Vigolo v Bostin - [2002] WASCA 327

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: VIGOLO -v- WANDA MARY BOSTIN and LEOPOLDO VIGOLO (as Executors of the Will of LINO VIGOLO (DEC)) & ORS [2002] WASCA 327

CORAM: STEYTLER J
PARKER J
SHEPPARD AUJ

HEARD: 4 OCTOBER 2002

DELIVERED : 4 DECEMBER 2002

FILE NO/S: FUL 11 of 2002

BETWEEN: VIRGINIO VIGOLO
Appellant
AND
WANDA MARY BOSTIN and LEOPOLDO VIGOLO (as Executors of the Will of LINO VIGOLO (DEC))
First Respondents
WANDA MARY BOSTIN
Second Respondent
LEOPOLDO VIGOLO
Third Respondent
NANCY CUNNINGHAM
Fourth Respondent
SANDRA GANGELL
Fifth Respondent

Catchwords:

Testator's family maintenance - Application - Moral claim - Appellant one of five children of testator - Profited from business association with testator during testator's life - Appellant excluded from any benefit under will - Appellant financially secure at time of testator's death - Unable to demonstrate that he had been left without adequate provision or that the deceased ought to have made such provision for him - Inheritance (Family and Dependants Provisions) Act 1972, s 6

Legislation:

Inheritance (Family and Dependants Provisions) Act 1972 (WA), s 6

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant:     Mr R I Viner QC & Mr P Mendelow
First Respondents         :     Mr M J Buss QC & Mr L A Tsaknis
Second Respondent      :     Mr M J Buss QC & Mr L A Tsaknis
Third Respondent          :     Mr M J Buss QC & Mr L A Tsaknis
Fourth Respondent        :     Mr M J Buss QC & Mr L A Tsaknis
Fifth Respondent           :     Mr M J Buss QC & Mr L A Tsaknis

Solicitors:

Appellant:     S S Chohaan
First Respondents         :     Haynes Robinson
Second Respondent      :     Haynes Robinson
Third Respondent          :     Haynes Robinson
Fourth Respondent        :     Haynes Robinson
Fifth Respondent           :     Haynes Robinson

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

Anasson v Phillips, unreported; SCt of NSW (Young J); Library No BC8802473; 4 March 1988
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494
Collicoat v McMillan [1999] 3 VR 803
Hawkins v Prestage (1989) 1 WAR 37
In re Allen [1922] NZLR 218
In re Sinnott [1948] VLR 279
Kitson v Franks [2001] WASCA 134
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Singer v Berghouse (1994) 181 CLR 201
Talbot v Talbot, unreported; SCt of WA (Parker J); Library No 960092; 22 February 1996

Case(s) also cited:

Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Goodchild v James (1994) 13 WAR 229
Goodman v Windeyer (1980) 144 CLR 490
Grey v Harrison [1997] 2 VR 359
House v The King (1936) 55 CLR 499
Lacey v Lacey, unreported; FCt SCt of WA; Library No 980359; 25 June 1998
Marks v William [2002] WASC 197
Nelson v Nelson, unreported; FCt SCt of WA; Library No 990136; 9 April 1999
Re Buckland (Deceased) [1966] VR 404
Re Leonard [1985] 2 NZLR 88
White v Barron (1980) 144 CLR 431

STEYTLER J: I have had the advantage of reading the judgment of Sheppard AUJ. I agree with it. There is nothing I wish to add.
PARKER J: For the reasons published by Sheppard AUJ, with which I respectfully agree, I too would dismiss the appeal and order the appellant to pay the costs of the appeal.
SHEPPARD AUJ: This appeal is from the dismissal by McLure J of an application made by originating summons under s 6 of the Inheritance (Family and Dependants Provisions) Act 1972 by Virginio Vigolo for provision out of the estate of his late father, Lino Vigolo. For ease of reference I shall refer to the members of the family, including the appellant, by their Christian names. I know that this is not the way in which litigants and witnesses are usually referred to in judgments, but, in a family situation such as this, it is one way of ensuring that there is no misunderstanding about the identity of any of the various people who are involved. I shall, however, refer to the father, Lino, as the deceased.
Virginio was one of five children born to the deceased and his wife, Rosaria. The first respondents to the appeal, Wanda Mary Bostin and Leopoldo Vigolo, are Virginio's sister and brother and the executors and trustees of the deceased's will. Wanda and Leopoldo were also sued in their personal capacity. In that capacity, they comprise the second and third respondents to the appeal. The fourth and fifth respondents are Nancy Cunningham and Sandra Gangell, the two remaining children of the deceased. Rosaria was not joined as a party to the proceedings below, but was notified of them. She took no part in them or in this appeal.
By his will, the deceased gave all his real and personal property to his trustees upon trust to pay general and testamentary expenses, debts and duties, and to hold the balance of his estate upon trust for his children, Nancy, Wanda, Sandra and Leopoldo, provided they survived him.
Pursuant to the power of appointment reserved to him by a deed of settlement dated 8 December 1993, the trustee of which was the deceased, he appointed his children, Nancy, Wanda, Sandra and Leopoldo, to be the guardians and appointors of the trust created by the deed. The trust is known as the Lino Vigolo Family Trust. I shall mention the trust as necessary a little later. It may be observed that not only Virginio, but also Rosaria, the widow, were not mentioned in the will.

