Turner v Perpetual Trustees Australia Ltd - [2001] ACTSC 56

ROBERT JOHN NORMAN TURNER v PERPETUAL TRUSTEES AUSTRALIA LIMITED [2001] ACTSC 56 (15 June 2001)

CATCHWORDS

PROBATE – Family Provision Act 1969 (ACT) – plaintiff seeking provision from estate of testator for his “maintenance, education or advancement in life” – regard to be had to the totality of the relationship – whether absolute grant appropriate.
EVIDENCE – s 22(1) Family Provision Act 1969 (ACT) - admissibility of testator’s oral and written statements – limitations on such evidence.

Family Provision Act 1969 (ACT), s 8, s 11, s 22
Family Provision Act 1982 (NSW), s 11
Administration and Probate Act 1958 (Vic), s 91
Trustee Act 1925 (NSW), s 45

Trustee Act 1957 (ACT), s 8

Singer v Berghouse (1994) 181 CLR 201
Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134
Re G Hall (Deceased) (1930) 30 SR (NSW) 165
Chapman v Elders Trustee and Executor Co [1971] SASR 63
Brown v Brown (unreported, Eames J, Supreme Court of Victoria, 7 July 1995)
Re Fulop deceased (1987) 8 NSWLR 679
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Re Dennis (deceased) [1981] 2 All ER 140
Re Abram (deceased) [1996] 2 FLR 379
Hoadley v Hoadley, (unreported, New South Wales Supreme Court, Young J, 17 February 1987)

No. SC 165 of 1999

Judge: Gray J
Supreme Court of the ACT

Date: 15 June 2001

IN THE SUPREME COURT OF THE     )
   )           No. SC 165 of 1999
AUSTRALIAN CAPITAL TERRITORY            )

BETWEEN: ROBERT JOHN NORMAN TURNER
Plaintiff

AND: PERPETUAL TRUSTEES AUSTRALIA LIMITED
Defendant

ORDER

Judge:   Gray J
Date:   15 June 2001
Place:   Canberra

THE COURT PROPOSES TO ORDER THAT:

Pursuant to s 11 of the Family Provision Act 1969 (ACT),an amount of $30,000 by way of a legacy to the plaintiff and an amount of $450,000 by way of capital be held on trust by the executor of the estate (if that trustee is willing to act or such other if not) for the period of the plaintiff’s life.
The income be held on protective trusts for the plaintiff’s life on condition that when the trust comes to an end any capital then remaining be divided as to one half to Jennifer Cole or her descendants and as to the remaining one half equally to John Douglas and Gerald Raymond Solomon or their descendants.
All costs be paid out of the estate.

