tried to find a job. In early 1997 he was put on a disability support pension by reason of heart muscle damage which he sustained in late 1996 or early 1997. He continues to receive that pension.
The plaintiff said, and I accept, that the deceased asked the plaintiff and his wife to live with them at his farm. I accept too that the plaintiff did not do so, having regard to the condition of the deceased’s house. The plaintiff and his wife continued to live in the caravan until October 1996 when the plaintiff’s wife bought a house in Hopetoun for approximately $36,000.00 using funds which she had inherited. The house belongs to her. The plaintiff still has no assets.
The plaintiff and his wife have three children, Brenda aged 35, Lindsay aged 34 and Stewart aged 31. A fourth child, Russell, would now be aged 32 but he died of cancer, perhaps on the same day as the plaintiff’s father. The plaintiff had the misfortune of travelling to his fathers farm to tell him of the death of his grandson Russell, only to find his own father dead in his kitchen. The plaintiff’s wife is in poor health, being particularly affected by grief at the loss of her son.
I stated earlier that the plaintiff’s case is put on two bases, namely, assistance which he provided to his parents over the years but in particular to the deceased after the death of his mother, and his special need. I deal now with the first basis. In doing so I will seek not to repeat any of the previous discussion. To that discussion I add one thing at this point. Generally speaking I found the plaintiff to be a witness of truth. I say generally speaking because I am of the view that at times he exaggerated or put the facts somewhat higher in his favour than was the case. In this respect I instance the regularity with which he visited his parents and his curious explanation of the large number of beer bottles he gave in relation to his drinking of alcohol. Further, I suspect that he minimised the number of times that his father gave him $5 or so for fuel to cover his transportation costs. But this is not to overlook the exaggeration, falsity and bitterness directed towards him that I found in witnesses on the other side. I make allowance for such matters and conclude, overall, that I prefer the evidence of the plaintiff to that of the defendant and her witnesses.
I accept that over the years the plaintiff and his family regularly visited his parents. I accept that over the years after he left home the plaintiff performed work on his parents farm. He has referred to this in his affidavits and there is evidence as to these matters in other affidavits filed on his behalf. There was both a good family relationship and the provision of assistance. At the same time of course the plaintiff had his own life to lead. But he remained in the area, although a fair drive to the north, and was thus accessible to his parents.
At one point in his initial affidavit the plaintiff referred to assisting his father with crops planted in 1991 and 1992. In relation to this the defendant said the plaintiff and a friend helped with the harvest in 1992 and that the deceased had told her that he got nothing out of it, that the plaintiff and his mate “got the lot”. She then asserted that:
“that was the end of cereal growing, as the Deceased refused to have
anything further to do with the Plaintiff”.
I reject her evidence. Let us deal with each part of it. Assuming that the deceased said what the defendant alleges, I reject it and accept the evidence of the plaintiff that the deceased received the proceeds of the crop (it seems about $11,000.00) and that the deceased gave the plaintiff $1,600 for payment to the person who stripped the harvest. Then, in his later affidavit sworn 9 April 1998 the plaintiff also referred to an oats crop that he sowed in 1994 which was cut to hay with some stripped to seed which seed remained on the property. I accept the plaintiff’s evidence as to this and as to he and his son having done the work, subject to the involvement of the other person referred to above, and that they did not receive any part of the proceeds of any crop in the 1990’s. That is not to suggest that they received the proceeds of a crop before 1990. But it puts the lie to the assertions that that was the end of cereal growing and as to the deceased having nothing further to do with the plaintiff.
Then there was an issue about fencing. In his initial affidavit the plaintiff observed that over the last 30 years maintenance on the property was minimal and the fences were very poor to non-existent. To this the defendant responded by asserting that all fences were erected and maintained by her sisters and herself, that all properties were fenced and all the fences were in good condition when they were at the farm. She said that the plaintiff did not assist with this, and that the fencing on the home block had not been touched since she left in 1995. It is to be noted, for otherwise the generality of this evidence could mislead the reader, that the defendant and her sisters did not work on Schultz’s block which comprises more than half the total acreage. The fences on that block had nothing to do with them. The plaintiff denies the defendant’s evidence as to the work she and her sisters performed, or at least to the level to which the defendant claims. In so far as the evidence is concerned with work that was done by the siblings up to the time when they left home they are all to be regarded as on a par because they were all required to and did work, as children did on farms. Then, over the years the deceased let the fencing go. The plaintiff does go on to say, and I accept, that in 1994 he and his sons re-fenced approximately 800 metres of the home block. There seemed to be a general criticism of anything the plaintiff had done but whether or not it was A1 work the fact is that the plaintiff made an attempt to deal with an unsatisfactory situation that was not of his making. I mention another point. In his initial affidavit the plaintiff described the deceased’s house. To this the defendant said in an affidavit that the house was an absolute disgrace and that nothing had been done to it since she left home. I accept that evidence. The defendant then asserted that the plaintiff had borrowed money from the deceased from time to time and that if he had paid it back the deceased would have been able to maintain the house. In other words, she linked the state of the house to the plaintiff not paying his debts to his father. In my view this evidence, if it be so called, is to be rejected. In the first place, I find that the defendant lived as he did because that was how he preferred to live. It was his own decision. His house never had the usual services and he let it deteriorate over many years. Secondly, the defendant has quite failed to establish the alleged borrowings let alone equate the amount thereof to any works that the deceased would have carried out to the house.

