Frey v Frey[2009] QSC 43

SUPREME COURT OF QUEENSLAND 

A LYONS J:

Introduction

1. The Frey family have owned and successfully worked substantial properties in the Inglewood area for three generations.

2. When Henry Edward Frey (Henry) died on 5 February 2004 at the age of 70 he owned a townhouse in Inglewood, as well as six grazing properties in the area, namely Freymont, Coolmunda, Woodlands, Glenora, Ashton Grove and Allembie. All these properties were registered solely in his name.  The six properties were valued at approximately $3.35 million at the time of his death but are now valued at $5.3 million.  He also left hay, 603 cattle, 1,620 sheep, as well as Water Licences of 450 megalitres, and $560,000 in bank accounts.  The total current value of his estate is in excess of $6.5 million which includes the current value of those properties as well as all the livestock, hay, wool and farm machinery valued at $631,749 and the current value of the Water Allocations at $1.125 million.

3. Henry left a Will, however, which has resulted in significant family disputation and disruption to the family farming enterprise. These applications by his wife and the youngest of his three sons relate to the provision that Henry made for them in that Will.

The properties and their values

4. The values of the properties at the time of the Henry’s death were as follows:

The last Will

5. Henry married Leila Frey (Leila), who is currently 70 years old, in 1961. They had five children; two daughters, Jennifer and Belinda who are currently aged 46 and 45, and three sons, Richard, Lyndon, and Edward who are aged 42, 40 and 39 respectively.

6. Henry’s last Will was dated 8 October 2002 and the executors appointed by that Will were his wife Leila and two of his three sons, Richard and Lyndon. Pursuant to the provisions of his Will, Henry essentially left all of the properties to his wife and two of his three sons. His two daughters and youngest son Edward received a pecuniary gift of $25,000 each. Jennifer also received the Inglewood townhouse. The current applications relate to the adequacy of the provision that he made in his Will for his wife Leila and his son Edward and whether leave should be granted to hear their applications for further and better provision out of the estate, given they have been commenced out of time.

7. The entitlements of the beneficiaries pursuant to the last Will and the value of those entitlements have been agreed between the parties and is set out in the following Table.^[1]  This indicates the values of the assets as at the date of the death in 2004, as well as updated valuations which were obtained in February 2008 (Value 2) and October 2008 (Value 3) as follows:

ENTITLEMENT OF BENEFICIARIES

PURSUANT TO LAST WILL OF THE DECEASED

____________________________

¹Land Values according to DF McGinness Appraisal dated 12 August 2004

²Land Values according to DF McGinness Appraisal dated 23 February 2008

³Land Values according to Matson Valuations dated 23 October 2008

⁴Wool at $97199, Hay at $60,000 and water at increasing value to $1,125,000.00 (450Ml at $2500 per Ml).

⁵Value excluding water at $2500 per Ml.

⁶Belinda received $96,000.00 consistent with the terms of the Deed of Variation

⁷Exhibit 37 Version 5 – 1pm 17 December 2008

8. There was also a direction in paragraph 21 of the Will as follows:-

“21.I DIRECT that all devises of land to any of my sons, RICHARD HENRY FREY and LYNDON CECIL EDWARD FREY shall not take effect unless and until each of my (sic) those sons shall have signed an agreement not to sell any of the lands until he has first offered the lands intended to be sold to the other brother at a price not exceeding market value as advised by a registered valuer appointed by my Trustees for this purpose.”

The family history

9. The essential reason why Henry left his estate in this way can be traced to the way in which the family operated those properties while Henry was alive. Henry had been a hard working man whose father owned property in the Inglewood area. Henry had then worked with his family to build a substantial rural enterprise. Henry’s father died in 1946 when Henry was 13. Under his father’s Will, Henry’s mother was left Freymont and part of Woodlands and Henry inherited Coolmunda and Allembie debt free when he turned 21.  His brother Reg had been gifted Glenora in 1942 by his father and he then inherited part of Woodlands on his father’s death.  Henry and his brother had then each inherited sections of Freymont on their mother’s death in 1976.  Reg also received the balance of Woodlands pursuant to his mother’s Will.  Henry had worked the properties with his brother by way of an informal agreement.  They raised sheep, cattle and crops and shared the profits equally.  Henry inherited all of Reg’s properties on his brother’s death in 1990, as Reg had never married.

10. Henry added to these holdings in 1997 when he purchased one half of the property Ashton Grove, together with the Water Licences attached to it.  Edward purchased the other half of Ashton Grove in his name and he then moved into the house on his portion of the property.  They each obtained 64 hectares and each paid $150,000 per parcel.  Edward borrowed $20,000 from Henry to assist in the purchase.  It would appear that Henry had insisted prior to the purchase that most of the water rights on the property were to be reallocated to his section of the property.  As Richard stated in his evidence:^[2]

“It was bought – that land was bought on the premise that the previous owner take the 200 megalitres from Edward’s block that was attached to the – all the water was attached to there, and 200 megalitres had to come to the section that our father purchased.”

11. Edward married shortly after purchasing his parcel of Ashton Grove in 1997.  Two further parcels of land which now make up Ashton Grove were subsequently purchased by Henry in 2000.  Henry’s total holding at Ashton Grove was 202 hectares.  Edward also subsequently purchased an additional block adjacent to his portion of Ashton Grove jointly with his wife Vanessa and their total holding is now almost 130 hectares.

12. Henry, therefore, had substantial aggregations of land from which he conducted a profitable farming enterprise at the time of his death.

The role of the family in running the properties

13. Each of Henry’s three sons had worked the properties with him from an early age. Usually this involved several hours after school and each day of the weekend. Leila indicated that all of the children were educated locally as Henry did not believe in sending them to boarding school because he feared they would not return to work on the property. They all left school in Grade 10 to work the properties with Henry. Whilst Belinda and Jennifer made significant contributions to the enterprise when they resided at Freymont, they do not have a continuing involvement in the farming activities.  The three sons, however, all continued to work hard on the properties with Henry.

14. Leila was a vital part of the enterprise. As well as carrying out extensive domestic and farming chores, she kept the books and conducted all of the correspondence and banking. Leila, however, was not a signatory on any bank account and all the property was in Henry’s name. In 2003 when Henry became ill, Leila was made a joint signatory on the cheque book for the business. Leila, who had trained as a nurse, also cared for Henry’s elderly mother prior to her death in 1976 and had also washed, cooked and cleaned for Reg until his death. Mrs Frey senior and Reg had resided in the old Freymont homestead which was adjacent to the newer home on Freymont, which Henry had built for his family in the 1970’s.

15. Despite the long involvement with his brother and wife in working the properties and subsequently with his adult sons, Henry at no stage ever entered into a formal partnership or written agreement in relation to the conduct of the farming enterprise. Whilst the evidence indicated that all three sons had great regard for their father, it is also clear on the evidence that Henry was a “tough”, “hard” “domineering” and “frugal” man. Generally he “would brook no argument. It was his way or no way.”^[3]  He left the raising of the five children to Leila.  He did not involve himself in the school activities of his children; instead he essentially concentrated his energies on his farming activities.

16. When the sons first left school to work the properties, they were given their board and keep, plus a small wage, rather than a share of the profits. They were paid just enough to keep them “under the tax free threshold”, which was initially in the order of $3,500. The understanding was that they would all inherit the properties one day and so they were essentially building up family assets. Whilst the wage varied over time, in the years prior to Henry’s death the three sons were all paid generally around $20,000 per year. They all worked equally as hard. The evidence indicates that each year Henry would determine how much he would make available out of the profits of the enterprise and then would generally apportion that amount equally, keeping the balance in his own account.

17. It is uncontroversial that Henry had expressly indicated to his sons that if any of them left the property they “were finished totally. This was in reference to them not only no longer working the property but being out of the Will as well.”^[4]

The June 2002 meeting

18. In June 2002, when the three sons were all in their 30’s and had been working the properties for almost two decades, Henry indicated that he was only going to pay them a wage of $11,000 each that year. A family meeting was convened and Henry told them that he could not afford a higher amount. For Richard and Lyndon it would appear that this posed no great hardship as they still resided at Freymont with their parents and were being provided with their board and keep.  Edward, however, was married and living at Ashton Grove.  He indicated that this wage was insufficient to provide for his family.  Henry adopted a “take it or leave it” approach.  Edward stated that he was unable to continue working for his father. 

19. Leila’s evidence indicates that in the 2002 tax year Henry had a taxable income of $71,000. Richard concedes that Henry was being “disagreeable” and “frugal” around this time.^[5]   He also stated that Henry was “showing he was the boss”.  It was during this period that Henry gave Richard a cash payment of $8,800.  Richard’s evidence is that this was because Henry considered he was “agreeable and there to assist him whenever he needed me”.  I accept the evidence that the deceased had a history of playing one son off against the others. 

20. I accept the evidence of Leila, that Henry was a domineering man who basically insisted that things be done his way. I also accept her evidence that he had been physically abusive to her at times. I consider that the evidence indicates that Henry was a tough, authoritarian man, who was unreasonable at times. He did not always treat his sons fairly or equally.

21. I consider Henry’s approach in June 2002 was unreasonable and that, objectively, he could have afforded to pay the previously agreed wage. The properties were all debt free and Henry had cash funds in excess of $500,000 at the time of his death 18 months later.  Given those circumstances, I consider that, whilst Edward made a decision to leave the properties, he was effectively “forced off” by Henry’s behaviour.

22. When Edward left the farming enterprise in June 2002, Richard assisted Edward by agreeing to purchase his share of the hay, plant and equipment for $20,000. Edward then used this money to repay the loan of $20,000 he owed Henry for the purchase of his part of Ashton Grove.  

Edward’s entitlement under the earlier Wills

23. Edward had an expectation that Henry would leave him Ashton Grove and, indeed, Henry had made two previous Wills which had gifted Ashton Grove to Edward.  The provisions of the previous Will dated 19 December 2000 had provided as follows.

“12.I GIVE DEVISE AND BEQUEATH all my lands known as ‘Ashton Grove’ being described as Lot 31 on Plan BNT 34274, Lot 92 on Plan BNT 1297 and Lot 35 on Plan BNT 1799 County of Bentinck Parish of Coolmunda together with the irrigation plant and all livestock including cattle and sheep on ‘Ashton Grove’ at the date of my death and the brand 8cc to my son EDWARD LESLIE ALBERT FREY for his sole use and benefit absolutely.”

24. Clause 12 of a later Will, dated 15 January 2002, was in similar terms. In both of those Wills clause 15 gave “…all entitlements to all water licences issued at the time of my death” to Leila, Richard, Lyndon and Edward “in equal shares as joint tenants absolutely.”

The changes to the Will

25. After the dispute over wages in June 2002, Henry executed a new Will on 8 October 2002, which was his last Will, whereby Edward was given a legacy of $25,000 instead of the gift of Ashton Grove.  In relation to Ashton Grove the Will now provided as follows:

“12.I GIVE DEVISE AND BEQUEATH all my lands known as ‘Ashton Grove’ being described as Lot 31 on Plan BNT 34274, Lot 92 on Plan BNT 1297 and Lot 35 on Plan BNT 1799 County of Bentinck Parish of Coolmunda together with the irrigation plant and all cattle branded 8cc at the date of my death wherever they are pastured, unless they are on ‘Freymont’ or ‘Coolmunda’ to my sons, RICHARD HENRY FREY and LYNDON CECIL EDWARD FREY, in equal shares as joint tenants absolutely.”

26. By this last Will, therefore, Henry followed through on his statement that he would disinherit any of the sons who stopped working for him. By that time Edward would have worked on the family properties for almost 30 years and would have worked for Henry for wages for about 18 years.

27. By clause 16 the last Will gave “…all entitlements to all water licences issued at the time of my death” to Leila, Richard and Lyndon “in equal shares as joint tenants absolutely.”

28. Prior to Henry’s death, Leila became aware of the contents of this last Will. Leila told him of her dissatisfaction with it and said that if he did not change the Will she would challenge it. There is no evidence that Henry lacked capacity to make this Will and there is no challenge to it on this basis.

Henry’s death in February 2004 and the negotiations

29. Henry died some 16 months later on 5 February 2004. Leila and Edward were both dissatisfied with the terms of the Will and shortly after his death sought advice in relation to bringing applications for further and better provision out of the estate. It is clear that they were both advised of the need to bring any application within nine months of the date of the deceased’s death. Probate was granted to the executors on 17 June 2004.

30. Rather than initiating applications, Leila and Edward entered into discussions with the rest of the family in March 2004. Leila was the initiator of the negotiations. Ultimately the parties all reached an agreement and a Deed of Variation was entered into on 15 July 2004. By that Deed, Leila, Richard, Lyndon, Edward and Belinda indicated their dissatisfaction with the terms of the Will and agreed to vary it, thereby altering the distribution under the Will. Essentially, pursuant to that agreement Edward received half of Ashton Grove, half of Woodlands and a third share of Glenora.  It was also agreed that he would receive a quarter share of all the livestock, plant, wool and hay.   The details of that proposed distribution pursuant to that document are set out as follows:

PROPOSED DISTRIBUTION PURSUANT TO DEED OF VARIATION

15 JULY 2004^[6]

31. Clause 13 of that Deed deleted clause 16 of the last Will, which had conferred all the Water Licences to Leila, Lyndon and Richard as joint tenants, and replaced it with a clause which made no reference to the Water Licences.

