Domanti v Domanti[2020] QSC 360

SUPREME COURT OF QUEENSLAND

Overview

1. [1]
   The deceased, Domenico Domanti, was a cane farmer in Ayr.  He died on 30 August 2017.  His wife predeceased him by many years.  He is survived by his three adult children Andrew, Santino (or Tino) and Annette.^[1]  His last will, dated 10 March 2017, revealed his intention that his children would benefit equally under it.  Andrew claims that the will is unfair and seeks further provision from the estate.
2. [2]
   Andrew has worked on the farm for almost all of his life.  He lives there now with three of his four children, two of whom work on the farm with him.  Tino and Annette are engineers who work in Brisbane and Melbourne respectively.
3. [3]
   At his death, Domenico’s estate was valued at approximately $4.6 million. 
4. [4]
   The estate is a relatively complicated one.  It is detailed in the table below.  As well as the cane farm (which is made up of four properties), a residence, shares, a nursing home bond and cash at bank, it includes a commercial property which the deceased owned in partnership with his children (known as the Ingham Road Property) and shares in a trust which has as its only asset a commercial property (known as the Duckworth Street Property).

5. [5]
   At the date of Domenico’s death, his estate and its related entities owed $1.7 million to the National Australia Bank (NAB), under three separate loan agreements. 
6. [6]
   Speaking broadly, under his will, Domenico left the farm to Andrew; his share of the Ingham Road Property to his three children; his residence to his three children; the Duckworth Street Property to Tino and Annette;^[2] and the residue of his estate to his three children as tenants in common in equal shares.  Those dispositions of property were subject to certain clauses in the will, referred to as “equalisation clauses”, which were plainly intended to ensure that each of the children benefitted equally under it.  There are issues about the construction and viability of those clauses.  However, this matter proceeded on the basis that the starting position is that the estate is to be divided equally between Andrew, Tino and Annette.
7. [7]
   Again, speaking broadly, under the will, for Andrew to keep the farm, whilst ensuring equal distribution between the three children, he is required to pay into the estate an amount of $2.4 million.  He says that he is not able to do so.
8. [8]
   Of course, “equalisation” could be achieved by selling up the assets of the estate, paying its debts and distributing the net proceeds equally between Andrew, Tino and Annette. Had that been done at the date of the deceased’s death, each of the children would have received approximately $1.2 million.  If that were done now, each of the children would receive approximately $912,000 (less the estate’s and the administrator's outstanding costs).  However, Andrew argues that a distribution which entails selling the farm would leave him without a livelihood, contrary to the wishes of his parents.  And he submits that it would not leave him with enough money to purchase another property to farm (or at least, it would not leave him with enough money to purchase a farm large enough to generate income to meet his needs).
9. [9]
   Over a year out of time, Andrew made an application for further provision from the deceased’s estate under section 41(1) of the Succession Act 1981.^[3]  He submits that, if I consider that there is merit in his application, then I ought to grant him the necessary extension of time (under section 41(8)).
10. [10]
    Andrew does not express his application for further provision in percentage terms.  Rather, he just wants the farm properties.  He seeks an outcome which would allow him to inherit the farm properties upon his payment to the estate of $520,000.  He proposes a complicated order (exhibit B for identification) which he suggests would achieve such an outcome.  His position is that he would be able to raise $520,000 on the security of the farm and that the farm’s income could service the loan.^[4]  He does not pursue, nor is he prepared to contemplate, any alternative distribution of the estate.
11. [11]
    The estate resisted Andrew’s application, contending in early correspondence that Andrew had not demonstrated any need for further provision.  The parties were unable to mediate the matter.  The estate put to Andrew an open offer in February 2020 which inter alia would have allowed him to live and work on the farm and given him ownership of three of the four farm properties, with an option to purchase the fourth back from Tino and Annette.  Andrew rejected that offer.
12. [12]
    On 19 March 2020, an administrator, Scott Whitla, was appointed to protect the estate pending the outcome of these proceedings.
13. [13]
    Late in the piece (on 30 September 2020), Tino himself brought an application for further provision.
14. [14]
    Andrew’s counsel impressed upon me the urgency of this matter.^[5]  The estate is cash poor.  The administrator expected that, by December 2020, he would need to sell the estate’s assets to pay its debts.  I was asked to reach a decision in this matter quickly.  I have done the best I can, working around my other commitments.
15. [15]
    For the reasons which follow, I dismiss Andrew’s application.  
16. [16]
    Andrew tendered very little evidence to establish his needs, submitting that they were “obvious”.  On the evidence he tendered, he failed to persuade me that the will did not adequately provide for him.  His net asset position would have been $2.4 million had the estate been distributed in accordance with the will at the time of the deceased’s death.^[6]  Also, the success of Andrew’s application (on his terms) hinged upon my being persuaded that he would be able to pay $520,000 to the estate.  He failed to persuade me on the evidence that he would be able to do so.  Indeed, the evidence upon which Andrew relied to demonstrate an ability to borrow $520,000 (to pay to the estate) was hearsay upon hearsay.
17. [17]
    I also dismiss Tino’s application, which he wished to pursue only if I were to decide to order further provision from the estate for Andrew.
18. [18]
    My formal orders are that the applications of the first and second applicants are dismissed.  The parties are directed to attempt to agree upon an order for costs.  If they cannot reach agreement, costs will be decided on the basis of written submissions to be provided in accordance with a timetable to be agreed between the parties and the Court (via my associate).

Section 41(1) of the Succession Act 1981

19. [19]
    The application of section 41(1) of the Succession Act 1981 and its “two stage process” is well known.  I considered it in detail in Niebour-Pott & Anor v Pott [2020] QSC 7 (to which I was referred during submissions).  I rely here upon my discussion of the legal principles in that case.^[7]
20. [20]
    In the first stage, I am required to consider the “jurisdictional question”: that is, whether, by the terms of his will, the deceased left Andrew without adequate provision for his proper maintenance and support and, in that sense, failed in his moral duty to him.  Whether there has been a breach of moral duty is to be determined at the date of the deceased’s death. 
21. [21]
    In deciding whether adequate provision has been made for Andrew, I am to consider Andrew’s needs.  However, I am not to be narrowly focused on needs in the sense of the bare necessities of life, or the amount Andrew might need to “get by”.  The inquiry into need is not confined to Andrew’s material circumstances. 
22. [22]
    I am to have regard to, among other things, Andrew’s financial position, the size and nature of the estate, his relationship with the deceased, the relationship between his siblings and the deceased, and the relative urgency of other moral claims on the estate.
23. [23]
    The second stage only arises if I am of the view that the deceased did not make adequate provision for Andrew in his will.  If I were to reach that stage, I would need to consider the provision which a wise and just father would have thought it his moral duty to make in Andrew’s interest had he been fully aware of all the relevant circumstances.

Evidence

24. [24]
    In these matters, the onus is on the applicant.  Thus, it was for Andrew to satisfy me that the deceased did not make adequate provision for him in his will, having regard to Andrew’s needs.  The other beneficiaries, Tino and Annette, did not have to justify their receipt of benefits under the will. 
25. [25]
    The evidence tendered included evidence about the financial and personal circumstances of Andrew, Tino and Annette; evidence from the administrator of the estate; and evidence from an accountant called by Andrew (Mr Smith) to prove that he would be able to raise $520,000 on the security of the farm.
26. [26]
    There was no objection to any of the evidence tendered, even though much of it was hearsay or argumentative or evidence of impressions. 
27. [27]
    In the case of the evidence tendered by Andrew, I note that the estate took the view that to seek rulings from me about the admissibility of parts of it would add to the costs of these already very expensive proceedings. 