In the later years, it seems from the 1980’s, various incidents occurred involving the deceased which evidenced the difficult and awkward disposition of the man. I have mentioned that he did not maintain the fences on his property. This led, with increasing frequency it would seem, to his cattle wandering out onto the Henty Highway which ran past his property, and other parts. I accept the evidence as to this; see for instance the affidavit of Sergeant Wall, the Station Commander at Warracknabeal Police Station. He deposes, among other things, to the deceased letting his cattle graze on the highway while he visited his wife in Warracknabeal Hospital. It was said in evidence, and I accept it would be correct, that the deceased did not accept the proposition that he was liable for his wandering cattle. He was lost to the reality of the world and behaved as he considered appropriate. The wandering cattle inconvenienced police who were required to get them off the road and they would chase up the deceased or the plaintiff to secure them. Sergeant Wall said, and I accept, that the deceased’s “passionate hate of police or any person in authority” was such that they would contact the Hopetoun police who would contact the plaintiff who would arrange for the cattle to be secured.
As time went on, the evidence established, the deceased became attached to his cattle. They were, it was said, his life and like his children. He would be out walking with them, as they grazed, often along the roadside. But often the cattle would be out unattended because of the deceased’s inadequate fencing or because he left them. Sergeant Wall said, and I accept, that by about 1990 he was tired of the deceased’s wandering cattle and on an occasion when the deceased had left them wandering on the highway while he went into town he authorised the bringing of a charge of allowing an animal to wander on a road. This was heard at the Warracknabeal Magistrates’ Court. The plaintiff puts this in or about 1989. Sergeant Wall’s memory is that the matter was adjourned to give the deceased time to repair his fences and that the plaintiff and his sons did some such work at this time. On the adjourned date the charge was struck out.
The deceased himself did not carry out fencing work or engage a contractor to do so or give the plaintiff the funds with which to do so. There is no doubt that in this matter of wandering cattle the burden fell on and was borne by the plaintiff. But without significant improvement to the fences and with the deceased’s habits in relation to his cattle, the problem of wandering cattle continued. It was a recipe for a situation in which the deceased would criticise the plaintiff, and he did so from time to time, the plaintiff’s vice being that he was the one having contact with the deceased and trying to do something to alleviate the situation. Some feel for the plaintiff’s situation in seeking to do anything is provided by the evidence of his brother Lindsay that the deceased was extremely upset with anyone telling him that he should fence his property in any way or telling him that his cattle should not have access to the long paddock.
And so things continued. In late 1990 or early 1991 the deceased was convicted of aggravated cruelty to one of his cattle, it would seem on account of inadequate care. Then, according to Sergeant Wall, on 7 February 1991 the deceased was disqualified from having custody of any farm animal for three years. The plaintiff was at the court and volunteered to the magistrate to be custodian of the stock. He did this because otherwise the stock would have been sold and having regard to his mothers relatively recent death and the deceased’s affection for his stock, the deceased would, the plaintiff thought, have fretted and died in a short time. I accept that he acted for those reasons, and that his views were reasonably held. The Magistrate accepted the plaintiff’s undertaking and placed the cattle in his custody for three years.
I find that the plaintiff did attempt to keep the cattle in and tend them. I accept the evidence of the plaintiff that he gained nothing out of it, and that it cost him:
“In money for fuel in going up and down the road. I was there in the summertimes, and then sometimes I was there seven days a week. And sometimes I’d get home because of the condition of the fence - I’d get home and I’d get a phone call or a message at the caravan park and I’d have to turn around and go back again, because a couple had got out again.”
He also had the difficulty of dealing with his father. He had another difficulty, apart from those I have mentioned. He had custody of the cattle but he had no control over the deceased’s finances and while he gave the plaintiff some money to cover feed for the cattle he would not have the fences fixed. So the burden fell on the plaintiff to do what he could, but with one if not two hands tied behind his back, so to speak. It may not be altogether surprising that in 1992 in attempting to achieve some better control the plaintiff made an application to the Guardianship and Administration Board in relation to the deceased.
Before turning to that application it is necessary to refer to other matters concerning the deceased and his conduct.
In the latter years the deceased had difficulty with his driving and had two accidents which the plaintiff described as “significant”. Since early 1992 he did not have a licence to drive a motor car. I find that the plaintiff drove his father about and that his father also got himself to Warracknabeal by walking or hitchhiking. But, again, it was a respect in which the plaintiff drove from where he was living to attend upon and assist his father.
Not long after the death of his wife the deceased told the plaintiff that the ANZ bank was going to foreclose on his farm for a debt of over $30,000.00. The plaintiff contacted the Rural Counsellor who in October 1990 attended upon the deceased with the plaintiff. The deceased expressed concern about two long outstanding debts to the ANZ Bank and the Commonwealth Bank. The Counsellor negotiated a settlement of the debt for approximately $10,000.00 which meant a write-off of some $22,000.00 which was interest owing on an original loan in 1978 of some $9,500.00. However, she could not settle the Commonwealth Bank debt of around $9,500.00 for which she offered a pay out of $1,500.00. The deceased happily paid the ANZ the settlement sum of $10,000.00. He paid it with cash he had stored on the property. But he refused to pay the Commonwealth Bank. The plaintiff then negotiated a complete write-off of the debt and instructed the deceased’s solicitor to complete the documentation. It is relevant to note that this debt, as the deceased explained it to the plaintiff when he tried to help his father, arose from a loan that the deceased had obtained for a tractor and that a dispute had occurred several years earlier as to the pay out figure on the loan and as the bank wanted more than he was prepared to