32. Clause 14 of that Deed acknowledged that the business conducted by Henry at the date of his death would continue to be conducted in the name of the estate until 30 June 2004, at which time “the assets of the business including livestock, plant and equipment” devolved to Leila, Richard, Lyndon and Edward, who then covenanted and agreed “to conduct the business between themselves.” 

33. All parties to the Deed acknowledge that the Deed was entered into on the basis that an acceptable partnership agreement would be entered into by all parties, although this is not actually acknowledged in the Deed.

34. On 16 August 2004 Mr Ian Stacey, the solicitor who has been acting in the administration of the estate, signed a Transmission Application in relation to Henry’s real estate and on 17 August 2004 the lands of the deceased were transmitted to the names of Executors, Leila, Richard and Lyndon, as personal representatives. No further documents have been lodged with the Department of Natural Resources and Water (Land Titles) in this regard and the title, therefore, remains in the names of the three personal representatives. On the day the Deed of Variation was entered into, Jennifer executed a document expressing her satisfaction with her entitlement under the Will and indicating she would seek no further claim on the estate.

35. Following the registration of the Transmission Application, transfer documents were prepared by Mr Stacey to transfer the titles to the lands to the beneficiaries in terms of the Deed of Variation. These documents were signed by Leila and Lyndon on 25 November 2004 but, despite numerous requests, Richard refused to sign those Transfers.  Mr Stacey deposes that:^[7]

“On the 6^th January 2005 at 5pm I attended the residence of Leila Frey and Richard Henry Frey was in attendance at the residence.  I invited him to sign to documents referred above to complete administration of the estate and he refused to sign these documents.  He said to me that his reason for failing to sign the documents was that he wanted the real estate being transferred to the beneficiaries to be an asset of the partnership comprising Leila Frey, Richard Henry Frey, Lyndon Cecil Edward Frey and Edward Leslie Albert Frey and no longer wanted the real estate to be the property of the beneficiaries referred to in the said Will and Deed of Variation.”(my emphasis)

The conduct of the farming enterprise subsequent to the Deed of Variation

36. As previously indicated, after the execution of the Deed of Variation the farming enterprise was operated from 1 July 2004 in a way in which the lands, as well as the non land assets, were treated as part of a four way arrangement. That meant that all the lands, the livestock, as well as the plant and equipment, wool and hay were treated as part of the one farming enterprise. Leila deposed that all the non land assets were essentially treated as being equally owned by herself and her three sons.  Edward explained the arrangement in these terms:^[8]

“Under the Deed of Variation dated 15.07.04 the livestock, plant and equipment, wool and hay on hand were all treated as equally owned by Leila, myself and my brothers.  Consequently, they all formed part of a partnership business which was conducted.  In other words, the cattle which Leila was strictly speaking entitled to under Henry’s Will and similarly the cattle which were strictly owned by Richard and Lyndon under the terms of the Will all were treated together as owned equally.”

37. Despite the execution of the Deed of Variation, the family experienced ongoing difficulties in relation to the operation of the farming properties. Whilst various drafts of a Deed of Partnership were prepared, no document was entered into because Leila and all her sons could not agree as to the terms of that agreement. As outlined by Mr Stacey, the basic difficulty would seem to be the terms of the Partnership Agreement. By early 2005 it was clear that Richard wanted all the lands to be owned by the partnership and form part of the Partnership Agreement, whereas the other parties were adamant that the lands should be held separately. Edward’s evidence^[9] was that whilst they all agreed that there was to be a Partnership Agreement, “Richard changed his mind in the very end of ’04, beginning after ’05 of what he wanted in that.”  

38. Richard also said he wanted:^[10]

“ … a clause to be included in the Partnership Agreement to the effect that as the various assets had been functioning as one for such a long period of time, that the  partnership had to address a number of issues which I perceived had been a problem in the past.  I gave an example that I wanted a record of attendance kept.   I wanted to continue to be able to have the right or at least the option to have the right to have access to all of the lands even if we did not have ownership of the lands.  I felt this was our heritage and that to be displaced from some of the lands would be to lose some of our heritage.”

39. The reference to access to “all of the lands” is a reference to the lands Edward owned in his own name at Ashton Grove, which Richard considers are also part of his heritage.  Richard also wanted all cheques to be signed by all four partners in the partnership.  By early 2005 Richard had indicated that he no longer wished to work in the partnership with his brothers and mother.  Lyndon referred to Richard’s behaviour at this time and said:^[11]

“….in 2004 when my father passed away, he contributed in the running of the estate properties in his capacity of what he was doing along pretty much the same lines as before my late father passed away.  By the end of 2004 and the early part of 2005, he refused bluntly to participate in any work related activities” 

Lyndon further stated:

“… he [Richard] made it known and he said it bluntly in early 2005, be it January, that he said, ‘I’m refusing to do anything now.  I’m not going to sign anything dealing with the estate, so that’s it.’ ”

40. Richard has had no active involvement in the active operation of the farming enterprise since that date, despite severe and disabling drought which resulted in stock losses and which required his mother and brothers to work long hours.

41. During this period, Richard’s behaviour in deliberately disabling some of the farming equipment or by hiding keys to tractors and machinery not only increased family tensions but made the conduct of the enterprise significantly more difficult. Some machinery, in fact, has not been able to be used because of his conduct. Lyndon outlined these acts in his evidence as follows:^[12]

“It was in early 2005, gate latches were removed from the stockyard at Allembie, and then in weeks following that, there were interpaddock gates left open at Glenora between different paddocks that had different stock in each paddock.  The wool shed door was left open.  The then motor at Glenora in the wool shed was dismantled.  The pulley and the carburetter were missing.  In the wool press at Glenora, a locking mechanism in the ratchet was missing.”

42. Letters dated 26 April 2006 and 3 November 2006 to Richard’s solicitors from solicitors for the executor also set out those difficulties. The letter of 3 November 2006 states that:

“… the haybaler, mower and rake have been disabled by your client as he has removed the PTO assemblies from each.  Further, the pins for the 3 point linkage on the rake and the mower are also missing.” 

43. Richard concedes that he “disassembled” some equipment and that his behaviour in this regard was “childish”. I also consider that this behaviour by Richard was not only inappropriate and unjustified but was designed to escalate family tension.

44. A mediation to try and resolve the outstanding contentious issues occurred in August 2006, but failed.

45. Notice to dissolve the informal partnership was given to Richard on 14 September 2006, to take effect on 31 December 2006.

46. Despite that Notice, Richard continued to argue for the co-ownership of the farming properties and he had a Deed of Partnership and a Deed of Co-Ownership prepared, proposing 1 January 2007 as the date for the commencement of the partnership. Whilst Leila indicated that she gave serious consideration to the co-ownership issue, no final decision was ever reached as to the final terms which would have allowed the execution of the Partnership Agreement. Accordingly, the informal partnership arrangement collapsed.

47. Mr Stacey gave evidence that when the arrangement broke down the parties did not want to see a sale of the assets which had formed part of the informal arrangement. It is clear from the evidence that they all considered that a partnership was in fact conditional upon them all agreeing to the terms of the partnership agreement and that “the conduct of that informal partnership by the parties to it was also allied to strictly the deed of variation”.^[13]  As this never occurred, Mr Stacey indicated that the informal partnership was therefore never actually wound up pursuant to the Partnership Act.  All parties agreed that the assets should essentially revert to the estate.  It is clear that all parties consider that “those non land assets were now back in the estate” and held by Lyndon “as if they were assets of the estate”.^[14]  Edward’s evidence was as follows:^[15]

Mr Nevison: “But in terms of winding up, did you understand legally you might have been able to get the quarter share back; did you ever understand that to be your entitlement?”

Edward Frey: “It might have been my entitlement, but it was not the right thing to do.”

Mr Nevison: “Right.  So you decided that it was best to put it back into the estate?”

Edward Frey:  “Correct.”

48. Since 31 December 2006 the properties have been run by Lyndon as personal representative of the estate and all the income from the properties has been banked into the account of the Henry Frey Estate. At the hearing, Lyndon gave evidence as to the assets of the estate at that time, which included 828 sheep, 20 wool bales, 640 bales of hay and 452 cattle. These assets continue to increase in value.^[16]  Expenditures have generally been paid from the estate account but, as there has been insufficient income to meet all the expenditures, Leila has lent over $200,000 to the estate to meet its liabilities.  There have been some significant expenses due to vegetation management and the purchase of cattle feed during the drought.  Leila gave evidence that approximately $230,000 had been spent on capital works on the properties since Henry’s death, including clearing, bulldozing, and dam works.^[17]

49. A further mediation occurred in January 2008, but this also failed.

50. Richard clearly has firmly held views about the lands and his heritage but, under cross-examination, could not identify one instance where his father said to him that all the lands should be held as one aggregation and worked as one property. Henry had never operated in a formal partnership and there is no indication that he had ever stated that the lands, most of which he had inherited from his father, mother or brother, should be owned by the partnership rather than individually. Indeed, that was not the architecture of his Will given he left specific properties to individual family members.

51. I consider that, whilst Richard reasonably accepted an appropriate Deed of Variation, his behaviour in relation to the execution of the Partnership Agreement was unreasonable. Whilst Richard denies that his view about the need for the co-ownership of lands only became apparent in late 2004 or early 2005, I consider that the evidence of both Mr Stacey and Edward, as well as the terms of the Deed itself, indicate that this was in fact the case. I consider that he unilaterally tried to dictate terms that reflected his own views which he portrayed as the views of his father. I consider this behaviour is a relevant factor in relation to the issues of delay and prejudice and accordingly, should be taken into account when considering those questions.

52. Despite his conduct, Richard continued to reside with his mother and Lyndon at Freymont.  On the evidence, it is clear that he continued to be difficult.  He also made a number of threats, including a threat to fence out Leila and his brothers from the old Freymont homestead and to rent it out to Aboriginals.  Leila, however, continues to cook and clean for Richard and to do his washing, despite these tensions.  Leila and Richard have not really spoken since early 2005.  The evidence indicates that Richard has taken no role in the outside work on the properties and spends most of his day “playing the stock market on his lap top computer.”^[18]

The removal of Richard as executor in April 2005

53. On 15 March 2005 Leila and Lyndon, as applicants in their capacity as executors, applied for the removal of Richard as executor essentially because of the difficulties they were experiencing with the ongoing administration of the estate. Richard continued to refuse to sign the documents for the transfer of title to the real estate unless his demands were met in relation to how the partnership was to be conducted and his requirement that the lands in fact be held by the partnership and not individually.

54. On 14 April 2005 Douglas J ordered the removal of Richard as executor and ordered he pay the costs of the application on an indemnity basis. A few days earlier on 11 April 2005, the parties had, however, entered into a further agreement, namely a Deed of Pre-emption, in accordance with clause 21 of the Will, not to sell the land without first offering the lands to the other parties at a price not exceeding the market value. This fact was not referred to in the application for removal before Douglas J and the second respondent, Richard, is now critical of this omission. The application for his removal was not however opposed by Richard. Having read the affidavit of Mr Stacey, the solicitor for the Executors, I do not consider that the signing of the Deed of Pre-emption was in fact a critical issue with respect to that application given the delay which had occurred, the history of disputation and the fact that Richard did not oppose the application. I draw no adverse inferences from this fact of omission. I consider that the affidavit material in that application disclosed very clear reasons why Richard needed to be removed as executor.

55. Following Richard’s removal as executor, the remaining executors proceeded with the administration of the estate. Jennifer was paid the amount of $25,000 she was to receive under the Will on 2 June 2005, and the townhouse in Inglewood was conveyed to her on 4 July 2005. Belinda was paid $96,400 on 2 June 2005, which represents her entitlement under the Will and the payment pursuant to the Deed of Variation. Other distributions from the estate have been made to Leila; namely an amount of $330,000 on 24 May 2005 and $70,000 on 2 June 2005.

The Water Licences

56. The first two Wills at clause 15 and the last Will at clause 16, contained clauses which purported to give the entitlements to the Water Licences on Henry’s various properties at the time of his death to his sons and wife “as joint tenants”. In the first two Wills it was to all three sons and Leila and in the last Will it was to Richard, Lyndon and Leila only. Those Water Licences were, at the time of Henry’s death, licences for the supply of water to certain parcels of land and in fact, attached to the land. The Water Licences were not separate items of property at that time. Since March 2008, however, those licences have been converted to Water Allocations with separate title and the licences no longer attach to specific lands.