Evidence of the estate’s administrator

28. [28]
    Mr Whitla’s administrator’s report, dated 27 October 2020, was in evidence. 
29. [29]
    Its primary purpose was to outline, for the benefit of the parties, the steps taken or to be taken by the administrator pending the resolution of this matter.  Additionally, it provided an overview of the current financial state of the estate, which was relevant to arguments made by the estate and Tino that it is no longer possible to achieve Andrew’s goal (of inheriting the farm) because of the need to sell estate assets to meet estate debts.
30. [30]
    In addition to the accounts and other financial documents attached to it, the report reveals the following –

• The original purpose of the loan from the NAB (now at $1.7 million) remains unclear.
• All transactions associated with the farm and the commercial properties have been, and continue to be, channelled through an overdraft account, entitled “Farm Management Account”.
• The NAB loan is cross-securitised by way of a guarantee and indemnity given by the deceased and each of his three children; mortgages over the deceased’s residence, the Ingham Road Property and the farm properties; and a general security agreement over Kayena Pty Ltd, as trustee for the trust.
• Until the resolution of this matter, the NAB will not release any secured asset for sale unless 100 per cent of the proceeds of sale are applied to reduce the debt owed to it.
• On the basis of the farm’s cash flow statement,^[8] the NAB was not prepared to lend any amount in respect of the farming operations, and it would be hesitant to even allow a renewal of the overdraft facility. 
• The NAB acknowledged that the commercial properties could bear some debt – but it is very unlikely that the full amount of the NAB debt could be serviced by the properties, even if their capital value were such as to allow for an acceptable loan to value ratio.
• It is not Mr Whitla’s intention to sustain the farm to the detriment of the estate and other entities if it continues to produce insufficient profits to survive independently.
• There is increasingly little liquidity in the estate.

31. [31]
    In oral evidence, Mr Whitla explained that there would be a significant cash flow shortage in the new year, with the last of the crop proceeds due in December 2020.  He would need thereafter to “find” income which could include the income from the commercial properties.  If he were to sell all of the estate’s assets, other than the farm, then the NAB’s debt would likely be discharged.
32. [32]
    Through Mr Whitla, counsel for Tino established that, even if Andrew had “worked for free” and not taken “a cent” in drawings,^[9] the farm would have lost $74,904 since the date of the deceased’s death. 
33. [33]
    It was acknowledged that the interest which had been applied to the farm in 2018, 2019 and 2020 ($84,036 in total) contributed to some of that $74,904 loss.  However, even on a calculation which –

• took interest “out of the equation”;
• apportioned all of the cane farm income to the farm;
• assumed that Andrew worked for free; and
• assumed there was no debt whatsoever,

the cash flow since the date of the deceased’s death would only be about $9500.

34. [34]
    The order sought by Andrew involves “quarantining” the farm and using the proceeds of sale of the other properties, plus the $520,000 from Andrew, to repay the NAB.  Mr Whitla’s understanding was that, before the NAB would agree to such a proposal, it would need to be satisfied that the other properties would achieve sale prices which would (when added to the $520,000) be sufficient to discharge the loan, because “otherwise they [the NAB] are releasing the security over the farm and they’re whistling in the wind for the balance”.  The NAB’s preferred position was that either everything, or nothing, was to be sold.
35. [35]
    Queen’s Counsel for the estate also took Mr Whitla through the order proposed by Andrew.  Ultimately, Mr Whitla agreed with her that, if the order were implemented, and the farm were transmitted to Andrew, then Tino and Annette would get nothing, including because of –

• the costs associated with the implementation of the order (which involved a third party to the litigation);
• the costs of appointing trustees for sale of the commercial properties and the house on Beach Road (as required under the order); and
• Andrew’s legal costs.

Evidence of William Smith, Accountant 

36. [36]
    Andrew relied upon the evidence of William Smith, an accountant, to prove that he is able to raise $520,000 on the security of the farm, were it to be transmitted to him in accordance with the proposed order. 
37. [37]
    Mr Smith has 40 years of experience in the provision of accounting advice and services to cane farmers in the Burdekin region, which includes Ayr.
38. [38]
    He was asked for his opinion (for the purposes of mediation) about –

• “the reasonable amount of debt serviceable for farms similar in nature to the Domanti farms and production level”; and
• “the reasonably anticipated interest and borrowing terms that would be available in the current market”.

39. [39]
    In providing his opinion about those matters in December 2019, Mr Smith relied upon inter alia a cash flow document, prepared by the farm’s accountants, Fahey and Walsh, which showed cash flow projections for the 12 months ending 30 June 2020 on certain assumptions. 
40. [40]
    In Mr Smith’s opinion, the assumptions were too conservative.  He offered the following opinion, after noting that Fahey and Walsh’s projection was of a cash surplus of $94,500 before living expenses and debt servicing –

This figure [the cash surplus amount] indicates the farm is efficient.  The average tonnes harvested from the total farm area of 140 hectares is approximately 130000 tonnes, as has been adopted in the projection.

Fortunately for your client the world sugar priced [sic] has moved upwards, so that the forecast price per tonne for the 2020 season could be $42 − $44 per tonne.  We believe his debt servicing ability should be based on $43 per tonne for the 2020 season [rather than the $40 per tonne assumed by Fahey and Walsh].  This will result in an increased surplus of approximately $130,000.

Allowing for living expenses and income tax of $78,000 he will have a projected cash surplus for debt servicing of $52,000.  Because of the substantial value of the Domanti farms, Andrew could apply for a loan at an interest rate as low as 5.5%.  This would enable Andrew to service principal and interest on a loan up to $520,000 over a fifteen year period assuming interest rates remain relatively low.

Conclusion:

We believe a level of farm debt up to a limit of $520000 would be serviceable.  We believe a financial institution would approve a loan application up to this amount.

41. [41]
    There was no objection to this evidence on the basis that an accountant is not appropriately qualified to give evidence about what an unspecified lending/financial institution would or might do.  I therefore proceed on the basis that the other parties took no issue with his “expertise” in this context.
42. [42]
    Mr Smith’s affidavit evidence explains that his firm provides “taxation, business advice and financial planning advice to a broad range of clients”.  It explains that his office assists prospective and existing cane growers in the “management of their cash flow, preparation of budgets and debt servicing ability”.  It explains that his firm also assists in the preparation of finance applications. 
43. [43]
    He said, “I personally prepared annual accounts for fifteen cane farming entities. This number includes several of the largest producers in the Burdekin”.  In evidence-in-chief he said that he has “a substantial practice” that includes cane farmers who are “a valuable contribution” to his firm.
44. [44]
    I do not doubt that Mr Smith has assisted in the preparation of finance applications but I have no sense of the number of applications he has been involved in; or the scale of the cane farming businesses they concerned; or their recency; or their success rate. 
45. [45]
    In his more recent affidavit of October 2020, Mr Smith explained that, while world sugar prices were moving upwards in December 2019 (causing him to then assume a price per tonne of $42 − $44), the projected price per tonne in September 2020 had decreased to $40.  But interest rates had also decreased.  He continued –

My enquiries indicate that Andrew Domanti would have a realistic chance of securing a loan at a rate between 2.50% − 3%.  It is now my opinion that the reduction in his projected cash surplus available for debt servicing as a result of the fall in world prices would limit his borrowing capacity to a figure no greater than the $520,000 limit previously stated. 

