High Court Upholds Charities' Appeal Against Estate Provision

OUTCOME: Allowed

High Court of Australia [NAME] JJ. [COMPANY] v [NAME] [1962] HCA 19

ORDER Appeal allowed. Order that all parties be paid their costs of the appeal out of the estate. Discharge so much of the order of the Supreme Court dated 22nd December 1960 as makes a provision out of the estate of [APPELLANT] deceased for the applicant [APPELLANT] that is to say: strike out of par. 1 of the said order the words and [NAME]; strike out par. (b) of the said order; strike out par. (c) (ii); strike out of par. (c) (iii) the words the balance of; strike out of par. (d) of the said order the words and [NAME]. Confirm the order as to costs in par. 2 of the said order.

Cur. adv. vult.

The following written judgments were delivered:—

1962, April 9 [NAME].

This very curious case has occasioned me a great deal of difficulty but in the end I have formed the opinion that the appeal should succeed. The appeal is by certain [NAME] against so much of the order of the Supreme Court of [NAME] ([NAME].) as varies the dispositions of a will so as to confer benefits upon the respondent. The will is that of [RESPONDENT]) [NAME], who died in Brisbane on 15th February 1960. He was eighty-six years old. The will—his last will—had been made on 24th March 1958. At the age of thirty-six, on 23rd February 1909, he married [NAME] who was then twenty-nine years of age. They were married at [ADDRESS]. [ADDRESS] they went down to Semaphore near Adelaide, whence not long afterwards they, or perhaps she, moved to a flat or apartment in [ADDRESS] near [ADDRESS], Adelaide. There on 13th January 1910 the child of the marriage was born, [RESPONDENT]: he is the respondent to this appeal. At the time of his birth [NAME] and his wife were drifting apart and when she registered the birth of the child, as she did on 7th February 1910, she gave the rank and profession of the father as "[NAME], [NAME]". In fact he and a brother conducted a farm at [NAME]. The son has no conscious recollection of ever seeing his father. He was brought up by his mother, who was eighty-one years of age at the death of her husband and joined with her son in an application under [NAME]'s Family Maintenance Acts 1914 to 1952 of [NAME] for an order that an adequate provision be made for them out of the estate of [NAME]. [NAME]'s estate had been sworn for probate at over £50,000 gross, an amount which by death duties, liabilities and the like will be reduced, it is said, to £36,000 odd. Subject to an annuity of £21 a month to [NAME], his wife, [NAME] by his last will disposed of his estate in favour of [NAME], eight of them in South Australia, one in Western Australia and one in [NAME], each of the [NAME] to take a tenth share. [NAME] was appointed executor and trustee. The respondent, [RESPONDENT], is not mentioned in the will at all. [NAME]. decided that the [NAME] should receive from the estate the income of £20,000 during her life and should receive also a lump sum of £500 "to allow her to buy things she wants and to tide her over the time which will elapse before she receives income". To the son he gave a lump sum of £3,000 and a sum of £10,000 out of the estate on his mother's death. There has been no appeal against so much of the order as makes a provision for the [NAME], but against that part of the order which makes the provision in favour of the respondent, [RESPONDENT], this appeal has been instituted by two of the [NAME].

