Swanson v Reis - [2018] SASC 20

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SWANSON & ANOR v REIS & ANOR
[2018] SASC 20
Judgment of Judge Bochner a Master of the Supreme Court
2 March 2018
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN
Application for further provision from the estate of late mother.
Held: claim dismissed.
Inheritance (Family Provision) Act 1972 s 7, referred to.
Parker v Australian Executor Trustees Limited [2016] SASC 64; Tiburzi v Butler [2017] SASCFC 89; Carter v Brine [2015] SASC 204; Singer v Berghouse (No 2) (1994) 181 CLR 201; Bowyer v Wood (2007) 99 SASR 190, considered.

SWANSON & ANOR v REIS & ANOR
[2018] SASC 20

The second plaintiff has made an application pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (the IFPA) for further provision from the estate of his late mother, Barbara Gesine Reis (the deceased), who died on 30 July 2016. When this action was first issued, the second plaintiff was joined as plaintiff by his sister, Angela Kim Swanson. However, shortly before the trial, Ms Swanson elected to discontinue her claim. As a result, I will refer to the second plaintiff throughout as “the plaintiff”.
Background
At her death, the deceased was a widow and was survived by her three children, Ms Swanson, the plaintiff and Andreas Peter Reis. She left a will dated 10 May 2016, in relation to which probate was granted on 21 November 2016. Probate was granted to Andreas Peter Reis. Andreas Peter Reis is named in this action in his capacity as executor as first defendant, and in his capacity as beneficiary as second defendant. Throughout I will refer to him as the defendant.
By her will, the deceased gave all of her furniture and personal effects to the defendant. The residue she divided into three equal parts, with two of those parts to go to the defendant and the remaining part to be divided equally between the plaintiff and Ms Swanson. In effect, the defendant is to receive two thirds of the estate and the plaintiff is to receive one sixth of the estate.
The net estate is estimated to be worth around $420,000. The residue (and main asset) of the estate is made up of a property situated at Flagstaff Hill, as well as a small amount of cash. The value of the property at Flagstaff Hill is estimated to be around $400,000. Thus, the plaintiff’s entitlement under the will amounts to around $66,666. I note that in submissions both plaintiff and defendant estimated the plaintiff’s entitlement to be around $70,000. This figure, however is based on the entirety of the net estate of $420,000, rather than simply the residue. Nothing turns on this. I further note that no formal valuation of the Flagstaff Hill property has occurred; the parties were agreed as to its approximate value.
The personal circumstances of the plaintiff
The plaintiff’s evidence was primarily by way of affidavit, supplemented by oral evidence.
The plaintiff was born on 5 July 1961 and at the time of the hearing was 56 years old.
In relation to his family history, the plaintiff gave evidence that his father, Rudolph, was born in Vienna. He was a carpenter and violin maker. His mother, the deceased, was born in East Germany. He had a happy childhood, during which he, his parents and siblings lived on a property at Morphett Vale. He left school two thirds of the way through year 11 to take up a position as a trainee manager at Coles.
While at school, the plaintiff assisted his parents on the family property, working in the garden, doing maintenance work and other similar tasks.
The plaintiff told the Court that he married during the 1990s, and in 1998 his daughter, Tayla, was born. His marriage ended in the mid-2000s.
The plaintiff is currently in a relationship. He commenced co-habiting with his partner in August 2016, having met her some four or five months before that. They do not share any assets and are financially independent of each other.
The plaintiff’s employment history
The plaintiff commenced working at Coles when he was still at school. As previously mentioned, he left school before the end of year 11 to take up a positon with Coles as a trainee manager. Over subsequent years, the plaintiff rose through the ranks at Coles becoming a manager, buyer and then promotions manager. In about 1990, the plaintiff left his employment at Coles and went to work for a wholesale business. In this position, he had a national role, which involved regular travel to Sydney. In around 2005, the plaintiff was dismissed from the employment that he was in at that time, as a result of which he made an unfair dismissal claim. Following this, he was unemployed for a period of about 15 to 18 months.
The plaintiff is currently employed by Foodland as a business manager, and has been in this positon for nearly 9 years. This position involves significant travel as he manages the business of 45 country stores as well as those based in Adelaide.