This is an application pursuant to s 8 of the Family Provision Act 1969 (ACT) (the Act). The plaintiff, Robert John Norman Turner, seeks an order for provision out of the estate of his father, David Roy Jephson Turner, who died on 13 March 1998. The plaintiff was born on 28 July 1973. He is the only child of the deceased. His father divorced his mother in 1975 after some two years of marriage. Probate of his father’s will dated 27 May 1994 was granted on 24 June 1998. The will appointed the defendant, Perpetual Trustees Australia Limited, as the trustee and left one half of the estate to a friend, Jennifer Cole, and the other half to be divided between his aunt, Lois Solomon, and his cousins, John Douglas Solomon and Gerald Raymond Solomon, or their children should they predecease him. His cousins remain as the beneficiaries of their half share.
At the date of the deceased’s death, the deceased’s estate was valued at $744,815.46. As at 13 September 2000, the assets of the estate were valued at $866,468.46.
No provision at all was made for the plaintiff in the deceased’s will. The plaintiff, as a child of the deceased, is a person entitled to apply to this Court for provision out of the estate. A provision is only to be made if the Court is satisfied in consideration of the criteria set out in s 8(3) of the Act that “as at the date of the order, adequate provision for the proper maintenance, education or advancement in life of the applicant is not available …” (s 8(2) of the Act).
The criteria are set in s 8(3) as:
“(a) the character and conduct of the applicant;
(b)the nature and duration of the relationship between the applicant and the deceased;
(c)any financial and non-financial contributions made directly or indirectly by or on behalf of either or both the applicant and the deceased to the acquisition, conservation or improvement of any of the property or financial resources of either or both persons;
(d)any contributions (including any in the capacity of home-maker or parent) by either the applicant or the deceased to the welfare of the other, or of any child of either person;
(e)the income, property and financial resources of the applicant and the deceased;
(f)the physical and mental capacity of the applicant, and the deceased (during his or her life), for appropriate gainful employment;
(g)the financial needs and obligations of the applicant and the deceased (during the life of the deceased);
(h)the responsibilities of either the applicant or the deceased (during his or her life) to support any other person;
(i)the terms of any order made under section 15 of the Domestic Relationships Act 1994 with respect to the property of the applicant or the deceased;
(j)any payments made to either the applicant or the deceased by the other, pursuant to an order of the Court or otherwise, in respect of the maintenance of the other person or any child of the other person;
(k)any other matter the Court considers relevant.”
In this case, the defendant sought that particular consideration be given to the criteria concerning the character and conduct of the applicant and the nature and duration of the relationship between the applicant and the deceased. For his part the plaintiff sought to stress the matters involving s 8 (e), (f), (g), (h) and (i).
At the outset Mr Meagher, for the plaintiff, referred to Singer v Berghouse (1994) 181 CLR 201 as to the approach that I should take. In that regard the majority of the High Court said at 209:
“The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.”
The New South Wales provision in that case was framed in terms of whether the provision was inadequate. The provision with which I am concerned addressed the question of whether adequate provision has been made. That distinction was averted to by Gaudron J in Singer (supra) at 225:
“The question under s 9(2)(a) is whether “the provision (if any) made … by the deceased person … is … inadequate”. That is different from the question whether adequate provision has been made. If the latter were the question posed by s 9(2)(a), the fact that provision had not been made might well lead to the conclusion that it was not adequate. But that is not the case when the question is whether the provision (if any) is inadequate. That is a question that can and must be answered regardless of whether provision has been made. And as earlier indicated, the answer to that question determines whether or not an order can be made under s 7.”
In this case no provision was made and it seems to me that I may more readily find that no adequate provision had been made depending more particularly on the totality of the relationship between the plaintiff and deceased and the relationship between the deceased and other persons having legitimate claims. In any event, the plaintiff’s present parlous financial situation and the size of the estate would indicate that absent some really compelling factor disentitling the plaintiff that some provision should be made for him. Indeed, I did not understand Mr Wilson, counsel for the defendant, executor to argue otherwise.
The plaintiff is now 27 years of age. When his parents separated, a year and a half after his birth, he lived with his father who was awarded custody. In his early teens he lived for some two years with his mother at Tuggeranong. He was sent to boarding school in Bowral and spent a short time at college in the ACT before leaving school at 16 with a year 10 certificate. He obtained roof tiling work. That was in 1989. When the plaintiff was 18, his father lent him money to buy a truck which he used in his roof tiling business. The plaintiff had formed a relationship with a woman of whom his father appears to have disapproved. This was a continuous aggravation to his father as it seems was the plaintiff’s attitude to his father who seems to have expected much of his son by way of presence and physical assistance.
The plaintiff’s uneasy relationship with his father was compounded by his father’s poor health. His father had serious RSI of his wrists resulting from overuse of computers in his employment with the Department of Immigration. He had a hip condition affecting his mobility. He also suffered from throat cancer and was hospitalised for that condition in 1995 and thereafter from time to time. Between 1992 and 1994 his relationship with his son deteriorated and culminated in him repossessing the truck for which he had provided the finance and his son leaving his father’s home.
The repossession of the truck appears to have been an act of retaliation for what the plaintiff’s father saw as his son’s “desertion” of him. It is worth noting that at this stage the plaintiff’s girlfriend was pregnant and clearly his business was not prospering. The plaintiff had not made any repayments of the monies his father had advanced for the truck but, having regard to all the circumstances, it can hardly be thought of as a commercial transaction. Rather it was withdrawal of the assistance that his father had been prepared to provide on the basis that it might be repaid when the plaintiff was in a position to do so.
Around this time, the plaintiff’s father gave a Mr Kellett, the defendant’s Client Relations Manager, instructions to prepare a will. That will was executed on 27 May 1994 and was the will upon which probate was granted on 24 June 1998. Prior to the preparations of the will, the deceased sent a letter of instructions to Mr Kellett. The letter, dated 1 May 1994, referred to a telephone conversation of 30 April 1994 and stated:
“As my legal heir, Robert – by his long-standing recalcitrant attitude and, in particular, his recent unrepentant desertion and disregard of my welfare when I depended on his assistance – has demonstrated disinterest in and finally proven himself unworthy of any benefit from the estate of his family name, I now bequeath my estate as follows: …”

Thereafter appeared the dispositions that appeared in the will upon which probate was granted.