By his originating summons, Virginio applied for orders that he receive a sum equal to one‑fifth of the net assets of the deceased's estate and be appointed a guardian and appointor of the Family Trust, along with his sisters and brother.
The deceased died on 3 June 1997 aged 69. He left an estate worth approximately $1.9 million. The effect of his will is that the four named children in the will would, if no order were made under the Act, be entitled to one‑quarter each. If the order sought by Virginio were made, each of the children would become entitled to one‑fifth of the estate.
Section 6(1) of the Act provides as follows:
"(1) If any person (in this Act called 'the deceased') dies, then, if the Court is of the opinion that the disposition of the deceased’s estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 of this Act as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose."
Section 6(3) provides that 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 or her character or conduct is such as in the opinion of the Court to disentitle him to the benefit of the order, or on any other ground which the Court thinks sufficient. Section 7 specifies the persons who are entitled to make an application under the Act. These include the children of a deceased person living at the date of the death.
The legislation is in a well‑known form. It has its counterpart in each other Australian State and Territory and in New Zealand. The legislation was taken in the early part of the last century from the New Zealand legislation. Section 6 and sections corresponding to it in force in the other States and New Zealand have been considered by numbers of courts in those places over a very long period. Over the years, there have been changes in judicial thinking about aspects of the legislation. Often, these have been the result of changes in social and community attitudes to family affairs and to the nature of the obligations which deceased persons have to members of their families.
The last decision made by the High Court in this area was Singer v Berghouse (1994) 181 CLR 201. The Court divided, Mason CJ, Deane and McHugh JJ comprising the majority and Toohey and Gaudron JJ the minority. The Act in question was the Family Provision Act 1982 (NSW). Section 7 of the New South Wales Act provides that, subject to s 9, if the Court is satisfied that the person applying for provision is an eligible person, it may order that such provision be made out of the estate of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person. Section 9(2) provides that the Court shall not make an order under s 7 unless it is satisfied that the provision (if any) made in favour of the eligible person by the deceased person either during his lifetime or out of his estate is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.
It may be observed that there are differences in the language used in the Western Australian Act and the New South Wales Act. There was a submission that, because of this, Singer was not applicable in Western Australia or, that if it were sought to be applied to a case under the West Australian statute, care should be taken to ensure that the differences in the language of the two sections did not lead the Court into error. However, in Kitson v Franks [2001] WASCA 134, all members of the Court agreed that, although there were some differences between the New South Wales legislation considered in Singer and that in force in Western Australia, the differences were not significant.
Having referred to the relevant provisions of the New South Wales Act, Mason CJ, Deane J and McHugh J said (at 208):
"It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the 'jurisdictional question' (see, eg, White v Barron (1980), 144 CLR 431 at 456; Bondelmonte v Blanckensee [1989] WAR 305, at 307; Golosky v Golosky, unreported; NSW Court of Appeal, 5 October 1993.). That description means no more than that the court's power to make an order in favour of an applicant under s 7 is conditioned upon the court being satisfied of the state of affairs predicated in s 9(2)(a)."
The Court also said (at 209):
"In Australia, it has been accepted that the correct approach to be taken by a court invested with jurisdiction under legislation of which the Act is an example was that stated by Salmond J in In re Allen; Allen v Manchester (1921) 41 NZLR 218. In that case his Honour said, at 220 ‑ 221:
'The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.'
For our part, we doubt that this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to 'moral duty' or 'moral obligation' may well be understood as amounting to a gloss on the statutory language, Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979), 143 CLR, at 158; Goodman v Windeyer (1980) 144 CLR, at 504‑505."
Since Singer was delivered, there has been judicial comment on what the majority of the High Court said in the New South Wales Court of Appeal and the Victorian Supreme Court. Although Singer v Berghouse was discussed by this Court in Kitson v Franks, there is no discussion in the judgments of the significance to be accorded the dictum of the majority in the last paragraph of the quotation from their judgment.
I shall return to this matter a little later. For the moment, I need to refer to the facts of this case. The account I am about to give is taken substantially from the judgment of McClure J.
In the early 1960s, the deceased and his wife commenced farming on conditional purchase leased property at Narrikup, near Albany. It comprised an area of 284 hectares. In October 1981, the Narrikup property was purchased from the Crown and registered in the name of the deceased. In May and June 1972, the deceased and Rosaria purchased two properties adjacent to the Narrikup property as tenants in common. This land, together with the Narrikup property, became known as the "Old Coach Road farm". Her Honour said that, at least from the financial year ending June 1977, the farming business on the Old Coach Road farm was carried on by a partnership known as L R and N Vigolo comprising the deceased, Rosaria and Nancy. The farm was not shown as a partnership asset in the partnership accounts.
In June 1978, the deceased, Rosaria and Virginio purchased land, which became known as the "Albany Highway farm", as tenants in common in equal shares for a purchase price of $132,851. The purchase price is reflected in the 1978 financial accounts of the partnership. It is shown in the loan accounts of the deceased, Rosaria and Virginio, notwithstanding that Virginio was not a partner at that time.
The purchase of the Albany Highway farm was funded partly by loans from the Commonwealth Trading Bank and the Commonwealth Development Bank and partly from the partners' loan accounts in the L R and N Vigolo partnership. Virginio is shown in the partnership loan accounts as contributing an equal one‑third amount towards the balance of the purchase price of the Albany Highway farm, of which $10,000 was a cash advance.
The partnership was dissolved in August 1978 and dissolution accounts were prepared. The assets and liabilities of the former partnership were transferred to a new partnership known as L Vigolo and Son, the members of which were the deceased, Rosaria, Nancy and Virginio. The financial statements of the partnership for the period 1 September 1978 to 30 June 1979 showed the Commonwealth Bank loans for the Albany Highway farm as liabilities in the partners' loan accounts introduced on commencement of the partnership. The subsequent accounts of the partnership showed that the loans were repaid from the partners' loan accounts. But, although the partnership did not pay rent for the use of the Old Coach Road farm or the Albany Highway farm, the partnership profit and loss statements showed that interest on the Commonwealth Bank loans for the Albany Highway farm was paid by the new partnership.
From September 1978, the farming business conducted on the Old Coach Road farm and the Albany Highway farm was carried on by the L Vigolo and Son partnership. Profits from farming activities were allocated equally between the partners at the end of each financial year. At no time was the Old Coach Road farm or the Albany Highway farm an asset of either of the partnerships.
At the end of the 1981/1982 financial year, Nancy retired as a partner and was replaced by Sandra. She retired from the partnership at the end of the 1984/1985 financial year. Neither Nancy nor Sandra received any direct financial benefit from their involvement in the partnership. It was not in dispute that their membership of the partnerships was for taxation purposes.
On 11 July 1988, the assets and liabilities of the partnership of L Vigolo and Son were transferred to a company, L Vigolo and Son Pty Ltd. The partnership was dissolved. The company was incorporated on 1 July 1988 to acquire the business assets and liabilities of the partnership. Three shares in the company were issued, one to each of the deceased, Rosaria and Virginio. The company commenced operations on 11 July 1988.
By a deed dated 1 December 1990, the Lana Trading Trust was established to conduct the business of the sale of wool. The trustees of the trust were the deceased and Virginio. In the period 1984 to 1992, the deceased, Rosaria, Virginio and, on occasions, Virginio's wife, Susan, purchased investment properties. The accounts showed that the investment properties were purchased by the L R and V Vigolo partnership and the L R V and S Vigolo partnership.
In January 1984, the deceased, Rosaria and Virginio purchased the Great Southern Produce markets at 422 ‑ 426 Albany Highway as tenants in common in equal shares for the sum of $92,000. The purchase price was funded from the partners' loan accounts in the L Vigolo and Son partnership. In February 1988, the deceased, Rosaria and Virginio purchased two lots on Albany Highway as tenants in common in equal shares for the sum of $190,000. The purchase was partially funded by a bank loan of $118,000 and the balance of $72,000 was funded from the loan accounts of each of the partners in the partnership. The sum of $118,000 was repaid in 1992.
In July 1990, the deceased, Rosaria and Virginio purchased a service station known as the King George Sound service station on the Albany Highway as tenants in common in equal shares for the sum of $236,000. Of that sum, $200,000 was provided by way of a bank loan - it was repaid in 1994 - and the balance paid by the company and debited to the loan accounts of each of the deceased, Rosaria and Virginio. The company was also the trustee of the Vigolo Family Superannuation Fund. During 1992, a 30 per cent interest in the service station was transferred to the superannuation fund. The beneficiaries of that fund were the deceased, Rosaria and Virginio.
In February 1985, the deceased, Rosaria, Virginio and his wife, Susan purchased a property at Roberts Road, Albany as tenants in common in equal shares for the sum of $44,000. Susan contributed cash of approximately $11,000 towards the purchase of the property and the balance was funded through the partners' loan accounts in the L Vigolo and Son partnership. In April 1986, the deceased, Rosaria, Virginio and Susan purchased a farm, Chokerup Siding farm, for the sum of $110,000. The purchase price was fully funded through the loan accounts of the deceased, Rosaria and Virginio in the partnership. In February 1987, the deceased, Rosaria, Virginio and Susan purchased a service station at Middleton Road, Albany known as Mira Mar, as tenants in common in equal shares for $85,000, of which approximately $29,000 was provided by a bank loan and the balance from the loan accounts of the deceased, Rosaria and Virginio in the partnership.
As mentioned, the deceased and Rosaria had farmed the Old Coach Road farm from the early 1960s until they were joined in active partnership by Virginio in 1978. From 1978, the deceased, Rosaria and Virginio farmed the Old Coach Road farm, the Albany Highway farm and, subsequently, the Chokerup farm. The funds generated by the farming business were used to purchase the various investment properties referred to. The income from the investment properties was applied to cover the expenses associated with them.
Her Honour said that, as a result of a breakdown in the relationship between Virginio and the deceased, Virginio's involvement with his parents in the farming business came to an end. The parties entered into a deed of settlement dated 9 December 1993. As at the date of the deed of settlement, Virginio and Susan were trustees of the VSV (Virginio and Susan Vigolo) Family Trust. By a further deed of settlement dated 9 December 1993, the Lino Vigolo Family Trust was established. It was a discretionary trust and the deceased was, until his death, the trustee. The children of the deceased, including Virginio, were the primary beneficiaries of the Vigolo Family Trust.