Of the life of [NAME] during the period of forty-six years that passed between his last visit to his wife and his death, little appears. His last visit, according to her recollection, took place in 1914. His assets at the time of his death consisted of shares in mining companies and in an oil exploration company. He died in hospital in Brisbane and probably for upwards of twenty years he had lived in Brisbane, first in North Brisbane and later at the [COMPANY], [ADDRESS]. He made a will at the end of 1939 (29th December 1939) and another dated 1st September 1953, in each of which he named the [NAME], the executor and trustee. Counsel for that official, with concurrence of counsel for the other parties, informed the [NAME] judge that in 1940 [NAME] had been taken to hospital very ill and required someone to conduct his affairs. Later in that year he gave a power of attorney to [NAME] and instructed him to pay [NAME]'s wife £1 a week as from 7th February 1940. As time went on, the amount of the payments was increased until in the end it was £23 a month. Mrs. [NAME] sometimes sent a missive to her husband contained in an envelope addressed to [NAME]. The inference was that she asked for a greater allowance. Sometimes she would ask [NAME] directly to increase the amount of the payments. In each case [NAME] would receive instructions from [NAME] directing him to make some specified increase in the rate. [NAME] acted under the power of attorney until 1952: then he acted for [NAME] until his death under some other authority; its nature is not clear. The amount of the remittances went up to £21 and then £23 a month. [NAME] never seems directly to have communicated with his wife and, except as already stated, she did not communicate with him. The respondent, [RESPONDENT], never throughout his life attempted to see or communicate with [NAME] at all. [RESPONDENT[NAME]. asked the respondent [RESPONDENT], when he was examined as a witness, whether he ever got in touch with his father, and upon his replying "No", asked him why not. His answer was this: "Well, mainly because I think my mother discouraged me from doing so, in that she felt it might cause trouble if I chased after him. Secondly, at the same time I thought I might find something that I did not want to find. I thought it is a most unnatural set-up. I thought he could even have been living with some persons. He could have married again." When [NAME] left [NAME] is uncertain but it seems likely that it was in 1914 or 1915. He continued to send a small allowance to his wife who eked out a livelihood by letting part of the flat and by sewing for a [NAME]. The allowance was dropped at one stage and she said in her evidence: "He stopped the money. I said I was sewing and he assumed I had enough money and I put the police on to find his address. I told them to remind him that he had a wife and child in Adelaide and I wanted more assistance and straightaway he said to the policeman at the door "I will send her some money now", and he did." When she gave evidence before [NAME] she was eighty-one years of age but the [NAME] judge in his judgment says of her: "[NAME] is an intelligent woman apparently in good health but very deaf and difficult to question. I unreservedly accept the evidence given by her and her son." By collecting certain answers she gave to the appellants' counsel and to the [NAME] judge, it is possible to obtain the picture she has preserved in her memory of her very short married life: "Have you lived with [NAME] at all since 1910?—I saw him before that. It was in 1914 when my son was four years old, but he was [NAME] in and out to the farm, and he came to visit me in 1914. He came in to see me and I saw him. He was sending me money. He last visited you in 1914?—I remember that, because [NAME] was four years old. Did you ever live with [NAME]?—Yes, I must have. Yes, we were married on 23 February and I conceived in April." "I take it that you and [NAME] lived together for about a year?—He was with me for a few months. I think that was all. He visited me regularly. He was out on the farm and he came up to Adelaide and I was in a room then. What year was that? That was in 1910, was it?—1909 and 1910, yes. In 1909 was when I was sick and he came in and out a lot then. In 1910 he came and saw [NAME] and he saw [NAME] later." "He was such an unaffectionate [NAME]. He cared nothing for me, or [NAME], or anything. Then after 1910, [NAME] stopped visiting you?