McGeough v Ian Torrington Blatchford as administrator of the estate of Margaret Mary McGeough - [2019] WASC 454

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MCGEOUGH -v- IAN TORRINGTON BLATCHFORD as administrator of the estate of MARGARET MARY MCGEOUGH [2019] WASC 454
CORAM:   SMITH J
HEARD:   29 & 30 APRIL 2019; AND BY WRITTEN SUBMISSIONS 7 MAY 2019; 23 MAY 2019; 26 MAY 2019; 27 MAY 2019; 3 JUNE 2019 AND 14 NOVEMBER 2019
DELIVERED          :   9 DECEMBER 2019
FILE NO/S:   CIV 1457 of 2017
BETWEEN:   RORY GERARD MCGEOUGH
Plaintiff
AND
IAN TORRINGTON BLATCHFORD as administrator of the estate of MARGARET MARY MCGEOUGH
First Defendant
JAMES MCGEOUGH
Second Defendant
UNA MARY RAND
Third Defendant

Catchwords:

Inheritance - Applications under Family Provision Act 1972 (WA) - Where estate is very small - Competing claims of beneficiaries - Whether testator adequately provided for proper maintenance of children - Where testator unaware of financial circumstances of plaintiff at date of death - Where plaintiff suffering medical issues limiting ability to gain employment - Turns on own facts

Legislation:

Family Provision Act 1972 (WA), s 6, s 7, s 21A(2)
Legal Profession (Supreme Court) (Contentious Business) Determination 2016
Legal Profession (Supreme Court) Contentious Business) Determination 2018

Result:

Judgment for the plaintiff

Category: B

Representation:

Counsel:

Plaintiff	:	Mr P G McGowan
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	In person

Solicitors:

Plaintiff	:	Templar Legal Pty Ltd
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	In person

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

Anderson v Teboneras [1990] VR 527
Andre v Perpetual Trustees WA Ltd [2009] WASCA 14
Butcher v Craig [2010] WASCA 92
Daniels v Hall [2014] WASC 152
Davison v Kempson [2018] VSCA 51
Dean v Collins [No 2] [2015] WASCA 151
Delacour v Waddington [1953] HCA 64; (1953) 89 CLR 117
Devenish v Devenish [2011] WASC 129
Devereaux‑Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Goodchild v James (1994) 13 WAR 229
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Kaur v Sikh Gurdwara Perth (Inc) [No 2] [2018] WASC 99
Kilkenny v Kilkenny [2018] WASCA 197
Kitson v Franks [2001] WASCA 134
Lemon v Mead [2017] WASCA 215
Lysaght v Lysaght [2018] WASC 88
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Re Adamow (dec'd) (1989) 97 FLR 410
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757
Triplett v Triplett (Unreported, WASC, Library No 8146, 16 March 1990)
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Waddingham v Burke [2015] WASC 65
Wheat v Wisbey [2013] NSWSC 537

SMITH J:

The applications for Family Provision

For clarity and intending no disrespect, in these reasons (after they are introduced) I refer to the parties and their family members by their first names.
The plaintiff, Rory McGeough, and his brother the second defendant, James McGeough, have applied for orders for adequate provision to be made for their proper maintenance or advancement in life out of the estate of their late mother, Margaret Mary McGeough (known as Peggie and referred to as Peggie in these reasons). Both Rory and James are beneficiaries of Peggie's estate.
Peggie died on 9 May 2015, aged 91. She was a widow with nine adult surviving children. Each of her surviving children are beneficiaries under the terms of Peggie's will dated 29 March 2011. The terms of Peggie's will left, after payment of debts, funeral and testamentary expenses, the entire real and personal estate for division into 100 equal parts for distribution as follows:
(a)in [3(1)], 10% of the estate to seven of her children, Rory, Breffni John McGeough, Brian Patrick McGeough, Paul Joseph McGeough, John Martin McGeough, Noel Brendan McGeough, and Mary McGeough to be split equally (approximately 1.43% share between each of the siblings); and
(b)in [3(2)] and [3(3)], 90% of the estate to her remaining children, James and Una Rand McGeough, the third defendant, to be split equally between each other (45% each).
Following the renouncement of Peggie's appointed executors under her will (the Public Trustee) on 7 November 2016, contested related proceedings over the appointment of an interim trustee and administrator concluded with Ian Torrington Blatchford being appointed, as administrator pursuant to letters of administration with Peggie's will dated 29 March 2011 attached (solemn form proceedings).[1]
[1] McGeough v McGeough, CIV 2613 of 2015; Pro 6182 of 2016.
As at the date of Peggie's death, the total value of the estate was $567,298.11.[2]
[2] Exhibit 5: affidavit of Rory Gerard McGeough, sworn 21 March 2017, attachment C, page 13 (statement of assets and liabilities, filed by the administrator in the solemn form proceedings (CIV 2613 of 2015)).
The net value of the estate was depleted by the solemn form proceedings as a result of the dispute that arose over the appointment of an administrator and proof of the validity of Peggie's 2011 will. Following settlement of those proceedings, costs orders were made by Master Sanderson, on 22 December 2016, of $101,233 as payments for the costs of Paul (the plaintiff in the solemn form proceedings) as an expense of the estate; and $102,351.33 as payment for the costs of James (the first defendant in the solemn form proceedings) as an expense of the estate in those proceedings.[3]
[3] Orders of Master Sanderson, 22 December 2016, in CIV 2613 of 2015.
Whilst Rory was named as a defendant to the solemn form proceedings, he was not represented by solicitors, and filed an appearance to act in person. It is noted, however, that Rory did not (on his behalf) file any other documents in those proceedings.
As at 15 April 2019, the net value of the estate (as it was at 23 October 2018) was $356,129.31 (plus interest accrued since 28 February 2019).[4]
[4] Exhibit 2: affidavit of Ian Torrington Blatchford, sworn 15 April 2019 [2].
Only the administrator, James and Una have been served with the plaintiff's claim and are parties to these proceedings. Other than to enter an appearance and file affidavits sworn on 23 October 2018 and 15 April 2019 (which set out the value of the assets of the estate and entries in the trust ledger showing payments of debts), the administrator has not participated in these proceedings.
Rory is a resident of Australia; Una is a resident of the United States of America (USA); and James, whilst he has Australian residency, he spends most of his time in China.
Apart from Noel, the remaining beneficiaries are all resident outside Australia. In March and April 2017, each of the six remaining beneficiaries (including Noel) signed a notice to the effect that:[5]
(a)they had been advised of a Family Provision Act 1972 (WA) (the Act) claim in the estate being issued by Rory against the administrator, James and Una; and
(b)stated that,
I ADVISE THE SUPREME COURT OF WA …
I DO NOT wish to participate in the litigation as a relevant party on the understanding that my existing 1.4% Remainder entitlement will not be affected by the litigation. If my 1.4% Remainder entitlement is to be disturbed by any party or by a legal costs order against the estate's remainder, please contact me.
[5] Order 59 r 9, memorandum of conferral regarding parties to action signed by Rory's solicitors on 8 May 2017 and filed on 9 May 2017, annexure B.

The orders sought by Rory, and Una's position

Rory seeks orders in respect of his claim that:[6]
(a)paragraph 3(2) and [3(3)] of the will be deleted;
(b)a new [3(2)] be inserted to read: 'as to 90 of those parts to my Trustee for division as follows
(i)A lump sum of $150,000 be paid to Rory; and
(ii)The remainder to James and Una in equal shares'; and
(c)the estate pay Rory's party and party costs to be taxed if not agreed without regard to the upper limits of item 11 of the Legal Profession (Supreme Court) (Contentious Business) Determination 2016 and/or without regard to the upper limits of items 11 and 12 of the Legal Profession (Supreme Court) (Contentious Business) Determination 2018 as a testamentary expense deductible from [3(2)] of Peggie's will.
[6] Plaintiff's outline of submissions, filed 15 April 2019 [28].
Rory seeks orders in respect of James' claim that:[7]
(a)James' claim for further provision from the estate be dismissed; and
(b)the costs of James' application be paid by James.
[7] Plaintiff's outline of submissions, filed 15 April 2019 [29].
As to Una's claim on the estate as a beneficiary, Rory accepts that Una is of modest means. Rory contends that the financial provision that should be made for him should be such that Una's entitlements under the will be altered to be less than his, due to the comparative difference in their financial circumstances.[8]
[8] Plaintiff's outline of submissions, filed 15 April 2019 [31].
Una does not oppose the orders sought by Rory. Her position is that she accepts Rory's claim that Peggie's will has made inadequate provision for him. Una says that after provision for Rory is made that the remainder of the estate should be equally split between her and James. Una has made no submission as to costs.

Orders sought by James

James seeks orders in respect of his claim that:[9]
(a)paragraph 3(1) and [3(3)] of Peggie's will be deleted;
(b)paragraph 3(2) be deleted and instead the following be inserted: 'as to 100 of those parts to my trustee for division as follows:
(i)a lump sum of $200,000 be paid to James; and
(ii)the remainder to be distributed as the court sees fit'; and
(c)the estate pay James' party and party costs to be taxed if not agreed without regard to the upper limits of item 11 of the Legal Profession (Supreme Court) (Contentious Business) Determination 2016 and/or without regard to the upper limits of items 11 and 12 of the Legal Profession (Supreme Court) (Contentious Business) Determination 2018 as a testamentary expense deductible from [3(2)] of Peggie's will.
[9] Second defendant's outline of submissions no 1, filed 23 April 2019 [29].
James seeks orders in respect of Rory's claim that:[10]
(a)Rory's claim for further provision from the estate be dismissed; and
(b)the costs of Rory's application be paid by Rory.

The questions for determination in the applications for further provision and the relevant principles

[10] Second defendant's outline of submissions no 1, filed 23 April 2019 [29], page 14.