Mr Cunich, the defendant’s Manager, annexed to his affidavit other writings of the deceased after making his will and before his death. They are couched in extravagant and florid language. They are often querulous and convoluted. The instructions for the will are perhaps in milder terms but they bear the same flavour. The plaintiff was often the object of his father’s discontent. In some respects I can understand why.
As part of his case, the plaintiff tendered a report from Dr Lucas who made a psychiatric examination of the plaintiff. Dr Lucas says that his impression of the plaintiff was that the plaintiff had personality difficulties which might well amount to a personality disorder. He observes that the plaintiff is not well equipped to manage his life sensibly and that there are indications that his long term prospects in terms of employment and perhaps personal relationships are impaired to some extent.
The plaintiff did not present well as a witness, and exhibited all the characteristics that Dr Lucas observed. I do not, however, hold that too heavily against him as far as being able to accept the evidence that he gave. He presented as a person whose clearly troubled, fragmented childhood and limited education would make him a very difficult person to relate to. His father’s displays of pique and petulance bordering upon, and sometimes demonstrating, irrationality, give no cause for establishing that the plaintiff should be thereby disentitled because of the failings his father perceived.
More light is cast on the deceased’s reasons for making the dispositions that he did in a letter to his cousin the beneficiary, Gerald Raymond Solomon. The letter was dated 10 October 1994. It was a handwritten note on ten hand-numbered sheets of paper. It is necessary to set it out in full as, apart from the first two paragraphs, it deals with the testator’s reasons for making the dispositions made by the will:
“Dear Maxim & Gerry
I was really glad to see you the other evening – sorry about the late arrival/dinner – there was so much I wanted to tell you/find out …
Hope you liked Floriade (pitty [sic] about the bloody weather, but “spring” in Canberra is like that – unpredictable & often miserable, despite the appearance of pleasantness: much like the people/society here!!). I’d hoped you’d have come up my way to Cockington Green, etc.
What I’m trying to say is I’m seriously disturbed about my future & I want to nail this estate thing down so tight not even a cockroach could crawl in … & there are plenty of them who are my enemies (once they were “friends”/”family”) in this place!
I want you to know 2 things:
(1)The first is that only one person in my life at the moment is worth anything & I intend to see that she’s set up, as her hopeless, but also victimised, husband will never be capable of keeping her in her old age – he’s got nothing now & he never will, once his parents find out why he’s a loser. Yet my friend Terri (who I’ve known since Robert was in pre-school with her 2 boys … & they deserted her too) was & always has stuck by me & I’ve never been able to do anything much for her (not as much as she’s done for me). So there goes half of whatever’s going to be left of my estate when I go.
(2)The second half, I’ve willed back to you & John as my mother’s only surviving sibling’s children … & of course your kids as well.
Believe me I know my past “independent” lifestyle & “individualism” has not been good for me – but neither has the six years & its abrupt climax with someone whom I trusted to be good to me! She, like my son, could & may very well, make a claim on my estate – that’s where you come in.
As my mother trusted you (& your father), so I’m going to have to make a trust too! My accountants are Perpetual Trustees & although they have taken a lot of the burden of managing the finer points of my estate on board over the last 16+ years, they are not what they claim to be – (nor do they want to be) estate managers – they only want the trusteeship & anything between family must be done by ~~that~~/those families – they don’t really even want to be involved in wills (except for giving advice – usually 3^rd hand!). One piece of advice that they passed on from the solicitors was about setting up a “DISCRETIONARY TRUST”. However, neither the solicitors, nor anyone anywhere in the PTA organisation can advise me on how to set one up, the cost, the implications, etc. – except that it would prevent further claims on my estate from anyone NOT mentioned as a beneficiary in my will!
This is the crux of the problem. Either the estate goes the way I want or every bastard & bitch who knows anything of my affairs could get their grubby hands on it once they’re through killing me emotionally/psychologically, if not actually physically (although they all know I’ve done that much already!!!) My only defence is non-committal, self-preservation in future!
I once wanted something good (even EVERYTHING in my wild moments) out of life – now that I have nothing left, all I want is OUT!
The only peace of mind I’ll ever have is to know that the things my mother struggled to leave me won’t be squandered like pearls before swine (I’ve already done enough damage to her memory/things) without that on my conscience as well!!
I cannot know what I will do with what I’ve EARNED, but I do want to know what I can do with what I inherited (& ran off with): I feel guilty & ashamed of my life, where once I was really gonna show you all that I wasn’t just a drop-out, a fool, a no-hoper, etc. (Pride cometh before a fall, etc, etc.)
Now all my efforts have come to nothing … I have a son who hates my guts & a series of women who either made me into a fool or want my testicles (or money) on a plate! As for “friends” – they’d prefer to to [sic] believe the other side – my story is too bizarre (& I thought I had some broadminded mates, ha!!)