—He never stayed with me or lived with me." "By [NAME]: Why do you say [NAME] left you?—Because he was the strangest [NAME] in the world. He was a strange [NAME] and he was in poor health and I married him, and I think he was better off away from everybody and I think that might have been some reason for it. But you say you gave him no cause to leave you?—He started with his brother farming and from that time he seemed to like being away by himself. He was always a [NAME] like that. He never corresponded. Did he ever tell you why he was not living with you?—No, he never made any complaints. When the child was born he paid all the bills and bought me a little go-cart to use. That was a big surprise to me. When your baby was born, did [NAME] come to see you? Did he come to see you before your baby was born and after?—If you understand farming, it was [NAME] the middle of harvest and he had put money into that with his brother and he had to work hard and not forsake it, and that is why he did not come in in the middle of January. That is why he could not come in. How far away was this farm from where you were living?—[NAME]. I do not know how far out that was from Adelaide, but not very far. [In fact it is near the Victorian border.] He would get the express and come in. Did he come in while you were pregnant?—Before the baby was born? Yes, of course?—He came in several times. Did he come in after the baby was born?—Yes. How many times would he see the baby, would you say?—Off and on up until [NAME] was four years old. [NAME] ever suggest to you that the child was not his, that it was illegitimate?—Never. Never. He never gave me that idea at all. You know of course, that he left a document in which he says it was not his child?—It is his child. As I understood it, [NAME] finally left you?—He was a [NAME] who liked to live by his own self. He had no friends. He did not want friends. He wanted to live by himself. When did you last see him? You say you saw him in 1914?—He came down in 1914. When did you last see him after he left you somewhere about 1910? When did he finally cease to live with you?—About 1914. That is when he finally ceased to live with you?—Yes. I understand from what you told Mr. [NAME] that he had not lived with you since 1910?—No, never lived with me from the time I conceived. After the baby was born, how did you support yourself and the baby?—He was sending me some money. About how much?—Quite enough money at the time, and I had a flat where the baby was born. Why did you not take him to court to get maintenance from him?—He was giving me money and he was not affectionate, lovable, after that happened, and I sort of drifted away myself." Upon this evidence it seems to be clear enough that after the child was conceived they did not again cohabit, and that such matrimonial relationship as was maintained was very tenuous and came to depend, if it could be considered still to exist at all, upon a meagre, though perhaps regular, supply of money. No one except [NAME] seems ever to have expressed or entertained any doubts as to his being the father of the respondent and on very strong evidence it has been found that [NAME] was certainly his father. But from the beginning [NAME] seems to have taken little or no interest in his son and in the earliest document under his hand which we have in which his son is mentioned, he is pointedly described as [NAME] [[NAME]] [NAME] [sic] [NAME] "the son of the said [NAME]". That is in a will made on 29th December 1939, the first of the three wills in evidence. In this will [NAME] bequeathed three general pecuniary legacies of £300 each to a niece and two cousins, about one of whom he expressed uncertainty as to his survival and whereabouts. He bequeathed £50 each to six [NAME] in South Australia and £1,000 towards a fund to establish in Adelaide a home for orphan and neglected boys under the [NAME]. The residue he devised and bequeathed upon trusts for conversion and to hold the proceeds upon trust to pay the income "to my wife [NAME] during her life and from and after her death my Trustee shall stand possessed of the capital of the said [COMPANY] upon trust for [NAME] [NAME] the son of the said [NAME] for his own use and benefit absolutely".