46. [46]
    In my view, even putting aside concerns about whether he is appropriately qualified to offer an opinion about the farm’s borrowing capacity, Mr Smith’s evidence carries very little weight.
47. [47]
    He did not elaborate upon the “enquiries” he made to reach his conclusion that a lending institution would lend Andrew up to (but no more than) $520,000.  Nor was there any attempt made in examination-in-chief to elicit from him answers which might have given weight to his opinions including, for example, by way of questions about his own experience of obtaining loans for cane-farming clients. 
48. [48]
    The weight of his opinion was further reduced under cross-examination during which it was established that –

• to arrive at his conclusions, he had spoken to “a mortgage broker” and given him the “parameters” of an interest rate of 5.5 per cent and a cash flow surplus of $52,000.  He was told that $520,000 was “a reasonable amount that could be borrowed”;
• he did not calculate himself the repayments on a loan of $520,000 over 15 years at 5.5 per cent – rather he “spoke to a reputable finance broker”;
• he could not argue with the suggestion that repayments (for a loan of that amount, at that rate and for that duration) were $50,988 per annum;
• he agreed that – because that amount was so close to $52,000 – the “margin” was “not ideal”, but he said it was “not impossible”;
• he took the point that there would be “precious little left” (after repayments) to create a sinking fund to replace equipment;
• he agreed that a certain graph (which was exhibited to his affidavit) showed that the Domanti farm had been consistently harvesting cane with a lower sugar content than the average of the other cane harvested in the Airdmillan area (the relevant comparable area);
• less sugar per tonne meant less money per tonne;
• he had assumed a 13,000 tonne harvest;
• a more recent projection (from the farm’s accountants) was for a 12,500 tonne harvest; which would mean less income and a reduction in the cash flow – perhaps of between $15,000 and $20,000; and
• he did not calculate the cash flow necessary to afford a loan of $520,000 at 2.5 – 3 per cent.

49. [49]
    He said if the farm were to “cut back” 500 tonnes of cane (that is, to 12,500 tonnes), then “the first thing a prudent farmer would do” would be to look at his expenses: he would look at the wages (which Mr Smith presumed were paid to Andrew’s sons) or otherwise cut costs to “make it balance”.  He said, “The obvious thing to do would be to tell … whoever the employees are, to look elsewhere or go to see Centrelink”.
50. [50]
    He was asked who would lend at 2.5 – 3 per cent on “a commercial venture like this”.  He suggested that “QRIDA^[10] would be interested”.  He said, “[C]onsidering Andrew’s circumstances here, buying the farm back from his deceased estate, I believe they would be more than happy to talk to him”. 
51. [51]
    Whilst that may well have been Mr Smith’s belief, I note that he had not spoken to QRIDA nor was he asked questions to establish the basis for such a belief on his part.
52. [52]
    He said, in cross-examination, that (in reaching his conclusions) he had spoken to a mortgage broker from Ralph Lawson Associates, who were “well-known in north Queensland as organising finance for … a myriad of clients” and an “ex-ANZ bank manager”.  Cross-examination continued, further detracting from the weight of Mr Smith’s opinion (my emphasis) –

Q: So, you’ve spoken to them … and they’ve assured you that there would be someone out there who would loan 520,000 to Mr Andrew Domanti, is that correct? ---

A: Well, I’d be very confident that I – if it’s not the National Bank, certainly the rural bank, or, to a lesser extent, Rabobank,^[11] would be more than interested in looking at that farm, which is an extremely valuable farm.  The cash flow in a bad season would be under strain.  In a good season it wouldn’t be.  But the value of the – the underlying value of those farms is, you know, several million – sorry, it’s more than enough to, you know, loan asset valuation would not be an issue with any prudent [sic].

Q: Mr Smith, were you aware that the National Australia Bank was the bank which currently had the mortgages over this farm and was the financier for the farm?

A: ---No, I wasn’t sir.  I didn’t think it was relevant at the time.

Q: You didn’t think it was relevant to - - - ?

A: ---Well, no - - -

Q: Mr Smith, you were preparing a report about the ability of this farm to be able to service a loan of $520,000.  You did not think it relevant to consult with the financier which had the most experience with the farm.  Is that what you’re saying to the Court?

A: ---I didn’t think it was relevant because if I was going to organise finance for this particular client, I wouldn’t be going to the National Bank, sir.

Q: All right?---

A: I’d be going somewhere cheaper.

Q: What information did you provide to the mortgage broker, who you did consult, in order to obtain the opinion as to whether there would be a financier who would extend a loan of $520,000 to Mr Domanti?  What did you – information did you give this mortgage broker?

A: ---I assured him that the valuation of the farm would be more than adequate to meet the loan to valuation obligations of any prudent banker.  I mentioned those figures – the aforementioned figure of a surplus of $52,000 and I asked him what would a banker be prepared to advance, assuming there was strong security and … reasonably assured cash flow.  And that was the answer I got, sir.

Q:… So you did not produce the cash flow to the mortgage broker?

A: ---No, I did not.  We were talking – just – it wasn’t a detailed loan application submission to the person.  I just wanted an indication, a ballpark indication of how much they would lend.

…

Q: So, Mr Smith, is this correct, that this report is indeed not your opinion at all?  Rather, it is merely a broad estimation or ballpark given to you in a conversation with this mortgage broker?

A: ---That’s correct, sir. Again, to apply for a loan, I would like to have some idea of how much they were prepared to lend and that was the point here, how much – I was asked to give an opinion.  What sort of level of debt could this farm substantiate, and I asked a prudent question to a prudent banker and I got that reply, sir.

53. [53]
    In re-examination, Mr Smith was asked about banks which specialise in rural lending.  He said he would have approached QRIDA “first of all”.  He said he also had in mind Rabobank and “the Bendigo Bank rural bank associate” which was “very keen to price aggressively and gain business”.  Anyone else was “getting down the list of people I would call in terms of, you know, proper, you know, rating.  I would have thought the first one I would talk to would have been a rural bank”.
54. [54]
    Andrew submitted that on the strength of Mr Smith’s evidence, I would accept that “there are rural lenders around who are keen to increase their business in the region and willing to assist farmers in this type of scenario” and in turn accept that he would be able to borrow $520,000 on the security of the farm. 

The children’s evidence

55. [55]
    Cross-examination in this matter was very limited.  And I was left to decide, or attempt to decide, between opposing contentions, stated in affidavits, on the face of the affidavits.
56. [56]
    I have not discussed in any detail the suggestions made by Tino and Annette about Andrew’s (alleged) less than ideal management of the farm and the commercial assets, or his replies to their assertions.  It is enough to record that I have taken into account the assertions of both sides but do not consider the resolution of that issue to be determinative of Andrew’s application.  It is the actual financial position of the farm which is relevant.
57. [57]
    The children cannot agree whether the loan from the NAB relates to the farm, the commercial properties, or to Domenico and his wife’s personal spending.  I do not need to determine this issue one way or the other, however I am inclined to the view that the principle NAB loan is likely to relate to the commercial properties. 
58. [58]
    I accept that, on the whole, the commercial properties have been cash flow positive and serve their purpose of providing income for the Domanti “portfolio” during the farm’s “bad” seasons.