Rory and James each make their application pursuant to s 7 of the Act, and the court's power to make provision for a s 7 applicant as provided for under s 6 of the Act.
Both applications are to be determined under the provisions of s 6(1) of the Act. The terms of s 6(1) give rise to two issues (which are to be dealt with in two stages) in determining each of the applications. Those two issues are:
(a)whether the disposition of Peggie's estate by her will was not such as to make adequate provision for Rory and/or James for their proper maintenance or support in life; and
(b)if so, what would be adequate provision for the proper maintenance or support of Rory and/or James.
The first issue, which is also described as the first stage, requires the court to decide as a question of fact (notwithstanding that it involves a value judgment) whether adequate provision from the estate of the deceased for the proper maintenance, support, education or advancement in life of the applicant has been made. This question is a 'jurisdictional question'. An affirmative answer to the question invokes the court's power to make an order.[11] This stage is to be determined as at the date of death of the testator having regard to all of the material facts that existed at the date of death, whether the deceased was aware of them or not, including all material eventualities that might reasonably have been foreseen by a deceased who knew of the facts.[12] It does not involve an exercise of discretion. Unless the answer to the first question is yes, there is no jurisdiction to make an order by considering the second question.
[11] Lemon v Mead [2017] WASCA 215 [50] ‑ [52] (Buss P); Dean v Collins [No 2] [2015] WASCA 151 [24] (Chaney J; Martin CJ & Buss JA agreeing); Daniels v Hall [2014] WASC 152 [127] (EM Heenan J); Kitson v Franks [2001] WASCA 134 [6] (Malcolm CJ) [34] ‑ [38] (Parker J; Kennedy J agreeing); Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, 212 - 213 [56] (Gummow & Hayne JJ); Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 208 - 209 (Mason CJ, Deane & McHugh JJ).
[12] Lemon v Mead [2017] WASCA 215 [54] (Buss P).
In Lemon v Mead, Buss P explained the task of the court when considering the first stage:[13]
The question which arises at the first stage must be formulated and determined as at the date of death of the deceased, having regard to all material facts that existed at the date of death, whether the deceased knew of them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts. See Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 508 (Dixon CJ), 515 - 516 (Webb J), 526 ‑ 528 (Kitto J); Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 147 - 148 (Gibbs J); White (437) (Barwick CJ), (441) (Mason J), (448 ‑ 449) (Aickin J); Goodman (498 - 499) (Gibbs J).
In Coates, Dixon CJ observed that, in determining the question which arises at the first stage, the court must look to what is 'necessary or appropriate prospectively' from the date of death, including events which are contingent as well as those which are certain or exceedingly likely to happen (508). Advantage may be taken of hindsight if the subsequent occurrences are within 'the range of reasonable foresight' (508). See also White (441) (Mason J).
[13] Lemon v Mead [2017] WASCA 215 [54] ‑ [55].
When determining the jurisdictional question (namely, whether adequate provision has been made for the proper maintenance, support, education or advancement in life of a claimant), what is 'adequate' financial provision is to be assessed by reference to, inter alia, the size of the estate, the need and moral claim of the claimant or claimants, and the need and moral claim of other persons who have a legitimate claim upon the bounty of the testator.[14]
[14] Andre v Perpetual Trustees WA Ltd [2009] WASCA 14 [53] (Steytler P) applying Devereaux‑Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [9] (McLure JA); Butcher v Craig [2010] WASCA 92 [12] (Pullin & Newnes JJA & Murphy J); see also, Waddingham v Burke [2015] WASC 65 [63] ‑ [68] (Mitchell J).
In Lemon v Mead, Buss P summarised the task of the court at the second stage (in the event that the court is satisfied that the jurisdictional question is met) as follows:[15]
At the second stage the court exercises its discretion to order adequate provision for the proper maintenance, etc, of the claimant by reference to the circumstances as they exist at the date of the order. See Coates (509) (Dixon CJ); White (441) (Mason J); Goodman (499) (Gibbs J).
In Bosch v Perpetual Trustee Co Ltd [1938] AC 463, Lord Romer (delivering the advice of the Privy Council) observed that the discretionary power given to the court at the second stage 'must always be one of great difficulty and delicacy' and 'must always be one largely of guess-work, especially in a case … which is concerned with children of tender age of whose needs in the future nothing can be predicted with any certainty' (483).
The discretionary power conferred by the Act at the second stage is to interfere with a deceased's dispositions when he or she has left a claimant without adequate provision for his or her proper maintenance, etc. The court is empowered to order such provision from the deceased's estate as the court thinks fit, but the court is not empowered to award more than what is 'adequate' provision for the claimant's 'proper' maintenance, etc. See Coates (509) (Dixon CJ); Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 134 (Fullagar & Menzies JJ). Those propositions are derived from the statutory text. In particular, the words 'for that purpose' at the end of s 6(1) refer to the purpose identified earlier in s 6(1), namely ensuring that 'adequate' provision is made from the deceased's estate for the claimant's 'proper' maintenance, etc. The text and purpose of s 6(1) qualify the court's power at the second stage. The power is confined by the text and purpose to the making of orders which will ensure that 'adequate' provision is made from the deceased's estate for the claimant's 'proper' maintenance, etc.
In Blore, Fullagar and Menzies JJ said that where a testator has chosen to dispose of his or her estate according to his or her inclination, 'the generous treatment of a child who has no need of the testator's bounty [must not] be used to determine the provision to be made for a child whose need has been disregarded or overlooked' (134 - 135). Their Honours added:
'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, giving due regard to all the circumstances of the case. The Testator's Family Maintenance Act is legislation for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of what may appear to the court to be a fair distribution of a deceased person's estate among the members of his family (135).'
See also Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ).
[15] Lemon v Mead [2017] WASCA 215 [56] ‑ [59].
Justice Hallen conveniently summarised the principles to be applied when a claim is made by an adult child of a deceased in Wheat v Wisbey:[16]
[16] Wheat v Wisbey [2013] NSWSC 537 [128]; Lysaght v Lysaght [2018] WASC 88 [55] (Tottle J).
In relation to a claim by an adult child, the following principles are useful to remember:
(a)The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
(b)It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.
(c)Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58].
(d)If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland (dec'd) [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland (dec'd) at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86].
(e)There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, per Nicholson J at 45.
(f)The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17].
(g)The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, at 149.
(h)Although some may hold the view that equality between children requires that 'adequate provision' not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case.
(i)There is no obligation on a parent to equalise distributions made to his or her children so that each child receive benefits on the same scale as the other: Cooper v Dungan at 542.