I hope you don’t think I’ve done anything to deserve any of this – cause believe me I haven’t. I never wanted nor intended things in my life to turn into disaster; they just naturally do!?!
Anytime I expressed any anger or resentment at my circumstances – or even being pushed around – I was type-caste as the …… [FILL IN THE BLANK] (whatever)!
My (good/professional) reputation only hinged on my career & my skills over the last few years - now that’s all gone, so am I … if I don’t get out of Canberra very shortly, I’m not going to be responsible for what I’ll do.
I shouldn’t write (say) any more … it’s been physically, as well as emotionally, painful thus far. Should you need to, please contact Mr Stephen Kellett at Perpetual Trustees (Canberra), 10 Rudd St Canberra City 2601 (ph: 248 7977) & he’ll fill you in … re will/estate.
In the meantime, I want you to keep this letter in a safe place & make sure you get ~~down~~ to see me again soon as I need someone to look after all the stuff I’m going to have to put side as “family heirlooms”. (Jeannette Duschansue, my cousin on my father’s side may also be able to assist with stuff I have from Dad’s side.)
When I move (even to the coast) it won’t be “home” – ie. I won’t be taking any baggage from the past from now on! And I may move very often if I get my “package” …
There’s one more thing I must ask of you.
Please excuse the disgusting writing/spelling as I haven’t done much in the past 9 months … & they expect me to just fall back into work again (this is being done with a splint & a lot of wine & painkillers!!!?).
I’ve a very short fuse (almost non-existent) but I know what I’m saying & I hope it makes sense to you – if there are any gaps, please give me a call (preferably of an evening – by the way, if I’m in Moruya the no. is (044) 74 2874).
Regards & hope to see you again soon …
Your cousin, David.” (The emphases in the letter are that of the testator.)
The letter provides the reason for leaving one half of the estate to the beneficiary Jennifer Cole who by clear inference is “the one person in my life at the moment [that] is worth anything”. It also indicates the testator’s bitterness towards his former wife (exemplified in a much earlier letter to Mr Solomon written in 1974 before they separated). Apart from a reference to his wife as well as his son making a claim on his estate and his desire to prevent that by means of a trust, the only other reference to considering provision for his son is his reference to having a son “who hates my guts”. He also refers to a wish that his estate not be “squandered like pearls before swine”.
In his evidence before me, the plaintiff referred to a large number of other writings of his father. Mr Wilson, for the defendant, accepted the plaintiff’s assertion in his second affidavit that the deceased was not always rational, clear-minded and unemotional in his writings. As an example of a writing expressing a very different attitude to his son, the plaintiff exhibited to his affidavit a handwritten letter of 6 September 1995. The typed version attached to the affidavit does not contain the underlinings and emphasis of the original and excludes certain writings which I take to be the plaintiff’s comments.
“Dear Son
I am deeply sorry that you hurt so much to hurt me; hate me so much to make me hate you.
If I could I would, do anything to not have you feel that way about me. But all I can think of is what I’ve thrown away for the very last time and you will stay away now; I know you will never forgive me, but I’d like to forgive you. I never abandoned you as a child, but you abandoned me as a (desperate, tired and sick (old) man.) I’ve been going downhill now for so long I don’t know what it feels like to be well or happy. I’d be happier if I knew you were able to forgive me instead of the [way] you treated me when we were last together. I felt like someone used and abused, not respected or loved: as in the family you should have known, but because of fate (and your mother’s jealousy) you have been robbed of your birthright, even without the split that finally came inevitably, between us.
Now both of us have lost a family – I have no one. None of my “family” are able to provide me with the closeness I tried to have with you. I have no “next of kin” – just several “nearest kin”.
However, I thought, despite my lack of time due to demands of my job/studies for [the] future (I always hoped was still available). I’d still have you as my closest blood relation even when you thought I’d given upon [sic] you. I’m sorry that what I had to do to fulfil my duties as a parent somehow also alienated us. The boarding school you failed to succeed in, the work vehicle you failed to use and repay, were both my failures as much as yours. I hoped when you came to live with me after your “split” with your mother that you and I could resolve, in time, some of our differences, but you brought with you your hate and I my distrust.
So we were never able to love each other again. Unfortunately you misunderstood me – I wanted to trust you desperately. I didn’t want to see you turn into what I worked so hard to suppress in me: my hedonism and its inevitable destruction.
Don’t let me become a parody of my past mistakes. Remember me to your children as the father who took on the major parenting role throughout your formative years – however wrong I may have been, I tired [sic] to do my best for you.
Whether or not either of us like each other, we cannot escape the fact that we were once father and son – you and me against the world.
Forgive me, son.
Love, Dad.
6/9/95”