Andrew’s evidence

59. [59]
    Andrew’s evidence was to the following effect. 
60. [60]
    He is now 58 years old.  He will turn 59 in January 2021.  He undertook a trade as a diesel fitter between January 1979 and January 1983.  He did not work in the diesel fitting industry.  Instead, he worked on the farm after finishing his trade in 1983.  He was a “country boy” who did not like living in Townsville (where he had undertaken his apprenticeship) and wanted to return to Ayr.     
61. [61]
    He has worked on the farm from 1983 until the present day, taking (tax free) drawings per week in the amount of $1000 until July 2004, when it was increased to $1350 per week and, thereafter, increased in accordance with the Consumer Price Index, on the advice of the family’s accountant.  He also managed the commercial properties (having taken on that role after his mother died in 1992). 
62. [62]
    He and his father always enjoyed a close and loving relationship.  They lived across the road from one another (at least until Domenico was hospitalised after a fall in 2014).  He and his father worked the farm together.  Domenico worked less and less as he aged.  In 2005, he handed control of the farm to Andrew. 
63. [63]
    Andrew has four children: Sarah, Jake, Toby and Billy.  He has been separated from their mother since 2006.  In 2019, the three boys were in his full-time care.  The eldest two worked on the farm with him.  Sarah was at university in 2019 and he financially supported her. 
64. [64]
    Andrew and his children live simply on the farm in its small house.  The farming property is his only source of income [c.f. his interest in the commercial properties and interest on his investment portfolio].  He has given all of his adult life to it for almost no financial return [c.f. his asset position, his drawings/expenses met out of the farm/commercial properties joint bank account].  He has made significant contributions to the farm and ultimately to his father’s estate. 
65. [65]
    His father had very limited literacy skills, having left school at a young age.  He only ever wanted to work manually and left all business decisions relating to the family entities to his wife.  After her death, Andrew was responsible for the majority of the business decisions relating to the family entities. 
66. [66]
    He has worked tirelessly on the farm, on the understanding that the farm would be his and he would be left in a position to carry on farming there.  He believes that it was his parents’ intention that the farm pass to him.  His siblings were not interested in the farm.  His father was proud of him for taking over the farm and proud that Andrew’s sons also worked the farm which kept it as a family enterprise.
67. [67]
    His working on the farm saved the farm the expense of employing a worker (the farm required at least two full time workers) [c.f. he was remunerated for his work by way of tax-free drawings and the payment of certain of his expenses].  When his son Toby decided to work on the farm, a government scheme paid $20,000 towards his employment in his first year – thus achieving a substantial saving for the business.  His managing the commercial properties had saved the cost of agents and repairers. 
68. [68]
    He could have worked as a diesel fitter and earned significant wages.  Whilst he received benefits from the farm, those benefits did not compare to what he could have earned had he worked in the mining industry as a diesel fitter [c.f. he produced no evidence to support this proposition, which was challenged to some extent by the estate which suggested that his drawings for many years exceeded average male income]. 
69. [69]
    He explained in his fourth affidavit that his parents appreciated the need to diversify their portfolio to compensate for the farm’s “bad” years.  It was his parents’ decision, in 1977, to purchase land and build the commercial premises on Ingham Road.  It was his father’s decision to purchase the Duckworth Street warehouse.  Their portfolio over the years also included a block of flats in Townsville, which was constructed on land they bought for that purpose in 1981. 
70. [70]
    In 1988, Domenico and his wife saw a further opportunity for a diverse source of income.  They created a residential subdivision on a portion of farm land which was not good for production.  They sold that land between 1988 and 1993.
71. [71]
    In 1994, Andrew says he and his father received advice from the family accountant to subdivide another portion of farm land for another residential subdivision.  He says Domenico took that advice.  Andrew says that his father allowed him to “run the subdivision project”, which he did whilst performing his regular farming duties.  He was not challenged on that proposition.  The subdivided land was sold between 1995 and 1997. 
72. [72]
    Andrew was also not challenged on the proposition that “we” – he and his father – were looking to further diversify the family portfolio in 1998 and did so by purchasing the Duckworth Street Property. 
73. [73]
    Over the years, Tino and Annette received benefits from the businesses when sugar prices were high, by way of superannuation or other benefits of $10,000 or $20,000 in 2000, 2001, 2007, 2008 and 2009.  However, as I understand Andrew’s evidence, all three children received similar benefits. 
74. [74]
    During the later years of his father’s life, he was the “only child who regularly visited him and ensured he was looked after”.  He attended to his father’s personal needs (including by driving him to appointments) and his father often visited him “for company”.
75. [75]
    At the relevant time, he came to terms with his father’s dementia, however Annette did not want Domenico to move into an aged care facility.  She took it upon herself to arrange in-home carers for him.  Those carers were only present from 6 am until 6 pm – leaving their father unattended at night.  Domenico fell during the night (in 2014) and his health declined further thereafter.
76. [76]
    After the carers were appointed, Andrew involved himself in his father’s care when he could but he had to deal with the demands of the farm.    
77. [77]
    On a personal level, Andrew suffers from type 2 diabetes which is managed by medication.  He suffers from industrial deafness and tinnitus (as a result of his farm work which included operating machinery with open canopies rather than cabins).  Because of his age, and lack of experience in any other occupation, it would be difficult for him to obtain alternative employment if he were unable to continue to work on the farms.
78. [78]
    With respect to his financial position, he has been required to liquidate a portion of his investment portfolio to add to his NAB funds to cover the legal costs of this litigation. 
79. [79]
    Between 2013 and 2018, his average yearly drawings were 86,000 per annum.  In February 2020, he expected that his 2019 drawings would amount to more than $100,000.  His drawings included some of his expenses but did not include a figure for rent, which he submitted would, in any event, be a modest amount because of the age, location and condition of the house. Income projections for the farm into 2021 are discussed below.
80. [80]
    His understanding is that his drawings historically related to his operation of the “entire Domanti Group, including the two commercial properties, the family home, vehicles, numerous other business affairs and all of [his] father’s personal affairs”.  He considered his drawings and the other benefits provided to him (such as income protection and life insurance) were “in reality … primarily to enable me (as has been expected) to devote all of my time to the farm for the benefit of the Domanti Group”. 
81. [81]
    He was originally happy with the will.  But once the properties were valued – at valuations which were, in the case of the farm, significantly more than he expected, and in the case of the commercial properties, significantly less than he expected – he realised that he would have to take on most of the debt attributed to the estate (to equalise it).  The farm could not withstand that level of debt.   
82. [82]
    The will was thus extremely unfair because to equalise the distributions would mean selling the farm, depriving him and his children of their home and livelihood.  His youngest child was 16 (in February 2020) and he needed to work to meet his and his children’s living expenses and to create a contingency fund.  Appropriate provision from the estate would mean he could maintain the farm, his home and his livelihood.  He believed that his siblings would recognise and appreciate the work he had done on the farm.  Any decline in the value of the assets was due to the fluctuations in world sugar prices and Townsville’s economy – not due to Andrew’s management of the assets. 
83. [83]
    His net entitlement under the will, together with his own resources, would not be sufficient to allow him to purchase alternative land to continue farming and thereby earn a livelihood.  Were he to receive $1 million under the will, his approximate net position, excluding his superannuation, would be $1,326,857.53.  He would need to reserve 40 per cent of that amount “to meet contingencies and future living expenses”.  That would leave him with approximately $796,114.50 to purchase a farm.  A farm of that value would not generate a sufficient income for himself and his family.  He brought his application out of “desperation” to save his future livelihood and believed the estate was large enough to allow him to retain the farm with a manageable level of debt; and appropriately provide for Santino and Annette (recognising Santino’s health issues (see below)).
84. [84]
    He said (in his fourth affidavit of 18 February 2020) -

The farms have provided me with an occupation, a home and a sense of enjoyment and belonging for nearly 40 years.  My family and I have built our lives around the farm.  To have the farm stripped from me in these circumstances is cruel and unfair and not at all what I believe my parents would have intended or wanted.  I am not greedy, nor do I have lavish needs or unreasonable expectations.  I have no desire to unfairly benefit in any way particularly not at the expense of my siblings.  I am of the view that having regard to my siblings’ needs and their own resources, the estate of my father is large enough to enable me to keep the farms with a level of debt that can be properly serviced from the farm’s income and the balance of the net estate be used to benefit my siblings.  This would ensure we are all fairly and adequately provided for, particularly in light of all of the circumstances.