The relationship between Peggie and Rory, and Peggie and James

Peggie was widowed relatively early in her life. Her husband, Dr John McGeough, died suddenly when her children were young. James is the eldest child of Peggie, having been born on 9 June 1949; Rory is a middle child, having been born on 2 September 1956; and Una is the youngest child, having been born on 14 April 1961.[17]
[17] Exhibit 5: affidavit of Rory Gerard McGeough, sworn 21 March 2017, attachment A, page 9 (Peggie's death certificate, dated 16 June 2015).
James claims that Rory should be disentitled from provision under s 6(3) of the Act. He does so on grounds that, prior to the death of their mother, Rory had a very poor relationship with him over a long‑standing debt which James claims that Rory has refused to pay and that this affected Rory's relationship with their mother. In particular, that their mother was very unhappy that Rory had refused to pay the debt.
Section 6(3) of the Act provides:
(3)The Court may attach such conditions to the order as it thinks fit, or may refuse to make an order in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order, or on any other ground which the Court thinks sufficient.
James does not say that the dispute he had with Rory destroyed any bonds that his mother had with Rory, but says it did weaken them.[18] In effect, what James claims is that the dispute led to estrangement between Rory and their mother.
[18] ts 205, 30 April 2019.
Justice Tottle conveniently summarised the principles that apply in family provision cases which involve estrangement in Lysaght v Lysaght:[19]
Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case. Acrimony or estrangement does not necessarily destroy the bonds of parental ties. The nature of the estrangement and the underlying reason for it is relevant to an application under the Act. In Palmer v Dolman, Ipp JA, after a review of the cases observed that:
'[T]he mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.'
There is no rule that, irrespective of a claimant's need, the size of the estate, and the existence or absence of other claims on the estate, the claimant is not entitled to 'ample' provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.
The court should accept, however, that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one 'who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years'. This is even more so 'where that callousness is compounded by hostility'.
The fact that an applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships during those years, is a relevant consideration. Indeed, where an applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. The Act permits the court to consider the character and conduct of the applicant at the second stage of the process. Attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation.
Finally, the comments of Sackville AJA in Foley v Ellis are apposite and bear repetition:
'[It should be observed that] care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time.'
[19] Lysaght v Lysaght [2018] WASC 88 [58] ‑ [62] (Tottle J).
Being estranged from a testator, therefore, does not necessarily result in a reduction in a moral claim for provision from a parent's estate. However, where a claimant has completely cut themselves off from a testator for a number of years at a time when a relationship responsive to the needs of the testator prior to their death would have been of some assistance to the latter, such an estrangement may diminish, to a degree, the claimant's moral claim for provision out of the estate. Yet, the oft quoted observations of Gibbs J in Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, should necessarily be borne in mind:[20]
[A] son who has done nothing for his parents may have a special need. This may be because he suffers from some physical or mental infirmity, but it is not necessary for an adult son to show that his earning powers have been impaired by some disability before he can establish a special need for maintenance or support. He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependants who rely on him for support which he cannot adequately provide from his own resources. There are no rigid rules; the question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances ‑ that is, on all the facts that existed at the date of the death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts.
[20] Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 147 ‑ 148.
Thus, the effect of an estrangement (if any) on a claim on the estate of the deceased is a matter for the court to consider when considering the character and conduct of the claimant at the second stage of considering an application for provision, but not at the first stage.
Rory disputes that he was estranged from his mother. In his third affidavit, sworn 12 November 2018, Rory states that:[21]
(a) he had a fantastic relationship with his mother who in his lifetime had visited him in various locations throughout the world;
(b)his mother was quick to call him when she needed something, he was her 'personal handyman' for many years prior to her death and performed a large volume of home handyman tasks for her;
(c)he and his mother shared an outgoing personality and a liking for other people, and her spirituality was inspirational to him and many others; and
(d)he and his mother, prior to and for a period following the first signs of her dementia in 2007, never had any shortage of conversations and shared topics.
[21] Exhibit 7: third affidavit of Rory Gerard McGeough, sworn 12 November 2018, page 8 [45].
Rory did, however, concede when cross-examined that he fell out with James over money many years ago as a result of two disputes involving himself and his wife Stephanie, and James, and that these disputes served to 'poison' the relationship that he (Rory) had with his mother.[22]
[22] ts 60, 29 April 2019.
It appears the first dispute arose many years ago. This dispute arose between Rory and Stephanie, and James, over the payment of expenses of $7,000 that Rory had paid using a 'business' credit card when building and renovating bungalows in a development at a beach resort in Vanuatu known as Tana Beach Resort. Rory claims he worked for two years without wages and that he and James argued about the expenses he had put on the card.[23] It appears that Rory, James, and Breffni were investors in the development, and James and Breffni both insisted that Rory should bear the expense.[24]
[23] ts 60, 29 April 2019.
[24] ts 60 ‑ 61, 29 April 2019.
The second dispute arose later, sometime in 2007, over payment of an invoice for services that James claims that Rory owes him in respect of facilitating the supply of safety equipment imported from China, for Rory's business, Pronto Safety, in Australia.[25] It is common ground that for many years James has engaged in various business interests whilst being located in China.
[25] ts 61 - 64, 29 April 2019.
Rory claims that he does not owe any money to James. He denies that James provided any services for which payment is due. Despite this claim, however, Rory issued an international money transfer request for payment to James in the sum of $1,449.92,[26] but the money was not transferred, nor was the payment made.[27]
[26] Exhibit 11.
[27] Exhibit 12.
James subsequently demanded that Rory pay him $10,000 and sent Rory a demand letter once a year, every year, after 2007.[28] It appears that Peggie took the view that Rory should pay the money James claimed was owed and often raised the issue with him and Stephanie. Rory concedes that he has, in the past, stated this dispute 'screwed the relationship up'.[29] Rory claims it was because their mother had James 'on a pedestal' and repeatedly (every 'three or four months') told him that James could do no wrong so he (Rory) must pay him.[30] Yet, Rory denies that his relationship with his mother broke down as a result of the dispute but does concede that Stephanie's relationship with his mother did, at some time, break down.
[28] ts 66, 29 April 2019.
[29] ts 66 ‑ 67, 29 April 2019.
[30] ts 66, 29 April 2019.
Rory and Stephanie lived in Margaret River from the mid-1990s until 2010. During this period Rory frequently saw his mother. He sometimes visited her in Perth and she often visited them in Margaret River.
In late 2011, Rory and Stephanie, together with their family, moved to live in Barcelona, Spain. Stephanie and Liam (their son) left Australia for Spain in September 2011 and Rory followed in December 2011. There were two reasons for their move to Barcelona. The first reason was that Rory had been diagnosed with a choroidal melanoma in his left eye in or about 2010 which resulted in his left eye being surgically removed and replaced by a plastic implant in or about April 2010.[31] Following his diagnosis of choroidal melanoma, Rory was informed by his doctors that there was a high prospect of reoccurrence, so he and Stephanie sold their property in Margaret River and concluded their business affairs by winding up their business, Pronto Safety.[32] By that time, their business had been struggling for some time and they had over extended their mortgage over their home to keep the business afloat. After selling up, they initially moved to Perth and rented a house close to Peggie (in Mullaloo). They later moved to Spain in late 2011. The second reason for their move to Barcelona was that Stephanie and Rory's son, Liam, wished to enrol in the Spanish Tennis Academy, which he did.[33]
[31] Exhibit 7: third affidavit of Rory Gerard McGeough, sworn 12 November 2018 [22]; ts 47, 29 April 2019.
[32] Exhibit 5: affidavit of Rory Gerald McGeough, sworn 21 March 2017 [16] ‑ [17].
[33] ts 69, 29 April 2019.
When Rory and Stephanie moved to the rented house in Mullaloo, Rory was in contact with his mother almost every day and regularly carried out any repairs at her house. During this period of time, Rory and Noel were the only children of Peggie who resided permanently in Perth.[34]
[34] ts 101, 29 April 2019.
Stephanie and Rory lived in Spain for two years with their children. During this period of time they did not work and largely exhausted their savings.
Rory claims that in or about November 2013, he and Stephanie separated. Stephanie returned to Perth in 2013 and Rory went to live in Indonesia, where he lived from November 2013 until November 2014. In November 2014, Rory returned to Perth. In total, Rory was away from Australia overseas for three years.
Whilst he was in Spain and Indonesia, Rory says he spoke to Peggie on the telephone every two to four weeks, and they exchanged emails monthly, or at least every two months.[35]
[35] ts 103, 29 April 2019.
As a result of the dispute over money between James and Rory, and because of Peggie's view of James, Rory says that the close relationship that Stephanie had with Peggie fractured in 2011. The reason why the relationship broke down, at least from Peggie's point of view, is set out in an undated handwritten note, written by Peggie titled 'The History of Mine and Steph's Friendship'.
Pursuant to s 21A(2) of the Act, evidence of a statement made by a deceased person is, subject to this section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible.
In the note Peggie recorded that:[36]
(a)she had a very close relationship from the first time she met Stephanie (when Stephanie first came to Perth from Canada) until sometime in 2010, when Paul (who was a journalist) was arrested going into Israel. As a result of what appears, from the matters recorded in the note, to be fairly innocuous comments made by Stephanie about who The Sydney Morning Herald might contact about Paul's arrest (which for some reason shocked Peggie), Peggie subsequently had little contact with Stephanie until she found out that Rory and Stephanie were leaving Perth to live in Barcelona;
(b)when Peggie heard the news that Rory and Stephanie were moving to Barcelona, she walked to Rory and Stephanie's house, had a cup of tea with Stephanie and asked Stephanie for an explanation as to what had happened to their friendship;
(c)Stephanie told her that everything was fine and there was nothing wrong. Peggie asked the same question of Stephanie a number of times on this occasion and after having received the same response she (Peggie) left and went home; and
(d)Peggie received a phone call from Rory from Spain to say they were coming back to Perth and asked whether she (Peggie) would be able to put Stephanie, Jess and Liam up for a couple of days while they look for a home to rent. Peggie agreed and they arrived.
[36] Exhibit 18: third affidavit of James McGeough, sworn 26 April 2019, attachment JM3-21.
It appears, however, that Stephanie left Peggie's home a few days after she arrived back from Spain as James was arriving from China to stay with his mother.
Importantly, Peggie, in the lengthy note, makes no mention of any issues which could be construed as resulting in an estrangement of her relationship with Rory.
Rory's evidence is that he never ceased having contact with his mother. He did, however, find her attitude towards James' demands for payment of money frustrating. He says that he did not discuss with her his true financial situation. This appears to be the case.
Six months after Peggie made her final will she wrote a lengthy email to her son Brian, on 11 August 2011, in which she explained why she had made the disposition she did in her will. In this email she stated:[37]
Assuming there is enough to pay all the debts the amount left over is going to be very small and divided by 9 it would mean that each one of you would get a pittance. This situation started me thinking about each one of you and all your circumstances and believe you me I gave it a lot of thought. I had always regretted the fact that I was never in a position to give any of you a helping hand moneywise but thank God you all managed to do very well without any help from me and of that I have always been very proud.
On looking at how you are all fixed I thought of Jim.
who is the only who went totally bust and very definitely could do with a bit of help however small it might be. Breffini & Holly - no problems there and Holly has a very wealthy Mother and a small family so I feel sure they will inherit a fair sum when she passes away. Brian you and Valerie have always been able to provide very well for Valerie and your large family and I have no doubt that you will be able to continue that. Paul, John and Rory ‑ no problems there. Paul has a heap of money as does Johnny and Rory's and Steph's business is going very well
and Steph's parents are also very wealthy. Next we come to Mary & George ‑ both of them make a heap of money and George's Dad is also very well off.
Noel's business is now worth millions and that leaves my baby, Una. Warren has told her he will leave anything he has to the Reid University so she would get nothing if anything happened to him so that leaves just herself and Danny, both of them are making good money but if either of them had any health problems or if for any reason they couldn't work they could do with a little help.
That has been my reasoning and I hope you can see why I have made the will I have made and why I am not going to change it. I also want to say here most emphatically I never meant to convey to you that Johnny is a 'Demon' or that Jim is a 'Saint'
I never thought for one minute that I had any Demons or Saints in my Family!!!! I also must say that I love each and everyone of you with a totally unconditional love which I have had for each one since the day you were born. I love Johnny the very same way I love Jim and all of you I am quite sure whatever went on during the whole nasty business with Jim & Johnny that there were faults on both sides. I have heard Jim say several times 'Johnny is my brother and I still love him as I do all of the others but I do wish he would talk to me' and I know he means it.
[37] Peggie refers to James as Jim in this email.
Whilst the matters stated by Peggie as to the means of each of her children would not be admissible as to the truth of her opinions as to these matters, the statements made by Peggie in this email are admissible to provide some evidence of the reason why she made the dispositions of her estate in her final will.[38]
[38] Hughes v National Trustees, Executor and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 150 (Gibbs J).
It appears from this email, together with Peggie's handwritten note, that Peggie did not regard herself as being estranged from Rory. Whether Stephanie was estranged from Peggie is not relevant to a proper consideration of the matters relevant to the determination of the claim for provision by Rory. It is clear from the email that, despite the issues that Rory had with James, Peggie loved all of her children equally.
Thus, the alleged estrangement and conduct of Rory alleged by James is not such as to constitute disentitling conduct within the meaning of s 6(3) of the Act. The character or conduct required to disentitle a claimant to provision must be of such a nature as to entitle the court to say that the claimant has forfeited or abandoned his or her moral claims on the testator.[39] As I have explained above, no such claim could be made about Rory.
[39] Lysaght v Lysaght [2018] WASC 88 [56] (Tottle J) applying Delacour v Waddington [1953] HCA 64; (1953) 89 CLR 117, 127 (Dixon CJ, Kitto & Taylor JJ).
It is also clear, and it is not in dispute, that James had a very loving relationship with his mother. Whilst he has, in effect, resided in China for many years he has not for some years had a visa which entitles him to reside in China as a permanent resident. The terms of his business visa require him to leave China every 90 days. Prior to Peggie's death, James usually returned to Perth after each trip to China (at the end of the 90 day period) and stayed with his mother for a few weeks before returning to China.
Peggie's health declined by, at least, the last year of her life, and as a result James returned to Perth in 2014 and applied on 14 October 2014 to Centrelink for a carer payment or carers' allowance.[40] From at least 18 August 2014, James returned to Perth and resided at Peggie's house and did not during this period of time leave Australia until after his mother died in May 2015.
[40] Exhibit 17: second affidavit of James McGeough, sworn 18 April 2019, attachment JM2-12.