It may be observed that at some time relatively shortly after this letter, the deceased appears to have become reconciled with the plaintiff. At least the plaintiff remained in touch with his father, resided with him from time to time and spent time at his father’s house on the South Coast of New South Wales. It appears from later writings that the plaintiff was still not satisfactorily regarded and still the subject of sustained criticism and abuse in the references that his father made to him.
The plaintiff was cross-examined in respect of the sentiments towards him that his father had expressed. I am satisfied that the plaintiff did not see his relationship with his father in the terms that his father gave vent to in his writings. The plaintiff strongly denied that he “hated” his father or that he intended to “hurt” him. These terms and descriptions seem overblown and emotive having regard to the relationship deposed to by the plaintiff. I accept the plaintiff’s evidence that “they were just his descriptions” and even if they are admissible for some purpose, I am not prepared to regard those descriptions as defining the relationship between father and son.
In late 1997, Mr Cunich had discussions and a meeting with the deceased as to his will. At this stage the deceased had experienced a relapse in respect of his medical condition. In a letter to Mr Cunich of 30 October 1997, the deceased spoke of his wish to avoid being in Canberra for another winter. He wrote:
“This puts me at the horns of a dilemma: whereas I thought I could easily escape down to my cottage at the coast during the worst months [except that the house there needs urgent upgrading done to make it even warm enough!], the problem is I’m not fit enough to even drive there! I was hoping that my son would be able to help in this [& other] ways, since we were spending quite a bit of time together down there before I got ill. Now he’s disappeared altogether, yet left most of his clothes here at Pearce!?! This brings me to another problem, what to do about my Will. Currently he is not a beneficiary &, sadly, I don’t think he’s ever going to be. I also need to update the others as well, but I have been unable to give it my full attention, for obvious reasons.” (the deceased’s emphasis)
Further, in discussions recorded in a file note on 16 December 1997, Mr Cunich suggested that the deceased consider` a life interest as an appropriate way of providing for his son. The deceased was to give that matter more thought and referred to it later in a letter to Mr Cunich of 4 December 1997. In that letter he said:
“On another matter, at this stage there appears to be no reason to change the present thrust of my will. I cannot leave anything [apart from a possible trust-generated income?] to my son as he’s not even had the courtesy to contact me for weeks once again, has stolen/fleeced more money from me & has not even attempted to assist me with anything, much less with the coast house!”
Those letters are a fairly clear indication that the deceased regarded the disposition in his will as a measure of his satisfaction with his son rather than a consideration of whether adequate provision should be made for his son’s proper maintenance, education or advancement in life.
I also regard as significant the words in the letter of 4 December 1997, “I cannot leave anything [apart from a possible trust-generated income?] to my son”. In his evidence, the plaintiff referred to his father’s disappointment in him particularly in not repaying money or doing what his father expected in return for monies advanced. I find that the motivating reason for provision not being made for the son in the will is the father’s somewhat petulant view that, until his son proved himself in all respects worthy, he would not make provision for him.
In cross-examination, the plaintiff had the matters arising out of the letters put to him. I am satisfied that the plaintiff did not desert or abandon his father in the ways implied by his father in those writings. It seems plain that the plaintiff’s responsibilities to his de facto family were not accepted by his father as justification for not fully attending to his father’s needs and wants.
Other writings were put before me purporting to be pages from the testator’s personal diary apparently covering the period of the months before his death in early 1998. In particular, he complains about his son’s behaviour over the Christmas period in overblown, extravagant and hyperbolic language. I accept what the plaintiff said about this episode, and the fact that he called on his father over this period with a Christmas gift of a bottle of wine and was entitled to assume that his father had gone down to the coast.
The defendant also sought to adduce evidence from Merle Hunt, its Client Relationship Manager, of a conversation that she had with the testator some three days before he died in the hospice. The conversation related to wanting the son out of the testator’s house. I reserved the question of the admissibility of that evidence.
Mr Wilson argued that s 22(1) of the Family Provision Act 1969 made admissible not only written, but also oral statements of the testator for making the dispositions made by will or for not making provision or further provision for a person entitled to make application. He may be right even though s 22(2) confines its attention to statements signed and dated by the testator and s 22(3) only purports to have application to such a statement. However, having regard to the rationale for a provision such as s 22, there must be considerable restriction in the scope of such statements.
In Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 150, Gibbs J (as he then was) said:
“In some jurisdictions the rules of the common law have been modified by statutory provisions, which allow the court to have regard to evidence as to the reasons given by a testatrix for making the dispositions which she had made by her will. Legislation of that kind has been enacted in the United Kingdom, New Zealand and some parts of Australia. No such legislation has however been enacted in Victoria or indeed in most of the Australian States. Nevertheless in Australia for many years the courts have admitted evidence of statements made by a testatrix explaining why she made her will as she did. In taking this course the courts have no doubt been influenced by a desire to be informed of the reasons which actuated the testatrix to make the dispositions she had made, and by the consideration that in cases of this kind a claim is made against the estate of a person who is deceased and can no longer give evidence in support of what she has done.”