57. Counsel for both sides conceded that Henry could not, by his Will, have disposed of the Water Licences in this manner. These clauses in the Wills were clearly Henry’s attempt at ensuring that water was shared equally amongst the entire farming enterprise despite having made specific devises of the properties which actually had the specific Water Licences attached to them.

58. After Henry’s death the issue of the Water Licences needed to be dealt with by the solicitor for the estate, Mr Stacey. He states that some of the lands which were subject to the Transmission Application had attached to them Interim Water Allocations, which were irrigation licences for the supply of water to certain parcels of land.^[19]  On 10 June 2005, Mr Stacey wrote to the Department seeking variation of the terms of the Interim Water Allocations.  Whilst the letter indicated that lands were to be transferred to beneficiaries pursuant to the Will, the variations sought were in fact in accordance with the Deed of Variation.  The letter provided:

“In terms of the Will of the deceased, certain lands are to be transferred to certain beneficiaries.

We note water licence number R-56639 has an allocation of 200megalitres on it’s own.  We note the remaining water licences have an allocation of 250 mega-litres in conjunction.  The licences are to remain with the respective lands to which they currently attach however we expect the allocation will have to be split between the proposed licence holders.  We advise the proposed licence numbers and transferees as follows:-

Licence numbers-47802H, 47804H & 47805 to be transferred to Leila Frey.

Licence numbers-47803H to be transferred to Richard Henry Frey and Edward Leslie Albert Frey.

Licence number-47801H & 56639H to be transferred to Lyndon Cecil Edward Frey.

Prior to preparation of Transfers of Water Licences and registration of Transfers of Title to land we await hearing from you as regards the split of the allocation.”

59. The correspondence with the Department indicated, therefore, that the Interim Water Allocations were to remain with the lands to which they attached but that the allocations would be split between the Leila and her three sons as outlined in the letter. The Department, by letter dated 17 August 2005, stated:^[20]

“Advice has been received from the Lands Titles Office that the change of ownership of the land associated with the estate has been effected and the registered owners are Leila Frey, Richard Henry Frey and Lyndon Cecil Edward Frey as personal representatives. 

60. The letter then continued that, pursuant to s 228 of the Water Act, the Interim Water Allocations were being transferred to those personal representatives and that an application to subdivide an Interim Water Allocation had been received by the Department and would be dealt with once the transfers of the Interim Water Allocations to the personal representatives had been finalised.  It stated:

“It is noted from your letter that the ownership of the land may be realigned against the different family members.  I draw your attention to s 198-Effect of disposal of land to which the interim water allocation attaches of the Water Act 2000, which states that an interim water allocation that is attached to land and the owner disposes of part of the land, the interim water allocation is surrendered on the day of disposal.  Therefore against this background, it would be advisable not to proceed with any realignment until the above application for subdivision has been dealt with and that any future re-alignment takes s 198 into consideration.”  

61. On 10 March 2006, Mr Stacey wrote to the Department indicating that transfers of the real estate had been held up pending amendments of the Interim Water Allocations associated with the land, and that Richard had been removed as executor by Order of the Supreme Court on 13 April 2005. On 12 April 2006, three Interim Water Allocations of 74 megalitres, 200 megalitres and 176 megalitres issued in the names of Leila and Lyndon, as the remaining personal representatives.

62. On 17 March 2008, Interim Water Allocations were converted to Water Allocations which can be transferred separately and they no longer attach to a particular parcel of land. The Water Allocation of 74 megalitres which previously attached to Freymont is allocation number 559 on Crown Plan AP7583, the allocation of 176 megalitres which previously attached to North Woodlands is now allocation number 558 on Crown Plan AP 7583 and the allocation of 200 megalitres previously attached to Ashton Grove is now allocation number 524 on Crown Plan AP7583.

63. The issue of the Water Licences is pivotal to an understanding of the issues in this case. As can be seen from the Table in paragraph [4], the deceased at the time of his death had total water entitlements of 450 megalitres. Richard encapsulates the critical issues with respect to the Water Licences in the following way:

“The allocation of Ashton Grove is 200 megalitres to guarantee security of fodder for our stock in time of drought on all the properties.  Prior to purchasing Ashton Grove the properties of the deceased were often in need of a water allocation.  Ashton Grove is an essential part of the aggregation and not one person should be favoured with it.”

64. Accordingly 200 megalitres, or almost half of the water, was specifically attached to Ashton Grove and this allocation is clearly critical to the viability of all of the other properties.  I also note that the total value of the Water Allocations has increased considerably and is currently valued at $1.125 million, as it is valued at $2,500 per megalitre.  The water at Ashton Grove, therefore, is currently valued at $500,000. 

This application

65. On 13 June 2007, Leila and Edward lodged an Originating Application seeking an order that adequate provision be made for their maintenance and support out of the estate. They also seek a further order that they be given leave to bring the application outside the time for bringing that application, namely nine months after the death of the deceased, which would have been December 2004.

66. The first issue which needs to be determined, therefore, is whether leave should be given.

Leave to hear the application

67. Section 41(8) of the Succession Act 1981 (Qld) provides that, unless the court otherwise directs, no application shall be heard by the court with respect to the estate of a deceased person being liable for maintenance unless the proceedings were instituted within nine months of the death of the deceased.  However, the court may, in its discretion, hear and determine an application.  The principles that are applicable in applications for leave to proceed are well established and are set out in a number of cases.  In Enoch v Public Trustee of Queensland^[21] Wilson J said:

“[6]The court has an unfettered discretion whether to extend the time for making such an application.  As Sir Robert Megarry VC observed of similar legislation in England in In re Salmond decd [1981] 1 Ch 167, the onus lies on the applicant to establish sufficient grounds for taking the case outside what is not merely a procedural time limit but a substantive one imposed by the Act.  Four factors which can be relevant to the exercise of the discretion are –

(a)whether there is an adequate explanation for the delay;

(b)whether there would be any prejudice to the beneficiaries;

(c)whether there has been any unconscionable conduct by the applicant; and

(d)the strength of the applicant’s case.”

68. Leila and Edward, as applicants, clearly bear the onus of establishing sufficient grounds to extend time. This is a significant burden and an applicant must really make out a substantial case as to why leave should be granted.

69. It is also clear that the applicants are separate applicants for relief and that the applications for leave to proceed must be considered separately and on their own merits.

Richard’s submission with respect to the application for leave

70. The applications for leave to proceed are not opposed by the first respondent and Belinda and Jennifer have taken no part in the litigation despite being served. The applications are opposed by Richard on the following basis:^[22]

1. The application was commenced on 13 June 2007 – some three years and five months after Henry’s death;

2. No valid explanation has been given for the length of delay in commencing the application in all of the circumstances;

3. Adequate provision was made for Leila in the last Will;

4. Provision was made for Edward in the last Will and there are valid reasons why further provision should not be made for him;

5. In all of the circumstances, Leila and Edward have little or no prospects of success;

6. Significant prejudice has already been caused to him and it would be unconscionable for the application to continue;

7. The estate has been distributed or substantially distributed.

71. Richard submits that Leila and Edward were well aware of the requirement to bring the application within nine months and they both obtained legal advice in these terms. This is not contested by the applicants. The applicants knew their legal rights and were properly advised. Richard concedes that some delay was excusable because of the negotiations in relation to the Deed of Variation but submits that after April 2005, when he was removed as executor, the applicants should have acted promptly to bring their applications at that point. However, some further two years expired before their applications were brought. Richard submits that even if an indulgence is granted because of the serious illness of Edward’s son, such indulgence should not extend beyond January 2007. Furthermore, Richard submits that whilst the applicants’ solicitors were retained in November 2006, the proceedings were not instituted until June 2007.

72. Richard relies on the decision of Re Donkin, deceased; Riechelmann v Donkin^[23] where Mack J did not grant leave because whilst the applicant was first informed of her rights under the Act nine years after probate had been granted she had then taken some six months to apply.  It was held that, given the initial delay followed by the further six month delay, it was imperative that the applicant “move quickly”.

Has there been an adequate explanation for the delay?

73. I consider that the delay on the part of both applicants has been adequately explained. In my view, there are valid reasons why Leila and Edward were justified in not instituting proceedings earlier than 2007. There are a number of factors which I consider support this conclusion. Primarily, I consider that the entry into the Deed of Variation would have led the applicants to believe that all of their concerns in relation to Henry’s last Will had been fully determined. All of the issues had been decided as between the various family members and the family was in agreement as to what they considered was a fair outcome for all parties.

74. The negotiations that led to the Deed show that the applicants considered that the Will did not make adequate provision for them and they took steps to protect their position. The other beneficiaries, including Richard accepted the basis of their claim and the Deed demonstrates this. Any criticism by Richard of the delay must be considered against this background. The Deed, in fact, expressly acknowledged that “the beneficiaries under the Will of the said deceased are dissatisfied with the terms of the said Will and have agreed to vary the terms of the Will and distribution of the estate”.^[24] 

75. The Deed also contained the specific acknowledgment that, “this Deed is entered into by the parties hereto in satisfaction of any claim any party may have against the estate of the said deceased for further and better provision from the said estate and that this Deed of Variation may be pleaded as a defence to any claim any party may bring for further and better provision.”^[25]  Clearly then, the family considered that the Will was unfair, and expressly acknowledged this.  They also agreed as to an appropriate distribution.

76. I consider it to be significant that the ongoing dispute related to the terms of the Partnership Agreement, not the terms of the Deed of Variation in relation to the Will.

77. It is true that the Deed of Variation had been predicated on an acceptable partnership agreement being entered into, but it was this agreement which was the source of difficulty, not the Deed. The family obviously believed they had determined the issues with respect to the Will and it was, rather, their ongoing relationship concerning the conduct of the farming operation that was in fact the source of disputation. In my view, the evidence indicates that Richard changed his mind, after the execution of the Deed of Variation, as to what should be incorporated in the Partnership Agreement. In my view, Richard tried to dictate terms which had not previously been contemplated by the parties.

78. The significance of this conduct is that clearly all parties acted on the basis that the issues in relation to the Will had been fully resolved, and it was simply the partnership which needed to be finalised. The conduct of the parties indicated that they all had an expectation that such an agreement could be reached.

79. In my view, Richard took a position in relation to the Partnership Agreement which was arbitrary. This made the resolution of the partnership issues drawn out and problematic. However, Richard continued to formulate various drafts of a Deed of Partnership and send them to Leila, Edward and Lyndon for consideration. There must also have been some ongoing hope that the details about how the partnership was to operate could be resolved by Richard withdrawing his demands, given no one else in the family agreed with him, particularly with his desire to have a “Deed of Co-Ownership of Lands” and “Rules of the Frey Family Partnership”. Richard forwarded drafts of these documents at various stages, and the last draft is dated 1 January 2007.  A letter was also sent by Richard’s solicitors on 26 October 2006, stating that Richard was meeting with his counsel and requesting that the applicants “hold off commencing proceedings until after this time.”

80. On 8 November 2006, a further letter was sent by Richard’s solicitors in conciliatory tones as follows:

“In a final attempt to achieve a resolution of the matter and progress the matter positively we are instructed again to propose a partnership between the parties.  To this end we enclose herewith:

1. Deed of Partnership

2. Draft Deed of Co-Ownership of Land.

These are intended to address the concerns held by our client and to make the rights and obligation of each of the parties patently clear.  Provided that the essence of what our client is trying to achieve to ensure a certain future for all parties is preserved we are instructed to advise that our client remains prepared to negotiate the exact terms of the Deed and fine tune the language that has been used in the draft documents.” (my emphasis)

81. There were, therefore, negotiations throughout the entire period from 2004 until early 2007 in relation to the details of the Deed of Partnership which was to be formed, and mediations were held to try and resolve the impasse in August 2006 and January 2008.

82. In Amos v Amos^[26] an extension of time was granted where it had been argued that:

“The ground upon which it was contended that the delay was excusable was that the applicant and the other members of the family were engaged in negotiations for an arrangement among themselves which would control the realization and distribution of the assets of the estate, that the applicant had reasonable grounds for hoping that these negotiations would result in an agreement from which he would derive substantial advantages and that it was reasonable for him to delay the commencement of Part IV proceeding so long as there was a fair possibility that such an agreement would emerge.”

83. I consider that until later 2006 there was a fair possibility that an agreement would emerge. However, when the Deed of Partnership was sent by Richard in November 2006 but was rejected by Leila, Edward and Lyndon, it would at that stage have become clear that a Partnership Agreement, upon which the parties said the Deed of Variation was predicated, was not able to be entered into. It would appear that the Deed which had been forwarded had a commencement date for the partnership of 1 January 2007.  By January 2007, therefore, I consider that the applicants were on notice that the agreement entered into by the Deed of Variation might fail and there was no longer a fair possibility that an agreement would emerge.

84. The current proceedings however were not instituted until June 2007. Has this delay from January 2007 to June 2007 been adequately explained?