In the second will the name of the respondent, [RESPONDENT], is entirely omitted and the residuary gift to [NAME]'s wife is replaced by a bare annuity of £20 a month to her. There was a gift of residue in tenth shares to the same [NAME] as in his last will. The will was dated 1st September 1953. He named his place of residence as [COMPANY], [ADDRESS], Brisbane. When he gave instructions for the will of 1939 [NAME] is said to have stated that he had no children and that he and his wife had been living apart for some years. When he gave instructions for the will of 1953 he said that he had no children and that [NAME] [NAME], son of his wife, was not his son. At the office of [NAME] there was received a note dated 10th September 1958, that is to say nearly six months after the making of his last will; it was addressed to [NAME], Brisbane, and it was signed by [NAME]. It said: "A person named [NAME] in the [NAME] may claim my Estate. He is nothing to me. He is the illegitimate son of my wife. [NAME]". There is nothing to show what prompted this communication.

Turning to the life which the respondent, [RESPONDENT], has pursued and his present position, we get a picture of early devotion to his mother, steady advancement in the [NAME], marriage, the birth of children, and the proper discharge of all the obligations of family life and a praiseworthy career. Speaking of his early years, [NAME]. says: "The son having left school when he was fourteen obtained employment in the [NAME]'s Department and for many years gave practically all of his wages to his mother. He married in 1941 and continued to contribute to his mother's support until after his first child was born. He thinks that his father then at his mother's request increased her allowance. His mother continued to live with him until he was transferred to Canberra in 1956 when his mother went to live in a little rented cottage in Adelaide of which the rental was 15s. a week." He left school at the age of fourteen under the necessity of earning something and went into the [NAME]. His mother took in tailoring work and his earnings slowly increased. Having passed the clerical examination of the [NAME] he was appointed to the [NAME] Department. He and his mother continued to live together and when he was posted to Port Pirie for a time, he sent his contribution to her upkeep. Upon his marriage in 1941 they continued to live together and that went on until 1956 when he was posted to Canberra. At the time of the hearing before [NAME]. he was a section leader in the [NAME] of the Department of [NAME]. His gross salary was £2,200 a year. To help in the education of their children and otherwise, his wife took employment and earned about £800 per annum. At the date of the hearing their eldest child, a daughter aged eighteen, had entered the [NAME] and a daughter and a son, both aged sixteen, had not completed their education. The respondent [RESPONDENT] had made no great savings but an uncle on his father's side had left him a legacy and they had been able to purchase a home, subject to a mortgage, and a motor car.

The question is whether, in the circumstances disclosed by the foregoing narrative, there is any sufficient justification under [NAME]'s Family Maintenance Act of [NAME] for varying in favour of the respondent, [RESPONDENT], the provisions of [NAME]'s last will. The legislation of [NAME] upon the subject is to the same effect as that of other States. It speaks of "adequate provision for the proper maintenance and support" of the wife, husband or children and, like the Victorian legislation, does not employ also the words "education or advancement in life" as does the statute in New South Wales, but that is not a matter of any importance, at all events in the present case. [ADDRESS] may make a provision of a lump sum or of periodical or other payments. [ADDRESS] may refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the Court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable. Again this provision has little direct bearing on the facts of the present case. The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. It seems certain that if at any time they had been brought face to face the son would not have known his father and the father would not have known the son. The mother may have been wrong in discouraging her son from getting in touch with [NAME], as he says she did. Doubtless some reason lay under the feeling he ascribed to his mother that "it might cause trouble if he chased after him". But the result of that and of [NAME]'s attitude was that neither would know the other or have any direct knowledge concerning him. In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at [NAME]'s death.

Much has been written about the principles which should guide the Court in administering the provisions of [NAME]'s Family Maintenance legislation. But I do not think that any of the chief expositions give any foundation for applying the provisions to a case like this. 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 [NAME] regarded as superior claims or preferable dispositions. The words "proper maintenance and support", although they must be treated as elastic, cannot be pressed beyond their fair meaning. [ADDRESS] 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 [NAME]. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a [NAME]'s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court. An observer of the course of development in the administration in Australia of such statutory provisions might be tempted to think that, unchecked, that is likely to become the practical result. Perhaps this Court and other Courts of Appeal have attached too much significance to the discretionary aspects of orders under appeal and have accordingly allowed orders to stand which no member of the Court of Appeal would himself have made, had he sat at first [NAME].

In the present case the application for a provision for maintenance and support is by an [NAME]. In In re [NAME] [1] in the course of what is perhaps the soundest and most illuminating of all the discussions of the statutory provisions, [NAME[NAME]. remarked: "No special principle is to be applied in the case of an [NAME]. But the approach of the Court must be different. In the case of a [NAME] or an [NAME], the Court is dealing with one who is prima facie dependant on [NAME] and prima facie has a claim to be maintained and supported. But an [NAME] is, I think, prima facie able to "maintain and support" himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act" [1] . In the course of a well-known judgment [NAME]. in In re [NAME] dec'd. [2] said: "The provision which the Court may properly make in default of testamentary provision is that which a [NAME] would have thought it his moral duty to make in the interests of his [NAME] and children had he been fully aware of all the relevant circumstances [3] ." This view has been repeated frequently and has been adopted in the Privy Council ([NAME] [4] ), though with the somewhat important change of requiring the Court to put itself in the position of [NAME], not of requiring it to assume a [NAME] and [NAME] [NAME] fully aware of all the circumstances. The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a [NAME] is dead and cannot tell his. It may be that if [NAME] in this case could tell his no valid or plausible defence of his conduct to his child in 1910 and for some years thereafter would or could be made by him. But that is a long time ago and cannot determine once for all his duty forty years later to make a testamentary provision for a son to whom he himself has always been nothing. One must not confuse the question with his duty to his [NAME]. That depends on other considerations. It is dealt with by the order of [NAME]. and is not before us. "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. One consideration here is that the son has made his way in life and though, like most people, he would find more money an advantage, he is not in need. If one really considers the situation of this old [NAME] in the closing stages of a long life in which his son has played no part at all, a son to whom his father has meant nothing and who did not even know him, it is hard to see why [NAME], in the interest of his son, should be deprived of his complete freedom of testamentary disposition.