pay he paid nothing. Thus, the debt built up with interest. In each case the debt was owed and it was the deceased’s stubborn attitude that caused him not to pay the debt. In each case repayment of the debt was secured by a mortgage over the farm. Once the debts were cleared, the titles to the deceased’s farm became clear and the titles were sent to the deceased. But this was not before a dispute over stamp duty arose and was resolved. An indication of the stupidity of which the deceased was capable was that although these debts had settled at a reduced figure of $10,000.00 with something over $40,000.00 written off by the banks who then were prepared to release the mortgage security they held over the farm, the deceased’s attitude was that he should not pay stamp duty on the discharge as he owed nothing. After a time he did pay and the titles became free of debt. Again, this is a matter in which the plaintiff materially assisted his father. His actions might well have saved the farm from being sold by the banks and thus served to maintain or preserve the deceased’s estate, the land on which he kept his beloved cattle and the house in which he lived.
Next, it is necessary to mention some altercations which the deceased had with persons in authority. He assaulted officers of the Department of Agriculture when then attended his property to test his cattle. This testing was being done throughout Victoria. The deceased said his stock did not need testing and he did not want them infected by dirty needles. To stop the testing he assaulted the officers and their horses. He was convicted of assault at the Warracknabeal Magistrates’ Court.
On a subsequent occasion the police attended at the farm to seize a motor vehicle pursuant to a warrant for non-payment of fees due for the surveying of a fence line. The deceased had refused to pay the fee as the surveyor had not agreed with the deceased where the fence line should have been. So he refused to pay, was sued, judgment was obtained and a warrant issued. The deceased’s wife was alive at this time. The deceased refused to give up the motor vehicle on the basis he needed it to drive his wife to medical treatment. He could, and should, have paid the debt but his perversity ran deep. A fight ensued. He overpowered the two policemen present. With reinforcements the deceased was brought under control. He was convicted and ordered to be imprisoned by the Magistrates’ Court. Upon appeal to the County Court the sentence was varied so that he was not imprisoned. This is an instance of the deceased’s so called hatred of authority. It could be called other things, extremely unflattering, but they are so obvious they may be left unsaid. Nevertheless, out of this the defendant found scope to criticise the plaintiff on one of the occasions the deceased was in court. The criticism was that he did not assist the deceased or drive him home. I accept the plaintiff’s evidence that he had arranged a barrister and that the deceased had made his own way to Horsham and he was not aware he had no way of getting home.
I return now to the matter of the stock. In February 1993 the plaintiff sold 21 head of the deceased’s cattle. The cattle were then in his custody. The plaintiff said and I accept that he sold them in the hope of purchasing fencing material with the proceeds but the deceased would not let him use the monies for that purpose. I reject the contention of the defendant that the plaintiff sold the cattle as though they were his property or that he sold them with the intention of diverting the proceeds to himself. I accept the evidence of the plaintiff and Carmichael and reject as baseless the allegation of impropriety. I find that the plaintiff acted in the best interests of the deceased and his cattle as he saw it.
Further, the deceased received a cheque for $12,997.72 as the proceeds of sale of the cattle and asked the bank to cash the cheque but the bank refused. This is the money which I referred to earlier. He then asked the plaintiff to pay it into his bank and pay it to him in small cheques which he would cash. The plaintiff refused because he was concerned about the amount of cash the deceased was apparently holding at the farm and that other persons might or did know of this. Shortly thereafter the deceased gave the cheque to the defendant and she used it as I have mentioned before to pay various outstanding accounts of the deceased including the allowance for herself.
Then, the history goes on in the 90’s with custody of the stock being returned to the deceased, followed by another court appearance and a conviction for cruelty. This would appear to be on 19 April 1994 when Sergeant Wall said that the deceased was disqualified from having animals for five years, and his stock were placed under the control of a stock agent called Taylor. The plaintiff and the defendant attended the hearing. The plaintiff obtained a medical certificate which in effect said that the deceased did not have the capacity to look after himself and appreciate matters associated with the proceeding. This was provided to the Magistrate. It assisted the Magistrate who had suffered inappropriate behaviour from the deceased in court. In the end the Magistrate permitted a limited number of stock - 20 breeding cows and 1 bull - to be on the property on the basis of the progeny thereof being sold at no more than 12 months of age. That number of stock could be handled on the property even with the poor fencing. Taylor did not give evidence before me. There is an issue which I am unable to resolve as to whether it was the plaintiff or Taylor who put the stock proposal to the court, or even whether Taylor gave evidence to the Magistrate. What is clear is that both the plaintiff and the defendant were at court to assist the deceased.
I now come to the matter of the plaintiff’s applications to the Guardianship and Administration Board. There was an issue as to the number of applications that were made. The plaintiff said he made three applications, the defendant said he made four. No form of application was put in evidence, nor was the process of making an application explained or related to this case. There was put in evidence certain correspondence from the Board to the defendant being notices of hearings on 29 April 1992, 27 May 1993 and 6 September 1994 respectively of the application of the plaintiff for a guardian and administrator to be appointed concerning the deceased. Also in evidence is a letter from the Board to the plaintiff dated 7 April 1995 which enclosed an order of the Board by which an application by the plaintiff dated 21 March 1995 was dismissed. This correspondence would indicate that there were four separate applications. Whether that was so in fact, as distinct from there being four hearings or even a resumed hearing of an application would have been made clear by the production of the Board’s file but the parties did not cause it to be produced. In the end it seemed that counsel for the defendant did not pursue the point as to the actual number of applications and I regard the evidence as not providing an altogether sound basis on which to do so.