The plaintiff’s relationship with his parents
The plaintiff described a “very, very good relationship”[1] with his father, who was proud of each of his children’s different achievements. As to the deceased, the plaintiff described her as a woman who enjoyed cooking and entertaining, who taught him to cook. He said that during his childhood, “life was good”.[2]
[1] T14.4.
[2] T14.18.
The plaintiff described the deceased as having strong opinions and as always being critical of her children’s partners. The plaintiff said this characteristic contributed to or caused an estrangement between the deceased and Ms Swanson, as the deceased wanted Ms Swanson to separate from her husband “at no cost”.[3]
[3] T15.6.
In 1990, the plaintiff’s parents found themselves in financial difficulties, as a result of which they were unable to pay their mortgage. To avoid repossession of their property, the deceased refinanced the mortgage over the property, and to assist, the plaintiff lent her $12,000 to pay their legal fees. At this time, the deceased promised to pay the money back in two years, and that “it was for all three children for the future of all three children”.[4] The plaintiff took this to mean that one day the property would be shared with the three children.[5] The plaintiff’s evidence was that the money was paid back to him over about 15 years. No interest was paid on the loan.
[4] T16.27-28.
[5] T16.37.
The plaintiff’s father died in 2000.
Immediately following his separation from his wife, the plaintiff lived at Normanville and commuted to Adelaide to work. Tayla lived with him 50% of the time, spending the remaining time with her mother. Tayla was in primary school at this time, attending Pulteney Grammar Junior School and after commuting in this way for about a year and a half, the plaintiff and Tayla commenced living with the deceased during the weeks that Tayla resided with her father. This was at the suggestion of the deceased, so as to prevent Tayla having to travel such long distances every day. During this period, the plaintiff lived with the deceased during the weeks that Tayla was with him and, in the main, spent the other weeks at his home in Normanville. This arrangement commenced in around 2006.
Around about this time, the deceased met a man on the internet with whom she developed a friendship. He moved in with the deceased, which led to tension between the plaintiff and the deceased. The plaintiff described the relationship in the following way:
A.... It sort of changed the relationship quite a bit because anything that this guy would say, my Mum would just take it that whatever he said would be right, and he, you know, he had his own website talking about a lot of political issues. He was always on the opposite side of it. One of those examples I could say is my Mum is East German. He would quite often say - the Germans didn't do anything bad to the Jews, they didn't exterminate them - so she would talk about that to other people and I would say - Mum, just because he said it doesn't mean it is right.
Q. Did that lead to a falling-out between your mother and yourself.
A.I think it did, especially with his presence around the home. If I disagreed with her on anything, I wanted to be neutral on things, but if I disagreed with things, and if I didn't say anything she would think I was against her. It is either you are in her camp or you are not. She might have had a falling-out with her sisters, but if I kept in contact with one of my aunties she would either believe it as being outside of her camp and I just wanted to remain neutral about the arguments.
This tension led to the deceased asking the plaintiff and Tayla to move out of her house. This in turn led to a period of estrangement between them for about two years. The plaintiff and the deceased gradually began speaking again, and while the relationship remained strained, it was improving at the time of the deceased’s death.
In the period of the deceased’s hospitalisation prior to her death, the plaintiff visited her regularly and took her lunch almost every day as she did not like the hospital food. The plaintiff accompanied her to a number of medical appointments and spent time talking to her.
During these conversations, the plaintiff said that the deceased mentioned her will to him in the following terms:
A.She did mention her estate. During that last week she said - she turned to me and said 'I don't think I left you enough in the will. I need to change the will'. My response to that was 'Don't talk about the will, let's just talk about the good times.'
In essence, the plaintiff described the deceased as a somewhat difficult person with strong opinions. Nonetheless, he described a happy childhood, and a relationship that endured for the deceased’s lifetime, despite its ups and downs.
The plaintiff’s financial position
The plaintiff has significant assets. His annual salary package is in the region of $150,000, including superannuation and a car allowance. He is the sole registered proprietor of the following properties:
·A house a Sheidow Park valued at $510,000;
·A house at Port Noarlunga South valued at $375,000; and
·A house at Port Noarlunga valued at $285,000.
The property at Port Noarlunga was purchased after the death of the deceased.
In addition, he owns the following assets;
·A 2016 Audi S3 sedan valued at $52,000;
·Shares to the value of $17,640;
·Savings of around $12,000; and
·Household furniture and chattels.