85. [85]
    I pause here to note that if the estate were distributed now, in accordance with Andrew’s wishes, based on his calculations (which on one view, overstate the benefit to his siblings (see below)), he would receive provision worth approximately $2.6 million and his siblings would each receive provision worth, on one assumption, about $337,000 each (that is, about 80% Andrew: 10% Tino: 10% Annette) or, on another assumption, $195,000 each (that is, about 87% Andrew: 6.5% Tino: 6.5% Annette). 
86. [86]
    On 21 February 2020, that is, within days of Andrew filing his fourth affidavit, the solicitors for the estate made an open offer to him settle the proceedings.  That offer (exhibit 6) proposed an outcome which would allow Andrew (and his children) to remain on, and earn an income from, the cane farm and which would reduce the debt allocated to Andrew under the will to $700,000.  It also provided for his inheritance of three of the four farm properties, with an option to later purchase the fourth, from Tino and Annette, at market value.  Andrew rejected that offer.  He considered it “inappropriate and impossible” to accept the offer because it required him to work for his siblings in circumstances where there was tension between them and where they had been critical of the way in which he ran the farm. 
87. [87]
    In Andrew’s affidavit, affirmed on 29 September 2020, he said, “Throughout the course of this matter it has become apparent to me that the actions of my siblings, particularly Annette, have been an attempt to starve myself and the farm of income in the hopes I would be forced to sell the farms and my potential claim for family provision would be defeated”.  This serious accusation was not put to either Tino or Annette in cross-examination. 
88. [88]
    Andrew contended that the farm was viable – but he acknowledged the volatility of the farming industry and that external factors affected its profit and loss.  He relied upon the evidence of William Smith to prove that the farm was able to support a loan of $520,000.
89. [89]
    In his final affidavit, dated 30 October 2020, (rounding down) he estimated his current assets at $598,000; his non-current assets (his super plan) at $554,000 and his liabilities as $90,000.  His legal costs to date have been substantial ($227,000) and he is likely to be required to pay another $95,000.  His then current fortnightly income was $2,900.  His then current fortnightly expenses were $3,150 (although many were met by the trust and paid for as part of his remuneration and included in his drawings). 
90. [90]
    In this affidavit, he referred, for the first time, to cash rental income which he receives for two farm houses.  The rental agreements had been in place for many years.  The maximum rental income received each year was $10,400.  Andrew has treated this cash as the “farm wallet” and used it to pay for farm expenses, including maintenance.  He admitted, under cross-examination, that he has not declared this rental income for tax purposes.
91. [91]
    In support of his contention that the farm was profitable, he referred to a cash flow statement for the period from March 2020 to February 2021, which showed a net surplus of $118,954.00 for the farm.  However, the calculation of that surplus excluded from “outflows” interest attributable to the farm in relation to the NAB loan ($15,180); interest on the overdraft account ($9,785) and Andrew’s drawings ($84,000).  Including those amounts as outflows would leave a surplus of $9,989.
92. [92]
    He performed other calculations of the farm’s cash flow into 2021, on the basis of various accounting assumptions about whether it was proper to include certain outflows in the calculation of cash flow. 
93. [93]
    On some of those assumptions, the projected cash flows were negative.  In that regard he said “the opportunity is always open to me to reduce expenses in relation to the farm to reduce costs including my drawings if and when necessary.  Conversely in good years I could increase my drawings accordingly and/or undertake capital works”. 
94. [94]
    Under cross-examination he –

• confirmed that his daughter was no longer at university;
• acknowledged that his living expenses were $81,900 per year – which he paid out of his drawings, which were on average $85,353 per year;
• confirmed that his drawings for 2019 would be around $100,000;
• admitted that he had made no inquiries about what the loan repayments on $520,000 would be; and
• agreed that – assuming certain adjustments – his projected cash flow into 2021 is $78,700 “odd”, from which he had to deduct tax and support himself (bearing in mind living expenses of around $82,000 per year) and pay back the loan.

95. [95]
    In response to the suggestion that, on those figures, he would be unable to repay a loan of $520,000, he said that he could “probably” reduce his living expenses.  Also, he could not tell what would happen next year, all he could do was “hope” he could repay the loan.
96. [96]
    It was suggested to Andrew that his drawings of $1000 per week, from 1983 until 2004, were significantly more than the average male wage for that period.  Andrew wondered why he was considered “average”: as a diesel fitter his earnings would have been higher than the average male wage.  He agreed though that he paid no tax on his drawings.
97. [97]
    He was cross-examined about his explanation for bringing an application out of time – which was that the valuations took him by surprise.^[12] 

Annette’s evidence

98. [98]
    Annette’s evidence was to the following effect.
99. [99]
    Annette is 48 years old.  She will turn 49 in October 2021.  She is married.  Her husband is 60 years old.  They have a six year old son.  Annette is the sole income earner for the household. 
100. [100]
     Since completing her undergraduate studies in engineering in 1993 (aged 21), she has not relied upon significant financial support from her family.  In 1994, she was awarded a scholarship to study in the United Kingdom, where she completed her PhD.  She returned to Australia in 1998 and moved to Melbourne to work.  She has a steady professional employment history and plans to work until she is 60. 
101. [101]
     Annette took issue with Andrew’s suggestion that he was the only child who regularly visited Domenico during their later years and ensured that he was looked after.
102. [102]
     From 1995 until 2014, Domenico was in a relationship with a Dutch woman, Judith.  She and Domenico spent their time between Ayr and Holland.  Until 2014, Judith was Domenico’s primary carer – supported by Andrew, Tino and Annette.  In particular, Annette assisted with their travel arrangements including by ensuring wheelchairs and support for them while they travelled.  Most of Domenico and Judith’s trips to Holland were via Melbourne and they often stayed with Annette at the beginning and end of their trips. 
103. [103]
     Although Annette had not lived in Ayr since 1990, she saw her parents and, after her mother’s death, her father, at least once per year.  They spoke on the phone most weeks. 
104. [104]
     Domenico’s health began to decline in 2013.  Judith was considering travelling to Holland without him.  He would not have been able to live alone, so Annette investigated potential home care packages for him.  This included arranging an Aged Care Assessment Team (ACAT) assessment for him, for which Annette travelled from Melbourne to be present. 
105. [105]
     Ultimately, Domenico did travel to Holland with Judith in September 2013 and again in March 2014.  However, Judith, whose own health was in decline, decided not to return to Australia.
106. [106]
     In anticipation of Domenico’s return to Australia alone, Annette made inquiries about in-home care for him.  She advertised for carers and reviewed and interviewed applicants for that role.  She flew from Melbourne to Ayr for the purpose of interviews.  She arranged the employment and remuneration of the successful applicants.
107. [107]
     Domenico was unable to cope with the travel from Holland unaccompanied.  Annette arranged for Tino to travel, at short notice, to Amsterdam to accompany their father home. 
108. [108]
     Annette travelled to Ayr to support the carers as they commenced caring for Domenico and she remained in regular contact with them.  Although Andrew lived across the road from Domenico, he did not involve himself directly in his father’s care – instead leaving his care to the paid carers.
109. [109]
     Annette gave birth to her son, who was born prematurely, on 23 July 2014.  She was able to bring him home from hospital when he was two weeks old.  On the day she brought her son home, 7 August 2014, Domenico fell and suffered a subdural haematoma.  His health declined sharply thereafter. 
110. [110]
     Domenico spent four weeks in the Townsville Hospital.  During that period, Annette was in regular contact with his medical team and informed her brothers of the detail of her father’s condition and progress. 
111. [111]
     On 1 September 2014, when her son was six weeks old, Annette travelled from Melbourne to Townsville and back in a day to discuss her father’s needs with his medical team.^[13]  Domenico was transferred from the Townsville Hospital to hospitals in Home Hill and the Ayr, before ultimately being placed in an aged care facility in Ayr. 
112. [112]
     From the date of his fall until his death, Annette travelled to Ayr twice a year, for a week at a time, to visit him twice daily and attend to his needs.  Her impression was that before her father went into care, Andrew did not visit him at home very often. 
113. [113]
     Annette stated that Andrew did not take an active interest in the commercial properties.  In Annette’s view, Andrew did not have “a strong comprehension” of the financial viability or profitability (historically or into the future) of the farm.  Its financial performance demonstrated that he had not prudently managed it.
114. [114]
     All of the transactions for all assets (the farm and the commercial properties) were via one bank account.  Any profit from the warehouses had been applied towards the farming operation, rather than being reinvested into the warehouses.  Over the last 20 years, the Ingham Road Property had contributed $1.5 million in pre-tax net cashflow (rental income), yet the net financial position of the “Domanti Portfolio” had remained static or declined. 
115. [115]
     It was her belief that, when Domenico executed his will (in 2010), he understood that she and Tino were employed in good jobs (Tino also has a PhD) and owned their own homes.  He understood that Andrew had chosen to work on the farm.  And he appreciated the size of the NAB debt.  It was with that understanding and appreciation that he inserted the equalisation clause in his will.
116. [116]
     She described her father as humble, generous and fair.  He was, in her view, determined to treat his children equally – regardless of their respective financial positions.  
117. [117]
     Under cross-examination, she was questioned about her involvement in the day-to-day operation of the farm and the running the business more generally.  She said she had never been involved in the day-to-day operation of the farm (even when she lived at the farm).  When it came to her involvement in the running of the business, at Andrew’s request, she had put together a farm plan which identified which blocks were to be fallowed over a five year period.  Andrew sought her opinion “on things like hedging of forward crop, the loans … that were coming up for renewal”.  At Andrew’s request, she looked into solar panels.  And she was involved in the discussions which led to part of the farm being sold for residential development in 2008. 
118. [118]
     It was suggested to her that the costs (to the estate) of defending Andrew’s claim were excessive.  She said it was hard to know.  She “[kept] getting told that this is a very complex estate”.   
119. [119]
     Annette’s evidence about the assistance she gave Domenico in the last few years of his life and her commitment to him and interest in his care and medical treatment was amply supported by the exhibits to her affidavit affirmed on 2 December 2019.  I note too that she kept her brothers updated with her progress in this regard and often sought their input.
120. [120]
     She attached to her affidavit affirmed on 8 April 2020 cash flow statements from the farm’s accountant, Fahey and Walsh.
121. [121]
     According to their calculations, the net reduction in cash attributable to the cane farm in 2017/2018 was $197,072.81.  The net reduction in cash attributable to the cane farm in 2018/2019 was $56,357.59.  In other words, over the last two financial years, the cane farm contributed approximately $250,000 in cash flow losses across the Domanti Group. 