85. There are three factors which I consider explain the delay between January 2007 and June 2007. First, there is evidence which indicates there were serious health issues concerning Edward’s son Jacob in late 2006 and early 2007. Jacob was born in February 2006 with a syndromic disorder. He is blind in one eye and has only partial vision in the other. He also has hydrocephalus and there is a shunt in the side of his brain due to a blockage between the third and fourth ventricles. He also has developmental delay. His condition however deteriorated in late 2006 and he had 42 days in hospital in Brisbane between August and November 2006 and had neurosurgery on five occasions. He still requires constant care and attention and attends regular appointments in Brisbane. Paediatrician Dr Aaron Easterbrook states that, “the increased workload and the hours spent per week for the parents of Jacob would be significant.” I accept that Jacob’s medical condition absorbed a significant amount of time, energy and effort in 2006 and 2007, primarily on the part of Edward and his wife, and inevitably on Leila who lives nearby.

86. The second factor which explains the delay is the severe and disabling drought during the period 2004-2007 which required Leila, Edward and Lyndon to focus their attention on the properties during the entire period. Leila indicated in evidence^[27] she was “working out in the paddock every day” and hand feeding the cattle with Edward and Lyndon.

87. Edward also outlined the circumstances in his evidence. He indicated that in August 2006 there were urgent circumstances attending Jacob,

“… and there was another four more operations in the following three to four months after that … And then also we had the drought to contend with, the land clearing at Glenora to contend with, keeping the house running.  It was just …”^[28]

88. The drought ended in late 2007 with the arrival of rain. The decision of Amos v Amos^[29] supports an extension of time in circumstances where “the applicant was too busy on the farm to attend to the matter”.  The time involved in farming pursuits in this case were clearly increased due to Richard’s efforts in disabling some of the farm machinery.

89. The third factor relates to the time, distance and isolation of the parties, as they live many hours from the capital city or even a regional centre. They also needed to gather information in relation to complex issues. Both Edward and Leila live at Inglewood but need to commute to Brisbane for medical care for Jacob, Warwick to access the Special School and Toowoomba to consult solicitors. The parties are several hours drive from their solicitors in Toowoomba. Leila also experienced considerable difficulties in being able to be contacted by telephone because Richard would tie up the telephone lines with the extended use of his computer. This required messages to be left for Leila at the Inglewood Kindergarten. Consultations with solicitors, therefore, necessarily involved a drive of several hours to Toowoomba at a time when Leila and Edward where required to work on the property or assist with Jacob’s care.

90. I also consider that the issues are factually complex given the long family history on the land, the intricacies of the ownership of the various properties as well as the issues with respect to the Water Licences. I note that Leila’s first affidavit was an extensive and carefully prepared document of some 35 pages which set out the family history, the history of the properties and the complicated family relations.

91. Accordingly, I consider the delay on the part of both Leila and Edward is explained by their belief that they had, in fact, settled their concerns in relation to the Will with the execution of the Deed, the extended negotiations in relation to the partnership, the serious health issues confronting Jacob, the distances involved, the complexity of the issues and the drought.

92. I consider that an indulgence of five months, from January 2007 to June 2007, is reasonable, given those circumstances.

Will there be any prejudice to the beneficiaries?

93. Richard submits that the prejudice to him is both financial and personal because he has been denied access to the value he should have received under the Will. He also considers that his enjoyment of the lands he inherited has been denied to him. Richard submits that prejudice arises because he should have been able to expect due administration of the estate within 12 months and there should have been the expeditious pursuit of any claim for provision out of the estate. Richard also submits that any order which is made will impact substantially on him.

94. However, I consider that Richard has added to the delay because of the arbitrary and unilateral requirements he added to the Partnership Agreement. I do not consider that Richard has demonstrated that there would be significant prejudice to him. Despite his withdrawal from the partnership, he continued to receive his share of the profits until December 2006 and, since that date, all funds have been banked into the estate bank account.

95. Richard also argues that, as the estate has been largely distributed, leave should not be granted. I will deal with this aspect of Richard’s argument at this stage, as the argument really is that it would be futile to grant leave, as there is no estate left which could be the subject of an order for further and better provision.

Has the estate been distributed?

96. It is correct that there have been some distributions from the estate. Distributions of money have been made to Leila, Jennifer and Belinda and the Inglewood townhouse has been conveyed. There have also been changes in relation to the Water Allocations. In this regard, it is clear that the actions taken by Mr Stacey in relation to the transfer of the allocations were taken to ensure that these valuable rights were not lost. The business assets, comprising the livestock, wool, hay, plant and equipment, were all transferred to the “partnership” on 1 July 2004, but this arrangement did not proceed in any formalised way. In my view, the estate has now resumed control of those non land assets. Whilst these non land assets were used by the family in their farming business, I do not consider that, in the circumstances, they were actually distributed to the partnership because such a distribution was conditional upon a Partnership Agreement actually being entered into and it was never entered into. It is clear that the family consider that the estate now holds these assets.

97. The three Water Allocations of some 450 megalitres are currently in the names of Lyndon and Leila as the remaining personal representatives, and separate titles have issued in relation to these three licences. Despite the fact that the Water Licences were actually attached to specific properties at the time of Henry’s death, the evidence indicates that the family treated those Water Licences as Henry intended by his Will, and they were shared equally by the farming enterprise. I also note that Exhibit 37, which sets out the value of the entitlements under the Will, also apportions a one third value of the Water Rights to Leila, Lyndon and Richard, rather than apportioning the value of the Water Rights which were attached to the land devised to them by the Will.

98. Richard argues that the properties have been transmitted to the executors appointed by the Will pursuant to transmission documents which have been lodged in the Titles Office. Furthermore, it is submitted that, because the parties named in those transmission documents are one and the same as the beneficiaries pursuant to the terms of the Will, there is, therefore, nothing in reality, further to do in terms of administration, other than to transfer those properties to the beneficiaries nominated in the Will. It is submitted, therefore, that the executorial duty has finished and that the real property assets are held by the personal representatives in their capacity as trustees. Whilst Richard was removed as an executor, it would seem that he was not removed as a trustee.

99. Reliance is placed on the decision of Re Lago,^[30] where it was held that where transmission documents had been lodged and the beneficiaries were one and the same as the personal representative, the estate had been distributed  Both the transmission application and the transfer in Re Lago were in registrable form but were not registered.  In that case all the relevant documents had been signed by the executrices and that the land was to be transferred to themselves as tenants in common in equal shares.  Richard argues that there are no executorial duties left to perform other than the disposition of the current proceedings and that, on the basis of Queensland authorities, if the estate is finally distributed, this would be a bar to any claim by the applicants.

100. It would seem that, just as in the decision of Re Donkin,^[31] this submission in fact involves three propositions; (1) that an order for further provision may only be made out of the estate of the testator; (2) when executors who are also trustees have completed their executorship, and hold the property remaining vested in them as trustees for the beneficiaries, the property so vested is no longer part of the estate of the testator; and (3) that in the circumstances of the present case, the property is held by the executors in their capacity as trustees.

101. Turning to the first proposition as to whether there is still an “estate of the testator” in existence. In the 2007 decision of Baker v Williams & Brunner (as executors of the estate of Baker),^[32] de Jersey CJ succinctly analysed the relevant issues in relation to this question.  In particular, he set out relevant Queensland authorities in light of the High Court decision of Easterbrook v Young^[33] which had held that an application for further and better provision could be made after a personal representative had completed their duty and was holding the property as a trustee, provided there was no final distribution such that there was a physical parting of possession and complete removal of the assets.  The Chief Justice held:

“[8]In 1966 the Full Court, in Re Donkin, deceased; Riechelmann v Donkin [1966] Qd R 96, determined that where an estate has previously been fully administered, an application for extension of time for the bringing of such an application cannot succeed, because there remains no estate from which further provision may be made.  Hanger and Gibbs JJ took that view.

  [9]Gibbs J dealt with the issue comprehensively as follows (P 113, 114, 117):

‘… the words “the estate of the testator” [the statutory reserve from which further distributions may be ordered] … refer to all the property that belonged to the testator and has not yet passed to any other person absolutely and in his own right.  Once the title of a beneficiary has become complete, so that he holds in his own right the property given to him by the will, that property ceases in any ordinary sense to be part of the estate of the testator, and becomes part of the estate of the beneficiary.  The [Testator’s Family Maintenance Acts] give no power either to the Court to order that provision be made out of the estate of a beneficiary, or to the executors to recover former assets of the testator’s estate that have been distributed to the beneficiaries entitled to receive them.

…

Once an asset ceases to be an asset in the testator’s estate, and the beneficiary to whom it is given has received it in his own right, there is no power to subject that asset to the incidence of an order under the Acts, or to require the beneficiary to restore the asset to the estate or to make a payment in satisfaction of the order.

…

If a will requires the executors to hand over the residuary estate to other persons to hold it as trustees, once the estate has been so handed over it ceases to be the estate of the testator and is beyond the power of the Court to affect by an order under The Testator’s Family Maintenance Acts.  If however the executors are themselves the trustees, once the estate has assumed the character of a trust estate it equally ceases to be part of the testator’s estate; in equity it belongs to the beneficiaries and the court is not empowered to divest what has been vested in them.’ (emphasis added).

[10]That view was later followed in a number of single judge decisions: Re Burgess [1984] 2 Qd R 379; Re Oakley [1986] 2 Qd R 269; Re McPherson [1987] 2 Qd R 394; Re Prufert (unreported, 4 April 1991, OS 123/1991); and Re Parry (unreported, 11 March 1991, 23/1990).

[11]Mr Egan, appearing for the respondent, submitted that the decision of the Full Court in Donkin was effectively overruled by the subsequent decision of the High Court in Easterbrook v Young (1977) 136 CLR 308.

[12]In Re McPherson, Connolly J explained why, in his view, that was not so.  That drew the subsequent approbation of others.  Master White (as Her Honour then was) followed that aspect of McPherson in Prufert, as did Kneipp J in Parry.  In Re Burgess, Carter J said that Easterbrook v Young ‘was decided by reference to significantly different legislative provisions and Andrews J in Re Postle (OS 796/1981, unreported) has already held in this Court that Easterbrook v Young must be read in the light of the provisions of the New South Wales legislation which is significantly different.  With that I respectfully agree.’

[13]The question again arose at appellate level (post Donkin) in Holmes v Webb (unreported, Court of Appeal, 18 August 1992, OS 542/1989), where these observations were made:

‘The appellant seemed to accept, and it cannot be doubted, that final distribution to beneficiaries precludes the making of an order out of a deceased estate under Part IV of the Succession Act: see Re McPherson [1987] 2 Qd R 394.  The position in other jurisdictions, such as New South Wales, and the decision of Easterbrook v Young (1997) 136 CLR 308, are to be distinguished on the basis of differences in the relevant legislation.’ ”

102. The decision in Easterbrook was based on particular legislative provisions in New South Wales which do not have an equivalent in Queensland.  The essential question, therefore, is whether Henry’s estate is still in existence such that an order pursuant to s 41 could operate.  The applicants submit that the administration of Henry’s estate is incomplete and that the steps taken by the executors, as personal representatives of the estate, to transmit the land into their names, was a step taken by them in an attempt to give effect to the conditions required by the Deed of Variation and to secure the integrity of the Water Rights attached to the lands.

103. In my view, there has not been a distribution of the estate but, rather, the land in the estate is held by the personal representatives pending the final distribution to the beneficiaries under the terms of the Will. I do not consider that the transfer of the real estate to the executors was a final distribution but, rather, a transfer provisional on and subject to the completion of the estate. The transmission to the executors was done at a time when it was considered that the estate would be distributed in accordance with the Deed of Variation and not in accordance with the Will. Because of the current applications, the ultimate distribution is dependent on the outcome of those applications. I do not, therefore, consider that all the property that belonged to Henry has passed to others such that they now hold that property absolutely and in their own right. Whilst there have been some distributions, the administration of the estate is far from complete.

104. The next issue that needs to be determined relates to the second proposition, and the question is whether the assets have vested in the trustees for a beneficiary (rather than the beneficiaries themselves) and have therefore ceased to be part of Henry’s estate. As Gibbs J stated in Donkin:^[34]

“The question that then arises is whether an asset similarly ceases to be part of the testator’s estate when it is vested in trustees for a beneficiary, even if the trustees are the executors under the will, provided that they hold the property in the character of trustees rather than that of the executors.  This question has been considered in New Zealand and has been answered in the affirmative.

…

In my view the reasoning of Adams J. in Public Trustee v Kidd (supra) is correct and the New Zealand decisions should be followed.”

105. As Keane JA held in Holdway v Arcuri Lawyers:^[35]

“The judgment of Gibbs J in Re Donkin has, in turn, been referred to with approval and followed in a number of decisions of the Supreme Court.  The point of the passage cited by Gibbs J from the earlier decision of Adams J is that a beneficiary under a will does not enjoy sole beneficial title to property which continues to be held by him or her for purposes which include the payment of the debts of the estate.