Her Honour then listed the transactions effected by the deed of settlement. Her summary is as follows:
"(i)the Old Coach Road farm was transferred from the testator and Rosaria to Virginio and Susan as trustees of the VSV Family Trust. The testator's share in the Old Coach Road farm was sold for $571,760 and Rosaria's share in the farm (valued at $228,240) was gifted to Virginio and Susan as trustees of the VSV Family Trust;
(ii)Virginio's one‑third interest in the Albany Highway farm was transferred to the testator as trustee for the Vigolo Family Trust for an amount of $183,333;
(iii)the 50 per cent share owned by Virginio and Susan in the three properties in the L R V and S Vigolo Partnership (Roberts Road, Albany, Chokerup Siding farm and the Middleton Road Service Station) was transferred to the testator as trustee for the Vigolo Family Trust for $312,500;
(iv)Virginio's share in the Company was transferred to the testator as trustee for the Vigolo Family Trust for $91,786;
(v)the Company sold some livestock and plant and equipment to Virginio for $212,454 and sold all the wool to the Lana Trading Trust."
Her Honour said that the purchase price of all the property sold to Virginio and Susan as trustees pursuant to the deed of settlement totalled $1,012,454. After setting off the amount owed to Virginio and Susan by the deceased as trustee of the Vigolo Family Trust for the purchase of the interest in the relevant properties, and having regard to the value of Rosaria's gift, the cash balance payable on settlement by Virginio and Susan was $251,737. That amount, together with a sum for working capital, was borrowed by Virginio and Susan from a bank. Rosaria's gift was the sum of $228,240 mentioned in par (i) above.
Her Honour said that it was not in dispute that the dissolution was effected on an arm's length basis based on the market value of the properties. All the assets owned by the L R and V Partnership were retained in that partnership. Her Honour then summarised the "pre and post dissolution partnership" ownership of the various properties as follows:

"Property Pre‑Dissolution Post‑Dissolution

Ownership Ownership
Old Coach Road Farm

(a) Plantagenet Location Testator VSV (effectively

5730, Volume 1605, Virginio and Susan)

Folio 721 Family Trust

(b) Portion of Testator & Rosario VSV Family Trust

Plantagenet Location Vigolo

4976, Volume 1300,

Folio 397

5732, Volume 1324 Vigolo

Folio 365

Albany Highway Farm

Testator, Rosaria & 1/3 share held by testator

Virginio as trustee for the

as tenants in common in Vigolo Family

equal shares Trust; 1/3 share held by

Rosaria, 1/3 by testator

Roberts Road, Albany

Testator, Rosaria, 1/2 share held by testator

Virginio and Susan as as trustee for the Vigolo

tenants in common in Family Trust; 1/4 share

equal shares held by Rosaria; 1/4 by

testator.

Chokerup Siding Road

Testator & Rosaria (as 1/2 share held by testator

Farm

joint tenants of one as trustee for the Vigolo

undivided half share ) and Family Trust; 1/4 share

Virginio and Susan (as held by Rosaria; 1/4 by

joint tenants of the other testator.

undivided half share) as

tenants in common

Service Station

Testator, Rosaria, 1/2 share held by testator

Middleton Road

Virginio & Susan as as trustee for the Vigolo

(Mira Mar)

tenants in common in Family Trust; 1/4 share

equal shares held by Rosaria; 1/4 by

testator.

Great Southern Produce

Testator, Rosaria & No change - sold after

Markets (422 - 426

Virginio as tenants in death of testator.

Albany Highway)

common in equal shares

Lots 65 and 12 Albany

Testator, Rosaria and No change - sold after

Highway

Virginio Vigolo as death of testator

tenants in common in

equal shares

BP Service Station

70% share held by No change - Not sold

Albany Highway

testator, Rosario &

(King Sound Service

Virginio as tenants in

Station)

common in equal shares;

30% share held by

Vigolo Family

Superannuation Fund"