The Board made no appointment. No statement of reasons for any of the Board’s decisions was established in the evidence, and I cannot speculate as to those reasons. In the circumstances I do not accept the statement of the defendant and Vincent (unsupported by proper evidence) that the Board was of the opinion that the plaintiff was not a suitable candidate for appointment.
The plaintiff did not tell the deceased that he was making the applications. The defendant asserted that he made them for “an ulterior motive... in that he wanted control of the Deceased’s assets for his own purposes”. The defendant was aware of the applications because the Board advised the family. Thus, the applications and hearings were not secret affairs. On becoming aware of the first application, the defendant contacted the deceased and told him of it. She says that he was shocked at such action being taken behind his back, and one may readily accept that he so reacted and with some force of feeling. This led the deceased, on 27 April 1992, two days before the first hearing, to grant an enduring power of attorney to his children Lindsay and Jean. This was prepared by the defendants present solicitors, who are located in Melbourne, and I infer on the instructions of the defendant. The defendant said that the deceased did this to prevent the plaintiff from taking control of his assets. I conclude that the taking of the step was advised to the deceased by the defendant whose attitude in the witness box, and I assume then, was one of some bitterness and distrust of the plaintiff and that she (and I assume her siblings) wanted the deceased’s assets to remain intact as an inheritance. In the circumstances, the existence of the power must have been a factor in defeating the plaintiff’s application and to that extent was a success. Curiously, however, the deceased quickly revoked the power, the fact of revocation being stated in a letter to Lindsay dated 24 July 1992. He never granted another power of attorney to any of his children.
The immediate question, is why did the plaintiff apply to the Board? I accept the plaintiff’s evidence as to why he applied and that he did so bona fide in what he thought were the best interests of the deceased. The context is the great and increasing difficulty which he was having in attending to the deceased and matters concerning him including the difficulty the deceased was having in conducting himself and the problems he was causing others. His erratic and unreasonable behaviour - which at times was appalling - produced circumstances in which the plaintiff shouldered a burden that must also have been difficult emotionally. It was the plaintiff and none of the other siblings who were bearing this burden. It was not only the matter of the cattle but also concerns as to the deceased keeping amounts of cash on the property, his conflicts with the law, to the deceased’s evident and increasing inability to sensibly look after himself and his affairs, and to his loss of his driving licence. These things did not all happen at once but were a continuum in which the situation became worse.
What was the plaintiff to do? He had legal advice to go to the Board. He acted on that advice. The aim was to be able to manage matters so that the deceased did not get into further trouble. The plaintiff did not have a lawyer acting for him in the applications. Perhaps it would have been wiser to tell the deceased of the applications. On the other hand disclosure would have been likely to produce a reaction of some magnitude which one might wish to avoid. One might hope that all would work out, and hope for the best in that respect. How does one deal with such a difficult parent? In any event I do not find in the omission evidence of an ulterior motive. I say ulterior motive because the defendant’s approach to the case was ridden with suspicion and concern as to the plaintiff having ulterior motives in applying to the Guardianship and Administration Board. The defendants attitude seemed to overlook that the plaintiff would have been accountable and could only have acted under specific orders of the Board and to the extent of those orders.
Finally, it is worth setting out evidence of the plaintiff in re-examination, which I accept, as to why he applied to the Board. He said:
“For starters, on my mother’s death bed she asked me to promise her that I’d try and get - keep my father out of trouble, and which I did. I done everything I could possible do in human hands to keep him out of trouble. It was getting to the stage where I just couldn’t carry on any further because I’d just get him out of one bit of trouble and he would go head first into another. I knew - I was aware of the debts he had, and he wouldn’t pay for mums hospitalisation. He had his ute pranged and he had that fixed, he wouldn’t pay for that. And things like that. And I come to counsel and ask them - well, I was advised to go to Administration Board to see if I could get some help from there.”
In that passage the word “council” should have appeared as “counsel”, meaning legal counsel who provided advice. I further accept that the plaintiff knew of no other person who could be an applicant.
The deceased revoked the power of attorney following certain behaviour of Dorothy, Lindsay and Jean acting under the power. The plaintiff and a friend had the deceased’s utility in Hopetoun to put a new tray on it. The work was not finished. On 6 May 1992 Dorothy, Lindsay and Jean arrived at the premises and using the authority of the power of attorney removed the utility to a garage in Warracknabeal to have the work finished. The plaintiff drove to the deceased’s farm and told him what had happened. The deceased was not aware his utility had been moved. He asked the plaintiff to drive him to Warracknabeal. The plaintiff refused to do so and returned to his home. The deceased went into Warracknabeal and took the power of attorney off his children, took what the plaintiff describes as the Deeds of the deceased’s land off Lindsay, paid him some money he owed, and told them to take the vehicle to his farm and leave it. They did return it but, the plaintiff says, they took the battery out and cut the leads. In the end the utility was returned to Hopetoun, the work was finished and the plaintiff obtained a roadworthy certificate for it. The plaintiff went on to say that on the day following this incident, on 7 May, he was at the farm and at his request drove the deceased to the Motel where Dorothy, Lindsay and Jean were staying. When they got there they were advised that the others had left the previous afternoon. The deceased’s birthday was on 9 May. They had not told the deceased they were going. They left, defeated, it might be said, with the deceased having recalled the power of attorney and got possession of the titles to his farm.