He has superannuation worth $324,530.
As to liabilities, the plaintiff has mortgages secured over all three properties, a loan in relation to his motor vehicle which is almost for the full value of the vehicle, and some credit card debt.
In summary, the plaintiff has assets to the value of approximately $1,600,000 (including his superannuation) and liabilities of $789,935.
The plaintiff has the following income:
·Salary package of around $150,000, resulting in net weekly income of around $2,150. This includes the plaintiff’s vehicle allowance;
·$100 per week by way of board from his partner;
·Rental income in respect of the Port Noarlunga South property.
He also intends the Port Noarlunga property to be a rental property, but is yet to derive any income from it. His total average weekly income is around $2,600. The plaintiff has estimated his average weekly outgoings to be around $1,900, leaving him $700 each week as uncommitted income.
It is clear that the plaintiff is in a comfortable position financially.
Other relevant circumstances
Tayla currently lives with the plaintiff. She is currently unemployed, having recently lost her job and so the plaintiff supports her financially. She has a nut allergy, and has recently been diagnosed with a heart condition, which may require surgery in the future.
In October 2017, the plaintiff had a serious motor bike accident as a result of which he suffered multiple fractures. At the time of the hearing, he was still recovering from these injuries.
The defendant’s personal circumstances
The defendant was born on 3 December 1963. At the time of the hearing he had been in a relationship with Jo-Anne Leslie Locke for about four years. They began living together about three years ago. Both the defendant and Ms Locke told the Court that Ms Locke intended to move out of the house they were living in together in February 2018. This was because the death of the deceased and this proceeding had placed strain on their relationship. The defendant has no children.
The defendant’s evidence was that, other than sharing the costs related to their jointly owned properties, he and Ms Locke do not share their incomes.
The defendant’s employment history
After finishing school, the defendant worked for a short period of time at Coles, and then commenced an apprenticeship as a carpenter. He worked in the building industry as a carpenter until about six months ago, when he commenced working at DDLS Australia Pty Ltd as an accounts manager. He said that he left his work as a carpenter because of the physical nature of the work, and his inability to continue working in such a strenuous field as he got older. When working as a carpenter, he was, in the main, fully employed, although he had a number of periods of unemployment between jobs. He also worked as a subcontractor for a period of time.
The defendant’s relationship with his parents
The defendant described a very good relationship with his father. He said that in later years they used to work together, doing first fix and second fix for Homestead Homes and Distinctive Homes.
In relation to the deceased, the defendant said the following:
I loved my mother and I’m very sure she loved me. We had a very good relationship. It was normal. She loved all of her children, that’s all I can really say.
…
An adult, regarding me, you have your arguments with her. The longest time I never spoke to her was about a two week period. As far as her other children go there was times there wit has adults they argued and they were quite savage arguments. She cared about all her children, she loved all her children even as adults, even though there was arguments and that, that’s the best way to summarise that. [6]
[6] T44.12-25.
After the death of his father, the defendant said that he spent more time with his mother, because she was lonely. While she still lived on the property, the defendant assisted her with work such as building work, maintenance, chopping down trees and the like. He described specifically repointing her brick work, replacing her air conditioner, and replacing pumps.
After the deceased was diagnosed with cancer, the defendant said he and his partner spent much time with the deceased helping her out. It was intended that, after she was discharged from hospital, the deceased would move into a granny flat at the defendant’s house which he was renovating for her.
In summary, the defendant described a close relationship with his mother, and one where he provided her with considerable assistance, both before and after her diagnosis of cancer. While his evidence did not contradict the evidence of the plaintiff as to the difficult personality of the deceased, it was clear from his evidence that this did not cause significant difficulties in his relationship with her.
The defendant’s financial position
The defendant is the joint registered proprietor with Ms Locke of the following properties:
·A property at Blackwood, valued at $390,000. This is the defendant’s and Ms Locke’s residence;
·A property at Morphett Vale, valued at $215,000;
·A property at Second Valley, with a capital value of $112,000.
The defendant has the following additional assets:
·Superannuation of around $92,000;
·Savings of around $5,600;
·A 1999 Holden Rodeo 4x4 ute worth around $2,800;
·A 1977 Corvette worth around $6,000;
·A boat valued at approximately $9,000.