Tino’s evidence

122. [122]
     Tino’s evidence was to the following effect. 
123. [123]
     He is now 60 years old.  He will turn 61 in March 2021.  He always had a good relationship with his father.  He lived in Ayr until mid-1984, and in Townsville between 1991 and 1998, where he worked at the James Cook University, having obtained his PhD. 
124. [124]
     Even when he was not living in Ayr, or relatively close to Ayr (in Townsville), he saw his father once or twice yearly and maintained regular telephone contact with him.
125. [125]
     He could not recall his father saying much about his will.  Tino understood that his father’s wish was for the business to grow, but his father did not wish to be involved in decision making about the farm and other entities.
126. [126]
     On a personal level, Tino was diagnosed with prostate cancer in April 2011 and had surgery for it in July 2011.  In February 2012, he separated from his wife.  His two children of that marriage are not financially dependent on him, although he covers certain of their costs.  He has been in a relationship with his present partner, Rhonnda, for five years.  She has certain health issues.  He is presently employed as a Research and Development Manager with Hatch (an engineering company) although after an accident in 2018 (see below), he is only able to work on a part-time basis.   
127. [127]
     In addition to his cancer diagnosis from 2011, Tino suffers from other limiting health conditions.  Significantly, he was involved in a cycling accident in March 2018.  He has incomplete tetraplegia and, while he can walk with walking aids indoors and for short distances, he mostly uses a wheelchair to ambulate.  I will not go through in any more detail the consequences of his accident because, as indicated in the overview above, I have determined to dismiss his application for further provision (which is as he intended were I to dismiss Andrew’s application).^[14]     
128. [128]
     Tino flew to Amsterdam to accompany his father back home in June 2014.  After Domenico’s fall in August 2014, he flew to Townsville to visit him in hospital and to speak to the medical team about his condition.  After his father’s discharge from hospital until his death he visited him twice a year. 
129. [129]
     Tino explained that the estate received (retrospective) property valuations in December 2018 (the valuations were dated August and September 2018).  On those valuations, before “equalisation”, his and Annette’s entitlements under the will were worth $411,333.33; and Andrew’s was worth $3,571.825.06.
130. [130]
     Tino understood that, rather than his parents pressuring Andrew not to take up his trade and to work on the farm, Andrew “quit” his job as a diesel fitter and returned to the farm.  
131. [131]
     “To the best of [his] knowledge and belief”, Domenico did not promise Andrew the farm or make a representation to that effect [nor, I note, is Andrew’s claim pursued on the strength of such a promise or representation]. 
132. [132]
     Tino’s view is that Andrew has been adequately remunerated for his work on the farm, yet the viability of the farm and the commercial properties has suffered under his management.  He asserted that the low valuations of the commercial properties reflect Andrew’s “general inattention and lack of maintenance” of them.  To keep the farm afloat, he and Annette have personally guaranteed loans of about $1.5 million – yet they have taken no drawings from the estate nor received any other benefit from the farm or the commercial properties. 

Andrew’s submissions on the first stage

133. [133]
     Andrew submitted that had the estate been administered in accordance with the will, adequate provision would not have been made for him “as he would be unable to continue to operate the Farm and live there given the required level of debt”.  This inadequacy is especially so, he submitted, given his “significant contribution to the Farm and family business over the last 40 years”; his long-held belief that he would be able to stay on the Farm for the remainder of his life; and that “the deceased himself had not contributed to the Farm and/or warehouses in any meaningful capacity for many years, due to his age and health”. 
134. [134]
     Andrew argued that the entire pool of assets of the Domanti group ought to be considered for the purposes of his application – rather than only the estate assets (and his calculations were performed on that basis).  He argued that the whole of the debt owed to the NAB ought not to be attributed to the estate.  Also, there are enough assets – apart from the farm – which could be liquidated to discharge the debt.  He argued that when all of the Domanti Group’s assets are taken into account, “there is more than enough left over for Tino and Annette to share”. 
135. [135]
     He addresses his “need” in his written submissions by reference to the following —

• Although his two eldest sons receive a wage from the farm, they are partially financially dependent on him.
• His youngest son is completely financially dependent on him.
• He has dedicated his life to the farm and has never worked as a diesel fitter, including on the mines where he could have earnt significant wages.
• He does not own his own home.
• The farm is his only source of income.
• His net assets (excluding his interest in the Ingham Road Property) are valued at approximately $761,973.24.
• His fortnightly expenses are greater than his income.
• Whilst Tino has significant “needs”, he also has significant assets.  Also, Tino’s injuries occurred after the deceased’s death.  Tino would not pass the first stage of the jurisdictional test (looking at his position as at the date of the deceased’s death).
• Annette and her husband have significant assets.  She earns a good salary; can afford to allow her husband to stay at home full-time to look after their son; does not identify any need which she cannot meet out of her own resources; and has “many years ahead of her to continue to improve her already substantial position in life”.