It is significant that neither the defendant nor Lindsay dealt with this episode and the recalling of the power of attorney in their affidavits. Nor was the plaintiff cross-examined upon it. I accept his evidence. The plaintiff was left to carry on, trying to assist the deceased.
Sergeant Wall attended the first hearing before the Board. He said that he remembered a heated argument between the deceased and the plaintiff in which the deceased said he wanted nothing more to do with him and the plaintiff said that that would be fine. They were still arguing when he left. It is not surprising that there was an argument. Even without the emotion of an occasion such as the Board hearing, the evidence establishes that it was easy and not unusual to have an argument with the deceased. Further, the circumstances conduced to argument. In both father and son there must have been a mix of emotions, including resentment on both sides, for different reasons. There was a history of arguments but the matter discussed in a previous paragraph shows that within a short time the deceased and the plaintiff were talking and the deceased was relying - again - on the plaintiff in the matter of his utility and withdrawing the power of attorney from the other siblings. Sergeant Wall’s evidence that in 1993 it appeared that the deceased and the plaintiff had patched things up is merely confirmatory of the conclusion I reach in any event.
The defendant gave evidence that after his second application was dismissed the plaintiff told the deceased “I will do this to you every birthday you have until I destroy you”. Vincent said that plaintiff said this at one of the hearings. The plaintiff denied that he said this but he may well have done so in the heat of the moment and I merely repeat as to this what I have said above as to arguments between the deceased and the plaintiff.
Vincent also said that he witnessed an extremely unpleasant verbal exchange between the deceased and the plaintiff at a court hearing at Horsham in or about 1994 or 1995. Vincent said further that there was a great deal of animosity between them. Unfortunately Vincent did not state what the proceeding was or what the occasion of the discussion was or what it was about. In cross-examination Vincent’s statements were put to the plaintiff who said he could not recall. Regrettably the cross examiner did not seek to assist the plaintiff’s memory by any further questioning about the matter. It was left in the air. The incident Vincent referred to may have been that which is referred to by Sergeant Wall in February 1994 when following the hearing of charges against the deceased of assault, resisting arrest and possessing animals when prohibited from doing so, and in connection with which the plaintiff had provided a statement to the police, he had an argument with his father outside the court. If it is the same occasion I still have no evidence as to what the argument was about. One might assume that the source of it was the deceased’s behaviour and the problems it was causing. I find nothing in this of an adverse nature against the plaintiff. I should also say that I regard it as unsatisfactory to have evidence of a few words taken out of a larger discussion and without more of the content of the discussion and what it was about and a better knowledge of the circumstances which gave rise to it. There is a danger of taking words out of context. Further, it might be recognised that in a stressful family situation things may be said that are not meant and which do not carry, and are not understood by the person to whom they are directed as carrying, the full meaning that a listener may apprehend. If the purpose of the evidence was to establish that the plaintiff had a poor relationship with the deceased or was not a loving or dutiful son I reject it.
Sergeant Wall said that from the day at court in February 1994 mentioned above he thought that the plaintiff had “little or nothing to do with his father”. He did not give a basis for that belief. He does however say that the plaintiff was present at court in April 1994 when the deceased faced more cruelty charges. I find that the plaintiff continued to see the deceased and to seek to do his best, but the deceased was increasingly difficult.
I now deal with the matter of benefits which the plaintiff received from the deceased. The plaintiff said in his initial affidavit that the deceased had given him a horse drawn mower and an old AL harvester, two cows and a load of seed valued at about $200.00. He further said that on occasions the deceased gave him $5 for his petrol and travelling to and from his farm, particularly when he had custody of the stock and was travelling 3 - 7 days per week. He said he did not receive other provision.
In her affidavit sworn 17 March 1998 the defendant said that the deceased provided “extensive” support to the plaintiff including nine matters which she listed. I now deal with them in turn. First, she said that the plaintiff and his son wrecked a good house on the Schultz property and used the materials for the son’s carpentry business. She valued this benefit at $30,000.00. I reject this claim. I accept the evidence of the plaintiff that the deceased had not used this house to live in following the purchase of the block in the 1950’s, that he had stored hay in it, and that cows had used it as a barn. In cross-examination the defendant conceded that a house so used would deteriorate, mice plagues being a factor and that her value of $30,000.00 was her inexpert valuation based on the house as she remembered it when she left in 1955. She had not seen it again. All that is now left, it would seem, are some remains. Even if the plaintiff’s son took materials from the house for use in his carpentry business there is no proper evidence which establishes the condition of the house at any such time or its value or the value of any such materials. Accepting the use to which the deceased had put it, the house may have had no value as such, and it is impossible to know the value of any materials that the son had used for his benefit. In any event the plaintiff and his son Stewart, who is a carpenter, deny the allegation. The plaintiff denies he “wrecked a good house” and Stewart states that he “never touched one stick of timber out of that house at Schultz”. As mentioned, Stewart was not cross-examined. The defendant’s claim is not established in any amount.