1. (1948) [NAME]. 279. 2. [1948] [NAME]., at p. 280. 3. (1922) N.Z.L.R. 218. 4. (1922) N.Z.L.R., at p. 220. 5. [1938] [NAME]. 463, at p. 478.

It is on these grounds that I think the appeal should be allowed. I would discharge the order in favour of the respondent, [RESPONDENT], but allow his costs of the application to the Supreme Court and the costs of all parties to the appeal out of the estate.

[NAME[NAME].

I agree in the order proposed by the Chief Justice and in his reasons and I have nothing to add.

Taylor J.

In this appeal we are asked to review, in part, a discretionary order made by the Supreme Court of [NAME] ([NAME].) pursuant to [NAME]'s Family Maintenance Acts, 1914 to 1952 Q.. By his order the [NAME] judge of first [NAME] directed that the [NAME] should be paid out of the estate of [NAME] the sum of £500 and, further, that she should, during her lifetime, receive the income of a fund of £20,000 provided out of the estate. At the same time provision was made for the son of [NAME], [NAME], and this was based upon [NAME]'s decision to direct that there should be paid to him £3,000 immediately and, upon his mother's death, one-half of the fund the income of which was directed to be paid to her during her lifetime. In the result, however, the final order did not provide for payment of the sum of £3,000. In lieu thereof securities to that value were, apparently by agreement, directed to be transferred. There is no appeal against the order in so far as it relates to provision for [NAME]'s [NAME] and the appeal against the order, in so far as it makes provision for [NAME]'s son, raises the question whether a case for relief under the Act was made out and, secondly, whether the order which was made was excessive.

[RESPONDENT]. regarded the case of the respondent as a difficult one and it was, as he said, unique. At the time of his father's death on 15th February 1960 the respondent was fifty years of age. He had been married for approximately nineteen years and he had three children, a son and daughter each aged sixteen years and another daughter two years older. The [NAME] was employed in the [NAME] and the younger children were still at school when the application was made but the younger girl commenced work about a fortnight before the hearing. At that time the respondent was receiving a gross salary of £2,200 a year. Upon these bare facts it would not be possible to justify an order pursuant to the statutory provision but they are by no means the whole of the relevant facts.

The respondent's parents were married at [ADDRESS] about eleven months before he was born. This latter event occurred in Adelaide on 13th January 1910. His parents had moved from [ADDRESS] and had obtained accommodation at a boarding-house in a suburb of Adelaide. But [NAME] lived there for a few months only and then commenced farming with his brother at [NAME], some distance from Adelaide. During the next four years he came to Adelaide many times and saw his wife and son and during this period he supported them. But in 1914 he went to Sydney and, ultimately, to Brisbane. For a time he sent some small sums of money to his wife but he ceased to do this a little later. Thereafter until he was traced by the police he seems to have sent nothing though later he sent further small sums until the respondent, at the age of fourteen years, commenced work. [NAME] intended to leave his wife permanently when he went to Sydney and then to Brisbane does not appear. Nor is there the slightest indication of any reason why he left. But there is nothing in the case to suggest that there was any fault on the part of his wife and certainly there was not on the part of the respondent who was then only four years old. The fact is, however, that [NAME] never returned home and never thereafter concerned himself in the slightest about the welfare of his wife and child. From the time when [NAME] left his wife struggled to bring up the child. He received some secondary schooling and then commenced work. From then until his marriage the respondent made regular contributions, small at first but increasing as the years went on, towards the maintenance of the home. After his marriage his mother lived at his home until he was transferred to Canberra in 1956. She is now eighty-three years of age and is living at a home for old people at Randwick. After her son's marriage she managed to obtain some assistance from [NAME], first of all at the rate of £1 a week, then at £2 per week and in later years about twenty-one or twenty-three pounds per month.