136. [136]
     Andrew argued that the estate has not acted reasonably in defending his claim:  its costs are “exorbitant”.
137. [137]
     He alleged that Tino commenced his application for further provision “to further dwindle the distributable pool available for Andrew” (although this serious allegation was never put to Tino in cross-examination).
138. [138]
     Andrew’s more particular written submissions about the first stage are relatively brief.  It was submitted as follows (adopting the numbering of the written submissions) –

2. [2]
   The Farm is Andrew’s life and livelihood.
3. [3]
   Clearly, the deceased wanted Andrew to have the Farm, otherwise he would not have left it to him as a specific gift under the Will.
4. [4]
   If the Farm was sold Andrew would be stripped of his livelihood, which is contrary to what his parents would have intended or wanted.  Furthermore, Andrew would not have enough money to purchase another property and continue his farming way of life.
5. [5]
   The effect of the Will is that, in order to receive the Farm and equipment, Andrew would be required to take on a debt of $2.4 million [to achieve the equalisation required under the Will].
6. [6]
   In circumstances where Andrew’s gift under the Will is significantly burdened with debt, the court should have no hesitation in finding that he has been left without adequate provision.
7. [7]
   Therefore, the first stage of the test is satisfied.

139. [139]
     Andrew also submitted in writing that, “[a]lthough family farming cases feature regularly in family provision cases, particularly involving adult sons, this case is quite novel in its facts”.  The written submissions did not go on to clearly identify that novelty, although it might have been thought to lie in the fact that the present case involved “a complex group structure involving non-estate and estate assets”.  Whether this case is novel or not, of course each case is to be decided on the basis of its unique facts. 
140. [140]
     Andrew is not required to show a special need or claim to succeed. 
141. [141]
     In support of his claim, Andrew relied upon Hughes v National Trustees, Executors & Agency Company of Australasia Limited (1979) 143 CLR 134 (“Hughes”), especially at 147-149, per Gibbs J; and Fellows v Paterson [2002] NSWSC 190 (“Fellows”), especially at [48] (noting that it was cited with approval in Frizelle v Old [2009] NSWSC 1259).
142. [142]
     I have considered those cases, aware of the need for caution in doing so: outcomes in other cases inevitably rely upon complex matrices of relationships and responsibilities.  I found those cases illustrative of a court’s approach in the particular circumstances of the matter before it. 
143. [143]
     Hughes was decided when an adult son was required to show some special need or special claim to justify intervention by the court in a testator’s will.  The testatrix in that case was Hughes’ mother.  She died a widow and he was her only son.  The principal asset of her estate was a farm.  Hughes had worked on the farm after leaving his employment in the construction industry for health reasons.  His father (who left the farm to his wife when he died) told Hughes the farm would one day be his.  He allowed Hughes to live on the farm rent free and allowed him to keep the modest income he made from farming.  (The farm was a poor one.)  His father paid the farm’s rates until his death.  After Hughes’ father’s death, the testatrix permitted Hughes to remain on the farm and continued paying the rates.  However, her relationship with Hughes deteriorated to the point at which she did not leave him anything in her will. 
144. [144]
     Hughes applied for adequate provision.  He was an able-bodied, 54 year old when his mother died.  He had virtually no assets apart from a small herd of cattle and some sheep.  He was (at the time of the application) deriving no income from the farm: he had “let things slide” because of the uncertainty of his position.  His wife was in employment, earning an amount sufficient to support herself, her husband and their daughter.^[15]
145. [145]
     Hughes was unsuccessful at first instance.  Whilst the primary judge found that Hughes had established need, his Honour thought that Hughes had engaged in disentitling conduct (which is unnecessary to detail).  He was unsuccessful at intermediate appeal level.  He succeeded in the High Court.
146. [146]
     At 147, Gibbs J referred to the prima facie position than an adult son was able to maintain and support himself, and the need for an adult son to (then) show some special need or claim to warrant the Court’s intervention.  His Honour continued (at 147 – 149) (my emphasis) –

In some cases a special claim may be found to exist because the applicant has contributed to building up the testator’s estate or has helped him in other ways.  In other cases a son who has done nothing for his parents may have a special need.  This may be because he suffers from some physical or mental infirmity, but it is not necessary for an adult son to show that his earning powers have been impaired by some disability before he can establish a special need for maintenance or support.  He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependants who rely on him for support which he cannot adequately provide from his own resources.  There are no rigid rules; the question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances – that is, on all the facts that existed at the date of the death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts.

In the present case the learned primary judge has found that the appellant has done little or nothing for his parents but has on the contrary received benefits from them.  That finding, as I have already said, cannot be challenged.  Moreover the appellant is able-bodied and could no doubt work if he could find employment.  However there is no evidence that any other employment is available to him, and it cannot be assumed that a man aged fifty-four, who has not practised his trade for over thirty years, could readily find employment.  The farm provided the appellant not only with a home but also with an occupation.  It is too much to say that the appellant supports [his wife] and their daughter, for in truth [his wife] appears to provide the money needed to support the family, but the appellant has a moral obligation to support them, and the farm at least enables him to provide them with a dwelling in which to live … He has … 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.  Clearly enough he has not been a successful farmer – perhaps he has been lazy and improvident – but an order under testator’s family maintenance legislation is not made as a reward for effort or success … [Quoting from Philp J (in dissent) in Re Hatte]

“… A just father’s moral duty is to assist the lame ducks amongst his offspring, provided they be not morally or otherwise undeserving.”

The appellant is in very poor financial circumstances.  His deserts may be small, but his needs are considerable.  There were no competing claims on the bounty of the testatrix, who owed no moral duty to the Bethlehem Home for the Aged at Bendigo [to which she had left everything in her will].  The onus of course lay on the appellant to establish that the testatrix by her will failed to make adequate provision for his proper maintenance and support.  In my opinion he has discharged that onus.    

147. [147]
     The testator in Fellows left his estate to his two children – his daughter and his son.  At the date of his death, in 1992, the estate was valued at approximately $1.7 million.  Its most substantial asset was a property known as Hells Gate South.
148. [148]
     Under the will, the testator’s daughter (the plaintiff) received approximately $326,200.  The testator’s son (the defendant) received assets valued at approximately $1,441,480, including the Hells Gate South property. 
149. [149]
     The plaintiff applied for further provision from the estate.
150. [150]
     In the year the testator bought Hells Gate South (1964), the defendant bought Coobool Downs and Hells Gate North.  The Hells Gate properties are adjoining properties, managed as one.  In 1993, the testator told the defendant that he had left him the Hells Gate property.  As a consequence, the defendant spent about $380,000 improving the property – and in that way, contributed to the estate. 
151. [151]
     Although the plaintiff had been married, at the time of the application, she was single, aged 60, and without dependants.  After a matrimonial property settlement, she owned a house and a car and had no debts.  She had little prospect of obtaining work (for reasons which I need not detail).  She received a pension of $200 per week.  She had been a good daughter to the testator, who probably did not appreciate how difficult her relationship with her spendthrift former husband had been.
152. [152]
     The defendant was aged 65.  He was married with one son who worked for him.  The defendant worked hard with his father throughout his life and contributed to the building up of the whole family’s assets, including those held by his father.  Through his hard work, the family (that is, the deceased, the defendant’s family trust, the defendant and his son) owned and operated a large grazing property.  At the time of the application, the defendant had substantial assets. 
153. [153]
     The Court accepted that the plaintiff had a need for maintenance in the amount of $546 a week.^[16]  The question was whether it was appropriate to order that further provision be made for her to achieve that income.
154. [154]
     As noted above, Andrew relied on paragraph [48] of the judgment in this matter, but I consider the paragraphs either side of [48] also of assistance.  Commencing at [42], Master Macready said (my emphasis) –

42. [42]
    … The defendant in his submissions referred to the principles which are articulated in a number of cases and, in particular, Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; 107 CLR 9.  There the Chief Justice said the following at page 19 –

“It has often been pointed out that very important words in the statute are ‘adequate provision for the proper maintenance and support’ and that each of these words must be given its value.  ‘Adequate’ and ‘proper’ in particular must be considered as words which must always be relative.  The ‘proper’ maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally.  What is ‘adequate’ must be relative not only to his needs but to his own capacity and resources for meeting them.  There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions.  The words ‘proper maintenance and support’, although they must be treated as elastic, cannot be pressed beyond their fair meaning.  The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all.  All authorities agree that it was never meant that the Court should re-write the will of a testator.  Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.”