…

It seems to me, with respect, that this view accords with the general principle that it must be presumed, in the absence of proof to the contrary, that a trustee or personal representative intends to deal with assets held in a representative capacity in accordance with his or her obligations as such before asserting his own beneficial interest in respect of those assets.”

106. The decision in Holdway v Arcuri Lawyers^[36] involved the question as to whether the estate had been distributed on 25 July 2003, when the real property was transferred to the executor who was also the beneficiary of the deceased’s estate under the Will.   Keane JA held:

“In this case, the two pieces of real property, and particularly the house property, were transferred, as his Honour found, on the footing that they remained available to meet the debts of the estate.  That being the case, there was not the assent to a distribution which is essential to a distribution of the beneficial interest in the asset to the devisee under the will.”

107. Counsel for the applicants submits that, just as in Holdway, the question which arises is whether Leila and her co-executors have assented to the devise which necessarily involves the doing of an act or acts which shows an intention to hold the property in question on the trusts declared by the Will, or in accordance with the disposition of the Will.

108. Counsel for the respondents, however, submits that Holdway is of limited or no assistance in the circumstances of this case and that it should be distinguished on its facts.  It is contended that Holdway is authority for the proposition that, where the estate is being administered and property is transferred in circumstances where it is acknowledged that the property so transferred remains charged with the payments of debts due in the course of administration of the estate, the mere fact of transfer alone does not constitute a distribution of that property.  It is argued by the respondents in the present case that the liabilities of Henry’s estate would appear to have been met, except for a liability to Leila which has been incurred since she commenced the administration of the estate.  The fact remains however that there is an amount of $42,000 owing to Leila from the estate.

109. The respondents argue that the issue in the current proceeding is whether the role of the personal representative had ceased and the properties were then being held by those persons in their capacity as trustee.

110. The respondents correctly identify that this question is a question of fact to be determined in all of the circumstances, having regard to the conduct of the parties. In this regard, the question arises as whether Leila and her co-executors have, by some act on their part, assented to the devise of the lands. Once this has occurred, the executor loses his right of property as executor and becomes a trustee under the Will. When this occurs, the executor loses his character as executor and assumes the character of trustee. Assent is inferred from the conduct on the part of the executor or by the fact that he has completed all of the administrative duties and paid all the legacies. At the time of the assent, the dispositions of the Will become operative in favour of the beneficiaries.

111. In relation to what constitutes assent, Williams, Mortimer and Sunnucks^[37] states that:

“an assent is an acknowledgment by a personal representative that an asset is no longer required for the payment of debts, funeral expenses or general pecuniary legacies.

… for the title of claimants to the deceased’s property, whether devisees, legatees or persons entitled on intestacy, is not completed except by some act of the representatives themselves.  This act, according to the circumstances, consists in either an assent or a conveyance, and until it has taken place the administration continues.”

112. As I have already indicated, I consider that the transmission to the executors was done at a time when it was considered that the estate would be distributed in accordance with the Deed of Variation and not in accordance with the Will. Given the current applications before the Court, the executors cannot distribute until those proceedings are concluded.

113. Lyndon’s evidence was very clear that he did not consider that he held the land beneficially:^[38]

Mr Mullins: “You did not understand, did you, when Mr Stacey prepared those documents and presented them to you for execution that by transmitting them into your names as personal representatives, you were then holding that land beneficially for yourselves in terms that are devised to each of you as beneficiaries under the Will, you didn’t understand that to be the case, did you?

Lyndon Frey:  No.

Mr Mullins:     Ever?

Lyndon Frey:  Never”.

114. Richard agreed that the step taken to transmit the title to the personal representatives in August 2004 was taken because it was in accordance with the Deed of Variation and because it was a necessary step in order to protect the integrity of the Water Allocations.^[39] 

115. Even before the current proceedings were instituted, an examination of the correspondence between all of the parties indicates very clearly that the parties considered that, despite the act of transmission, the administration of the estate was incomplete and still ongoing. There is a letter to the solicitors for the estate from Richard’s solicitor dated 8 November 2006 which states:

“The administration of the Estate of the deceased will have its third anniversary in the early new year.  It is noted that little has been done to finalise administration.  Our client continues to suffer loss and detriment as a consequence of being left without having received the benefit of the gifts left to him in the Will.”  (my emphasis)

116. Clearly then, Richard himself did not consider the estate had been fully administered. I do not consider that the evidence indicates that Leila and Lyndon have assented in any way to a devise. Furthermore, in my view, the letters written by Mr Stacey, the solicitor for the executors, to the Department of Natural Resources in relation to the Water Licences was to secure the Water Rights attached to the land and nothing further.

117. The current applications were filed on 13 June 2007. The following facts demonstrate the state had not been distributed.

1. Steps were being taken to transfer the Water Licences to give effect to Henry’s intention and these were not completed until 17 March 2008.

2. The estate and the personal representative and other beneficiaries had conducted the farming operation pursuant to the Deed of Variation from 1 July 2004 to 1 January 2007.  There had been no resolution as to whether this operation ceased and moneys were owing by or to the estate as a consequence of that operation.

3. There is no evidence the personal representatives ever came to a view that assets in the estate (save for some which were distributed) were not needed to meet estate liabilities. 

There was, therefore, no assent.  Further, the personal representatives took title for the purpose of giving effect to the Deed of Variation.  It seems clear that they considered that they always held title subject to such obligations which might arise from the variation to the Will.

118. Accordingly, I do not consider that the estate has been distributed and it would not, therefore, be futile for leave to be granted.

Has there been any unconscionable conduct by the applicants?

119. Richard points to the failure by Leila and Edward to disclose, at the hearing before Douglas J on 14 April 2005, the fact that the Deed of Pre-emption had been signed by Richard on 11 April 2005. This failure is relied upon by Richard to demonstrate that the applicants are prepared to engage in conduct which is unfair and, therefore, unconscionable to him. As I have previously indicated, I do not consider that these issues were required to be set out before Douglas J, given the fact that the application for removal was not opposed by Richard.

120. Neither do I consider that the fact that the parties have made decisions about the assets, in respect of which Richard has an interest, without his consultation, is unconscionable. I consider that Richard withdrew unilaterally from the working arrangement at a time when decisions in relation to the assets needed to be made. On the evidence before me it would seem that the decisions made were appropriate. Richard may have made different decisions but the decisions which were made by his mother and two brothers would seem to have been justified in the circumstances. I consider that Richard’s interests have, at all times, been protected in terms of the assets and his share of the assets.

121. I do not consider that Leila’s continuation as executor was unconscionable. There was an indication in the correspondence between the parties in December 2006 that she agreed to step aside during the litigation and, in fact, did so in 2008, when it was clear the litigation would proceed. On 17 September 2008 an order was made that “a grant of letters of administration ad litem issue to Lyndon Cecil Edward Frey until the conclusion of the family provision proceedings”.

What is the strength of the applicants’ case?

122. Usually the question to be determined at this stage of the application is whether a prima facie case has been demonstrated. The cases establish that if it is improbable that the substantive application will succeed, then it would be idle to grant the extension. At this stage, therefore, it would normally be necessary to make a preliminary assessment of the prospects of Leila’s claim and the prospects of success of Edward’s claim. As White J stated in Higgins v Higgins:^[40]

“[45]A prima facie case was described by McHugh J in Re State Public Services Federation; ex parte Attorney-General (WA) (1993) 178 CLR 249 at 303 thus

‘…the raising of a prima facie case means that, in the absence of further evidence, there is evidence upon which the tribunal of fact can, but not must, find for the party raising the prima facie case.’ ”

123. However, on 17 September 2008 an Order was made adjourning the application for leave to bring the substantive application to a determination, at the hearing of the substantive application. Accordingly, I am able to reach a very clear view as to the prospects of success of Leila’s application having heard all of the evidence, rather than simply considering whether there is a prima facie case. As Keane JA held in Hills v Chalk & Ors (as executors of Chalk) (deceased)):^[41]

“In my respectful opinion, at least in those cases where it is possible for a court to reach a clear view that a claim for further provision is unlikely to succeed, a court should not exercise the discretion conferred by s 41 (8) of the Act to facilitate the pursuit of a stale claim …

The improbability of success

Whether one can come to a clear view that it is improbable that Mr Hill’s claim will succeed can be assessed only by keeping in mind the process by which his application for further provision will be resolved.  In Singer v Berghouse, Mason CJ, Deane and McHugh JJ explained the process involved in the determination of an application for provision out of the estate under the legislative provisions of which the Act is one example.”

124. Turning then to the actual test set out in Singer v Berghouse:^[42]

“The first question is, was the provision (if any) made for the applicant ‘inadequate for [his or her] proper maintenance, education and advancement in life?’  The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ etc were explained in Bosch v Perpetual Trustee Co Ltd ([1938] AC at 476).  The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations.  Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance; and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.  In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance.  Take, for example, a case like Ellis v Leeder ((1951) 82 CLR 645), where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors.”

Strength of Leila’s claim

125. Leila was provided for in the Will. Accordingly, the question at this first stage of the two stage process is, was the provision which was made for Leila inadequate for what, in all the circumstances, was the proper level of maintenance appropriate for her, having regard to:-

1. Her financial position;

2. The size and nature of Henry’s estate;

3. The totality of the relationship between her and Henry; and

4. The relationship between Henry and other persons who have a legitimate claim upon his or her bounty.

126. This first question needs to be determined as at the date of Henry’s death. Dixon CJ in Blore v Lang^[43] determined that the question which the Act sets for the court:

“…is whether the testator disposed of his property, either wholly or partly by a will in such a manner that his daughter, the respondent, was left without adequate provision for her proper maintenance education or advancement in life.  It is upon the fulfilment of the condition expressed by these words that the authority of the court to intervene depends, its “jurisdiction” as it is commonly expressed with more respect for the language of Chancery tradition than juristic theory.  The nature and effect of the condition has of course been much examined judicially.  It is settled that you look at the circumstances as they were at the time when the testator died and not at the time when the application is made to court.”

127. Turning then to the matters which need to be taken into consideration.

Leila’s circumstances and financial position at the time of Henry’s death

128. At the time of Henry’s death Leila had some health issues in that she has suffered from pancreatitis since 1994 and has had periods of hospitalisation and, indeed, intensive care. She also has high blood pressure and has had surgery for breast cancer on three occasions. She also has arthritis which is severe in her right hand, left shoulder and knee. Leila is entirely dependant on her income from her drawings and has a limited Centrelink entitlement which allows her a reduction for prescription drugs and a minimal payment, which comes to about $250 per year.

The size of the estate

129. It is clear from an analysis of Leila’s inheritance under the terms of Henry’s Will, that she was left essentially with Freymont which at the time, was valued at $297,000 and is now valued at $725,000 if the Water Allocation is added to the value of the land or $540,000 without the allocation.  She was also left Coolmunda, which has increased in value from $246,350 to $330,000.  In addition to this, she was left with all the cattle on Coolmunda valued at $42,000 and all the livestock on Freymont valued at $4,500.  She also received bank accounts to the value of $487,207.09, as well as one third of the wool on hand, the hay in the sheds and the Water Licences under the terms of the Will.  At the time of Henry’s death the non land assets were valued at $277,400, at $427,399.66 at the time of the hearing and they currently continue to increase in value.

130. The applicant and the first respondent have done arithmetical calculations of the percentage of the estate received by Leila, Lyndon and Richard which indicate that Leila received approximately 28 per cent of Henry’s estate pursuant to his Will with Richard receiving approximately 38 per cent, and Lyndon 33 per cent.^[44]

The totality of the relationship

131. Leila’s contribution to the farming enterprise has been nothing short of outstanding. All of her sons, including Richard, recognise the enormous contribution she has made to the overall accumulation of assets of the estate. Leila worked long and hard during her husband’s lifetime on the properties and continues to work extremely long hours in pursuit of the farming venture. She kept the books and did all the business correspondence. She also performed most of the domestic tasks at Freymont homestead and at the age of seventy continues to do so.  She cared for her elderly mother in law and then her bachelor brother in law prior to their deaths.

132. It is clear from the evidence that Henry did not consider her as an equal partner. All the property was in Henry’s name and they did not have a joint bank account. I accept that Henry rather regarded “women as subordinate to the interest and demands of men.”^[45]  I accept that despite being a woman of some character Leila was told by Henry what to do and she did it.^[46]   Leila explained the situation during cross examination in response to a question as to whether she could raise matters of finance with her husband:

“Are you saying that you could not raise with your husband a matter relating to the finances?-----That is right.  I had learnt over the years never to question what he wanted to do otherwise assault was one of the possibilities every time.”^[47]

133. In considering the totality of the relationship therefore I consider that Leila made an enormous contribution to the marriage, the farming enterprise and the family which was largely unrecognised and on the evidence not fully appreciated by Henry. Leila clearly made a substantial contribution to the building up of Henry’s assets.

The “lifestyle” factor and large estates

134. As I have already indicated the jurisdictional question as to whether Leila was left with adequate provision for her “proper” maintenance must be considered having regard to the situation which prevailed at the date of death. As has been clearly articulated in a number of decisions, the word “proper” means proper in all the circumstances of the case.