Rory's financial circumstances

(a) Rory's evidence

At the time of giving evidence Rory was 62 years old. He married Stephanie in or about July 1980 and they have three adult children.
Their daughter, Jessica, was born on 22 October 1989 and has been, at all material times, financially independent. Rory and Stephanie's son, Samuel, was born on 15 October 1991 and has been financially independent since January or February 2019. Rory and Stephanie's second son, Liam, was born on 30 December 1998. Liam is a second-year university student at Curtin University and is financially dependent on Stephanie and Rory, but has a part-time job.
Rory was formerly a carpenter having completed a carpentry apprenticeship in the early 1970s. For the majority of his working career, he had been self‑employed as a carpenter/handyman. From 1998 until 2010 he lived in Margaret River. He started his last business enterprise in 2005 (in partnership with Stephanie) as a distributor of safety products and/or first-aid kits (Pronto Safety). In late 2010 they sold their property in Margaret River and wound up Pronto Safety having sold all of the stock in a fire sale for approximately $10,000. In 2010, they moved to a rental property in Mullaloo near Peggie's home. Whilst living in Perth, in 2010 and 2011, Rory and Stephanie did not work.
Nor did Rory or Stephanie work for the two years whilst they lived in Spain. During that time they exhausted most of their combined life savings. Rory says that when he and Stephanie separated at the end of 2013 she resumed full‑time employment as a nurse in Perth and rented a house in Kallaroo.
In the period Rory was in Indonesia, from November 2013 to November 2014, he was not paid a wage but he did receive free room and board by friends in exchange for assisting his friends to establish tourist accommodation websites and the preparation of associated promotional marketing material. During this time, Rory received and continued to receive a small monthly fee of approximately $80 per month until early 2017 for the marketing of the websites in Indonesia associated with his friends' business.
In about November 2014, Rory came back to Perth to have his plastic left eye implant removed and a new implant fitted as the old implant had become too uncomfortable to live with and he was unable to obtain medical treatment in Indonesia.
Rory claims that since returning to Perth in November 2014, he has had four operations which included:[41]
(a)an attempt in approximately November 2014 to repair the plastic implant in his left eye and close an open wound on the interior eye socket;
(b)removal of the implant and insertion of a fat graft into his left eye socket in or about February 2015;
(c)a hernia repair operation in or about November 2015; and
(d)after a failure of the fat graft, the insertion of a hydrogel expander into the left eye cavity on 7 September 2016.
[41] Exhibit 5: affidavit of Rory Gerard McGeough, sworn 21 March 2017 [22].
As a result of his various medical conditions and his relationship breakdown (with Stephanie) Rory says he suffers from depression and was on a mental health plan.[42] Whilst Rory has not, in these proceedings, produced any medical reports, he has produced an undated medical certificate signed by Dr Yusof Mutahar who practices at Whitfords Avenue Medical Centre which records:[43]
(a)that he examined Rory on 26 August 2016;
(b)Rory was unfit for work from 26 August 2016 to 26 November 2016;
(c)Rory was unlikely to be able to work at least eight hours a day or return to study for three to six months; and
(d)Rory's diagnosis of depression and melanoma left eye.
[42] Exhibit 5: affidavit of Rory Gerard McGeough, sworn 21 March 2017 [25].
[43] Exhibit 5: affidavit of Rory Gerard McGeough, sworn 21 March 2017, attachment D, page 14.
Rory's evidence is that the last surgery he had on his eye socket has been successful and by July 2018 his eye socket and implant in his reconstructed eye socket had stabilised.[44]
[44] Exhibit 7: third affidavit of Rory Gerard McGeough, sworn 12 November 2018 [49].
Since Rory's return to Perth in November 2014, Rory has been unable to obtain employment. He does not own a car. When he returned he lived on the remainder of savings for a short time. When these funds ran out he was supplied funds by friends and family. His brother, John, has gifted him $15,000 since 2010 and his mother‑in‑law in Canada gifted him approximately $10,000 in November 2013.
When Rory returned to Perth in November 2014, Stephanie gave him non‑financial support by allowing him to live in, and continue to live in, the shed at the rear of Stephanie's rented premises in Kallaroo. Rory says that Stephanie allows him to live in the shed as she knows he cannot afford to live elsewhere. Rory's arrangement with Stephanie is that he contributes to household expenses, such as payment of utilities with payments of cash and/or groceries, and/or gardening duties and any maintenance issues on the rental property.
Rory had a motorcycle accident in 1979 and suffered a broken femur, which left him with a right leg 30 mm shorter than his left leg and a lopsided gait. As a result he walks with a pronounced limp and has done so for many years. He has pain in his hips from walking as a result of his limp and requires specialised footwear and/or specially suited orthotics to provide a lift to his right leg and foot.[45]
[45] Exhibit 5: affidavit of Rory Gerard McGeough, sworn 21 March 2019 [22] ‑ [24].
In January 2019, Rory obtained a quote from Dr Mina Azarian, a podiatric surgeon, for refurbishment of his old orthotics for $150 to $200, or new orthotics at a cost of $1,940.[46]
[46] Exhibit 9: fifth affidavit of Rory Gerard McGeough, sworn 24 January 2019, attachment RM5‑3, page 21.
Rory claims that as a result of the loss of his eye in 2010, he can no longer read a tape measure easily and it is dangerous for him to use power tools because of a loss of depth perception. His right leg limp also limits his ability to undertake employment involving prolonged standing or walking.
Although Stephanie and Rory separated in late 2013, they have not divorced. Rory claims that when they separated they split their remaining life savings equally and he took approximately $10,000 to Indonesia, which was an amount that Stephanie's mother had gifted to him when she was informed of their decision to separate. Rory claims that since the time of their separation in 2013, he and Stephanie have had entirely separate finances.
As at the date of Peggie's death, on 9 May 2015, Rory says his only income was the websites income of $40 a fortnight. His fortnightly expenses totalled $588.50, being grocery shopping of $300; pre-paid telephone $20; Samuel's telephone bill $43.50; public transport $10; Liam's telephone bill $23.50; entertainment/miscellaneous shopping/clothes/shoes/etc $150; medical bills/medications/etc $30; and IT programmes/website registrations etc $40.[47]
[47] Exhibit 7: third affidavit of Rory Gerard McGeough, sworn 12 November 2018 [47].
At that time, Rory had a Fines Enforcement Registry debt of $2,000; savings of $2,000; and personal effects worth $1,500. He had no superannuation and no substantive assets.[48]
[48] Exhibit 7: third affidavit of Rory Gerard McGeough, sworn 12 November 2018, page 9 [37].
At least by 5 October 2016, Rory was in receipt of a Newstart allowance (of $518.70 per fortnight).[49]
[49] Exhibit 7: third affidavit of Rory Gerard McGeough, sworn 12 November 2018, attachment I, page 36 (Westpac Choice bank statement).
In or about February 2017, Rory commenced a course in web design at TAFE and became a full-time student. Rory completed this course at the end of 2018. He obtained a VET loan to assist him to undertake the course. Rory commenced this course because Centrelink job search counselling had assisted him to recognise that he needed to retrain as a result of his left eye and his right leg problems, and whilst in Indonesia he had set up websites for surf camps, as a result of which he became interested in web design.[50]
[50] Exhibit 7: third affidavit of Rory Gerard McGeough, sworn 12 November 2018 [39] ‑ [42].
As at 21 March 2017, and 12 November 2018, Rory had fortnightly expenses of $608.50. The only substantial changes in expenditure since the death of Peggie are that Rory no longer contributes to the telephone accounts of both of his sons; he no longer receives any income from website registrations; he has paid off the Fines Enforcement Registry debt; his personal mobile telephone costs are lower; and he now estimates that he contributes about $100 a week for food and utility bills to be consumed in Stephanie's household. He also contributes $40 a fortnight to payments owing to Sacred Heart College for Liam's school expenses incurred in 2016.[51]
[51] Exhibit 7: third affidavit of Rory Gerard McGeough, sworn 12 November 2018 [53].
As at 24 January 2019, Rory had:[52]
(a)savings in a Westpac Choice savings account of $100 and estimated personal effects valued at $1,000; and
(b)liabilities of $85,112.39. These are the debt to Sacred Heart College estimated to be $3,901.11; a personal loan from his brother, John, for legal fees of $29,744; outstanding legal fees of $49,131.83 for these proceedings; and a VET loan for TAFE fees of $2,335.45.
[52] Exhibit 9: fifth affidavit of Rory Gerard McGeough, sworn 24 January 2019 [7].
At the time of giving evidence, Rory had not been successful in obtaining employment in the field of web design.[53]

(b) Should Rory's evidence as to his financial circumstances be accepted?

[53] ts 104, 29 April 2019.

James argues that Rory's evidence about his financial circumstances should not be accepted. James claims there is evidence before the court that Rory has not separated from Stephanie. It is also raised by James, in cross‑examination of Rory, that Rory annexes no substantive evidence of his (Rory's) claims about his financial position at the date of Peggie's death.
In support of his contentions James relies upon the following evidence:
(a)In early February 2015, Peggie went into hospital and subsequently resided in an aged care facility. On 17 February 2015, Noel wrote an email to Delphi McGeough stating that it was his view that Peggie stay where she was with an option for Mercyville to stay in place and recommending that Peggie's house be sold to ensure that her financial needs were met appropriately and without any possible compromise.[54] On the same day, in response to Noel's email, Rory sent an email to all of his brothers and sisters, including James, stating that he agreed (with the proposal Noel had put forward) and added:[55]
Stephanie and I should rent the house in the process so there is immediate income … plus someone who can clean and prepare the house for sale and maximize money from sale of goods and chattels that are no longer required … never know someone may want it for the great house. That would be good for us right now as we are in between houses and have not yet found the right place also can be more attractive to investors with good tenants already in place.
(b)Other than to draw Rory's attention to the fact of this email,[56] James did not cross-examine Rory, nor was he re-examined, about its contents.
(c)On 17 January 2014, a transfer of $11,976 was received into a joint ANZ account in the names of Rory and Stephanie from Westpac, in what appears to be a payment from Canada (from Rory's mother‑in‑law).[57] Other than to draw Rory's attention to this document which evidenced this transaction, James did not cross-examine Rory about the document or its contents.[58]
(d)In [20(b)] of an affidavit said to be sworn by Rory in the solemn form proceedings (sometime in 2015), Rory stated that he had been informed by 'my wife, Stephanie' of two letters that had been observed in the mailbox of Peggie's house on Friday, 16 October 2015 addressed to James.[59]
[54] Exhibit 13.
[55] Exhibit 13.
[56] ts 87, 29 April 2019.
[57] Exhibit 10.
[58] ts 76 ‑ 78, 29 April 2019.
[59] ts 88, 29 April 2019.
Rory does not dispute that he is still married to Stephanie, but says they remain separated.
No bank or other records have been produced by Rory that cover the period of time from after he returned from Indonesia in November 2014 to September 2016, including for the time of his mother's death in May 2015. Rory has, however, produced bank statements which show deposits and withdrawals from his Westpac Choice account from 1 September 2016 to 24 August 2018.[60]
[60] Exhibit 7: third affidavit of Rory Gerard McGeough, sworn 12 November 2018, attachment I, pages 35 ‑ 83.
These bank statements reveal that:
(a)the only deposits of substance in that account are Centrelink Newstart allowance payments; and
(b)all withdrawals during that period are for small amounts of cash or for modest amounts for items which appear to be largely for food and beverages.
At the time of Peggie's death, Rory states on affidavit that his only source of income was from his website business of $40 a fortnight. He states that his fortnightly expenses were in the order of $588.50 and he was in significant debt. It is to be noted that the only evidence before the court of these matters is what Rory states in his affidavit material and there is no substantive material annexed to those affidavits that goes to establishing what Rory contends his financial position to have been at the time of Peggie's death.
This issue was put to Rory in cross‑examination.[61] It was also put to Rory in cross‑examination that he had failed to include in his affidavit evidence about the joint account with his wife in January 2014.
[61] ts 56, 29 April 2019.
When re-examined, Rory said that:[62]
(a)he and Stephanie separated at Christmas 2013 and the money in the ANZ account in January 2014 (being $20,000) was equally split between them; and
(b)the joint account is not maintained by him, and since they split the funds in the ANZ account it has been solely maintained by Stephanie and may have been closed.
[62] ts 102, 29 April 2019.
James was aware of the need to cross‑examine Rory on matters from Rory's affidavits that he did not accept. Whilst he (James) raised the issue of a lack of evidentiary material supporting Rory's claims about his financial position at the date of Peggie's death, the point was not taken any further and there is nothing of substance before the court that contradicts Rory's financial position as asserted on affidavit and in oral evidence.
Whilst Rory's evidence about his financial circumstances is not supported by financial records, I accept Rory's evidence about his financial circumstances. He has produced bank records showing his financial circumstances since September 2016. Clearly on this evidence his financial circumstances are dire.
I am satisfied, on the balance of probabilities, that (as at the date of Peggie's death) the financial position advanced by Rory is an accurate reflection of his financial position at that time.