Secondly, the defendant states that the deceased lent the plaintiff $1,500.00 to have a lump taken off his neck. The defendant denied this, saying the cost was borne by Medicare. This evidence is supported by a letter from his doctor. The plaintiff was not cross-examined on this allegation. In her cross examination, when confronted with this, the defendant said that the deceased told her that he gave the plaintiff the money. If the deceased told her that, he was wrong. The defendant added that the deceased said that the plaintiff possibly used the money for other things. That was not put to the plaintiff in cross-examination, and I reject the evidence. The claim is not established.
Thirdly, the defendant said that at the guardianship and administration hearing in 1993 the plaintiff conceded that he owed the deceased $6,000.00 which he would pay when he received compensation for a case against the Hopetoun Shire. The defendant said in evidence that the correct figure was $600.00. This was for the old mower and AL harvester. It seems that he has not paid the $600.00 although the case against the Shire concluded on confidential terms. I interpolate here that the plaintiff received a settlement sum but counsel for the defendant did not press for disclosure of the sum when the plaintiff said the terms were confidential. Thus the plaintiff was entitled to and doubtless received some sum but I cannot find what the amount was and in particular I cannot find that it gave him any particular asset which he has not disclosed or which has not been accounted for by him. I continue. The plaintiff retains the two items of equipment. They have not been valued. I accept the plaintiff’s evidence concerning them. They are old items of equipment. $600.00 may be an over-generous allowance for them. Presumably they have some value but the evidence does not permit a finding. For the sake of the exercise, the plaintiff should be taken as having a $600.00 benefit.
Fourthly, the defendant alleges that the deceased and his wife lent the plaintiff $25,000.00 to purchase a truck. The plaintiff denies this and states that the truck was purchased with money provided by his wife from the proceeds of a deceased estate. The plaintiff’s son Lindsay supported his father in this. He was not cross-examined. In cross-examination the defendant said that she was relying on what her mother had told her. There is no other evidence to support the allegation. I do not accept it.
Fifthly, the defendant alleged that at a guardianship and administration hearing it was established that the deceased had paid the plaintiff’s telephone and petrol bills and she put a figure of $4,400.00 on this. The plaintiff denied the allegation. The fact is that the matter alleged was not “established” at a hearing at all. The highest the defendant could put it was that she was repeating something that her father had told her, namely that he had paid a $400.00 telephone bill and a $4,000.00 petrol bill in Hopetoun, and that she had told that to one Maher of the office of Public Advocate who included the information in a report to the Board which he prepared dated 25 May 1993. Not only is there no evidence of a fact being established at a hearing, the defendant did not even have and had not seen any telephone or petrol account the subject of the alleged payments. The claim is not established.
Sixthly, the defendant relied upon two invoices from Wimmera Mallee Agencies as showing that the plaintiff twice had an advance of $50.00 for fuel and an amount of $145.00 for three recaps on tyres which she said were signed for by the plaintiff without authority from the deceased. The plaintiff conceded the former item was for his benefit but said that the latter were re-caps on the deceased’s utility. I accept that evidence. The benefit to the plaintiff was the former item of $100.00 which measured against the cost of fuel used in driving for the benefit of the deceased is small, and more than off-set by the benefit to the deceased.
Seventhly, the deceased claims that the plaintiff owed the deceased’s estate $31,200.00 for agistment of 30 head of cattle on the deceased’s farm. This was calculated at a rate of $5.00 per head for 4 years. It is a fact that the plaintiff did not pay an agistment fee. It is also a fact that the deceased knew the plaintiff’s cattle were on his farm and that he never asked for a fee. In my view that is well understandable in view of the assistance which the plaintiff provided to the deceased and the plaintiff’s financial circumstances. Further, the presence on the farm of the plaintiff’s bulls meant that the deceased was getting the benefit of increased progeny in his herd. Other relevant assistance was that between March and May 1991 the plaintiff carted 48 big rolls of pea hay to the farm from Woomelang and one load of eight rolls of oaten hay from Laharum and in June 1991 one load of 200 small bales of hay from Laharum. The plaintiff purchased and carted the hay at no cost