When [NAME] left Adelaide he was not possessed of any substantial means, but when he died his estate was valued for the purposes of death duties at an amount in excess of £50,000. We are told that after payment of death duties and administration expenses there will be a net estate of approximately £36,000. There is no evidence in the case to indicate how, or in what manner, [NAME] managed to acquire an estate of this magnitude. But the fact is that he did and that he managed to do so while constantly disregarding his obligations to his wife and child and without affording them any inkling of his financial prosperity. Apparently, by the end of 1939 he was a person of some substance for in that year he made a will leaving the residue of his estate to the respondent subject to the payment of the income thereof to his wife during her life. This gift of residue followed legacies of £300 to each of three relatives, legacies of £50 to each of six religious organizations and a legacy of £1,000 to the Roman Catholic Archbishop of Adelaide "as a nucleus of or bonus towards a fund to establish a home for orphans and neglected boys". This was followed by another will in 1953 by which he gave to his wife an annuity at the rate of twenty pounds per month. Nothing was left to the son, the residue being given in equal parts to each of ten religious or charitable organizations. Then in 1958 [NAME], at the age of seventy-eight or seventy-nine years, made his last will. By it he gave to his wife an annuity at the rate of twenty-one pounds per month, the residue being bequeathed in equal shares "for the purposes" of each of the ten organizations specified in his second will. This will was dated 24th March 1958 and in giving instructions for its preparation [NAME] stated that he had no children; he said that the respondent, "[RESPONDENT]", was not his son, and on 10th September 1958 he signed a document stating that "a person named [NAME] may claim my estate". The document went on to say "He is nothing to me. He is the illegitimate son of my wife".

It should be said at once that there was no evidence in the case which threw the slightest doubt on the respondent's parentage. On the contrary, there is every indication that there was no justification whatever for [NAME]'s assertion that he was not his father. As already appears [NAME] and his wife were married in February 1909 and the respondent was born on [DATE]. His birth was registered by his mother on 7th February 1910 and [NAME] appears on the register as his father. It is not surprising that the mother registered the birth for the respondent was born whilst harvesting operations were going on at [NAME]. But, as already appears, during the next three or four years [NAME] supported his wife and child and came to see them many times. The assertion that the respondent was the product of adulterous intercourse during the first two months of the marriage is, in itself, strange enough but it is impossible to believe that [NAME] during this period had any cause whatever to think that he was not the respondent's father. Nor was any such suggestion made by him when he left Adelaide to come to Sydney and Brisbane or when pressed, on subsequent occasions, to contribute to his wife's support. It is, perhaps, sufficient to add that the respondents to the application did not, in any way, attempt to support [NAME]'s assertion.

The signed statement, itself, is no evidence of the truth of its contents (Re [NAME] [1] ; Re [NAME]. [NAME] (dec'd) [2] ; and In the Will of [NAME] [3] ) though statements made by a [NAME] in his lifetime may provide some evidence of the reason why he has disposed of his estate in a particular way. Whether or not the statement in question here discloses why [NAME] thought it proper to exclude the respondent from any testamentary benefit is impossible to say. But if it does it is apparent that in his latter years he entertained a completely unfounded belief which led him to disregard every parental obligation. On the other hand, if he did not entertain that belief, his statement represents no more than a senile attempt to justify the terms of his will. In that case also his will was executed with complete disregard for any moral obligation which he had towards the respondent.