James' financial circumstances

James is now 70 years old. He holds an Irish passport and has a USA green card. James does not appear to have any dependents.
James 'retired' in 2014 and obtained, on his retirement, two pensions. One from the USA and the other from Australia. James is eligible for Medicare in Australia and in the USA. James has lived and worked in Vanuatu, New Zealand, USA and China. For many years prior to and subsequent to his retirement, James has worked in China.
James has a background in sales management, software and business development. In 2004, James founded a company, Cathay Asia Inc (incorporated in Delaware in the USA). The core of the business was to coach Chinese businessmen in western business communications. The business of Cathay Asia Inc was based in Suzhou, China. In James' LinkedIn profile he describes:[63]
(a)himself as an experienced professional and manager across multiple cultures with a broad global presence, with excellent C‑level engagement and communication skills, both strategic and tactical; public speaker, presenter, influencer, persuader and leader; and
(b)the business of Cathay Asia as active in:
(i)the food and drinks supply chain sector;
(ii)the translation of Chinese language documents to business English; and
(iii)creative writing for Suzhou City related to tourism destination marketing products and publications.
[63] Exhibit 21.
James is a musician, and has, prior to and since his retirement, managed and performed in several Irish music bands in China and continued to do so at the time of giving evidence in these proceedings.
James claims that Cathay Asia ceased trading as a company in 2010 and since that time he has used the bank account of Cathay Asia as one of his personal bank accounts. James has also used the business name of Cathay Asia for his music business and as a vehicle for payment for teaching English in China.[64]
[64] ts 122, 29 April 2019.
James has leased an apartment in China for over 10 years, on a long term lease. At the time of giving evidence the rent on the apartment was, and had been for some time, 4,500 yuan a month (approximately $700). He subleases part of the apartment for half the rent.
In James' first affidavit, sworn on 18 September 2017, James set out what he says were his financial circumstances at the time of his mother's death in May 2015 and as at the date of swearing his affidavit. At the time of his mother's death, James was living in Perth at his mother's house. In his first affidavit, he states that at the time his mother died:[65]
(a)his income consisted of the Australian Centrelink pension of $550 a fortnight and his USA social security pension of $897 a fortnight, being a total of $1,447;
(b)his expenses were, accommodation $0; groceries $100; mobile phone $15; public transport $10; entertainment $60; clothing and personal items $60, being a total of $245 a week (or $490 a fortnight);
(c)he had assets totalling $37,095.44, being an amount in US dollars equivalent to $25,286.46 in a Bank of America cash account in the name of Cathay Asia; $245.97 in an ANZ bank account; ‑$2.65 in a BankWest cash account; an amount in yuan equivalent to AU$10,565.66 in a China Construction bank account; and personal effects of $1,000; and
(d)he owed a debt of US$20,000 to Mike and Kathy Kevany together with interest at 10% from 2002 to 2015 (being an amount of US$69,596 or AU$87,725.76); and an alleged loan from his brother, John, in the sum of $20,000.
[65] Exhibit 16: affidavit of James McGeough, sworn 18 September 2017 [16] ‑ [19].
At the time of swearing his first affidavit in 2017, James had been prohibited from leaving China from at least 15 July 2017 because of a civil suit and a claim for damages made against him arising out of an accident, on 17 August 2016, in Suzhou, when James was riding an e‑bike that collided with a man on a scooter.
In his 2017 affidavit, James deposes that as at 18 September 2017:[66]
(a)his assets in his bank accounts totalled an amount equivalent to AU$33,812.96; his debt to the Kevanys had grown by the interest payable at 10% to an amount equivalent to AU$105,263.75; the alleged loan to his brother, John, remained at $20,000; and he had incurred legal fees of approximately AU$68,000; and
(b)his income from his pensions had changed marginally in that his Centrelink was at that point in time $505 a fortnight and his USA pension was $816 a fortnight, being a total of $1,321 a fortnight.
[66] Exhibit 16: affidavit of James McGeough, sworn 18 September 2017 [20] ‑ [22].
Importantly, in his 2017 affidavit James states that his expenses totalled AU$465 a week, being $250 for accommodation; $100 for groceries; $15 for mobile phone; public transport of $10; entertainment of $40; and $50 for clothing and personal items. It emerged in cross‑examination that these expenses were all estimated by him as if he was residing in Australia. However, at that time James was in China and had been since July 2017. James was not able to leave China until sometime in June 2018 after the civil claim against him was resolved by way of a payment by James of an amount equivalent to AU$15,000 to the man who was riding the scooter, which payment was made pursuant to a compensation order made by a court in Suzhou. Once the payment was made James' 90 day business visa took effect once again and James began to travel back and forth between China and Perth at the expiration of every 90 days in China.

Importantly, in his 2017 affidavit, James makes no mention of his rental expenses in China. He does, however, refer to his music business and claimed that he received no 'net income' from his music activities and that some funds from his pension and social securities were necessary to cover his expenses.
In his 2017 affidavit, James describes the functions of each of his bank accounts as follows:
(a)his ANZ bank account is used for deposits for his Australian pension and social security payments and other transactions including transfers to Bankwest to pay his Bankwest credit card;
(b)Bankwest Australian account's main activity is that it receives transfers from his ANZ account to pay his Bankwest credit card and the Bankwest credit card is used for Perth living expenses and some personal travel expenses;
(c)the Cathay Asia account with the Bank of America is used as the account in which he receives his USA social security payments; and
(d)the account with China Construction Bank is used for cash transfers from his ANZ Australia account to meet travel expenses in China where he is involved in music performances and the transaction activity in this account is for music related travel costs, music related living expenses in China and receipt of reimbursements for expenses such as travel expenses from Perth and payments for contract musicians.
In the 2017 affidavit, James describes his work as a musician as a 'hobby'. He states that it is not part of any 'formal' business and the payments he receives are used to pay up to five or more musicians for performing and for paying associated costs and his own living and travel expenses that are directly related to his music activities.[67]
[67] Exhibit 16: affidavit of James McGeough, sworn 18 September 2017 [26] ‑ [27].
James also states in the 2017 affidavit that:[68]
(a)he is not employed in China and the musicians are not employed by him, that they are mostly teachers and music is a part‑time hobby for them;
(b)typically he may arrange five or more musicians for three to four shows each month;
(c)each musician may pocket less than RMB3,000 (AU$500) each month including some of their costs;
(d)his own travel costs and a per diem for living (while in China) are also paid; and
(e)he has not filed any tax returns in Australia from 30 June 2014 to 30 June 2017 because, after he applies his seniors and pensioners tax offset, his income does not generate any tax.
[68] Exhibit 16: affidavit of James McGeough, sworn 18 September 2017 [28], [39].
James annexed to his 2017 affidavit a screenshot of one page of an account with the China Construction Bank.[69]
[69] Exhibit 16: affidavit of James McGeough, sworn 18 September 2017, attachment JM‑13, page 52.
James is critical of Rory for not disclosing any financial records covering the period of Peggie's death, however, whilst Rory has discovered his Australian bank accounts as at the date Peggie died, James has not discovered his China Construction Bank records of transactions or Bank of America statements covering that period of time.
It is clear that James' statements about living expenses of $465 a week (at the time of swearing his affidavit in September 2017), when considered together with the income he actually received from his music and teaching activities in 2017, (and subsequent financial years of 2018 and the first nine months of 2019) together with the expenses he claims should be deducted from that income, are misleading.
This emerges from an analysis of the statements made by James and in a document prepared by him that he annexes to his fifth affidavit, sworn on 15 April 2019, titled 'Income and tax ATO summary (2015 ‑ 2019)' (income and tax summary).[70]
[70] Exhibit 19: fifth affidavit of James McGeough, sworn 15 April 2019, attachment JM5‑4, pages 55 ‑ 56.
James claims that in 2017 (and in 2018 and 2019) he did not have any 'net' income from his music and English teaching work. This contention initially appears to be correct on the analysis made by James. However, this is because when the figures are analysed in the income and tax summary, James appears to have deducted from the income he received from his work in China almost all of his living expenses in China and all of his travel expenses to and from China and Perth.
This appears to be clear from the notes to the income and tax summary which are as follows:
(a)he receives income for band performances and deducts what he describes as business expenses for food, beverages and incidentals in China, being 80% of his total food and beverage expenditure;
(b)his accommodation expenses (approximately $9,000 for each financial year), is 'primarily' for the apartment in Suzhou that he rents formally from the owner.[71] It is notable that whilst James has deducted what appears to be the entire cost of the rent of the apartment (which he claims is tax deductible in Australia) he has not credited any amount of the rent he receives from the sublease of part of the apartment (being approximately $4,500 per annum);
(c)James deducted interest of $2,800 for each of the financial years from 2015 ‑ 2016 to the third quarter of 2019 on a Digital Earth Systems (DES) loan (which is a business that he operated some years before he moved to China). This loan is, in fact, the Kevany loan and interest said to be owing on the Kevany loan. However, other than a payment made to the Kevanys in late 2018, James had made no repayment of the principal or interest owing on the loan since the loan was incurred in 2002. Plainly, the deduction of interest (as a taxable deduction) is misleading as they were payments actually made from income.
[71] Exhibit 19: fifth affidavit of James McGeough, sworn 15 April 2019, attachment JM5‑4, page 56, note 10.
Consequently, the contention made by James in his various affidavits and in his oral evidence that, except for the 2017 to 2018 financial year, he has had no 'net income' from his music and teaching work in China should not be accepted.
It is notable that James caused to have prepared by an accounting firm in Perth, Libra Accounting, tax returns for the 2016, 2017 and 2018 financial years in March 2019 but had not at the time of giving evidence lodged any of these returns with the Australian Taxation Office.
In James' fifth affidavit, sworn 15 April 2019:[72]
(a)he sets out what his present expenses in Australian dollars are as at the date of swearing the affidavit. These expenses he estimates to be $555 a week, being $250 a week for an Air BNB room; $170 a week for groceries; $15 for a mobile phone; $10 for public transport; $60 for entertainment; and $50 for clothing and some personal incidentals;
(b)his income as of 12 April 2019 is the Australian Centrelink pension of $279 a week and the USA pension of $472 a week, being a total of $751 a week;[73] and
(c)his total assets are $40,101 being an amount equivalent to $27,856 in his Bank of America account, $8,136 in his ANZ bank account and $4,109 in his China Construction bank account.
[72] Exhibit 19: fifth affidavit of James McGeough, sworn 15 April 2019 [19] ‑ [24].
[73] The Centrelink age pension fluctuates with the currency exchange rate as against the USA pension.
After making the payment of $15,000 in 2017 (in accordance with the compensation order made by the Suzhou court), James subsequently received a payment of $10,000 from Allianz Global Insurance as compensation for the legal liability he claimed in respect to the accident. He received this payment on 7 January 2019. On 8 December 2018, James made a payment of US$20,000 to the Kevanys (for the DES loan), which he says reduced his debt owing to the Kevanys to US$40,427 (estimated as AU$56,713) as at 12 April 2019.[74]
[74] Exhibit 19: fifth affidavit of James McGeough, sworn 15 April 2019 [21].
James claims, as at 12 April 2019, that he owes legal fees to Dwyer Durack of $71,000, being $35,745.17 legal fees incurred in these proceedings between 4 January 2017 to 16 October 2017, and the balance owed by him arising out of the solemn form proceedings.
Consequently, the effect of James' evidence is that he says he presently has total liabilities of $127,713.
James claims that:
(a)the 2017/2018 year was the only year that his income well exceeded his expenses and this was the period during which he was detained and because of the civil case against him he had no choice but to work because of his mounting liabilities;
(b)he was lucky during 2017 and 2018 to find regular work as a musician which allowed him to top up his savings (but these funds were then used to pay down a portion of the DES debt owed to the Kevanys); and
(c)due to his age it is unlikely that he can find work as a musician of this type or extent of work in the music industry again.