It seems to me that for such a statement to be admissible it must be specifically directed to the topic of the disposition to be made or not to be made.
That view is confirmed by those cases where consideration has been given to the practice of admitting evidence of such statements. Perhaps the strongest statement of the limitations of such evidence is provided by Harvey CJ in Equity in Re G Hall (Deceased) (1930) 30 SR (NSW) 165:
“I think the statements of the testator can only be put against an applicant within the narrow limits which I indicated in the case of In re Richard Edward Jones (21 SR 692; 38 WN 206); that it must be evidence which goes to show the condition of the testator’s mind at the date when the will was made which prompted the making of the will in the form it is. Now of course that may be interpreted very widely. One may say that anything that the testator said antecedently to the making of the will may bear upon that question, but I think it should be strictly limited to statements which have reference to the particular terms in which the will was made, and ought not be allowed to extend to statements of the testator from which the court might infer reasons why the testator made his will in a particular way.”
On the basis of the reasoning in that case, the statements made after the will had been made and not directed to the dispositions themselves, should be excluded as should any inferences sought to be drawn from those statements as to the reasons why the will was made.
Subsection 22(1) of the Act is a statutory provision which modifies the rules of the common law referred to by Gibbs J in Hughes’ Case above. It is probably not limited to statements antecedent to the will and may well permit some inferences to be made. It requires regard to the testator’s reasons “… so far as they are ascertainable, for making the dispositions made by will or for not making provision or further provision, as the case may be …”. I do not think that the inclusion of the words “further provision” indicates the admission of evidence that the testator had no reason to change his or her mind. It would give what I would regard as an impermissible breadth to the admission of evidence under the guise of explaining the testator’s reasons.
Mr Wilson argued that the statement made by the deceased to Ms Hunt “gives a basis for the testator not having changed the testamentary sentiment disclosed in the will”. The statement was made almost four years after the will. It is not a statement which explains why the testator made the will as he did. I rule that it is not admissible.
That ruling also affects the extent of the admissibility of a lot of the writings of the deceased that were admitted in evidence. At the outset, Mr Meagher objected to them if they were being put forward for anything other than providing evidence of the state of mind of the testator insofar as it represents reasons for what he did. They were before me on that basis. However, on reflection, being writings after the disposition made by the deceased, they are only admissible for the limited purpose allowed by s 22 of the Act. They may show the reasons for the dispositions made, and why particular provision was made or not made but that is as far as they may go.
In particular, although the writings clearly show the uneasy relationship between father and son, they do not provide evidence of disentitling conduct or matters that might act as a barrier to provision being made for the plaintiff. The Family Provisions Act 1969 (ACT) does not contain any express provision, such as that found in s 91(1) of the Administration and Probate Act 1958 (Vic) entitling the court to refuse the application if the character or conduct of the applicant is such as in the opinion of the Court to disentitle the applicant.
The fact of such a provision gave rise to “judicial disagreement as to whether conduct not sufficiently grave to disentitle a person to an order, should nevertheless be taken into account to reduce the amount of the order” (see Mitchell J in Chapman v Elders Trustee and Executor Co [1971] SASR 63 at 70 and 71 and the cases there cited). In Brown v Brown (unreported) Supreme Court of Victoria, 7 July 1995 at p 54 Eames J held that such conduct may be taken into account in determining quantum.
In the present case, however, I do not regard the evidence as making out conduct which should affect the provision to be made. In particular, I do not regard the plaintiff as having acted maliciously towards his father or to have deserted or abandoned him in the pejorative sense that the father uses in his writings.
Mr Wilson put the argument in a slightly different way. He referred to the principles applied by McLelland J in Re Fulop deceased (1987) 8 NSWLR 679 at 680:
“In making these determinations, the following principles apply: first, the Court should not interfere with the dispositions in the will (or, where applicable, arising under the laws relating to intestacy) except to the extent necessary to make adequate provision for the plaintiff’s proper maintenance, education and advancement in life, secondly, the expression “proper” in this context connotes a standard appropriate to all the circumstances of the case, and thirdly, the Court may take into consideration any matter (whether existing or occurring before or after the death of the deceased) which it considers relevant in the circumstances, including (a) the nature and quality of the relationship between the plaintiff and the deceased (b) the character and conduct of the plaintiff (c) the nature and extent of the plaintiff’s present and reasonably anticipated future needs (d) the size and nature of the estate of the deceased (e) the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased (or where applicable under the laws relating to intestacy) and (f) any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased.”