The defendant has significant liabilities. Each of the properties owned by the defendant is substantially encumbered. Any equity in them is shared equally with Ms Locke. He also has a credit card debt of around $12,000.
The defendant earns $1228.62 net each fortnight. He also earns rental income from the property at Morphett Vale, however this is used to repay the mortgage over that property. He estimated his weekly living expenses to be around $600. Thus, the defendant has very little uncommitted income at the end of each fortnight.
There was some discussion in evidence as to the value of the Second Valley property. The defendant and Ms Locke have recently built a house on the property, with the intention of renting it out once it is completed. They have spent in total around $300,000, including the land and the house. The land has not been revalued since the building of the house. There is currently a mortgage in relation to this property in the sum of $244,501.
The evidence established that the defendant has assets (including superannuation) worth approximately $473,900, and liabilities of approximately $388,000. In making this calculation, I have attributed half the value of the properties to Ms Locke, and also half of the liabilities in relation to those properties to her.
In cross-examination, counsel for the plaintiff put a number of issues to the defendant as to his earning capacity. In particular, he appeared to suggest to the defendant that he had, since the deceased’s death, deliberately decided not to exercise his earning capacity to its full extent.[7] In my view, no evidence before the Court suggested that this was the case.
[7] See, for example, T59.29-60.20.
In addition, counsel for the plaintiff suggested to the defendant that the defendant had himself built the house on the Second Valley property, as opposed to having it built by a contractor. This was denied by the defendant, and there was no evidence before me to support the plaintiff’s contention.
Finally, the plaintiff put to the defendant that it was the defendant’s intention to become a property developer. This was denied by the defendant and was not supported by any evidence.
Specific issues in dispute between the plaintiff and defendant
There were two issues specifically in dispute between the plaintiff and defendant. These were:
·The transfer to the defendant, shortly before the deceased’s death, of the contents of the deceased’s superannuation fund and savings; and
·The wishes of the deceased as to her living arrangements on her discharge from hospital.
Two days before the deceased’s death, she transferred, by way of phone banking, the contents of her MLC Allocated Pension Account, in the sum of $63,661.49, into her National Australia Bank Account. She then authorised, in writing, the defendant to withdraw all but $2,000 from that account. Relying on this authorisation, the defendant withdrew the sum of $79,473. 85 and deposited it in his own account.
The defendant’s evidence was that the purpose for this withdrawal was to allow him to meet the costs of the renovation that he was carrying out on the granny flat in which the deceased was intending to live after her discharge from hospital. The defendant’s evidence was as follows:
Yes, that was prior to mum’s death and that’s when we previously discussed about mum moving in with myself and she wanted to give me some money to go towards making the house liveable for her to come. She said, however, though ‘Whatever is there, what’s left, that’s your money to do with as you wish’.[8]
[8] T46.26-31.

Thus, according to the defendant, the money was a gift to him to allow him to carry out the renovations with any excess to be kept by him for his own use.
Counsel for the plaintiff suggested that rather than the money being a gift to the defendant, it was provided for a specific purpose (to pay for renovations) and that the balance of the funds should be paid into the estate. The plaintiff’s position was that either this money belonged to the estate, or alternatively, it should be taken into account as an inter vivos gift when considering the defendant’s position. The defendant’s position was that the money was an inter vivos gift from the deceased, and he acknowledged that it should be taken into account when assessing his position. The defendant’s answers on this topic were clear and consistent:
Q.So have you given any consideration to whether as an executor you ought to put that money back in the estate.
A.This money wasn't given to me in a capacity as an executor. This was given as a mother to a son and there was no real discussion of how the money was to be spent other than a brief summary of 'when I come and live with you that you'll do your house up', so there was no real discussion and agreement with my mother as to how the money was to be used.
Q.Your mother at this stage was in her final terminal decline, wasn't she. She was in pain, she was taking pain killers, morphine, I think, that's correct.
A. No, she wasn't, not at that stage she wasn't.
There was no evidence to suggest that the money was anything other than a gift to the defendant. There was no evidence to suggest that at the time she made the gift, the deceased was not in a position to make such a decision as suggested by the plaintiff in the exchange set out above. I accept the defendant’s position, that the money was a gift to him, to do with what he wanted.
The other issue in contention between the parties was the wishes of the deceased as to her living arrangements on her discharge from hospital.