Should James' evidence as to his financial circumstances be accepted?

It is noted that:
(a)James' evidence is that at no time since the DES debt was incurred, in approximately 2002, the Kevanys have made demand for repayment; and
(b)despite the fact that James' debt to the Kevanys appears to have been running at 10% per annum, which is unusually high, James has retained savings of approximately $40,000 since May 2015 and when one examines all of his bank accounts it is notable that these funds do not appear to be deposited in accounts that attract any interest.
Whilst I have made these observations I have not relied upon them in any of the findings I make.
Importantly, James' net assets have remained the same since May 2015. Yet, in December 2018 he paid an amount of (equivalent to) AU$28,409[75] to the Kevanys and $15,000 to satisfy the compensation order, for which he received the credit of $10,000 from Allianz Global Insurance, being a total amount (equivalent to) AU$43,409.
[75] Applying an average exchange rate as at December 2018 of AU$1.4205 to US$1.00.
Whilst I accept that James is a person of modest means, I do not accept that James has been forthright in disclosing all relevant information about his income and expenses.
In James' income and tax summary, James claims that:
(a)his net business income was:
3 qtrs 20192017 - 2018         2016 - 2017         2015 - 2016
-$18,402.56$5,836.14            -$15,869.41         -$27,951.61
(b)his total pension income was:
3 qtrs 20192017 - 2018         2016 - 2017         2015 - 2016
$28,429.00$31,035.00          $36,061.00          $34,071.19
Yet, despite these 'losses', James was able to pay approximately AU$43,000 to satisfy part of the DES debt and to satisfy the compensation order and maintain approximately the same amount of cash at bank between 2015 and 2019. It is also notable that in his 2017 affidavit James stated that he had personal effects valued at $1,000. Yet, in his income and tax summary James states that he is able to claim depreciation as a tax deduction (for music equipment and business computer purchases) of $674 (in 2015 ‑ 2016); $848 (in 2016 ‑ 2017); $1,011 (in 2017 ‑ 2018); and $300 (for three quarters of 2019).
For these reasons, it appears clear that the income James has received from his music and teaching work is sufficient to cover almost all of his day to day living expenses (at least whilst he is in China) and travel to and from Australia and China. The effect of this is that James has been largely able to use the income from his pensions to spend as he sees fit.

Una's financial circumstances

Una resides in a rental property in Virginia, USA. At the time of giving evidence Una was 58 years old. It appears that Una has not been employed for some time. However, from time to time she periodically carries out volunteer work, such as teaching English, dog sitting, and house sitting for accommodation and meals.
Una's only income is rent that she receives from a house that she owns in Portland, USA. As at January 2019, and as at the time of giving evidence, Una's:
(a)income from the rent of her house was US$2,800 a month (US$33,600 a year) and her expenses associated with her house (per month) were as follows:[76]
(i)mortgage US$1,364.50;
(ii)property taxes US$390;
(iii)property insurance US$46.98; and
(iv)garbage collection US$37.65 ‑ a total of US$1,839.13; and
(b)living expenses were food, clothing, telephone, computer, accommodation, transport and medical bills of approximately US$1,500 (per month).
[76] Exhibit 23.
This leaves Una with a shortfall of US$539.13 a month or US$6,469.56 a year.
Una's assets at the date of hearing were:
(a)estimated value of the house in Portland US$375,000;[77]
(b)Wells Fargo cheque account US$25,263.33;[78]
(c)Wells Fargo savings account US$3,500.74;[79]
(d)Key Bank Hassle‑Free account US$111.46;[80]
(e)Key Bank savings account US$32.18;[81] and
(f)Ameritrade retirement account US$155,563.56.[82]
[77] Exhibit 23.
[78] Exhibit 24.
[79] Exhibit 24.
[80] Exhibit 23.
[81] Exhibit 23.
[82] Exhibit 25.
Una's assets total US$559,471.27.
Though Una has estimated the value of her house as US$375,000, she produced a rate notice which estimated the value of the property to be US$198,940. Whether this amount reflects the improved or unimproved value of the land is not clear from the notice. Yet, it also recorded that the whole of the property was purchased on 21 September 2005 for US$345,600 by Una and Warren Rand, and on 17 January 2012 Una purchased Warren's share of the land for US$175,000.
James takes issue with Una's estimate of the value of the property and claims that, based on sales of recent homes on a website known as 'Compare similar homes', the estimated value of her property is US$570,000. When cross‑examined, Una said that such an assessment is absurd as her property is a modest 1955 house with original electrical and plumbing work and no significant updates, and the value of homes compared on that website could not be regarded as comparable sales.[83]
[83] ts 193, 30 April 2019.
Having regard to the information contained in the rate notice produced by Una, the estimated value of her property of US$375,000 should be accepted.
Una's mortgage and credit card debts, as at the date of the hearing, were:
(a)Chase Bank (mortgage on the property) US$171,892.95;[84]
(b)Chase credit card US$5,697.54;[85]
(c)Americard credit card US$4,895.19;[86]
(d)Amex credit card US$3,039.87;[87] and
(e)KeyBank credit card US$2,942.68[88] ‑ a total of US$188,468.23.
[84] Exhibit 28.
[85] Exhibit 30.
[86] Exhibit 31.
[87] Exhibit 32.
[88] Exhibit 33.
In addition to these debts, Una owes US$3,100 (as a bond deposit held for her tenants in her cheque account) and US$6,456.48 in tax; bringing the total of her debts to US$198,024.71.
Consequently, Una's asset position, less her debts, is approximately US$360,000.

The jurisdictional question - did the will make adequate provision for Rory or James?

I have concluded that the will has not made adequate provision for Rory's maintenance, support or advancement in life.
When regard is had to the size of the estate and that Rory's claim is more urgent than James' claim I am not satisfied that the will has not made adequate provision for James.
What constitutes 'adequate' and 'proper' provision is relative. In Pontifical Society for the Propagation of the Faith v Scales, Dixon CJ pointed out:[89]
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. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning.
[89] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19.
Maintenance, support and advancement require an assessment of a standard of living and anticipated future needs of a claimant at the time of the death of the testastor. In Devenish v Devenish, Pritchard J explained:[90]
The term 'maintenance' in s 6(1) of the Act refers to a provision for the supply of the necessaries of life, although it also extends to provision over and above a mere sufficiency of means upon which to live: Vigolo v Bostin [115] (Callinan & Heydon JJ), cf Kitson v Franks [44] (Parker J). It may also imply a continuity of a pre-existing state of affairs: Vigolo v Bostin [115] (Callinan & Heydon JJ). 'Support', too, may imply provision beyond bare need: Vigolo v Bostin [115] (Callinan & Heydon JJ). In contrast, provision to secure or promote 'advancement' will ordinarily be provision beyond the necessities of life, and may extend to a provision which would enable a potential beneficiary to improve his or her prospects in life: Vigolo v Bostin [115] (Callinan & Heydon JJ).
[90] Devenish v Devenish [2011] WASC 129 [70].
The criteria for assessment of these elements are well established. The task of the court is evaluative. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of a deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc.[91]
[91] Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [84] (Buss JA) applying Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201.
At the time of Peggie's death, Rory had recently had surgery (about six months before) to his left eye socket and his left eye socket had not yet stabilised. He was separated from Stephanie and had not been in paid employment substantially since he wound up his business in 2010. He had no assets, no superannuation and no savings. It seems to be the case that Rory was not at that time in receipt of any social security payments and was reliant on the financial support of family and friends.
James, on the other hand, whilst he was living in Perth at the time of Peggie's death, and rent free in her home, even if he were (at that time) to rent he was in a much better financial position than Rory.
At the time of Peggie's death whilst in Australia, if accommodation costs were to be assessed at $250 a week, James' fortnightly expenses would have been $940 and his income from his pensions was $1,247 a fortnight, being $307 a fortnight or $153.50 a week surplus. However, at that time he had been living rent free in his mother's house, so that his actual surplus was $403.50, less approximately $87 a week (for rent in China) being a surplus of approximately $317 a week.
When regard is had to the size of the estate, James' means at the time of Peggie's death would, even (if his evidence is accepted) without his work in China be adequate for his proper maintenance and support. However, he had (at that time) the capacity to earn an income in China to pay at least 80% or more of his living expenses, and all of his travel to and from China and Australia, which together with his pensions put him in a far better financial position to Rory, whose claim on the small estate was more urgent.
Whilst Peggie regarded James' claim on the estate to be superior to Rory, in that she had expressed the opinion that James had a greater need for financial assistance than Rory or any of her other children (other than Una), it appears clear from her email to Brian in 2011 that Peggie, when she made her will, was mistaken about Rory's financial position.