to the deceased. Then, in June to August 1991 the plaintiff carted a further 10 loads of hay; the deceased paid for the hay but the plaintiff carted it for nothing. The defendant did not dispute that each load of hay would take a day to collect. The plaintiff also fed it to the cattle. The plaintiff also referred to two other occasions of carting hay. I accept this evidence, indeed he was not cross-examined on it. On the defendant’s approach (for instance, her retaining of money to cover her accommodation, travel and telephone expenses) the plaintiff was entitled to be reimbursed for what he did for the benefit of the deceased and she confirmed that in cross-examination. It is no criticism of the plaintiff that he did not seek such reimbursement. I conclude, on the balance of probabilities, that in all the circumstances the deceased determined that the plaintiff could agist on the farm without a fee. I should add that I am quite unpersuaded by and do not accept the defendant’s basis of calculation of an agistment fee. The defendant has not established what, taking account of all relevant circumstances, a fair and reasonable agistment fee would have been. Further, on the plaintiff’s evidence, which I accept, his cattle were not there for four years but two or three and the total of 30 was the result of natural increase over the period.
Eighthly, the defendant alleges that when the plaintiff removed his cattle in 1993, he took 14 head belonging to the deceased which he valued at $8,000.00. The plaintiff denied the claim. I accept his evidence and reject the claim. I should add that even if the cattle or some of them had belonged to the deceased I was not satisfied by the evidence of their value.
Ninthly is the claim for $20,000.00 which I have already mentioned was abandoned by the defendant during the trial.
I should also mention that in his affidavit Vincent said the deceased had told him he had given money to the plaintiff and that Vincent’s best recollection was that a figure of $30,000.00 was mentioned. That is not established on the evidence and the defendant did not separately press it.
The result of this exercise is the establishment of a benefit of perhaps $600.00 in the form of old equipment, $100.00 for petrol which is a modest recompense on that account (the plaintiff from time to time received some other but modest reimbursement on that account which did not fully cover the cost of fuel and wear and tear let alone time spent), and agistment fees as to which there were set offs for the deceased and which understandably the deceased did not desire payment of. These benefits nowhere near equate to the benefit to the deceased and his wife of the efforts of the plaintiff over the years.
It will be seen that the defendant’s case placed much reliance on statements allegedly made by the deceased. Even if it be assumed that the deceased made any particular statement there is a question as to the reliability of the statement and why the defendant chose to accept the truth of and rely upon statements of the deceased that were critical of the plaintiff without asking him about them. This puzzled me because much of her evidence was concerned to establish how badly the deceased had treated his wife and children. Yet, having been away from her father for well over 30 years she would come back when there were difficulties and believe his accusations without checking with her brother. She could not give me an explanation for acting in this way. What made her attitude more puzzling was that at this point in her evidence when I was seeking to understand why she had not asked her brother the plaintiff, as to the truth of matters, she said that the deceased “had a great, a vivid imagination”, that he was her father and felt he was telling the truth. I asked her why and she said she probably wanted to believe he was telling the truth. Two questions on I again asked her why she didn’t speak to the plaintiff and she said that she was not talking to him at the time. I asked her why not and she said:
“I was - probably because something that had happened. I can’t remember, Your Honour. Dad had a good way of playing one off against the other, I realise that, but . . .”
The answer was not finished but it was revealing in what it said about the deceased, and the reliability of statements he may have made to persons about the plaintiff. The plaintiff, being the person who was around and on whom burdens had fallen, was more likely to bear the brunt of critical comments.
It remains to mention several points in the plaintiff’s evidence. First, he said the deceased had informed him that he would leave the farm to him. Other witnesses gave evidence to this effect. The plaintiff believed that the deceased had made a will accordingly. He further believed that the will was destroyed either by being burnt when the defendant and Lindsay cleaned the papers from the deceased’s home immediately following his death or following it having come into Lindsay’s possession from solicitors. This was denied. The fact is that no will or copy of a will has been located and no secondary evidence has been given of a lost will. On the balance of probabilities I am unable to conclude that the deceased left a will.
Secondly, as a result of his distrust of banks the deceased dealt in cash and stored cash at his property. I accept that people were becoming aware of this. This was one of the factors that led to the plaintiff applying to the Guardianship and Administration Board. The possibility is that there remains on the property an amount of cash hidden by the deceased and which one day may be found. I am unable to make a finding as to that.