It was the plaintiff’s position that the deceased wished to move back to her own home, but that the defendant would not discuss this proposal. The plaintiff’s evidence was as follows:
A.When it got to the critical time, the last - especially the last week, I tried to have a conversation with Andrew saying 'Look, she has a lovely family home, she needs - what can we do to rotate with palliative care as a family to look after her?' He dismissed me every time and said 'No, she's moving in with us' in the construction of the - the house which is under construction or renovations.
The plaintiff’s own evidence, however, does not support this. He said the following:
A.Yes, she was under the belief that she was going to move in with my brother Andreas in the granny flat below the house. Underneath their house at Blackwood they have got - and Andrew being a builder, he was doing it up and mum believed she was going to be moving into that granny flat.
and
She was just under - I didn't say anything to her because I was more concerned about whether I could work something out with my brother. She just said 'It will be nice. I will be living in a nice downstairs granny flat.'
This does not lead to an inference or conclusion that the deceased was unhappy about the idea of moving into the defendant’s house; rather this was a concern that the plaintiff had on her behalf.
In cross-examination of the defendant, it was put to him that there was a proposal that the deceased return to her own home with care to be provided; this was denied by the defendant.[9] The plaintiff also put to the defendant various entries in the Ashford Hospital case notes in relation to the deceased, which, he contended supported the proposition that the deceased wished to return to her own home, rather than live with the defendant in the flat he was renovating. I am of the view that the entries referred to do not support this conclusion, or any conclusion other than that the deceased was content to move into the flat at the defendant’s house.[10] In any event, I do not consider that anything turns on this dispute between the parties.
[9] T50.21-31.
[10] See, for example, p 61 of exhibit D6, where an entry reads, “She would be happy to live with son and d in law who are currently building granny flat but still some mnths from completion.”
The evidence of Jo-Anne Locke
In addition to that of the plaintiff and the defendant, evidence was given by the defendant’s partner, Ms Locke. Ms Locke confirmed her relationship with the defendant, that they initially lived together at a property owned by her, and that they purchased a property together in June 2014. She confirmed the other purchases of property that she and the defendant had made together, and the approximate values of those properties. She also provided evidence in relation to the living expenses paid by each of them. She confirmed the defendant’s evidence that she intended to move out of their current residence in February 2018, as a result of the stress their relationship had been under because of the death of the deceased and the consequent litigation.
Summary of the evidence
I found each of the witnesses to be truthful, and have no hesitation in accepting the evidence of any of them. Where the plaintiff’s evidence differed from the defendant’s, I attribute this to a difference in perception, as opposed to one or other of them not being truthful.
Each party provided estimated valuations for the properties they own, and while these estimations may not be entirely accurate, each party was content to act on this basis. The only valuation in dispute was the valuation of the defendant’s Second Valley property, as it has not been revalued since a house was built on it. Nonetheless, I accept the defendant’s evidence that whatever its current value, it is significantly encumbered, as a result of building the house on it.
The principles to be applied
The plaintiff makes his claim pursuant to s 7 of the IFPA, which reads:
7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person
(1)     Where—
(a)     a person has died domiciled in the State or owning real or personal property in the State; and
(b)     by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,
the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
Section 7 has been the subject of much judicial consideration. Its purpose was discussed by Lovell J in Parker v Australian Executor Trustees Limited[11] in the following way:
[11] [2016] SASC 64.
[17] The purpose of the Act is to permit a court in certain circumstances to displace a testator’s dispositions. It does not impose any limitation on a testator’s power of disposition but if the statutory conditions are satisfied a court is empowered to alter a testator’s disposition to produce a result that is consistent with the purpose of the Act. The legislation is remedial in character and has been construed to give the most complete remedy which the phraseology will permit.
[18] The inquiry as to whether adequate provision has been made involves a two-stage process. The first stage calls for a determination of whether the plaintiff has been left without adequate provision for his or her proper maintenance, education and advancement in life (this has been referred to as the “jurisdictional question”). The second stage, which only arises if that determination is made in favour of the plaintiff, requires the Court to decide what provision ought to be made out of the testator’s estate for the plaintiff.