The discretionary question

As I have found that the disposition of Peggie's estate was not such as to make adequate provision for the proper maintenance and support of Rory, I must now exercise the discretion to make such provision taking into account the relevant facts as they now exist. However, it is important to note that the court's discretion at the second stage of the process is not unfettered, or at large. The discretion is conditioned by s 6(1) of the Act and the purpose identified therein; that is, to make adequate provision from the deceased's estate for the claimant's proper maintenance, support, education or advancement in life of the claimant. That purpose controls the limits of the power. This point was made clear by the Court of Appeal in Lemon v Mead.[92]
[92] Lemon v Mead [2017] WASCA 215 [223] ‑ [224] (Buss P), [268] ‑ [269] (Mitchell & Beech JJA).
Freedom of testamentary disposition is a relevant and important consideration. A will should only be disturbed if, and to the extent that, 'adequate' provision has not been made for the 'proper' maintenance, etc, of the claimant. It has never been the case that the court should in effect, rewrite the will of the testator.[93] The premise requires that the court, out of respect for the continuing right of testamentary disposition, limit its disturbance of a testator's will to only that which is necessary to achieve the purposes of the Act, and no more.[94]
[93] Devereaux‑Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [91] (Buss JA).
[94] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ).
The court's discretion is not to be exercised for the purpose of making what may appear to the court to be a fair distribution of the deceased's estate amongst the children and other members of his or her family.[95] When determining applications under the Act, the court should approach the task by having regard to the testator's moral duty to provide appropriately for his or her dependents as a wise and just testator or testatrix.[96] However, the court should not substitute notions of morality (in the sense of disqualifying personal conduct such as sexual acts or drinking habits) for the purposes of the Act.[97] The purpose of the jurisdiction is not the correction of the hurt feelings, or the sense of having been wronged, of the competing claimants upon the estate of the testator or the other parties having a legitimate call on the bounty of the deceased as named beneficiaries. The jurisdiction is designed to protect eligible persons where inadequate or no testamentary provision is made for their maintenance, education or advancement in life.[98]
[95] Lemon v Mead [2017] WASCA 215 [244] (Buss P).
[96] Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [12] ‑ [15] (Gleeson CJ); see also Butcher v Craig [2010] WASCA 92 [19] (Pullin & Newnes JJA & Murphy J).
[97] Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24, 29 (Kirby P).
[98] Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24, 29 (Kirby P).
Where an estate, such as this one, is very small it is appropriate to have regard to the observations of Ipp J in Goodchild v James,[99] where his Honour was called upon to consider a claim by an adult son on a small estate where the testator did not possess enough assets to satisfy all the claims on his bounty. In Goodchild v James,[100] Ipp J firstly had regard to remarks his Honour had made in Triplett v Triplett,[101] where his Honour had observed:
[99] Goodchild v James (1994) 13 WAR 229.
[100] Goodchild v James (1994) 13 WAR 229, 239 ‑ 240.
[101] Triplett v Triplett (Unreported, WASC, Library No 8146, 16 March 1990).
'The case falls into the class described by Salmond J in Re Allen (Deceased); Allen v Manchester [1922] NZLR 218 at 221 as one:
"... in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator had possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims. No question arises in such a case as to the general scope and limits of the duty of the testator to make provision for the maintenance of his widow and children, for his duty in these circumstances is merely to do the best that he can and to distribute his available resources with justice between his dependants in proportion to their deserts and necessities."
The court is required to determine whether 'proper' maintenance has been provided and proper maintenance may in some circumstances be less than adequate maintenance for the testator may not have possessed enough assets to satisfy all the claims on his bounty. Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Re Harrison (Deceased);Thomson v Harrison [1962] NZLR 6 at 16.'
His Honour then went on in Goodchild v James to observe that:[102]
I am also required to bear constantly in mind the often repeated admonition that it is not for the court to rewrite the will, although as was said by O'Bryan J in Re Hokin [1959] VR 711 at 711-712:
'.. every order that is made under this Act is treated, by the very terms of the Act itself, as though it were a codicil to the testator's will, and so the Court when it makes an order does, to the extent that it makes an order, re-write the will of the testator.'
Consequently, in my opinion, I must attempt to make adequate provision for the plaintiff out of the available resources of the estate (limited though they may be) in such a way that the broad principles underlying the disposition of the estate by the deceased are followed as far as possible.
[102] Goodchild v James (1994) 13 WAR 229, 240.
Peggie loved all of her children equally but intended that the children who had the greatest need of financial support should benefit most from her estate.
James' position is that he does not wish to continue to travel to China to play music as he is getting older and that his future prospects in music are not good. Importantly, he has no access to medical care in China and wishes to live permanently in Perth. He, however, appears to be well, and has given no evidence in these proceedings that he suffers from any disability or medical condition. There is also no evidence before the court which shows that James' prospects of obtaining work as a musician in China are likely to peter out over time. However, if James does return to Perth permanently and only has his Australian and USA aged pensions as income, his weekly expenses would, at the time he gave evidence in these proceedings, be $555 a week, with an income of $751 per week, which effectively would leave James a surplus of $196 a week.
When James' financial position is compared to Rory's at the time of Peggie's death it is not the case that James' financial circumstances could be (as he says) properly described as dire. However, it is clear that James has incurred substantial outstanding debts.
Without the debt incurred by James, James would be able to sustain a very modest lifestyle in Australia on his pension incomes as he has a total pension income of approximately $30,000 per annum and on his estimated living expenses he has an estimated surplus of $10,000 a year with a savings of approximately $40,000 in various accounts. However, James presently has a capacity to work as a musician and English teacher in China to supplement his pensions.
Rory presently has an income of approximately AU$15,110 per year from his Newstart allowance;[103] has effectively no assets; substantial debt, being legal fees of approximately AU$131,000[104] (for legal fees in bringing these proceedings (inclusive of loans from John to pay those fees); a debt to Sacred Heart College of approximately AU$3,900; and a VET loan of AU$2,335. These amounts total AU$138,235.
[103] Rory received Newstart at the rate of $581.10 per fortnight as at August 2018; exhibit 7: third affidavit of Rory Gerard McGeough, sworn 12 November 2018, page 83.
[104] Draft bill of costs (non‑originating), filed 7 May 2019; plaintiff's outline of submissions for costs of the action, filed 7 May 2019.
The adequacy of provision is not to be considered only by James' needs and his capacity to meet them, but also by the other demands on the estate and in light of the size of the estate. Rory has no ability to meet any part of the legal expenses incurred in these proceedings together with the other debts that he owes. Rory's financial position is, in fact, dire. Without the support of Stephanie by the provision of accommodation he would not be able to meet his very modest living expenses. Given that he has been substantially unemployed since 2010 and whilst he recently obtained a TAFE certificate in web design, I accept that he is unlikely to gain employment now or in the future. Whilst it now appears that Rory's lifetime will not be shortened, I accept that it is difficult, because of his physical impairment to his right leg and only having one eye, for him to obtain work in his previous occupation as a carpenter or handyman.
Una's financial position can, at best, only be described as modest. However, she appears to be in a better long term financial position than James and Rory.
James appears fit and well, and currently has the capacity to earn an income in China. However, it is not clear on the evidence how long that can continue.
James is critical of Rory's evidence about his health and his capacity to work. He disputes that Rory has limitations on his capacity to work because of his right leg injury or his eye surgery. However, these criticisms are misplaced. James does not contend that Rory did not sustain a leg injury, but claims that there is no evidence before the court upon which it could be found that Rory had cancer (melanoma in his eye). The proposition advanced by James is not correct. Rory has produced a medical certificate, which I accept as evidence that he did have a melanoma removed from his left eye. However, James does not dispute that Rory had his left eye removed in 2010.
I found Rory to be a credible witness. I do not find that there is any inconsistency in Rory's evidence about his capacity for work, or the type of work that he can now carry out. Rory is now 63 years of age. I also accept that Rory thought, after his initial diagnosis in 2010, that he then only had a life expectancy of about two years, which was ultimately not the case. Further, I accept that given the lapse of time since his diagnosis in 2010 without reoccurrence Rory can expect to live and does expect to live a reasonably long life. However, irrespective of whether Rory did, or did not, have a diagnosis of melanoma, he has lost one of his eyes which has resulted in him being unable to work in his previous occupation as a carpenter.
Rory will not receive a Centrelink Age Pension until he attains the age of 66 and six months (on 2 March 2023).[105] He will only receive a pension of $24,268.40 per year (assessed as at the rate applicable in 2019).[106] This is approximately $6,000 less per annum than James is already entitled to from his Australian and USA pensions combined.
[105] Sixth affidavit of Rory Gerard McGeough, sworn 6 November 2019 [3].
[106] Sixth affidavit of Rory Gerard McGeough, sworn 6 November 2019, attachment B, page 16.
Rory seeks provision of $150,000 to enable him to purchase a modest unit (north of Perth) as his current financial circumstance does not enable him to rent any accommodation. Annexed to Rory's third affidavit is a report from a real estate sales executive employed by Ray White that provides listing prices of:[107]
(a)property for sale in Lancelin, being one unit for sale for $150,000, another for $149,000 and for vacant land from $115,000; and
(b)property for sale in Butler, being two units for $140,000, a house for $199,000 and vacant land for $159,000.
[107] Exhibit 7: third affidavit of Rory Gerard McGeough, sworn 12 November 2018, annexure J pages 85 ‑ 94.
Unfortunately, there are insufficient assets in the estate to make adequate provision for Rory without affecting the competing claims of the other beneficiaries of the will, in particular James and Una. In part this is because of the substantial costs incurred in the solemn form proceedings which resulted from the costs orders made in favour of John and James.
What is also most unfortunate is that Rory has incurred an untaxed bill of legal costs of approximately $131,000, a substantial part of which has been incurred in attempts by Rory's solicitors to ascertain James' financial position and to respond to lengthy affidavit material filed by James, a large part of which was struck out as inadmissible on the first day of hearing.
James filed eight affidavits in these proceedings. The affidavits contained a voluminous amount of material, a substantial amount of which was struck out as inadmissible. In addition to including a large amount of material, the affidavits included financial information which should have been provided at a much earlier point in these proceedings. Rory had, at that time, already been through the expense of engaging an independent accredited Mandarin translator to translate James' China Construction Bank account transaction. Rory seeks an order that James pay his legal costs on an indemnity basis in preparing his fourth affidavit[108] (which addresses Rory's enquiries made about James' financial circumstances, and the affidavit of Helene Hoi‑Ying Fung sworn on 23 November 2018[109] that translates some of James' China Construction Bank accounts) and the costs incurred on conferral in respect of objections to James' affidavits.
[108] Exhibit 8.
[109] Exhibit 4.
The remaining beneficiaries have chosen not to participate in these proceedings. Whilst an applicant under the Act bears the onus of establishing his or her claim, no onus lies upon a beneficiary of a deceased estate to uphold the bequest.[110] However, in determining what is an 'adequate' provision the court must have regard to the totality of the circumstances, including the needs and moral claims of other persons having a legitimate claim on the bounty of the testator. Accordingly, if a defendant beneficiary adduces no evidence of need or particular moral claim, such a failure to adduce evidence may provide the basis for the court to infer that they have no special claim other than their relationship to the deceased, and that they have sufficient resources to meet their needs.[111]
[110] Kilkenny v Kilkenny [2018] WASCA 197 [56] (Murphy & Mitchell JJA) applying Re Adamow (dec'd) (1989) 97 FLR 410, 415.
[111] Kilkenny v Kilkenny [2018] WASCA 197 [56] (Murphy & Mitchell JJ) applying Anderson v Teboneras [1990] VR 527, 534 ‑ 535; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 [94] (Meagher JA; Basten & Campbell JJA agreeing); Davison v Kempson [2018] VSCA 51 [38] (Tate, Santamaria & Beech JJA).
All of the awards I intend to make should be subject to the costs of the administrator being paid out of the estate on an indemnity basis, which I understand to be in the region of approximately $5,000.
Given the value of the estate is insufficient to provide adequate provision for Rory, when regard is had to the size of the estate, competing claims to the estate by James and Una as beneficiaries, and the fact that the remaining beneficiaries have chosen not to participate in the litigation (but on grounds that their 1.4% entitlement not be distributed to any other party without notice), I am of the opinion that the interests of the beneficiaries who have not participated should not be disturbed. This is because the present value of 1.4% of the estate, after the costs of the administration are paid, is an amount of approximately $4,900. But for the terms by which each of the six remaining beneficiaries have chosen not to participate, I would, in their absence, disturb the whole of each of their shares. However, as five of the six remaining beneficiaries reside overseas, prior to disturbing their shares, it would be necessary to ensure that they were each given notice of the prospect that such an order is made and given an opportunity to be heard. To do so may result in further proceedings, the cost of which could result in costs orders being made payable from the estate whereby those costs could exceed the amount of each of the six 1.4% shares of the estate.
For the reasons I have given, I award Rory the sum he seeks of $150,000 (inclusive of the provision that he is already entitled to). In making this determination, I must also have regard to the interests of James and Una and the reduction of their entitlement to provision under the will.
But for Rory's claim for provision, I would not have reduced James' entitlement for provision under Peggie's will. However, this is a very small estate and Rory's claim for provision must be considered as more urgent than James'.
It is apparent on the evidence that James' needs are more urgent than Una's. In reaching this conclusion, I have had regard to the fact that whilst James has substantial debts, he has a current capacity to earn income in China (if he chooses to continue his music business there) and that he has savings of approximately $40,000, and a surplus of at least $10,000 per annum if he chooses to live in Australia, and perhaps more if he continues to live in China. Despite having a shortfall of US$539.13 per month, Una has significant assets and a house of her own. Una's asset position is a surplus of US$360,000, significantly greater than James or Rory.
In these circumstances, I am of the opinion that the remainder of the estate (after the award to Rory and the other beneficiaries is paid) be divided between James and Una in shares of 70% to James and 30% to Una.
The amounts that James and Una will be entitled to by this decision cannot at this point be ascertained as it is necessary to hear the parties further as to costs.
Given that further proceedings as to costs may add to the costs of the proceedings, I would have considered making a global award to Rory (inclusive of costs). However, I have been informed that the question of costs has been complicated by the existence of Calderbank offers to settle having been made (and rejected) by both Rory and James. In these circumstances, in the absence of any consideration of a relevant Calderbank offer, such an order would be inappropriate.
James has also filed submissions after the hearing of evidence that raises an issue in respect of costs against interested non‑parties. In particular, James seeks costs orders against John and Paul on grounds they are funders of the litigation and have personal and financial interests at stake in the outcome of these proceedings, and so they are both interested non‑parties by virtue of O 9A r 1 of the Rules of the Supreme Court. John and Paul are beneficiaries of Peggie's will but are not parties to these proceedings.
Order 9A r 1 provides:
1.Term used: interested non party
In this Order ‑
interested non‑party, in relation to a party to a case, means a person, other than a practitioner for the party, who ‑
(a)provides funding or other financial assistance to the party for the purposes of conducting the case; and
(b)exercises direct or indirect control or influence over the way in which the party conducts the case.
Order 9A r 2(1) requires a party to a proceeding to notify the Principal Registrar and each other party to the proceeding of interested non‑parties. James contends that John and Paul are interested non‑parties and as interested non‑parties, should pay a portion of the costs because:
(a)they are beneficiaries of the estate acting for their own benefit;
(b)they have direct personal and financial interest in the case; and
(c)no notice was given to the Principal Registrar.