He then argued that what he described as a “less than harmonious relationship between father and son” should require that greater consideration be given to the interests of those who take under the will. I consider that argument too simplistic and in its terms gives greater weight to the claims of the present beneficiaries than may be justified. I may, in the context of the nature of the relationship between the plaintiff and his father, give consideration to the provision that might be made by the father acting wisely and justly but I do not see that as justifying the giving of greater consideration to the interests of those who the testator wished to take under the will.
I consider that the proper approach (and that which underlies the exposition of the principles that McLelland J was giving effect to in Re Fulop deceased (supra)) is that expressed by Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19,
“It has often been pointed out that very important words in the statute are “adequate provision for the proper maintenance and support” and that each of these words must be given its value. “Adequate” and “proper” in particular must be considered as words which must always be relative. The “proper” maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is “adequate” must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions.”
The testator was very clear as to the provision that he was making in the case of the beneficiary Jennifer Cole. He wanted her to have half of his estate. He intended “to see that she’s set up”. As to the other beneficiaries, his cousins, he clearly was seeking to keep in his “family” the corpus of the estate that he had inherited from his mother.
Mrs Cole’s claim is based on a longstanding friendship and care of the deceased. During that period her second husband faced charges in respect of several assaults of a sexual nature on school students. He had a stroke in December 1994, is quite unwell and, it appears, is very dependant on his wife. As a result of the assault charges the family have debts and mortgages taken out to assist with the court costs. Mrs Cole deposes in her affidavit to offers that the testator made in respect of the legal proceedings. The plaintiff deposes to his own experience of sexual abuse by Mr Cole, which was not believed by his father when he was, much later, told of it. That further damaged the relationship between father and son, but it cannot be said to affect the testator’s intention in respect of his bequest to Mrs Cole. It is clear that the testator intended that she have an immediate benefit and that she be substantially financially assisted having regard to the circumstances of which the testator was aware.
The testator’s cousins, John Douglas and Gerald Raymond Solomon are 67 and 64 years of age respectively. Neither seek to make out a case of need greater than that of the plaintiff. They have expressed concern for the plaintiff’s welfare and have put to the executor that they would be prepared to relinquish part of this entitlement but would wish to see a protective trust set up to avoid the potential for the estate being dissipated. As to the testator’s intent as far as these beneficiaries are concerned I can be satisfied that the testator had a clear intent that they derive some immediate benefit from the estate and that there be a reversion of one half of the estate to the surviving members of the family of his mother’s sister.
As to the plaintiff’s circumstances, in the evidence that he gave, the plaintiff presented a confused and dismal picture of his present circumstances and financial situation. He is unemployed. He says he owes fines of about $3,000.00. Part concerned his driving an unregistered vehicle and without a licence. Part involved driving whilst disqualified. As well, after his father’s death he had an accident in the utility that his father had given him $1,000.00 towards and in respect of which he had borrowed $3000.00. from his de facto wife. At the date he gave evidence, there was an outstanding electricity bill of $800.00 in respect of the estate property that he has been occupying without paying rent. There appear to be outstanding monies owning to child support for his two children (neither of whom reside with him) of about $3,000.00 and a further $800 owed to one of his father’s friends.
The most troubling aspect of assessing the adequate provision that might be made is the plaintiff’s work position. Virtually since his father repossessed his truck in 1995 he has been unable to obtain full time work. He has done casual labouring work and some casual removalist work. He says in his affidavit that he has been unemployed about 70% of the time since 1995. He was, at the time of the hearing, unemployed.
I cannot, however, ignore the fact of his residual earning capacity. He is at present in receipt of a New Start Allowance. There is some reason to think that access to a motor vehicle might make him more employable although his present unlicensed status makes this problematical. He is clearly, as he says in his affidavit, having difficulty in managing his life. The making of adequate provision needs to take into account the encouragement to utilise his working capacity. An encouragement that his father blew hot and cold about.
A significant difficulty that I have, is making an order which is adequate and proper in the circumstances put before me. Although s 8 of the Family Provision Act 1969 provides that I may order such provision as I think fit, ss 11(1), (2) of the Act provides:
“11 (1) An order under section 8 or 9A shall specify the amount and nature of the provision, if any, to be made and may specify such conditions, restrictions and limitations subject to which the provision is to be made as the Court thinks fit to impose.
(2) Unless the Court otherwise orders, the burden of the provision ordered by the Court to be made for the benefit of a person shall, subject to subsection (3), be borne between the persons beneficially entitled to the estate of the deceased person (other than the person or persons in whose favour an order or orders under this Act is or are made), in proportion to the values of their respective interests in the estate.”