[19] In relation to the two stage process Gleeson CJ in Vigolo v Bostin stated:
What has been described as the two-stage approach to the exercise of such a statutory power was explained by this Court in Singer v Berghouse, and is not in controversy in this appeal. It is evidence that, depending upon the stage of consideration involved, the following judgments are required by the terms of s 6. What kind of provision for the matters referred to in that section should be regarded as adequate? What should be regarded as proper maintenance, support, education or advancement in life in the case of a particular applicant? If the court comes to exercise its discretion to make an order in favour of an applicant, what should it regard as fit provision for the purposes referred to in the section? Upon whom should the burden of such an order fall?
(Footnotes omitted)
[20] Thus when considering the first stage of the test the question is whether, in all the circumstances of the case, it can be said that an applicant has been left by the testator without adequate provision for his or her proper maintenance, education or advancement in life. The second stage involves the Court exercising its discretion in all of the circumstances of the case.
[21] The twin tasks facing a court are similar. The first stage involves the application to the facts of a legal criterion although that involves a value judgment by the Court. The second question involves the exercise of a judicial discretion. Although they are separate questions they may in many circumstances come close to each other and a favourable determination of the first may substantially influence the answer to the second. However, the first question is to be decided as at the date of death of the deceased and the second as at the date of any order.
Section 7 was considered further by Doyle J in Tiburzi v Butler[12] and I respectfully adopt his summary as follows:
[12] [2017] SASCFC 89.
[70] As the trial judge recognised, this section requires a two stage process. The first stage, sometimes referred to as the jurisdictional question, calls for a determination of whether the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The second stage, which only arises if that determination is made in favour of the plaintiff, requires the Court to determine what provision ought to be made out of the testator’s estate for the plaintiff.
[71] In McCosker v McCosker, Dixon CJ and Williams J described the first stage, and in particular the role of the concepts of “adequate” and “proper” at this stage, in the following terms:
…As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd) the word “proper” in this collocation of words is of considerable importance. It means “proper” in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance, education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.
[72] It is accepted that the concept of “advancement in life” extends to a person’s adult years. Thus, for example, where an adult child of a testator falls on hard times, and where there are assets available, it may be proper to provide for a buffer against contingencies, including a lack of superannuation funds. Similarly, an adult child’s lack of reserves to meet the demands of advancing years, particularly of ill health, is a relevant consideration.
[73] In Vigolo v Bostin the majority of the High Court held that when the jurisdictional question was being considered a court could have regard to considerations of a moral claim and moral duty. They are considerations that connect the general, but value-laden, language of the statute to community standards and give it practical meaning. However, a moral claim cannot be a claim founded upon considerations not contemplated by the Act, and a court should not rewrite the will simply by reference to notions of fairness.
[74] Assuming the first stage is determined in the plaintiff’s favour, the second stage involves the exercise of a judicial discretion, but taking into account similar considerations to those which are relevant to the first stage. A potentially significant difference, however, is that the first stage involves a determination as at the date of the death of the deceased, whereas the second involves a determination as at the date of any order.
(citations omitted)
In Carter v Brine,[13] Blue J explained the principles to be applied in the following terms:
[13] [2015] SASC 204.
[591] The question whether by reason of the testator’s testamentary dispositions the claimant has been left without adequate provision for his or her proper maintenance, education or advancement in life is a question of fact involving the exercise of value judgements. The question is to be determined objectively by the Court and not by reference to the subjective knowledge, beliefs or intentions of the testator.
[592] The question is to be determined as at the date of death by reference to the objective facts then existing including prospective future expectations and contingencies foreseeable as at the date of death: it is not appropriate to determine this question retrospectively with the wisdom of hindsight or by reference to the objective facts existing at the date of trial. The Court assesses the position by placing herself in the testator’s position and making its own objective assessment by reference to objectively proved facts and circumstances in existence as explained above as at the date of death.
[593] The words “adequate” and “proper“ in the composite phrase “adequate provision for his proper maintenance, education or advancement in life“ are both relative. This requires an examination of all relevant circumstances. Factors to be assessed and weighed relative to other factors include but are not limited to:
·the age, condition, general situation and other factors relating to the claimant;^{- 185}
·the needs of the claimant and the lifestyle and standard of living to which the claimant has become accustomed;^{- 186}
·the claimant’s capacity and resources to meet those needs, lifestyle and standard of living;
·the relationship between the testator and the claimant;
·the nature, extent and character of the estate;
·the relationship between the testator and other persons for whom the testator provided or having claims against the estate;
·other claims against the estate.