During 1994, the L R Vigolo and the Vigolo Family Trust partnership was established to distribute the income from investment properties held jointly in the names of the deceased, Rosaria and the deceased as trustee of the Vigolo Family Trust. The distribution of profit to the partners was in the ratio of 25 per cent to each of the deceased and Rosaria, and 50 per cent to the deceased as trustee of the Vigolo Family Trust. As earlier mentioned, under the will, the only beneficiaries were the four children of the deceased and Rosaria, other than Virginio. The deceased died on 3 June 1997, aged 69.
In June 1998, Virginio and Susan sold the Old Coach Road farm for $1.68 million. They had purchased the farm under the deed of settlement approximately four years earlier for $800,000.
Her Honour said that, by the end of the hearing, it was not in dispute that the net value of the estate at the date of the death of the deceased was $1,913,144. That amount included a loan owing to the deceased from the Vigolo Family Trust in the sum of $571,760. The amount corresponded with the purchase price of the deceased's interest in the Old Coach Road farm. This amount had been lent by the deceased to the Vigolo Family Trust for the purchase of the property acquired by the trust pursuant to the deed of settlement.
Her Honour said that, at the commencement of the hearing, the executors of the estate had not satisfied themselves that the debt remained due and owing at the time of the death of the deceased. Her Honour said that, as the existence of the debt was an issue in the proceedings, she ordered that the new trustees of the Vigolo Family Trust (Nancy, Wanda, Sandra and Leopoldo) be joined as sixth defendants in their capacities as trustees of the trust. The trustees were separately represented at the hearing. Their counsel informed the Court that the trustees did not dispute that the moneys were owed by the Vigolo Family Trust to the estate.
Her Honour said that the estate included, inter alia, cash, shares and interests in real property, in particular the Albany Highway farm, the Chokerup farm, the Mira Mar service station, and the King George Sound service station. She said that there was other property over which the deceased had control up to the time of his death which did not form part of his estate. That included the superannuation fund valued at $149,000, the Lino Vigolo Superannuation Fund death benefit then valued at approximately $37,000 and property belonging to the Vigolo Family Trust. She said that the property interests of the Vigolo Family Trust and the agreed then current value of the interests were as follows:
"Property  Interest  Value
Albany Highway farm          1/3 share  $345,000
Roberts Road  1/2 share   145,000
Mira Mar  1/2 share   190,000
Chokerup Farm                   1/2 share   200,000
Subtotal  $880,000
Less 571,760 debt to estate    571,760
TOTAL  $308,240"
Her Honour said that the defendants (now respondents) pointed out that capital gains tax would be payable on the sale of the properties.
Much of the hearing time at first instance was taken up by expert evidence. Her Honour has referred briefly to this evidence in the course of her judgment. I do not see the need myself to refer to it even in the detail undertaken by her Honour. The idea of obtaining expert evidence was to obtain an expert opinion on the value of the benefits each member of the family had received. Two experts were retained, one, Ms M S Goldfinch, on behalf of Virginio and the other, Mr Herbert, on behalf of the defendants. Both are qualified accountants. Her Honour said that by the time the matter came on for hearing, the experts had significantly narrowed the area of disagreement between them. The judgment deals with the detail of this. For present purposes, it is enough to say that the total of capital and income received by family members from 1979 was, in Ms Goldfinch's view, $5,961,000, whilst Mr Herbert's calculation was $6,628,000. In a table, her Honour sets out the conclusions of each of the experts in two columns. She deals, first of all, with the benefits received by the deceased and Rosaria, and then goes to the children. According to Mr Herbert, Virginio has received $2.5 million in benefits over the period mentioned. According to Ms Goldfinch, the figure is $1.4 million. These figures compare with Susan, for whom the figure is $39,000, Nancy, $24,000 and Sandra, $32,000. There is no disagreement between the experts as to the value of the benefits received by these three. For reasons which are not clear to me, there is no figure given in respect of either Wanda or Leopoldo.
The tabulations show income benefits and capital benefits. Also dealt with are income benefits received by the company L Vigolo and Son Pty Ltd and the grandchildren, as well as the Vigolo Family Trust, which is agreed by the experts to have had capital benefits of $368,000.
Her Honour noted that in the exercise, there had been no attempt by the accountants to estimate the value of the labour and other services provided by Virginio or other family members. Virginio claims that some of the benefits received by him were paid in respect of his labour and other services.
Virginio was born on 20 October 1957. He was aged 44 at the time her Honour dealt with the matter. He left school in 1973, aged 16, and commenced working full‑time on the Old Coach Road farm with his father and mother. As a result of a slump in farming in 1976, Virginio worked part‑time on the farm, as well as obtaining employment elsewhere as a slaughterman and a cleaner and labourer at the local newspaper. He also shot and sold kangaroos for pet food. In 1978, when he was 21, he had managed to save some money and informed his father he wanted to buy his own farm. According to Virginio, his father suggested they buy a farm together "because at the end of the day when he died it would all be mine". Virginio put all his personal savings from his off‑farm work into the purchase of the Albany Highway farm. The accounting records show that he made a cash contribution of $10,000 toward the purchase of an interest in that farm. He was paid $40 per month in wages from the time he commenced work on the farm in 1973 until he married Susan in 1984. His wages were then increased to $100 per week. Susan also worked. However, it was not in dispute that the farming business covered their accommodation and most of their living expenses. Further, it appears, so her Honour said, that from 1976 until at least 1979, Virginio continued to do off‑farm work, saving money for himself as well as performing farm duties.
In 1980, Virginio purchased a house on the Albany Highway with funds borrowed from a bank and with a contribution from Susan. The loan was paid off within three to four years. His only child was born in June 1988. At this time, he requested an increase in his wages, but instead, was provided by his father with a company cheque book. He was permitted to draw only $50 per week, which was to comprise an allowance to be given to his wife. The deceased eventually increased it to $70 per week.
In the early 1990s, Virginio purchased a shop in Mount Barker, from which his wife conducted a hairdressing business. In 1991, Virginio and his wife purchased a farming property on the Albany Highway at Narrikup. The property comprised 275 acres. These properties were in addition to the investment properties purchased with his mother and father which have been earlier referred to.
Her Honour accepted evidence given by Virginio that it was his accumulation of personal assets about which the deceased complained "bitterly", that resulted in the deterioration of his relationship with the deceased leading to the deed of settlement. She said that Virginio's evidence was that, on a number of occasions from the time it was decided to buy the Albany Highway farm, the deceased had said that at the end of the day, when the deceased died, "it would all be yours". On another occasion, when Virginio raised the question of his wages with his father, he was told he was only being paid a small amount because, when his father died, Virginio would inherit the family farm. This was a reference to the Old Coach Road farm. The deceased also said that Leopoldo would inherit the Albany Highway farm. Her Honour said that the respondents agreed that they had heard their mother say on a number of occasions that the Old Coach Road farm would be Virginio's some day. But they did not hear their father make any similar statement.
Her Honour then referred to what she described as the basis for Virginio's claim. It was contained in an affidavit sworn by him on 11 December 1997. He said:
"I believe that by reason of the promises made to me by my father which encouraged and persuaded me to live and work on the family farm and the other farming properties for very meagre 'wages', my contribution of my own savings to the purchase of the Albany Highway farm, my commitment to my father all my life until we dissolved our partnership in 1994, that I had to buy what my father had always told me would be my inheritance and the significant personal contribution I made over my lifetime towards 1994 to building up my father's estate, that I have a substantial claim to share in my father's estate at least equally with each of my brother and sisters such that adequate provision has not been made for me in my father's will."
Her Honour said that it was convenient to deal with what could be described as the "moral" aspect of Virginio's claim. She said that Virginio and the respondents each started from extreme positions which could not be sustained on the evidence. She began with Virginio's position. She said she had no reason to doubt Virginio's evidence. She found that his father had, on a number of occasions, said to him words to the effect that he (Virginio) would inherit the Old Coach Road farm. She added that this was not an "estoppel action".
Her Honour said that the evidence supported a finding that the deceased worked himself and his family hard with minimal discretionary expenditure for the purpose of building a significant family asset base and expected Virginio to follow in that tradition. Her Honour said that it was in that context that the deceased's disapproval of Virginio's accumulation of personal assets was to be understood. She made no findings about any assumptions underlying the deceased's statements concerning Virginio's inheritance. She said that it was unnecessary for her to do so because of the nature of the claim and because the issue of Virginio's inheritance was linked with his allegations of meagre wages, suggesting reliance, detriment and enhancement of the deceased's estate.
Her Honour said that the evidence established, and she found, that Virginio had been adequately compensated for the considerable effort, energy and expertise he devoted to the farming business. It was erroneous to focus solely on Virginio's actual drawings from the partnership when it was the case that other moneys generated by the farming business were prudently directed "via the partners' loan accounts" into investments which were also significantly successful. She said that while his drawings may have been meagre, his income and capital benefits from the partnership business and investment could not be so described. She said on his own expert's figures from 1979 to 1993 inclusive, a period of 15 years, Virginio received income benefits of $580,000 and capital benefits of $838,000, a total of $1.4 million. Virginio had received slightly more than one‑third of the total of the benefits received by the deceased, Rosaria and Virginio. Her Honour also said that, if the period were extended to 1999 and the notion of benefit were extended to include the gift from Rosaria and the profit from the sale of the Old Coach Road farm, his benefits totalled approximately $2.5 million. As mentioned, the gift from Rosaria was of the sum of $228,240, being the amount of her entitlement under the deed of settlement.
Her Honour said that she did not take these benefits into account in support of her finding that Virginio was adequately compensated for his contribution to the farming partnership. She said they were not sufficiently connected with the partnership and investments for that purpose, but the benefits were reflected in Virginio's financial position at the relevant times. She said that, if one were to look at the benefits from the farming operations alone, in the period 1979 to 1993, adopting Ms Goldfinch's figures, Virginio received slightly more than one‑third of the total of the profits, salary and other income received by the deceased, Rosaria and Virginio. She said this was not the case of a family member being inadequately remunerated in the induced expectation that the fruits of his or her labour would be received in the future in the form of inheritance of the farm. She added that Virginio had repeated a number of times in his evidence that, while he was being paid meagre wages, his father drew freely from the partnership and company funds for the benefit of his parents and other members of the family. She said that she did not accept Virginio's evidence concerning his father's drawings from the partnership. She said it was not borne out by Ms Goldfinch's figures and was contradicted by Wanda.
Her Honour referred to evidence given by Wanda to the effect that Virginio's personal financial security had been assured by the fact that the deceased involved him in the farming business and allowed him to accumulate assets personally from his involvement. Of this statement, her Honour said:
"This statement reflects an understandable perception that notwithstanding admission to the partnership, the accumulation (or more accurately, access to and use) of funds generated by the farming business remained within the mandate and bounty of the testator. That is, what on paper reflected Virginio's right or entitlement was in reality within the control of the testator. That was certainly the experience of Nancy (who was a partner for at least six years) and Sandra (who was a partner for approximately three years). However, this case must be determined within the framework of Virginio's legal entitlements.
Even so, in the context of Virginio's acknowledged legal position the opportunity given to him by the testator (and his mother) to join and participate in the farming business and investment partnerships is shown by the evidence to be to his significant financial advantage. Virginio was given equal access with his parents to an established business on his parents' farm, the Old Coach Road farm, and the opportunity to participate in the purchase of the Albany Highway farm (which I find, would otherwise would have been beyond his means at the time) both of which farms were used to generate significant financial returns which in turn were used to purchase the investment properties. There is no evidence that Virginio had other opportunities which he had foregone and which would have put him in a better financial position. Further, Virginio's cash contribution of $10,000 and his assumption of one third of the liability for the Commonwealth Bank loans in 1978 relate to the acquisition of his one‑third interest in the Albany Highway farm. No doubt Virginio's effort, energy and expertise contributed to the success of the farming business and the investments. He clearly made the most of the opportunity he was given and, as a result, was in a position in his mid‑thirties to purchase the Old Coach Road farm valued at $800,000."