135. A factor the court needs to consider is what is referred to as the lifestyle factor which involves a consideration of the standard of living Henry’s family enjoyed in his lifetime. In this regard Leila has indicated her desire to continue living on the property and to have sufficient land to allow her a reasonable income from working those lands. The court has to consider whether there has been a breach by the testator of his duty as a wise and just husband to make adequate provision for Leila’s maintenance, education or advancement in life.

136. The decision of Re Buckland^[48] sets out the principles in large estates and establishes that there may be a more liberal assessment of the moral duty owed in large estates and this is to be reflected in what is proper provision for the plaintiffs.  In particular the lifestyle enjoyed because of an association with a wealthy testator is a relevant factor.  Furthermore, where there is a large estate, it may be argued that the deceased failed in his or her moral duty by not leaving something to an applicant as a hedge against future misfortune or ill health.

137. Leila is clearly a surviving widow and there are no strict legal rules which determine whether she has been left without adequate provision for her proper maintenance and support. Ultimately the decision depends on the facts and circumstances of each case. The decision necessarily involves the exercise of a value judgment in relation to the particular circumstances of the case. Clearly in this case there has been a long marriage and as I have already indicated an enormous contribution by Leila. The general principles which are applicable were set out in Luciano v Rosenblum^[49] as follows:

“It seems to me that as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in a style in which she was accustomed and to provide her with a fund to enable her to meet any unforeseen contingencies.”

138. Whilst Leila was left with some 36 hectares of the Freymont aggregation she was not left the entire aggregation.  Lots 81 and 82 of the aggregation consist of 3.156 hectares and contain the 100 year old homestead, machinery sheds, cattle yards and a shearing shed.  These were the lots specifically left to Richard in the last Will.  They were valued at $148,500, at the time of Henry’s death and the recent Matson valuation indicates a land value of $100,000 with structural improvements of $115,000 giving a total current value of $215,000.  Whilst Leila has indicated that Richard is quite welcome to the old homestead she wants the blocks on which the homestead is built as she considers she needs those blocks and those improvements, including the yards, in order to conduct her farming enterprise.^[50]  Richard has in fact built new yards which straddle the boundary line onto the balance of the Freymont property.^[51]  In this regard the Matson valuation states:^[52]

“I understand that the yards have been constructed over the common boundary of adjoining lot 70.  From a practical point of viewpoint the yards could be used and maintained in cooperation with the adjoining owners.  However, on the basis that the current adjoining owners would not be willing to cooperate, the yards have little, if any added value.  The yards and associated shelters were valued at $15,000 in my original report, as part of the total property.  In the current apportionment I have not apportioned any value to them.”

139. Counsel for Leila argues that a consideration of the “lifestyle factor” is of relevance in the circumstances of the current case and that the size of the estate allows for a significant concession to this lifestyle factor. It is submitted that an appropriate order would be for Leila to have the balance of the Freymont aggregation that is adjacent to the house property in which she has lived her entire married life together with sufficient land to generate an income. 

140. In this regard Leila states that she also seeks South Woodlands and either North Woodlands or Glenora as she had a legitimate expectation that those lands would pass to her under Henry’s Will.   South Woodlands comprises 364.591 hectares and is valued at $460,000.  North Woodlands is 267.094 hectares and is valued at $985,000.  Glenora comprises some 3,380 hectares and is currently valued at $900,000.  On current values Leila is seeking properties valued at a total of $2.4 million rather than the properties she was left pursuant to the Will which are currently valued at $870,000 or $1.05 million inclusive of the Water Allocation on Freymont.  That is in addition to the monies in the bank accounts and other farm assets she was given under the Will. 

141. The agreed value of the provision which was left for her pursuant to the last Will was in excess of $1.8 million at the time of his death or 28 per cent of Henry’s estate. Leila is now seeking, in current values, a total provision of approximately $3.3 million or 50.38 per cent of the current value of the estate. As Edward is seeking all of Ashton Grove, the 200 megalitres Water Allocation previously attached to it as well as a quarter share of all livestock, machinery, hay and wool, that distribution would represent 16 per cent of the estate.   Such distributions would leave Richard with 17.4 per cent and Lyndon with 16.1 per cent.

142. Leila’s evidence in relation to the balance of Freymont was:^[53]

“I’ve always referred to Lot 81 and 82, and everyone else has referred to it, as the Frey homestead block.  What I meant there was I wanted the allotments 81 and 82, the land.  It’s part of Freymont.”

143. Leila is determined to continue working the land and she submits that she requires the balance of the aggregation to do so. She also stated in evidence that she didn’t have “enough land to run stock to generate income”^[54] and “I cannot generate an income to keep me on 460 acres.”^[55]  This is the reason why Leila seeks an order for the balance of the Freymont aggregation which comprises Lots 81 and 82 as well South Woodlands and either North Woodlands or Glenora.

144. Leila is really submitting that the bulk of Henry’s estate should have been left to her because she has a need for further assets to allow her, after a lifetime contribution to helping her husband build up his considerable assets, to settle upon a lifestyle of her choice. The lifestyle of her choice is to run a viable farming enterprise and she submits she should have sufficient assets to do so.

145. As was stated in King v White, proper maintenance and support means more than the lowest possible amount to enable someone to survive.  It was held in that decision that the dimension of the moral obligation enforced by the Act is not confined to the standard and maintenance of a way of life to which the plaintiff was accustomed in her lifetime.  If the deceased person had restricted a plaintiff to a very frugal way of life then that low grade of support is not necessarily adequate provision of proper maintenance and support.  In this case likewise Leila is entitled to adequate provision, not “frugal” provision.

146. However, using the criteria set out in Luciano v Rosenblum, Leila was provided with a secure home, two farming properties Freymont and Coolmunda, substantial cash reserves of almost half a million dollars and an entitlement to a share of the livestock and other farm assets.  This was clearly not a frugal provision but was it an adequate provision in all the circumstances?  Furthermore, has Leila been provided with a fund which will enable her to meet unforeseen contingencies in the future?

The competing claims on Henry’s bounty

147. As Henry’s widow Leila, is prima facie in a very strong position as an applicant. However the question as to whether the provision which Henry made for Leila was inadequate must be considered in light of the competing claims upon Henry’s bounty and their relative urgency. Leila’s three sons all have competing claims on his bounty. Bryson J in Bladewell v Davis^[56] held:

“It would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse,…the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits.” (my emphasis)

148. Neither Richard nor Lyndon have given evidence of their financial circumstances although Leila deposes that these assets could be substantial. On the basis of the decision in Anderson v Teboneras^[57] it must be assumed therefore that neither Richard nor Lyndon have any special claim on Henry’s resources and that any need they have can be met from their own resources. 

149. Jennifer and Belinda have indicated their satisfaction with the provision that has been now been made for them pursuant to the Will and the Deed. They have not sought further provision and they are not involved in the current proceedings. Lyndon also indicated he was happy with the provision which was made for him under the Will and he has not sought further provision.

150. In Blore v Lang Dixon CJ stated:^[58] “…all the circumstances must be weighed and they include the size of the estate and the claims of the members of the testator’s family and others upon his consideration.”  One has to consider that the sons all worked the lands without adequate compensation for decades on the basis of a promise that they would all inherit from Henry one day.  The evidence indicates that from an early age the three boys were all told that they would all “inherit a share of the property.”^[59]  Essentially if the properties South Woodlands and either Glenora or North Woodlands were added to the provision to be made for Leila this would mean that she would receive almost as much in her own right as her three sons would collectively. 

151. Whilst the decision in Cropley v Cropley^[60] held that if all competing claims cannot be accommodated then a widows claim should have precedence and “the allocation of resources in aid of the widow must be satisfied before any similarly demonstrated requirement for the allocation of resources in aid of an adult child.”  In the current case I consider that given the size of the estate all claims can be fully accommodated.  I also that consider the competing claims of the three sons are necessarily quite strong given that a substantial part of Henry’s estate was also built up by their hard work over decades.

152. Whilst Leila would like further provision of sufficient land to allow her to work the land to generate a sufficient income it is difficult to understand how the balance of the Freymont aggregation would achieve this purpose.  These two lots, which contain the 100 year old homestead where Henry grew up, were specifically excluded from the devise to Leila and devised to Richard with a specific reference to the contents owned by Henry in the house being gifted to Richard.  These lots comprise only an additional 3 hectares and some yards which it would appear Richard built. It is difficult to conclude that the addition of such a small holding would have any impact on Leila’s income.  Whilst it would be very convenient to use those yards I do not consider the use of the yards or the additional land would have a substantial impact on Leila’s income or the viability of her farming operation.

153. Leila was in fact left with two properties which are entirely sustainable when worked with other properties owned by other family members. Indeed when Leila was first married to Henry these properties had been worked in conjunction with property owned by Henry’s mother and brother. Leila has indeed been generating an income for the last five years by working in an informal partnership with her sons and such an arrangement could continue with some of her sons into the future.

154. I also note that in the Deed of Variation which Leila consented to she did not seek a further allocation of lands and she retained only Freymont and Coolmunda as provided for by the Will.

155. Whilst Leila’s current financial circumstances are really only strictly relevant in relation to the second stage of the test set out in Singer v Berghouse Leila’s current financial position has been advised as set out below.  As Muir JA said in Hills v Chalk and Ors:^[61]

“The question of whether the respondent has been left “without adequate provision” for his “proper maintenance” must be determined by reference to circumstances as they existed at the date of the testatrix death.  But advantage may be taken of hindsight so long as the occurrences fall within the range of reasonable foresight”.

156. In terms of her income, since 1 July 2006 she has only had drawings of $12,000 from the farming enterprise and since 1 January 2007 she has received no drawings. She has been reinvesting the interest that she has earned from her investments. Leila’s current assets, leaving aside her one third share of the non land farming assets left to her by the Will, are as follows:

157. It would also appear that Leila has a number of options in relation to the assets which have been left to her pursuant to the provisions in the Will, including generating an income by leasing out the Water Rights which she is entitled to. Furthermore, Freymont is already partitioned into a number of different allotments and is very close to the town of Inglewood.  Some of those lots could therefore be sold if she required additional income.  These options were in fact conceded by Leila during cross-examination although she considered that some of the allotments would be unsuitable to build on as they are on a “flood plain”.^[62]

158. Leila has no liabilities, although she has a deferred income tax liability in respect of income over the past two years. She also has an informal overdraft with her bank to cover her legal costs. As Callinan and Heydon JJ said in Vigolo v Bostin^[63] adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably but will depend on all the relevant circumstances.

159. I consider that, despite Leila’s hard work over more than four decades and despite her valour in the face of considerable adversity, there is insufficient evidence to indicate that she was left without “adequate” provision for her proper maintenance particularly given the competing claims of all the potential beneficiaries and the provision which was made for her in the last Will.

160. This first question, therefore, has not been satisfied and the court does not therefore have jurisdiction to move to the second determination. Accordingly even if leave were granted I do not consider that Leila’s application would have any real prospects of success. As Keane JA said in Hills v Chalk and Ors:^[64]

“[35] It is difficult to see that there is any good reason why a claim for provision out of an estate which is clearly unlikely to succeed should attract the grant of an extension of time where the delay has been, as it is here, very long indeed.”

161. When Leila first became aware of the terms of Henry’s Will she considered it was unfair and she clearly continues to hold this view. Given her enormous contribution to Henry, and the farming enterprises her view is understandable. In this regard I consider that the following excerpts from an article by M. B. Voyce, entitled “The Impact of the Testator’s Family Maintenance Legislation as Law and Ideology on the Family Farm” to be particularly relevant in the circumstances of this case:^[65]

“TFM legislation confers a discretionary jurisdiction on a court to override a will to take account of the needs of a certain class of eligible applicant.  The purpose of the Act is not to allow an aggrieved party under a marriage who has lost his/her spouse to claim a fair and equal division of property or maintenance.  Application is limited to proper maintenance and support only out of the deceased’s estate.  Thus, while TFM legislation may represent a curtailment of testamentary freedom it does not give an equal share of an estate to expectant family members.

…

TFM legislation has been criticised as not adopting the liberal attitude under the Family Law Act which allows a fair and equitable division of property on breakdown of marriage and maintenance after divorce based on the relative contributions of the parties (Wright 1988).  To adjust TFM legislation to be brought into line with family law legislation would involve a radical alteration of the very basis upon which the law of TFM was founded, because this legislation is concerned with succession, while family law legislation is primarily concerned with maintenance (Dickey 1985: 462).”

162. Accordingly, whilst I am satisfied that the delay has been explained, and indeed three of the four factors set out in Enoch v Public Trustee have been satisfied, the fourth factor has not in fact been satisfied.  I am not satisfied with respect to the strength of Leila’s claim.  Having considered the evidence, I have come to a clear view that her claim would not in fact succeed.