Thirdly, the titles to the deceased’s farm have never been found. Again, the suggestion is that by carelessness they were burnt following the deceased’s death. There seems little advantage to anyone in hiding the titles or to have carelessly destroyed them. In the result the loss of the titles and the need to replace them has delayed settlement of the contracts for the sale of the farm and burdened the estate with extra costs.
In the circumstances which I have described I am of the view that the plaintiff has established his case both on the aspect of assistance to his parents and in particular the deceased in his later years and of need. In all the circumstances, having due regard to what the plaintiff had done for the deceased and having regard to the claims upon him of his other children and to their situation and station in life and their circumstances generally, and having regard to the circumstances and state of health of the plaintiff, a wise and just testator would have made greater provision in the distribution of his estate for the plaintiff than is achieved by the equality prescribed by the intestacy provisions. While in my view the special claim of the plaintiff derived from the assistance he and his family provided over the years and his special need in a sense operate together because of their temporal overlap and which renders the assistance provided even more burdensome to the plaintiff than it was, each operates separately and leads to the conclusion I have expressed. The deceased knew that the plaintiff was in a bad financial position, unemployed, if not unemployable, with no assets and in poor health. I find that he was a loving son who devoted much time to his parents and his father particularly in later years when help was needed. That help extended to the preservation of the estate. It was provided in circumstances in which no thanks could be expected and none were given. Yet, in my view, with persistence and direction, there was continued assistance or attempted assistance, even if it was not appreciated by the deceased. I am firmly of the view that the deceased failed in his duty to make proper provision for the maintenance and support of the plaintiff.
Counsel for the defendant submitted that if I should reach this point I should have regard to s.96(1) of the Act and the question whether the character or conduct of the plaintiff was such as to disentitle him to the benefit of any order for further provision out of the estate. She submitted that the plaintiff was so disentitled. The conduct which she relied on was the applications to the Guardianship and Administration Board, one - she said - being understandable but not the subsequent ones. It was submitted that these applications had a deleterious effect on the deceased. I do not accept that they did. They may have distressed him but I find that he was declining in his behaviour and capacities in any event. Further, the applications were made bona fide in the perceived best interests of the deceased. Then counsel relied on the evidence as to the plaintiff saying to the deceased that he would do this to him every birthday until he destroyed him. I have already dealt with that. I reject the submission that the statement indicates some sort of revenge or ill-will for the deceased. I add that having made that submission counsel could not suggest what might have inspired such an attitude. In my view there was nothing. Then counsel relied on the plaintiff’s conduct after the death of the deceased in lodging a caveat against the application for administration. I find no criticism of the plaintiff in that. He thought there was a will, indeed he was not the only one who thought or might have expected that there was a will, and if there was he might have been named as executor. It was not unreasonable to lodge a caveat against a grant of letters of administration in order to give time to ascertain the position. Vincent too - the witness called by the defendant - thought there was a will. Then counsel relied on the lodging of the caveat against the farm properties. Even if that was without proper foundation, the caveat was withdrawn with costs. No prejudice has been caused to the estate. I cannot find disentitling conduct there. I reject the submission of disentitling conduct.

The conclusion that I arrive at is that the deceased should have provided for the plaintiff to the extent of a further 20% of his estate, that is, instead of a one-fifth share the plaintiff should receive a two-fifth share of the estate.
Subject to anything counsel may submit the orders will be:

1.

A declaration that the distribution of the estate of the deceased William Lindsay Hallam was such as not to make adequate provision for the proper maintenance and support of the plaintiff Frederick Douglas William Hallam.

2.

That provision be made for the plaintiff out of the estate of the deceased as follows, namely, that the plaintiff be entitled to two-fifths of the estate of the deceased, the balance of estate being shared equally by the other children of the deceased.

3.

The costs of the plaintiff of and incidental to this application, including any reserved costs, be taxed as between solicitor and client and paid out of the estate.

4.

The costs and expenses of the defendant administrator of and incidental to this application including any reserved costs be paid or retained out of the estate.

5.

Direct that a certified copy of this order be made upon the letters of administration of the estate of the deceased.
6. Liberty to the parties to apply as they may be advised.

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Agents Commission	$7,712.24
Defendants costs of proceedings estimated at $45,000.00,

[1998] VSC 131

13 November 1998