Later, her Honour said that, although the evidence established (and she found) that all the children worked hard on the farm whilst still in school, only Virginio worked on the farm full‑time for any significant period. She was not satisfied that Virginio's decision to leave school at 16 to work full‑time on the farm or his entry into the partnership was inconsistent with his wishes or his plans. But she added that she accepted that Virginio sacrificed his independence by going into partnership with his father. The evidence established that the deceased was the head of the family and exercised tighter control on the finances of the partnership with the result that Virginio's asset base grew significantly at the expense of drawings.
Her Honour also said that the events leading to, and the fact that the dissolution of the partnership created a rift between father and son and Rosaria's gift to Virginio also created a rift between the deceased and Rosaria. She accepted Wanda's evidence that the deceased deliberately omitted Virginio from his will because of the deceased's perception that he had made more than adequate provision for Virginio during his lifetime and because of Rosaria's gift.
Her Honour then turned to consider Virginio's financial position as at the date of the death of the deceased and at the date of the hearing. But, as her Honour said, it was made clear in written and oral submissions that Virginio's claim under the Act was not made on the basis of financial need.
Her Honour said that the accounts and financial statements of the VSV Family Trust (Virginio and Susan) for the period ending 30 June 1997, which was shortly after the death of the deceased, showed that the beneficiaries and Virginio, not because of the trust, had current accounts totalling just over $1 million. The assets of the trust included the Old Coach Road farm. They were shown in the accounts at cost. Her Honour also said that, additionally, Virginio had interests in other property which, in total, was valued at $505,000. In 1998, after the death of the deceased, Virginio and Susan sold the Old Coach Road farm for $1.68 million. The VSV Family Trust account showed a capital gain on that sale of $890,000. In addition, further land was sold, as were the Great Southern Produce markets. The trust purchased property known as Lakelands at Leeman in the financial year ending 30 June 1998 for $2.9 million. Her Honour said that, as at 30 June 2000, Virginio and his wife's interest in the VSV Family Trust was shown in the accounts at approximately $1.86 million. That amount, together with the value of Susan and Virginio's interest in the remaining assets, exceeded $2 million.
Her Honour then dealt with the financial position of each of the respondents. She said that Nancy was 42 years of age and was married with two dependant children aged 16 and six. She had lived on the farm with her parents until she married in 1982. Her net assets, jointly with her husband, totalled approximately $202,000. She was employed as a receptionist/secretary. Her husband was a motor mechanic. The deceased paid a deposit of approximately $10,000 for a business purchased by Nancy and her husband in 1997. He also gave her the sum of $20,000 in 1990 to assist in the building of her home. However, Nancy was required to pay taxation on that sum at 48.5 cents in the dollar. Her Honour said that if the deceased's will were not disturbed, Nancy would receive a quarter share, being $475,000, which would bring her and her husband's net assets to $677,000.
Her Honour said that Wanda was aged 40, was married and was employed as a real estate sales representative. Her husband was employed at the Albany Regional Hospital as an orderly. The couple had three dependant children aged 13, 11 and five. She had lived on the farm until she married in 1980. Wanda's net assets, jointly owned with her husband, totalled approximately $270,000. When the farming partnership dissolved, the deceased deposited the sum of $100,000 in a bank account in Wanda's name which was used to settle the interest being paid by Wanda and her husband on their housing loan. Wanda made it clear to her father that the money was available to him at call. The money was repaid to the company after the death of the deceased. The only other financial assistance received from the deceased was the sum of $7,000 in 1987 to assist in the purchase of a car. Her Honour said that if Wanda were to receive the entire amount bequeathed to her, her and her husband's net assets would total $746,000.
Her Honour said that Sandra had been born on 19 June 1966. She lived on the farm with her parents until she married in 1986. Sandra was 35 years old, married and employed as a bank officer. Her husband was employed as a boilermaker. Their two dependant children were aged six and five. Sandra and her husband had net assets of $216,000. The deceased provided financial assistance to Sandra during his lifetime of $21,000. Her and her husband's net assets would increase to $690,000 if the Will were not disturbed.
Leopoldo was born on 29 May 1970. He was 31 years old at the time of the hearing. He is unmarried with no dependents. He lives with Rosaria on the Albany Highway farm. He is a self‑employed butcher and has net assets of $70,000. If he were to receive the entitlements bequeathed to him under the will, his net assets would total $545,000.
Her Honour next entered upon an analysis of the law. She then came to her conclusions. She said that Virginio was an adult of significant means due in part to the opportunity given to him by the deceased and his mother to participate in the farming business and the consequences of his participation. She referred to the fact that he had no "proven" requirements. For those reasons, she was not satisfied that the deceased, as at the date of his death, failed to make adequate provision for Virginio's proper maintenance, education or advancement in life. That question having been answered in the negative, it was unnecessary to go to the next stage of determining what would have been required if the Court itself had had to reach a conclusion as to what a "proper" amount should be.
In reaching her conclusion, her Honour said that Virginio did not base his claim on financial need. As a result, the focus of the case and the evidence had not been directed to his particular requirements or to any reasonably foreseeable contingencies for which provision should be made. Her Honour continued:
"In the circumstances, and having regard to Virginio's net asset position at the date of the testator's death, I am not satisfied that Virginio had needs or requirements at the date of the testator's death or which were reasonably foreseeable at that time, for which he was unable to provide from his own resources.
Virginio was content to rest his application on a moral claim. I have found that Virginio was adequately and proportionately compensated for his contributions to the farming business and that it was to Virginio's significant financial advantage, which he no doubt made the most of, to be given the opportunity to be an active partner in his parents' business. Accordingly, I do not regard the period between 1978 and 1993 when he was working full‑time in the farming business with his father and mother as giving him a moral claim which would otherwise justify making provision for him."
Her Honour went on to compare the position of Virginio with that of the respondents. She said that, if Virginio were successful in his claim, the respondents' share of the estate would drop from $475,000 to $380,000, an amount of $95,000. She also said that the estate might be thought to be large enough for an order to be made in favour of Virginio without "very significant prejudice" to the respondents. I am not sure that I agree with that statement. Having regard to the financial position of the respondents as it was before they became entitled to benefit under the will and the difference that $380,000 would make to each of them, the fact remains that, to them, with their comparatively small asset base and their need, in most cases added to by the requirements of dependant children, the additional sum of almost $100,000 would make a substantial difference to them. In the context of the figures that have been discussed in relation to both the estate and Rosaria, and also Virginio, $100,000 may not seem a great deal. But to Leopoldo and his sisters, the story is quite different. However, that is by the way.
Her Honour went on to say that the respondents' financial circumstances were modest and their capacity to acquire substantial assets in the future from their own resources limited. She said that Virginio's asset position was very substantively superior to that of the respondents and she remarked that it appeared that Virginio had continued in the tradition of his father to channel his financial resources into the accumulation of assets. She also said it was not the role of the Court to re‑write the deceased's will beyond what was required in accordance with s 6 of the Act. She said that Virginio was an adult of significant means, due in part to the opportunity given to him by the deceased and his mother to participate in the farming business. She then reached her conclusion that Virginio had not made out a case for any entitlement.