163. Accordingly, Leila’s application for leave to bring an application for further and better provision out of the estate out of time pursuant to s 41 (8) must therefore fail. Her applications for leave to proceed and her application for further and better provision out of the estate of the deceased are therefore dismissed.

164. As has been previously indicated, the applications by Leila and Edward need to be considered separately on their own merits. Whilst Leila’s application for leave to proceed has been refused, I turn now to a consideration of Edward’s application in relation to the strength of his claim.

Strength of Edward’s claim

165. Edward was given a legacy of $25,000 in the last Will compared to the gift of Ashton Grove in the previous two Wills.  Given the decades of work on the properties and Henry’s unreasonable behaviour in my view Edward has a very strong moral claim. 

166. I consider that Edward has a strong prima facie case and this is in fact conceded by the second respondent.

167. As I have previously indicated, the application for leave is not opposed by the first respondent.

168. Accordingly, I consider that Edward has satisfied all of the requirements for leave as set out in Enoch v Public Trustee and leave should therefore be granted pursuant to s 41(8) for him to commence his proceeding for further and better provision out of the estate despite the fact that it has not been commenced within time.  I will therefore turn to the substance of Edward’s application.

The first question-was the provision inadequate?

169. The first question to be answered is, “was the provision which was made for Edward in the Will inadequate for his proper maintenance, education and advancement in life?” To answer this question we need to consider Edward’s circumstances at the time of Henry’s death.

170. At the time Henry died Edward was married and his wife Vanessa who is a nursing sister was working. Edward deposes that he has had to rely on his wife’s income to meet expenses in the marriage and that he supplemented that income by the income from his shooting. He was doing contract work during the day as well as working at night as a kangaroo and pig shooter. Edward’s taxable income for the year 2000 was $2,300. Edward also states that “In the last year of working for Henry I earned less than I would have received on unemployment benefits.” His income in 2004 was $506 per week and Vanessa’s was $446. As they had a partnership income of $542 their total weekly income was $1,494.50. Their schedule of weekly expenses for the period however indicates expenditure of $1,818 per week. Edward states that his income fluctuates and that in 2005 he had a taxable income of $41,873. The income tax returns in relation to the conduct of the family partnership between July 2004 and December 2006 are in evidence and pursuant to the arrangement Edward received a distribution in excess $56,000 in the period 2004-2005 and over $59,000 in 2005-2006. It would appear there have been no distributions for the two year period since December 2006 and monies must be owing to Edward for the work he has done on the properties during this period.

171. Edward’s original purchase of property at Ashton Grove in 1997 comprised 64 hectares and he paid $150,000 for it.  He borrowed $20,000 from Vanessa’s parents and $20,000 from Henry and paid the balance from his own savings.  Edward’s block had a homestead, cattle yards, a hayshed and workshop.  He also had a Water Licence of 13 megalitres.  In 2004 the property was valued at $250,000 and his total assets including savings, livestock, plant and equipment was $331,650.

172. Mason CJ, Deane and McHugh observed in Singer v Berghouse^[66] that in determining the first stage of the two-stage process it is important to consider the totality of the relationship between the deceased and the applicant. 

173. Edward worked long hours on the farm from an early age and did his first muster on horseback at the age of seven. He would work generally three hours after school each day and then all weekend. He worked all school holidays and did not receive a wage until after he left school and then it was a minimal wage. Prior to June 2002, there was a close relationship and Henry had rung Edward about five nights a week even though he had been working with him during the day.

174. I also consider that the relationship between Henry and Edward in relation to their respective holdings at Ashton Grove is particularly relevant.  Edward states that when he and Henry each purchased portions of Ashton Grove he allowed Henry to irrigate and grow feed for his stock on 55 acres of his land.  Edward submits that he, therefore, assisted in the build up of Henry’s assets by making this land on his property at Ashton Grove available for leasing to Henry at $2,000 per year.  This, Edward states, was to his own disadvantage because after the lease terminated he was able to use this land and had an “income of $20,000 through the produce of grain and hay”.^[67]

175. Edward also indicated that Henry had “unfettered use of my yards and hayshed.” Despite Edward essentially allowing Henry total use of his lands there was a confrontation between them about two years after the purchase of Ashton Grove due to Henry’s attitude.  Henry had been asked not to allow his cattle to graze near fruit trees that Edward had planted near his homestead.  Henry however:^[68]

“…took stock up and grazed them close to the homestead contrary to my request.  There were about 10 or 20 head.  Subsequently I raised the matter with Henry the night I came home with Vanessa, Leila was present.  Henry said if I got him upset I would know the consequences which was clearly a reference to being left out of the Will.”

176. After the June 2002 meeting when Edward ceased working for Henry, Henry asked Edward if he could still irrigate the 55 acres and use Edward’s yards until he could build his own yards later in the year. Henry initiated a new arrangement and although he offered to pay $60 or $80 to cover the five or six months involved it was never in fact paid:^[69]

“It involved Henry leasing 50 acres of my part of Ashton Grove being the 50 acres under cultivation and also the stockyards.  Henry wanted to finish fattening cattle on Ashton Grove….There would have to be at least 40 cattle on that acreage for that period of time.  I was holding out an olive branch in agreeing to what Henry proposed.  I wanted to try and make our relationship work.”

177. Lyndon gave evidence that Henry hoped that Edward would return to the farm after the June meeting.^[70]  Edward indicated in evidence that Henry asked him to return about two months after the June family meeting but this did not eventuate as Henry would not offer an apology for his conduct which Edward required as a condition of his return.

178. Henry clearly had a benefit out of Edward’s portion of Ashton Grove during his lifetime and I note that neither Richard nor Lyndon used their assets to acquire property which provided assistance to Henry’s estate. 

179. Lyndon also gave evidence that it was always intended by Henry that “part of Ashton Grove” would pass to Edward.^[71]  It is also clear that Edward had an expectation that he would receive Ashton Grove in his father’s Will.

180. In answering this first aspect of the two stage process outlined in Singer v Berghouse, I consider that in all the circumstances, given Edward’s financial position, the size and nature of Henry’s estate, the totality of the relationship between Edward and Henry as well as the relationship between Henry and other members of the family, the provision which was made for Edward was inadequate.

181. Having answered the first question by determining that the provision that was made for Edward was inadequate for his proper maintenance and support the second stage now involves an examination of what provision should be made.

The second question –what provision should be made?

Edward’s current circumstances

182. Since his father’s death Edward has purchased another property of some 64.75 hectares near Ashton Grove for $130,000 with his wife.  On my calculations Edward’s total current holdings at Ashton Grove, including the block he owns with his wife, is less than 130 hectares in area.  This is a modest landholding.  Because of the drought, the family dispute and Jacob’s illness Edward has experienced considerable financial difficulty in recent years.  Vanessa was unable to return to work after Jacob was born given the difficulties he has experienced and she did not earn any income from February 2007 until February 2008.  She currently works part time and earns $500 net per week.  Edward cares for the children whilst Vanessa works and he continues to supplement their income by $271 per week by his roo and pig shooting at night.  Their partnership income is $307 which makes a total weekly income of $1227.

183. Edward’s current assets are as follows:

184. In relation to claims by adult sons, it is clear there is no special principle to be applied. Edward was given a gift of $25,000 in the last Will whereas in the two previous Will he was given Ashton Grove.  Edward is an able bodied adult who has his own resources but in my view given a lifetime of working on the land these assets are modest.  Edward works his own property but by itself the property produces only a marginal income.  Henry has left a large estate and Edward worked on the property for decades without proper wages.

185. I note that de Groot and Nickel states:^[72]

“The legislation does not identify the family farm for special treatment and there are no special rules which apply in these cases.  As has been said many times, each case is determined on its own circumstances.  However, there are common factors in these cases which tend to influence the result.  It may well be that the strong moral claim of the son who inherits the farm is the major factor in many cases and results in limiting the provision which the Court makes for other siblings.

It is clear that the sons of farming parents do not have a right to inherit the farm to the exclusion of their siblings if proper provision has not been made for them.”

186. The principles to be applied are well established and were fully elaborated in the 2005 High Court Decision of Vigolo v Bostin^[73] which related to similar provisions in the West Australian legislation:

“[55] Several further points should be made concerning the construction of s 6(1). First, the subsection is an example of a law which authorises the making of curial orders altering interests in property otherwise arising by operation of a law concerning testamentary succession and intestate succession. The legislation does not give effect to antecedent rights arising by virtue of familial relationships; rather, rights are created and enforced ‘in one blow’.”

187. Whilst the term moral duty is often used, it is clear that this is no more than a convenient expression which has been used to examine the relevant legislation. The relevant test was referred to by Edwards J in the New Zealand decision of Allardice v Allardice:^[74]

“It is the duty of the court, so far as is possible, to place itself in all respects in the position of the testator, and to consider whether or not having regard to all existing facts and surrounding circumstances, the testator has been guilty of a manifest breach of that moral duty which a just, but not a loving, husband or father owes towards his wife or towards his children, as the case may be … the court should never lose sight of the fact that at best it can but very imperfectly place itself in the position of a testator, or appreciate the motives which have swayed him in the disposition of his property, or the justification which he may really have for what appears to be an unjust will.”

188. It is clear in Vigolo v Bostin that Gleeson CJ considered that the “moral obligation” of a testator is relevant as part of the exposition of the legislative purpose of the Act and in understanding the statutory text.  Callinan and Heydon JJ also considered that moral considerations may be relevant but a claim could not be founded upon considerations not contemplated by the Act.  Gummow and Hayne JJ, however, considered that references to moral duty or to moral claims, whilst they might be a shorthand expression for the legislative issues, can be misunderstood and such terms should be eliminated.  Callinan and Heydon JJ stated:

“For many years … several Justices of this Court have found it convenient and generally useful to resort to the concepts of a moral duty and a moral claim in deciding both whether, and how much provision should be made, to a claimant under the Act.  In our respectful opinion they have not been wrong to do so.  These are not concepts alien to, or in any way outside, the language of … the Act.

We do not therefore think that the questions which the Court has to answer in assessing a claim under the Act necessarily always divide neatly in two.  Adequacy of the provision that has been made is not to be decided in a vacuum or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably.  Adequacy or otherwise will depend upon all of the relevant circumstances which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made.  These matters however will never be conclusive.  The age, capacities, means, and competing claims of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.”

189. In this regard, I consider that the decades of work on the property by Edward for minimal wages is a relevant factor. I also regard Henry’s use of Edward’s property is a relevant factor. Henry had the benefit of Edward’s portion of Ashton Grove from 1997 until late 2002 and this was to Edward’s detriment for those years.  Furthermore, it would appear that Henry, in fact, prior to the purchase of Ashton Grove, ensured that he had the major benefit of the Water Allocations that pertained to Ashton Grove rather than Edward.  This was obviously to Henry’s benefit and increased the value of Henry’s portion despite the fact they paid the same amount for each portion.  The value of that Water Allocation has increased dramatically and is now worth $500,000.

190. I also consider that it was Edward’s expectation and, indeed, the expectation of others in the family, particularly Leila and Lyndon, that Edward would inherit Ashton Grove or at least part of Ashton Grove.  Promises made by testators are regarded as relevant and the view of Gibbs J in Hughes^[75] was referred to by Justices Gummow and Hayne in Vigolo v Bostin as follows:

“He has since acted on the assumption that the farm would be his and was led to do so by the conduct of his parents, if not by their express promises.  Wise and just parents, having allowed him to base his life on that foundation, would not years later attempt to deprive him of what had become necessary for the support of himself and his family.’”

191. Counsel for Edward submits that the requirements of unconscionable behaviour which inform the doctrine of equitable estoppel are closely analogous to the concept of “moral duty” and that unconscionable behaviour is highly relevant to what is proper provision for a plaintiff.^[76]  I consider there is some force in this submission.

192. A further relevant factor which needs to be taken into account however is the fact that Edward did actually leave the family farming enterprise. He was also paid $20,000 for his portion of the hay, plant and equipment at the time. He was not part of the family farming enterprise at the time of Henry’s death. I consider that for this reason he has no claim for a share of the non land assets that formed part of Henry’s estate at the time of his death namely the hay, plant and equipment. Whilst Edward has worked the property since July 2004 he had a quarter share of the profits under that arrangement during the period until December 2006. There may also be some monies still owing to him in respect of the period since December 2006 but they are not currently listed as an asset on his list of assets.

193. To determine what is proper provision there are a number of principles which need to be taken into account. It is clear that the Court must place itself in the position of the testator and consider what Henry ought to have done in all the circumstances on the basis that he was a wise and just parent. It is also well established^[77] that in coming to such a determination there is no precise mathematical formula or even any guidelines to assist.  Furthermore “there is relatively little room for the propounding of broad judicial doctrine, old or new, at least when it takes the form of rules of purportedly general application and relative inflexibility.”^[78]

194. The Court has no general power to rewrite Henry’s last Will and can only alter the Will to the extent that is necessary to make proper provision. The Court should always where possible uphold the testamentary intention of the testator. As Barton J said in Re Buckland^[79]

“Were it my function to make a new will for the testator founding myself on what many people might reasonably consider a fair distribution of his wealth, no doubt the precise extent of the fortune to be disposed of would be of great importance, but I am enjoined to remember that this is not my function; my function is to ensure only that adequate provision is made for proper maintenance and support.
…

The plaintiff was no doubt disappointed, and one can readily understand it, that her father disposed of his fortune as he did; but the decision was one for him, subject only to the jurisdiction of this Court to ensure for her adequate provision out of his estate for proper maintenance and support.”