[594] When considering the claimant’s “needs” and the lifestyle and standard of living to which the claimant has become accustomed, the Court does not make an assessment in absolute terms of what a person needs to survive or even to live comfortably but a relative assessment by reference to the claimant’s history and circumstances and all other relevant factors including those identified above.
(citations removed)
In determining this matter, therefore, the first question that I need to ask is whether the plaintiff has been left without adequate provision for his proper maintenance, education and advancement in life. I must consider this question by taking into account:
…the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.[14]
[14] Singer v Berghouse (No 2) (1994) 181 CLR 201 at 210.
These elements are considered as at the date of the deceased’s death.
Taking all of these things into consideration, I do not consider that the plaintiff has been left without adequate provision for his proper maintenance, education and advancement in life. The deceased’s estate is relatively small, and from it, the plaintiff is to receive a sum in the region of $70,000. He has, himself, a good income, reasonable superannuation, his own home and, as at the date of his mother’s death, an investment property. He has only one dependent, an adult daughter who is currently looking for employment. His assets far outweigh his liabilities. The gift that he will receive under his mother’s will will allow him to meet some of those liabilities, and travel as he has expressed a desire to do.
Compared to the financial position of the defendant, the plaintiff is considerably better off. He has a much higher income, greater superannuation, and more assets. He has fewer liabilities. Even taking into account the gift the defendant received from the deceased two days before her death, the defendant is in a significantly worse financial position.
I have not taken into account the assets of either the plaintiff’s or defendant’s partners in reaching my conclusion.
I note the plaintiff’s submission that he assisted in preserving the assets of his parents when he lent them money in about 1990, to prevent the bank from repossessing their property. While this is, no doubt, the case, I do not consider that it placed on the deceased a moral duty to provide more for the plaintiff than she did. I am of the view that the provision provided by the deceased for the plaintiff was adequate, in that it took into account his financial position, lifestyle and dependents, and proper, in that it had regard to the less advantageous circumstances of the defendant and took into account the financial assistance provided by the plaintiff, while providing sufficient funds to allow the plaintiff to pay off some debt, travel if he wished to do so, or afford some other luxury that he might otherwise forego.
I am of the view that any moral claim that the plaintiff had on the bounty of the deceased was met by the provision made for him. I rely on the words of Debelle J in Bowyer v Wood,[15] where he said:
A wise and just mother will have regard to what Dixon CJ in Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 510 called “the natural claim upon her testamentary bounty”.[16]
[15] (2007) 99 SASR 190.
[16] (2007) 99 SASR 190 at [45].
In this matter, I am of the view that the deceased properly had regard to the “natural claims upon her testamentary bounty” of each of her children. She made provision for each of them in her will. The fact that that provision was not in equal amounts does not mean that she did not act as a wise and just parent. A wise and just parent may consider each of her children’s respective positions and determine that one should receive more than another.
In reaching this conclusion, I have not had regard to the period of estrangement between the plaintiff and the deceased. The effect of estrangement on such a claim was explained by Doyle J in the following way:
[105] The trial judge explained the relevance of the issue of estrangement in the following terms:
Estrangement of a child and parent should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement. However it is a factor that can be taken into account. The Court should take into account the whole of the circumstances regarding the relationship. It is for the Court to evaluate all the relevant circumstances, including a period of estrangement and the circumstances of that estrangement, when considering the jurisdictional question.
[106] The trial judge’s statement of principle is consistent with authority. In particular, how a period of estrangement affects a claim will depend upon the circumstances of the particular case. Depending upon the nature and extent of the estrangement, and in some cases the reasons for it, it may in some cases be of little moment, or operate merely to restrain the level of provision to be made. In other cases it may go as far as defeating the moral claim of a plaintiff, or terminating the moral duty of the testator towards the plaintiff.[17]
(citations omitted)
[17] [2017] SASCFC 89 at [105] – [106].

The period of estrangement described by the plaintiff was short, when compared to his lifetime as a whole, and needs to be assessed against the background of his evidence that the deceased was a difficult person, such evidence not being contradicted by the defendant.
As the plaintiff has not succeeded on the first stage of the process (or the jurisdictional question) contemplated by the IFPA, I have not considered the second stage, that is to determine what provision ought to be made for the plaintiff.
The plaintiff’s claim is dismissed.