It is next necessary to make reference to the submissions of the parties. Understandably, counsel for the appellant stressed the finding of the trial Judge that the deceased had said to the appellant that he would, in due course, inherit the Old Coach Road farm. Counsel said that the appellant had acted in reliance on that "promise" and, together with his mother and father, purchased the farm in June 1978. Each made an equal contribution of $10,000. The appellant assumed full responsibility with his mother and father for the repayment of the loan to the Commonwealth Bank of the moneys which were borrowed to make up the difference between what the partners contributed and the price paid for the property. In relation to the appellant's entry into the partnership, counsel emphasised that this was done on an arm's length basis. The appellant, equally with his mother and father, assumed the risks and liabilities associated with being a partner in the partnership. Counsel submitted that, contrary to the "promise", a word that they repeated in their submissions, the appellant did not inherit the deceased's interest in the farm or in the Albany Highway farm. But they said that Rosaria had filled her part of the promise by making a gift to the appellant of her interest in the Old Coach Road farm when the appellant withdrew from the company which had replaced the partnership in 1993. Counsel noted that the appellant had in fact acquired the deceased's interest in the Old Coach Road farm at its market value, which was what he paid for it.
Counsel also laid significant emphasis on the contribution the appellant had made to the building up of the family business during the period 1973 to 1993. Undoubtedly, that was so as was the fact that the appellant had received "meagre" cash drawings from the partnership and the company. This has already been referred to in the account I have given of her Honour's reasons for judgment and I do not repeat it. That should not be taken as an indication that, in some way, I have not given the submission the weight it deserves.
Counsel summarised their approach to the appellant's case by saying:
"Despite:
(a)the fact that upon his withdrawal from the Company the appellant was required to pay for what he was to have inherited;
(b)the appellant significantly contributed to the increase in size of the Testator's estate;
(c)the arm's length nature of all of the transactions between the appellant and the testator;
(d)the fact that the appellant sacrificed his independence by going into the partnership (such sacrifice being directly related to the inducement of the Promise); and
(e)the appellant's meagre cash drawings and that investment of his share of profits in the family business' surplus earnings resulted in the accumulation of partnership and company assets
the Testator disinherited the appellant."
In the course of their submissions, counsel emphasised that there was abundant authority for the proposition that proven need was not essential for a claim under s 6 of the Act, "at least when the claimant had a particular moral claim". Counsel also said that it was well settled that the preliminary question which arises under legislation of this kind, namely whether the provision, if any, is adequate, was to be determined in the light of all the circumstances of the case. The issue went beyond the question whether the applicant had needs and requirements that could not be met from his or her own resources. Reference was made to Singer v Berghouse (supra) (at 227). Counsel submitted that, although the primary Judge had appeared to acknowledge the applicability of these principles, she had incorrectly focussed on whether the appellant had adequate provision for his proper maintenance, support, education or advancement in life, taking into account reasonably foreseeable contingencies instead of focussing, as the Act requires, on whether the disposition of the deceased's estate by his will was such as to make adequate provision therefrom for the appellant's proper maintenance, support, education and advancement in life.
Counsel said that the primary Judge had rejected the proposition that the appellant had a moral claim to a part of the deceased's estate in making findings that:
(a)He was adequately and proportionately compensated in the deceased's lifetime for his contributions to the family farming business; and
(b)He was "given the opportunity to be an active partner in his parents' business".
Counsel said that there was, in fact, no disposition from the deceased's estate made in favour of the appellant either during the deceased's lifetime or upon his death and they emphasised again the fact that what they termed the "promise" had not been fulfilled by the deceased. They said that this was a finding "which was established on the evidence" but which the primary Judge "significantly" omitted to make. Counsel also said that, having regard to the "totality" of the relationship between the appellant and the deceased, the appellant paid for all he received during the family farming business and upon its dissolution, having contributed in full measure to the success of the business by his skill and labour.
Counsel said that when there was a large estate, competition between a claimant and beneficiaries under a will was much reduced. In those circumstances, there might be a more liberal assessment of the moral duty owed to be reflected in what was proper provision for the claimant. Reference was made to the judgment of Young J of the Supreme Court of New South Wales in Anasson v Phillips, unreported; SCt of NSW (Young J); Library No BC8802473; 4 March 1988 (at 20 ‑ 21). Counsel said that the estate here was to be regarded as a large one. They also referred to authority which establishes that where a claimant has contributed to the building up of the deceased's estate or has helped the deceased in other ways, those circumstances might give the claimant a special claim on the bounty of the deceased. The evidence showed that the appellant had made such a contribution. Reference was made to Hawkins v Prestage (1989) 1 WAR 37 (at 44) and to Talbot v Talbot, unreported; SCt of WA (Parker J); Library No 960092; 22 February 1996 (at 5, 6, 7 and 18).
There is more in the submission which could be referred to, but the essence of it is in the summary I have so far given. I have, of course, considered the totality of it but further reference to the detail of it is not necessary for present purposes.
I do, however, mention two further matters. Counsel said that the finding by the primary Judge that the opportunity to become a partner in the family farming business had "neutralised" the existence of a moral claim, had ignored the arm's length basis upon which each active partner, that is, Virginio, the deceased and Rosaria, participated in the family farming business and the risks and liabilities associated therewith. It also ignored the unfulfilled "promise" and the appellant's contribution to the enhancement of the deceased's estate to the benefit of the beneficiaries. Also ignored was the extent to which the appellant had sacrificed his independence by acting in reliance upon the inducement of the "promise" to enter and remain in the family farming business for 15 years. The finding ignored the "totality of the relationship" that existed between the appellant and the deceased and the effect of that relationship upon other beneficiaries to their considerable benefit "including the benefits they would receive as a result of the unfulfilled promise".
Then, it was submitted that her Honour's reasons for decision contained no reference whatsoever to the promise. Rather, she, so it was submitted, incorrectly appeared to have assumed that a claim not based on estoppel relegated the promise to a position of irrelevance. Counsel said that the existence of the moral claim was not based upon any notion of estoppel. To ignore the "promise" in the context of the "totality of the relationship" in making an assessment of the appellant's moral claim constituted a significant error of law on the part of the primary Judge.
It would be appropriate at this stage to make reference to the submissions made on behalf of the respondents. But these go to the detail of the evidence claimed to support a number of the factual findings which her Honour made and to refute challenges made to those findings in the appellant's submissions. Rather than set the submissions out, I think they are best dealt with by their being integrated into these reasons as need be when I come to deal with the question whether or not the appellant has demonstrated that the primary Judge's discretion has miscarried.
One of the matters repeatedly dealt with in the appellant's submissions is the moral claim which the appellant is said to have had on the deceased's bounty. In the light of what was said by the majority in Singer v Berghouse (supra) about the concept of "moral claim", one needs to come to grips with the question of what effect, if any, that statement has on the approach to be adopted in cases of this kind.
I have earlier quoted the relevant part of the judgment. But I repeat the critical paragraph which appears after the quotation from Re Allen. Mason CJ and Deane and McHugh JJ said (181 CLR at 209):
"For our part, we doubt that this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to 'moral duty' or 'moral obligation' may well be understood as amounting to a gloss on the statutory language: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR, at 158; Goodman v Windeyer (1980) 144 CLR, at 504 ‑ 505."
The references to Hughes and to Goodman are references to judgments of Murphy J in those cases. In Hughes, Murphy J said (at 158) that many cases suggested that an applicant must show a moral claim as well as demonstrating that he had been left without adequate provision for his proper maintenance and support. He referred to the decision of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463. He continued, "this gloss on the Act is unwarranted and inconsistent with the language and with the legislative scheme". In his dissenting judgment in Goodman, Murphy J went so far as to say (at 504 ‑ 505) that unless an applicant is left without adequate provision, he or she is not entitled to an order even if the circumstances disclosed a breach of moral obligation. He said that he adhered to what he had said in Hughes.