As can be seen the provision requires that the amount and nature of the provision be specified.

I contrast that provision with the wider provision made by s 11 of the Family Provision Act 1982 (NSW). That section provides:
“11      (1) An order for provision out of the estate or notional estate of a deceased person (whether or not an order made in favour of an eligible person) may –
(a)        require the provision to be made in any 1 or more of the following manners:-
(i)         by way of a lump sum;
(ii)        by way of a periodic sum;
(iii)       by way of specified existing or future property;
(iv)       by way of an absolute interest, or a limited interest only, in property;
(v)by way of property set aside as a class fund for the benefit of 2 or more persons;
(vi)in any other manner which the Court thinks fit;
(b)be in respect of property which is situated in or outside New South Wales at the time of, or at any time after, the making of the order, whether or not the deceased person was, at the time of death, domiciled in New South Wales;
(c)specify the manner in which a sum of money or other property is to be paid or made available to the person in whose favour the order is made;
(d)where provision is required to be made by way of a sum of money, specify that the whole or any part of the sum shall bear interest at such rate as the Court thinks fit for such period as the Court thinks fit; and
(e)be made subject to such conditions as the Court thinks fit.
(2)        Repealed.”

There is considerable force, in the circumstances of this case, in making provision for a life estate for the plaintiff’s benefit, at least in respect of the real estate. I note that the defendant’s manager on several occasions suggested to the testator that a “life interest trust” might be an appropriate way to provide for the plaintiff. I do not consider that the way s 11(1) of the Family Provisions Act 1969 (ACT) is framed would permit me to make such a provision (cf s 11(1)(a)(iv) of the New South Wales Act). Nor do I consider that I have the powers to make orders which could effect an immediate bequest to the cousins by way of a legacy whilst giving a life estate to the plaintiff. That follows from the fact that the order under s 8 of the Act is for the making of a provision for the applicant. I just do not have the power to make orders to directly benefit the other beneficiaries, although in terms of s 11(2) I can affect the burden of the provision that I make by altering the proportion that be borne by the persons beneficially entitled.
On the information before me, the value of the estate as at 17 November 2000 was $876,049.61 subject to ongoing estate management fees and legal fees. Various materials were put before me based on calculations in respect of the minimum wage and average weekly earnings and in one case factoring in the plaintiff’s child support obligations. Those calculations, whilst useful, only assist in a very general way having regard to all the other factors to which I am to have regard.
I am also very conscious of the consideration that was stressed by Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales (supra at p19) where he said:
“The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.”
I consider that a wise and just testator would have had regard to the need for the plaintiff to have an immediate amount to assist in the plaintiff’s advancement in life. This amount may assist the plaintiff to pay off creditors and as such may not be said to be proper provision for maintenance (Re Dennis (deceased) [1981] 2 All ER 140). However, it is recognised that the payment of debts can be justified if it enables the plaintiff to establish himself in business [or, in this case, in gainful employment] (cf Re Abram (deceased) [1996] 2 FLR 379 per Judge Roger Cooke at 396). I also consider that the expression “advancement in life” does not justify the same restrictions as the English courts have circumscribed the expression “maintenance” by limiting the expression to payments, directly or indirectly enabling the discharge of the recurring costs of living expenses. In the present case, there is also every reason to be cautious in giving too much by way of absolute grant to the plaintiff but still to ensure that the plaintiff benefits (cf Hoadley v Hoadley, (unreported, New South Wales Supreme Court, Young J, 17 February 1987) where, in the case of a claimant who was in prison, sums were provided to establish himself when released and a sum put aside in trust).
Having regard to all these matters I consider that pursuant to s 11 of the Family Provision Act 1969 I should specify an amount of $30,000 by way of a legacy to the plaintiff and an amount of $450,000 by way of capital to be held on trust by the executor of the estate (if that trustee is willing to act or such other if not) for the period of the plaintiff’s life (see s 45 Trustee Act 1925 (NSW) applied by s 8 Trustee Act 1957 (ACT)) and direct that the income be held on protective trusts for the plaintiff’s life on condition that when the trust comes to an end any capital then remaining be divided as to one half to Jennifer Cole or her descendants and as to the remaining one half equally to John Douglas and Gerald Raymond Solomon or their descendants.
I propose to order that the burden of this provision be borne between Jennifer Cole, John Douglas and Gerald Raymond Solomon in proportion to the values of their respective interests in the estate.
I propose to order that all costs be paid out of the estate.
I will hear counsel as to the precise form of the orders that I should make and as to any other matters arising from or incidental to the orders I propose.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 15 June 2001

Counsel for the Plaintiff: Mr B Meagher

Solicitor for the Plaintiff:   Sutherland & Tiirikainen Solicitors
Counsel for the Defendant:   Mr J Wilson
Solicitor for the Defendant:   Mallesons Stephen Jaques Solicitors
Date of hearing:   21 November 2000
Date of judgment:   15 June 2001