195. It is clear that the function of this Court is not to allocate what might be considered a fair distribution of Henry’s wealth. My function is to ensure only that adequate provision is made for Edward’s proper maintenance and support. As has been previously stated,^[80] “The purpose of the legislation is not to redress a sense of grievance or hurt feelings or to promote family harmony.”  Cooper J’s judgment in Allardice v Allardice^[81] is particularly relevant in the circumstances of this case.  He said:

“But the Court has no jurisdiction to do more than secure an adequate provision according to the condition in life of the children, measured to some extent by the estate left by their parent, and guarding also the interests of those who have an equal claim upon the particular testator but who have been provided for in the testator’s will.  I repeat that we have no power to recast the testator’s will or the redress inequalities or fancied injustice, but only to secure a sufficient provision for the proper maintenance and support of those children of the testator who have been left by him without proper and adequate means of support.  This general rule is, I think, the governing principle.  Its application depends upon all the circumstances of each particular case.”

196. Clearly then it is not the role of the Court to recast the Will or to redress inequalities. It is also clear that an order also needs to take into account the circumstances which prevail at the time of the making of the order. Edward’s current circumstances have been set out. The current circumstances of the estate need also to be ascertained and taken into account.

The current assets of the Estate

197. Lyndon as the executor ad litem has provided a list^[82] of the assets and liabilities of the estate at the time of trial which indicated total assets of $5,947,568.61 which includes a land value of $5,310,000.  An amount of $42,100 is owing to Leila and there are expected legal and administration costs of some $422,000.  Clearly, given it is a farming enterprise, the assets of the estate continue to grow and it would appear that the assets may now indeed be in the order of $6.5 million.^[83]

Estate of Frey

Current Assets and Liabilities

16 December 2008

Assets

Land$5,310,000.00

Cash at Bank NAB estate cheque A/c     $28,768.61

Cattle –       $322,600.00

Sheep –     $41,400.00

Wool –      $14,400.00

Hay –      $70,400.00

Plant and Equipment   $160,000.00

TOTAL$5,947,568.61

Liabilities

Leila – loan          $42,100

Legal Costs (GST included)

Applicants        $210,000

Respondent Lyndon Frey          $94,000

Respondent Richard to end of trial          $80,000

Administration costs$6,000

Further admin costs?  Approx$5,000

Transfer duty on deed of variation     $27,117.30

TOTAL   $422,117.30

198. Richard’s Counsel submits that if further provision is made for Edward it should be a monetary sum based on his demonstrated need and that it should only be in the order of $160,000 to $300,000. This figure is based on several calculations, none of which I found to be particularly helpful. The first submission was that it should be $260,000. This calculation is based on Edward’s life expectancy of 80 years at a wage of $20,000 minus the $5,000 he is drawing per annum which equates to $615,000 and the present day value of this sum on the 5% discount tables this is $267,400. The next submission was that it should be a quarter of the value of the partnership as it stands today or $159,392. A further submission was that an order making provision of $300,000 would be adequate given Edward’s current assets are $434,145.15. A final submission was based on a calculation by way of percentage of 7% of the estate or $280,000 which, it was submitted was within the range of percentages referred to in De Groot and Nickel in relation to family farms.

199. As I have indicated I consider that in the circumstances of this case those calculations are not helpful and are all somewhat artificial. Counsel for Richard has submitted that any provision which is to be made should be strictly in monetary terms and not a provision of land.

200. I consider however that this case is really about the six properties that Henry held. The request for further and better provision out of the estate by Edward is a request for a specific property namely Ashton Grove.  Leila’s application was a request fro specific properties.  This case does not involve an application for a further bequest of money but it is about the family land holdings and a distribution of those holdings.  As has been frequently stated the question as to what further and better provision should be made depends very much on the circumstances of each case.  In this case I consider that the major issues involve the land holdings, the specific property namely Ashton Grove and Henry and Edward’s relationship in respect of that holding. 

201. Furthermore I do not consider the court is constrained to only making an award of money and that the provisions of the Act give to the court the widest power in terms of formulating the form of the order. Section 41(1) provides that the Court may order “such provision as the court thinks fit shall be made out of the estate.” Section 41(2) further provides that the Court may attach such conditions as the Court thinks fit to such an order and whilst the provision may consist of a lump sum or a periodical payment there is no requirement that the provision must be in this form.

202. The size of Henry’s holdings at the date of his death is set out in paragraph [4] and provides as follows.

203. Pursuant to Henry’s Will it is clear that Richard was left Woodlands, Lots 81 and 82 on Freymont, half of Glenora and half on Ashton Grove, which on my calculations was a devise of land of over 2,420.656 hectares.  Leila was left Freymont and Coolmunda which is 194.8 hectares.  Lyndon was left with Allembie and half of Ashton Grove and Glenora which is 2,475.5 hectares. 

What constitutes an appropriate further provision?

204. Edward essentially seeks Ashton Grove plus the Water Allocation of 200 megalitres which was attached to it at the time of Henry’s death.  Ashton Grove is a modest property of just 202 hectares valued at $248,000 at the time of Henry’s death and is now valued at $370,000.  Whilst it is modest it would add substantially to Edward’s ability to work his existing holding at Ashton Grove which is currently about 130 hectares in area.  If further provision is made for Edward, by giving him Ashton Grove, Richard and Lyndon’s land holdings would each be reduced by approximately 100 hectares but their respective holdings would still be in excess of 2,000 hectares each.   

205. In the circumstances of the current case, I consider that a wise and just parent would have considered that there should be have been provision for Edward which involved Ashton Grove.  This is despite the fact there had been a falling out between father and son.  Edward clearly has a modest farming property, he needed more land to make his farm more profitable, he had a family to support and there had been a history of generosity by Edward to Henry with respect to Edward’s portion of Ashton Grove.

206. In all the circumstances, I consider that wise and just parent would have devised the 202 hectare property Ashton Grove to Edward by his last Will given all the surrounding circumstances. Accordingly I consider in addition to the gift of $25,000 under the last Will that clause 12 of the last Will should be amended to essentially read as follows.   

“12.I GIVE DEVISE AND BEQUEATH all my lands known as ‘Ashton Grove’ being described as Lot 31 on Plan BNT 34274, Lot 92 on Plan BNT 1297 and Lot 35 on Plan BNT 1799 County of Bentinck Parish of Coolmunda to my son EDWARD LESLIE ALBERT FREY for his sole use and benefit absolutely.”

207. Whilst a Water Allocation of some 200 megalitres was specifically attached to Ashton Grove at the time of Henry’s death that is no longer the case.  A separate title has issued in relation to that 200 megalitres of water and the title is currently in the names of Lyndon and Leila as personal representatives of the estate.  The water which formerly attached to Ashton Grove is currently valued at $500,000 on the basis of $2,500 per megalitre.

208. A wise a just parent would also have recognised the need for a fair allocation of water. This is in fact recognised in the three last Wills by Henry’s attempt tho have the family share the Water Allocations equally. It would seem to me that Henry may have been concerned that if Edward received all of Ashton Grove he would have received the entire 200 megalitre Water Licence which was attached to that land at that time.  I consider that a wise and just parent would have understood that the Water Licences were becoming very valuable and were in fact a diminishing resource and would have recognised that if Edward received all of Ashton Grove, he would receive a disproportionate part of the valuable resource of water. 

209. I consider that a wise and just parent would have tried to allocate some of the water attached to Ashton Grove to Edward.  However given the increase in value of the water and the value of that Water Allocation to the entire family farming operation he would also have tried to ensure that some of the water was available for the rest of the aggregation.   This was in fact Henry’s intention because by his last Will he left Leila, Richard and Lyndon a one third share of the existing Water Licences as joint tenants.  His previous Will also indicated a desire for the family to share the Water Allocations equally.  The sharing of the water resources was Henry’s clear testamentary intention.  This outcome however could only have been actually achieved by cooperation between family members at the time of Henry’s death such that they shared the water between the properties equally.  In the current circumstances however an order can be made dividing up the water resources amongst the family.  

210. I consider that an order for further and better provision for Edward should include an order that he receive an allocation of one half of the water which originally attached to Ashton Grove.  This would be an allocation of 100 megalitres which is currently valued at $250,000.  As the personal representatives hold the title to those Water Allocations this can clearly be achieved by the transfer of the title to 100 megalitres of water to Edward. 

211. I consider that such a transfer would recognise the history of the Water Rights with respect to Ashton Grove.  Such an order would give to Edward half of the Water Rights which attached to the whole aggregation which he and Henry purchased between them in 1997 for $150,000 each.  At the time of that purchase Henry had unfairly insisted he receive the 200 megalitre allocation to his block entirely and Edward received only 13 megalitres to his block.  I consider that a transfer of 100 mega-litres of water from Water Allocation 524 on Crown Plan AP7583 would be an appropriate order.

212. The provision of Ashton Grove valued at $370,000 and 100 megalitres of water valued at $250,000 would mean that the value of the further provision for Edward would have a current value of $620,000.  Such provision recognises the fact that Edward had ceased working the family properties but that he still should have received some recognition for other contributions over several decades.  I consider this provision constitutes in the circumstances “adequate” further provision. 

The other non land assets

213. I do not consider that Edward should receive any further provision from the Will apart from the transfer of Ashton Grove and the allocation of 100 megalitres of water.  As Edward had ceased working the property and had received a payout of $20,000 for his share of the hay, plant and equipment I do not consider he should be given a further provision in respect of the non land assets.  The fruits of the continued farming operation should go to those who worked the properties with Henry after June 2002.  

214. In my view the estate holds all the non land assets such as the livestock, hay, plant and equipment as well as the remaining 350 litres of the Water Allocations. I consider the provisions of Henry’s Will should generally stand in this regard and his testamentary intention should be generally be followed. By his Will Henry clearly intended that Leila, Lyndon and Richard should receive one third each of those assets as at the time of his death.

215. In determining the strength of Leila’s claim however my determination was made on the basis that she had been adequately provided for because amongst other devises she had been left a third of the Water Allocations as they stood at Henry’s death. That is an entitlement to an allocation of some 150 megalitres. Such an allocation is currently valued at $375,000. Accordingly in relation to the remaining Water Allocations I consider that there should be a transfer of a 150 megalitres of water into Leila’s name.

216. That means that Lyndon and Richard would then share the remaining water allocation of 200 megalitres equally at 100 megalitres each. Whilst Henry wanted the Water Allocations held as joint tenants I do not consider that such an order is appropriate in light of the family disputation. The issue of the formulation of appropriate orders in respect of the Water Allocations may be problematic particularly in relation to what particular Water Allocations should be the subject of each order. I accept that there may be some practical issues involving transfers of the water title. I will accordingly hear submissions from Counsel in relation to the formulation of the appropriate orders in respect of the transfer of the Water Allocations.

217. In relation to the other non land assets it is clear that by his Will Henry clearly intended that Leila, Lyndon and Richard should receive one third each of those assets as at the time of his death. Apart from the Water Allocations I consider that such an order can still be made in respect of those assets at the time of his death.

218. However after 1 July 2004 those assets were used by the family farming enterprise and the profits were distributed on a four way basis from June 2005 until December 2006. The family members consider that those assets have now reverted to the estate. Those assets include the wool, stock, hay, plant and equipment.

219. What are the appropriate orders in relation to those non land assets currently held on behalf of the estate? Should Leila, Lyndon and Richard also take a one third share each of the current non land assets of the estate? Edward however may have some outstanding claims given his work on the properties over the last two years. Accordingly I will hear from counsel in relation to the appropriate orders which should be made in relation to the current non land assets of the estate.

The formulation of appropriate orders

220. Accordingly, subject to further submissions, the orders which I would consider making are as follows:

1. The application by Leila Frey to extend the time in which to bring an application for provision from the estate of Henry Frey pursuant to s 41(8) of the Succession Act 1981 be refused.

2. The application by Edward Frey to extend the time in which to bring an application for provision from the estate of Henry Frey pursuant to s 41(8) of the Succession Act 1981 be granted.

3. Pursuant to s 41 (8) of the Succession Act further provision should be made for the proper maintenance and support of Edward Frey in addition to the provision made by the Will by the devise of the property known as Ashton Grove and the allocation of 100 megalitres of water. 

4. I will hear further submissions in relation to the orders to be made with respect to the transfer of the Water Allocations.

5. I will hear further submissions in relation to the orders to be made with respect to the current non land assets.

6. I will hear from Counsel in relation to costs.