The difficulty of importing the notion of a moral claim into the resolution of questions under the legislation was referred to earlier than the two judgments of Murphy J. In In re Sinnott [1948] VLR 279, Fullagar J (when a Judge of the Victorian Supreme Court) referred (at 280) to Bosch (at 478 ‑ 479). There, the Privy Council referred to what Salmond J had said in In re Allen [1922] NZLR 218 (at 220). Fullagar J said that it had been suggested that the passage quoted meant or implied that it was the moral duty of every deceased who was financially able to do so to provide a reasonable means of livelihood for each of his children and, if his estate were sufficient for the purpose, "wisdom and justice" prima facie required something like equality of division. Fullagar J said that it did not appear to him that such an approach was the correct approach. The Court was to do what the deceased ought to have done but those words could not, to his mind, indicate or imply an opinion held by the Privy Council that every deceased of ample means ought to provide for the maintenance and support of every child, irrespective of need and irrespective of character or conduct or of moral claim on the deceased's consideration.
In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, Dixon CJ (at 19) described the judgment of Fullagar J as providing "the soundest and most illuminating of all the discussions of the statutory provisions". In Scales, Dixon CJ referred (at 20) to Bosch which in turn had discussed in In re Allen (especially at 220). That passage includes the words "moral duty". Later, Dixon CJ said (at 20):
"'Duty' no doubt does not afford an exclusive test, indeed it is not right to treat it strictly as a test at all. It is but an element, however important an element, that is to be taken into account in weighing all the considerations."
Reference may also be made to the dissenting judgments of Williams J and Fullagar J in Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494 (at 512, 522). These judgments were referred to by Kirby P (then president of the New South Wales Court of Appeal) in Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 (at 29). I shall refer to that case in a little detail in a moment.
There is, of course, a vast amount of authority in this area. It does not seem to me that there is great value in rehearsing authorities that have been discussed in many judgments over many years. I think that the guidance given in Singer v Berghouse as to the approach which is to be made, namely the two‑stage process, is sufficient for most purposes. The advantage of it is that it directs one to the plain language of the legislation. And, at least, since the decision of the High Court in Coates v National Trustees Executors & Agency Co Ltd (supra), it has been clear that the two‑stage process brings with it the need to decide the first question which arises for decision, namely whether the provision made in the will for an applicant is inadequate for his proper maintenance and so on, is to be determined, not as at the date of the application, but as of the date of death of the deceased. If that question be answered in the affirmative, the Court, in exercising its discretionary power to make such provision as it thinks fit, must take into account the facts as they exist at the time of making its order. There had been uncertainty about the position in relation to those matters until the decision in Coates. It was decided by a narrow majority (Dixon CJ and Williams and Webb JJ; Fullagar and Kitto JJ dissenting) that the proper construction of the Act was as I have stated it to be. I am not aware that there has been any departure from that view since Coates was decided.
The majority judgment in Singer has, however, given rise to a point of controversy. It arises from their Honours' statement in which they express (at 209) doubt whether the statement made so long ago by Salmond J in In re Allen (supra) provides useful assistance in elucidating the statutory provisions. They added, "Indeed, references to 'moral duty' or 'moral obligation' may well be understood as amounting to a gloss on the statutory language".
The matter was discussed by the New South Wales Court of Appeal in Permanent Trustee Co Ltd v Fraser (supra). The Court consisted of Kirby P, Handley JA and Sheller JA. Kirby P asked the question (at 27) whether the repeated indication by the Master (from whom the appeal came) of his consideration of the moral duty owed by the deceased respectively to the appellant and the respondents indicated, with the benefit of Singer, that his discretion had miscarried because of its being exercised by reference to a consideration then perceived to be irrelevant. He thought that such a drastic consequence was not required. He took the view as have other judges dealing with this matter since Singer was decided, that the particular statement appearing in the judgment of the majority was not essential to their decision and was thus obiter. But under the heading, "The dangers of diverting attention by considerations of 'moral duty'", he said (at 29):
"I do not consider that it would be safe for this Court, or other courts in this State, to disregard the obiter dicta in Singer v Berghouse concerning 'moral duty'. Nor do I believe that they should regard those words as a slip or oversight of a very long stream of authority. As Handley JA has pointed out, the judicial disquiet in the High Court of Australia concerning the criterion of 'moral duty' pre‑dates Murphy J's expressed anxieties. In Australia it may be traced at least to the dissenting opinions of Williams J and Fullagar J in Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 512, 522."
In the passage from his judgment referred to in Coates, Fullagar J said (at 522):
"If the result of the cases is that the expression 'breach of moral duty' has now to be regarded as a literal statement of the condition on which jurisdiction depends, then it is indeed to be regretted that any such term as 'moral duty' was ever used in connexion with testator's family maintenance. It is perhaps in any case to be regretted. No such term is used in any of the relevant statutes, and it is surely wrong to say that every order in favour of an applicant under any of the statutes has involved moral reflection on the testator."
Kirby P went on to refer to academic analysis which had suggested that the judicial development of the concept of moral duty may have departed from the original rationale behind the statutory protection for the neglected dependants of testators. Kirby P referred (at 29 ‑ 30) to a submission made to the Law Commission of New Zealand by Ms V Grainer; "Is Family Protection a Question of Moral Duty?" (1994) 24 Victorian University Wellington Law Review 141. Having referred to some of what Ms Grainer said, Kirby P said (at 31):
"With every respect to those who are of a different view, I see much force in these comments. Considerations such as those mentioned by Ms Grainer were undoubtedly behind the remarks, in majority and dissent, of Murphy J. Awareness of such considerations may have informed the remarks of Mason CJ, Deane and McHugh JJ in Singer v Berghouse, when their Honours warned against glossing the statutory language. Therefore, notwithstanding the long history behind the use of the concept of 'moral duty' in this area of legal activity, I respectfully agree with the opinion now expressed in the High Court. Although obiter and not technically binding, it must not be seen as a slip. Courts in this State, including this Court, should conform."
Handley JA, who was of a different view, said, amongst other things, that references to moral duty, moral claims and the making of orders to enforce the duty and remedy its breach were "deeply entrenched" in the case law. He referred to a number of authorities which demonstrate that what he said is undoubtedly correct.
Eventually, Handley JA concluded (at 36), that, after having carefully reconsidered the case law on the current New South Wales Act and its predecessor and given the dicta in Singer respectful consideration, he had concluded that the "moral duty test" under the new Act was valid and remained a "useful yardstick" and a "convenient factual test".
Sheller JA also discussed the vast amount of authority in which "moral claim" or "moral duty" had been the expressions which had been used and which had very often been determinative of the outcome of cases, some in the High Court itself. But his Honour said (at 46):
"Singer v Berghouse contains an authoritative restatement of the approach that should be taken by the court when considering an application under s 7 of the Family Provision Act. However, although the Family Provision Act specifies matters which may be taken into consideration and allows the court to take into consideration unspecified circumstances existing before and after the death of the deceased person and any other matters which it considers relevant in the circumstances, it leaves undefined the norm by which courts must determine whether a provision is inadequate for the applicant eligible person's proper maintenance, education and advancement in life. To achieve what is seen to be the legislative intention and bring some certainty into the application of the Family Provision Act, the courts have developed principles and standards which have been applied in determining applications under the Family Provision Act and its predecessors. One such was the provision a just and wise testator would have thought it his or her moral duty to make in the interests of the prescribed claimants had he or she been fully aware of all the relevant circumstances.
In deciding whether the provision for an eligible person is inadequate for that person's proper maintenance education or advancement in life the court should be guided by consideration of the provision which, in accordance with prevailing community standards of what is right and appropriate and in the circumstances mentioned in the Family Provision Act and then obtaining, ought to be made in favour of the eligible person: compare White v Barron (1980) 144 CLR 431 at 440, 445 and Kearns v Ellis (Court of Appeal, 5 December 1984, unreported) per Mahoney JA at 7. I do not think this approach produces any different result from that reached by reference to the concept of moral obligation or duty as that expression had generally been understood or used by the courts. However it avoids doctrinal and inflexible judge made rules and fulfils the court's function, adverted to by Mahoney JA (at 8), of speaking for the feeling and judgment of fair and reasonable members of the community."