1. (1921) 21 S.R. (N.S.W.) 693; 38 W.N. 206. 2. (1930) 30 S.R. (N.S.W.) 165; 47 W.N. 65. 3. (1929) Q.S.R. 189.

Cases such as In re Sinnott [4] ; [NAME] v. [NAME] [5] ; and Stott v. [APPELLANT] [6] make it clear that the fact that an applicant is an [NAME] does not necessarily mean that relief in applications of this character must be refused. But such cases present special difficulties and, of course, before relief can be granted it must appear that the circumstances are such that the applicant is, in the language of the [NAME], left without "adequate provision for his proper maintenance and support". But what is "adequate" and what is "proper" must be determined in the light of all the circumstances of the case. It is, of course, contended strongly that the respondent was not in need of maintenance or support. He was in receipt of a salary of £2,200 per annum which left him, after payment of tax, with a net salary of somewhere about £1,800 or £1,900 per annum. He has a motor car and a home upon which he owes £3,000. His income is considerably more than that of the appellant in [APPELLANT] v. [APPELLANT] [6] , but his capital position is no better. He is, according to the [NAME] judge of first [NAME] in "moderately good circumstances" but he has had nothing to spare in bringing up his family. Indeed, for a period of five years prior to the application his wife found it necessary to obtain employment in order that the children might be educated. Moreover, the support which the respondent gave to his mother for many years, in relief of [NAME], undoubtedly contributed to the diminution of his own resources and to the enlargement of those of [NAME]. The conclusion is, I think, inevitable that had [NAME] made any reasonable attempt to fulfil his marital and parental obligations the respondent and his family might well have been enjoying now a higher standard of living than that which his present means permit. He is not, of course, destitute but this is beside the point;

in all the circumstances of the case he had, in my view, sound grounds for thinking that [NAME] was not morally free to dispose of his estate without regard to his claims. Was he not in the circumstances set forth entitled to say that, in the absence of any other claims on [NAME]'s bounty, there was a moral obligation on [NAME] to restore him, in some measure at least, to the standard of living which might otherwise now have been available to him? [NAME]. was firmly of the opinion that he was and when I ask myself, in the language of [NAME[NAME]., in [NAME] v. [NAME] [1] whether [NAME], if he had been "[NAME] and [NAME] without necessarily being also affectionate could have sat down to dispose of an estate of" £50,000 "without feeling driven—not by a sense of fairness for that would be irrelevant—by a sense of moral obligation to make some provision" towards the alleviation of the respondent's position, I find some difficulty in denying the respondent's title to some relief. I do not overlook the fact that [NAME] and the respondent lived entirely separate lives and that the bonds which normally exist between father and son were entirely missing. The existence of this state of affairs is, of course, of considerable importance in the case and its weight is not greatly diminished by the fact that its origin is to be found in [NAME]'s conduct. But, important as it is, it is but one feature of a case which, having regard to the whole of the circumstances, is quite unusual. Nevertheless it is a circumstance which weighs heavily with me. But when I take into consideration the whole of the facts of the case I am not prepared to hold that, in making an order in favour of the respondent, the [NAME] judge of first [NAME] travelled beyond the bounds of a sound discretionary judgment. The order which he made was undoubtedly generous and it is probable that [NAME], in making it, was to some extent influenced by the fact that there were no competing claims. But since two other members of the Court are of the opinion that the order should be discharged it is unnecessary for me to go further and express an opinion as to whether the provision made by the order was excessive.

1. (1948) [NAME]. 279. 2. (1957) 97 C.L.R. 566. 3. (1960) 33 A.L.J.R. 447. 4. (1960) 33 A.L.J.R. 447. 5. (1960) 33 A.L.J.R. 447, at p. 450.