The principles applicable to the exercise of discretion to award non‑party costs were conveniently laid out by Le Miere J in Kaur v Sikh Gurdwara Perth Inc [No 2]:[112]
[112] Kaur v Sikh Gurdwara Perth (Inc) [No 2] [2018] WASC 99 [8] ‑ [15].

The exercise of the discretion to make non-party costs orders is to be exercised 'judicially and in accordance with general legal principles pertaining to the law of costs': Knight (192) (Mason CJ & Deane J).
The court will only make a non-party costs order where the interests of justice justify a departure from the general rule that only parties to proceedings may be subject to costs orders: Naomi Marble and Granite Pty Ltd v FAI General Insurance Company Ltd (No 2) [1999] 1 Qd R 518 (Naomi Marble), 544 (Shepherdson J), that is, where, in the circumstances of the case it is just and equitable for the interested non‑parties to pay the defendant's costs: see Vestris v Cashman (1998) 72 SASR 449; (Vestris) 468 (Lander J).
Generally costs orders against non-parties should be granted 'sparingly', and only when 'exceptional circumstances make such an order reasonable and just': Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406, 413 (Callinan J); Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184, 189 (Gaudron J); Flinn v Flinn [1999] 3 VR 712, 760 (per curiam). However, 'exceptional' means no more than 'outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense': Dymocks Franchise Systems (NSW) Pty v Todd [2004] 1 WLR 2807 (Dymocks) [25] (Lord Brown).
There are no closed categories of cases where the costs discretion may or should be exercised against a non-party. Whether costs should be awarded against a non-party is a fact specific inquiry informed by various relevant considerations. Two factors that are highly relevant to the exercise of the discretion are the non-party's connection with the proceedings and the incurrence of costs: see Bischof v Adams [1992] 2 VR 198 (Bischof), 205 (Gobbo J); Wentworth v Wentworth; Estate of Wentworth (1999) 46 NSWLR 300 (Wentworth), 310 (Santow J); Re Bonlac Foods Ltd (2001) 37 ACSR 457 [26] (Warren J).
It is relevant whether the proceedings are initiated and controlled by a person who, though not a party, has a direct personal financial interest in, or derives a potential benefit from, the result: Vestris (468) (Lander J); Symphony Group plc v Hodgson [1994] QB 179, 192 ‑ 193 (Balcombe LJ). Merely funding litigation is not ordinarily sufficient to justify a costs order against a non-party but an order against a non-party may be justified if the funder is supporting the litigation to promote its own interest or to secure its own benefit: Oz B & S Pty Ltd v Elders IXL Ltd (1993) 117 ALR 128; Re Foster; Ex parte Foster v Duus (1994) 121 ALR 494; Hamilton v Al Fayed (No 2) [2003] QB 1175 [57] (Simon Brown LJ), [71] (Chadwick LJ), [86] (Hale LJ). Where the non-party is the 'real party' - playing an active part in the conduct of the litigation and / or with an interest in the subject of the litigation - a non‑party costs order is much more likely: Knight (193) (Mason CJ & Deane J).
As to the connection between the non-party and the incurrence of costs, the authorities establish that there must be a causal link: if the costs would have been incurred even without the non-party's involvement the non-party should not ordinarily be made liable for them: Dymocks [20] (Lord Brown). This causal link must be real and direct: Bischof (205) (Gobbo J).
Another factor considered in a number of cases concerning non‑party costs orders is the financial state of the unsuccessful party. It is not a precondition to the exercise of jurisdiction to award costs against a non‑party that the unsuccessful party be impecunious: Systemcare (UK) Ltd v Services Design Technology Ltd [2011] 4 Costs LR 666 (Systemcare), [43] (Lewison J), [60] (Lloyd LJ); Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) (2012) 200 FCR 154 [87] - [91] (per curiam). However, whether the person who would otherwise be liable for costs can meet a costs order (and if not, the reason why they cannot) is a relevant factor. It is also relevant whether the successful party applied for security for costs. The failure to seek an otherwise potentially available order for security may weaken the prospect of a subsequent costs order against a non-party: Yates Property Corporation Pty Ltd v Boland (No 2) (1997) 147 ALR 685, 695. In the Law of Costs (3rd ed, 2013) Professor Dal Pont at [22.28] says that one of the roles of an application for security for costs in this context is to give notice to the other party and thereby the backer of that party that the moving party is keen to be protected against a failure by that other party to be able to meet costs.
A further relevant factor is whether the applicant for a costs order warned the non-party that an application for costs against it would be made. Dal Pont at [22.24] says that the relevance of a notice or warning to a non-party is grounded in natural justice, for upon being notified, the non-party could have applied to be joined and thereby have the capacity to influence the proceedings or could have protected itself by making an offer of compromise or could have taken other steps to end the proceedings.

I am not in a position to consider James' application as I have not heard the non‑parties in respect of this issue. Unfortunately, it is now necessary to also hear the parties further on the question of costs as to this issue and because, in any event, it is inappropriate for me to view any of the Calderbank offers before making a finding as to what is an appropriate provision for Rory.
Prior to making any orders, a copy of these reasons should be served on John and Paul, and an opportunity afforded to both of them to make a submission as to James' claim that they should pay a portion of the costs of these proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EH
Research Associate/Orderly to the Honourable Justice Smith
9 DECEMBER 2019