Each of the three Judges, despite differences of approach, reached the conclusion that the appeal which was under consideration should be dismissed. There is a greater difference of opinion between Kirby P and Sheller JA on the one hand and Handley JA on the other. I have a preference for the views expressed by Kirby P and by Sheller JA.
It needs also to be observed that both Kirby P and Sheller JA referred (Kirby P (at 31) and Sheller JA (at 45 ‑ 46)) to the presence of the word "ought" in the New South Wales legislation. The word "ought" does not appear in s 6 of the Act here, but it does appear in s 9 which provides that, in determining whether, and in what way, provision ought to be made by an order, the Court shall have regard to the provisions of s 65(8) of the Trustees Act 1962. Section 65 of that Act is not relevant for present purposes, but the presence of the word "ought" in the section shows that the legislation is drafted on the assumption that it intended that Courts exercising jurisdiction under s 6 of the Act would address the question of what order "ought" to be made.
It was after Sheller JA had referred to the word "ought" in the New South Wales legislation that he expressed the views which are to be found in the passage I have earlier quoted from his judgment.
It remains to mention the decision of Ormiston J of the Victorian Supreme Court in Collicoat v McMillan [1999] 3 VR 803. Like the Judges in the New South Wales Court of Appeal, he took the view that the words used by the majority of the High Court in Singer were obiter. He referred (at 818 ‑ 819) to both Coates and to Scales. He continued (at 819):
"Notwithstanding these observations, I consider that the expression 'moral duty' remains a simple and convenient way of referring to the obligation, hypothetical as it may be in some cases, resting upon a testator to make a wise and just assessment of the interests of all persons who might fairly ask to be taken into account in determining what adequate provision for proper maintenance and support should have been made for them had the testator been fully aware of all the relevant circumstances. Having regard to what I have said, it is unnecessary to consider further in detail the meaning of the word 'moral' or indeed the application of theories of morality to the law ... It is sufficient to say that the word 'moral' used in connexion with the legislation is apt to describe what is generally considered, according to accepted community standards, to be the obligation of a testator to do what is right and proper for those members of his or her family whom one would expect to be entitled to share in the distribution of his or her estate on death. Indeed the word is particularly apposite when considering family relationships and the obligations arising from them for the purpose of ascertaining what is right and just as between members of a family."
With respect to Ormiston J, I do not think that what he has said differs in any substantive way from the approach adopted by Kirby P and Sheller JA in Fraser's case.
Against that background of authority, I can now come to the resolution of this appeal.
Undoubtedly, the evidence establishes that Virginio made a very substantial contribution to the welfare of the family business and that of his father and mother. He made it over many years, commencing full‑time work on the Old Coach Road farm when he was 16 years of age. Eventually, he became a partner in the family partnership and then a shareholder in the company which replaced the partnership in 1988. But, as the years went on, Virginio, although he continued to do what he had done before, additionally began to acquire assets in which the company had no interest. This he did in conjunction with his wife. This was not something that pleased the deceased. So to speak, he wanted everything in the family. He complained to Virginio about his going his separate way. But Virginio was not receptive to his entreaties. Eventually, it was decided to end the business relationship which had existed between father and son for some 15 years and, really, when one takes into account the past, for much longer. There was a break‑up of the assets effected by the deed of settlement which resulted in Virginio and his wife taking over the Old Coach Road farm and the deceased retaining the Albany Highway farm. The other assets of the company were divided or distributed in various ways which are shown in the schedule set out in her Honour's judgment. The various transactions are perhaps complicated by the existence of trusts. But the essence of what happened is as stated above.
The upshot of this was that a balance of over $500,000 became payable by Virginio in effect for the acquisition of the Old Coach Road farm. Although the amount he had to pay was substantially reduced by Rosaria making her gift to him of her entitlement under the distribution brought about by the deed of settlement, there was still a substantial balance to pay.
It is plain on the face of the evidence that Virginio deeply resented the way events had developed. He, and her Honour appears to have accepted this, regarded the Old Coach Road farm as rightfully his in the sense that it would eventually come to him by way of inheritance when his father died. It is what he believed he had been promised in return for the dedicated years he had given his parents in the building up of the family fortune. The realisation that he could only acquire it by purchase came as a serious blow to him. He was deeply hurt by the turn of events. And his hurt was made the worse when he found that he was omitted from his father's will.
In those facts lies the reason for this case. Counsel for Virginio eschewed present need as a basis for it. The essence of the case was said to be a moral claim based on the circumstances described above.
Two matters relied upon in the appellant's submission were continually emphasised. Really, they are the two sides of the same coin. One was "the promise" and the other, Virginio's "moral claim". The promise was the promise of the deceased to leave him the Old Coach Road farm in return for his dedication and hard work, not only to the property but to his family. As mentioned, his contribution was made over many years. It began when he was 16 years old, well before he became a partner in the family business in 1978. It continued until 1993 when the break up occurred. All this, so it was submitted, gave Virginio a compelling moral claim and, thus, an entitlement to have corrected the error made by the deceased in omitting him from the will. Virginio's needs either at the time of death or at the time the matter was heard were not a relevant factor.
This submission, I think, highlights the timeliness of the warning given by the majority of the High Court in Singer v Berghouse of the dangers that lie in concentrating on the concept of moral claim at the risk of getting too far away from the statutory language. Counsel for the appellant would deny this. What the concept of moral claim did was to give content to the terms of the statute. It had been the way matters of this kind had been approached for almost 100 years in New Zealand and in all Australian jurisdictions. Nevertheless, the correct approach is, and has always been that stated by the majority in Singer involving a two‑stage process, the first stage involving the question whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which arises only if that determination be made in favour of the applicant, requires the Court to decide what provision ought to be made out of the deceased's estate for the applicant. Whatever place is given to the concept of moral claim in the overall scheme, these are the words which must eventually determine the outcome of all applications under the legislation.
It does not mean that it may not be correct sometimes to do as Young J did in the case cited in the appellant's submissions, Anasson v Phillips (at 20 ‑ 21), namely, to take the view that, when there is a large estate, and competition between a claimant and a beneficiary under the will is accordingly reduced, there may sometimes be room for the view that an applicant may more easily be able to demonstrate that he has been left without an adequate provision.
Nevertheless, it is important to emphasise the fact that it is not the Court's task under the legislation to make a new will for the testator just because it may be fair to do so. There are many unjust wills, but they do not always give rise to entitlements under the Act. The essential task of an applicant is to demonstrate that he or she falls within its provisions.
There are some other factors which need to be weighed in the balance. In 1993, father and son fell out. They fell out, not because of any wish of the son, but because the father resented the son and his wife building up assets that were not partnership or company assets. The father regarded Virginio's obligations as being owed entirely to the family. He was the eldest son; he would inherit the principal assets and he would, in due course, succeed his father as head of a traditional Italian family. But the father's decision to bring things to an end changed all that. Virginio agreed to the dissolution, maybe unwillingly, but nevertheless, he agreed and the transactions which gave effect to it were all conducted at arm's length. Virginio came out of all this comparatively well off. The bitter pill for him was that he had to pay a commercial price for the Old Coach Road farm when he believed all along that he was entitled to inherit it. One understands this. But, as her Honour remarked, this was not a case about estoppel. It is not a case for breach of contract, nor does it involve a claim based on actionable misrepresentation. It is a case under the Act and that is how it must be dealt with. On the totality of the evidence, Virginio did not demonstrate that he had been left without adequate provision, nor did he establish that the deceased "ought" to have made such a provision for him.

In my opinion, the learned primary Judge was correct in taking the view that she did and in dismissing the application. I would dismiss the appeal and order the appellant to pay the costs of it.