43. [43]
    …
44. [44]
    …
45. [45]
    … [T]he circumstances in each case vary enormously.  In the present case there are a number of factors which have to be taken into account to try to determine whether some additional provision for the plaintiff is appropriate.
46. [46]
    I turn to a consideration of some of these factors.
47. [47]
    The first group of factors relate to the situation of the plaintiff.  Of particular importance is the fact that she is unlikely to obtain work which is partly a result of her age and partly a result of her medical condition.  She appears not to have worked since 1980 and spent most of her life raising her family and helping her husband.  The lifestyle which she and has husband had was not affluent but apparently allowed them some trips overseas.
48. [48]
    Of great importance is the extent of the estate and the demands upon it.  The estate received by the defendant amounted to $1,441,478.  There was also the amount received by the plaintiff in the sum of $395,256.61.  This estate is substantial but is less by a magnitude of many times than the assets of the defendant.  I am well aware that grazing is a capital intensive business which produces a very low return on investment.  There is, of course, no reason why the defendant should not be able to continue his life choice of living on the land with his family.  Indeed, the contribution he has made to the estate and its properties make it imperative that any order not interfere with the continued operation of his properties.  If at some later stage in life he does not wish to do that he can always retire and, like the plaintiff now asks, be supported in part by their parents’ estate.
49. [49]
    The situation of the defendant, however, is such that some further legacy can be accommodated without causing any great difficulty.
50. [50]
    There is no-one else to consider except the plaintiff and the defendant.  The problems that beset the plaintiff were not known to the deceased, and, indeed, some of them occurred after he died.  If the plaintiff were to receive a further legacy of $475,456 [which would generate $546 per week] making a total benefit of $870,712, this will mean that the plaintiff will receive a sum which is almost one half of the present value of the whole estate.  This gives no recognition to the superior claim of the defendant who was the object of the testator’s bounty. As I have indicated he made substantial contributions during his lifetime and in his actual work on the property in the estate.  A further legacy of $220,000 for the plaintiff would give her total benefits of $615,256.61.  This will allow her to receive a part pension.

155. [155]
     I do not consider Frizelle to add anything of principle to Fellows.  For what it is worth, the son in Frizelle who worked the property was said to have undertaken a significant burden for minimal financial reward.  He was not paid a wage for working for his father on the property nor did he take significant drawings from the partnership between them. 
156. [156]
     Andrew submitted that his claim ought to “trump” Tino and Annette’s claims including because his earning capacity is less than that of his siblings – as reflected in their comparable net asset positions.  Attached to the written submissions made on Andrew’s behalf is a document (marked “A”), entitled “Personal Assets of the Beneficiaries (without Ingham Road and Kayena)”.  The document suggests that Andrew’s net asset position is $761,973.24; Tino and Rhonnda’s is $2,265,556; and Annette and Wayne’s is $3,206,928.17. 
157. [157]
     In oral submissions, Andrew’s counsel submitted that his need was “obvious”. 
158. [158]
     She acknowledged that the fact that Andrew would have been left with net assets of approximately $2.4 million, had the estate been liquidated and the net proceeds distributed equally between the children at the time of the deceased’s death, made it “sound like there’s no need”.  But, she submitted, that ignored the unique situation of a person who had spent their entire life on a farm at their parents’ request.  Whilst Andrew did not suggest he had been promised the farm by his parents, his parents encouraged and allowed him to spend his whole life on the farm, expecting that the farm would be his. 
159. [159]
     She submitted, in effect, that, even though the farm had suffered a “fairly significant loss” in 2018, once relieved of responsibility for running the warehouses, the position might be different.  I note here that the evidence did not leave me with the impression that Andrew was unable to work the farm to its full potential because of the time he was required to spend in management of the warehouses.  Indeed, in terms of evidence to support this submission, counsel could only point to Andrew’s general assertion that if it were not for his “management” of the warehouses, “Significant costs would have been incurred with agents and repairers”.
160. [160]
     Counsel suggested that there were opportunities to cut costs in bad years to meet the cost of borrowing $520,000 – including by Andrew laying off his sons (although that was inconsistent with his desire that they work the farm with him) – but made no attempt to quantify the cost savings which might occur. Andrew’s evidence about adjusting his expenses was vague. There was no suggestion that he had given careful thought to the issue. Indeed, Andrew tendered no evidence about the costs of repayments on a loan of $520,000 at any percentage or for any duration.  Neither he, nor Mr Smith, had calculated the amount. 
161. [161]
     Counsel submitted that the contention of the estate, that it was insufficient to allow Andrew to succeed, had to be considered in the context of the costs incurred by the estate in defending Andrew’s application – which she submitted were excessive. 
162. [162]
     Also, Andrew’s counsel was very critical of the approach of the estate to this litigation generally.  She suggested that “most of the estate’s evidence was simply crucifying Andrew and his ability to run the cane farm and the warehouses” yet there had been no complaint made to him about it until this litigation.  In this regard, I note that neither Annette nor Tino were cross-examined about any assertion they made about Andrew’s management of the farm or any other family asset – although they were cross-examined about making no complaint to him about his management during their father’s lifetime. 
163. [163]
     She submitted that any suggestion that the farm was in a perilous state because of Andrew’s mismanagement had to be viewed in the context of the fact that the parties had incurred almost $1 million in legal costs in this matter.  As I understood it, the point counsel was making was that I could allow Andrew to succeed by not permitting the estate to recover its costs on an indemnity basis out of the assets of the estate because of its conduct of the litigation (relying on Collet & Anor v Knox & Anor [2010] QSC 132). 
164. [164]
     In my view, in considering the attitude of the estate to this litigation, I must also consider the content of the offer made to Andrew which he rejected.  The offer was made in February 2020, prior to the appointment of the administrator, and after a failed attempt at mediation in December of 2019.  By pursuing this litigation, Andrew has not improved his position vis-à-vis what it would have been had he accepted the offer. 
165. [165]
     Andrew’s counsel prepared a table (Annexure B to the written submissions) which she submitted reflected the financial outcome of the order he sought in terms of the distribution of the estate between the children. 
166. [166]
     On her calculations, the implementation of the order would allow Andrew to own the farm; recover the costs of this litigation ($322,658.31); and pay $520,000 to the estate – leaving him with a provision worth $2,637,658.31.  Annette and Tino would each receive either approximately $337,000 (were they to receive the other properties in specie) or $180,000 (were they to sell the other properties).
167. [167]
     Counsel acknowledged the disparity between the siblings in that result and suggested that the Court could do something about it by “look[ing] at Andrew’s costs position” although that was “not ideal from his perspective”. 
168. [168]
     Counsel submitted that, notwithstanding the disparity, Andrew’s claim should be given priority because he had spent his entire life on the farm.  Annette had never contributed to the farm and Tino’s contribution to the farm was “only minor”. 
169. [169]
     She submitted that “none of this would be here or possible if he had not assisted his parents in that way”.  She did not explain why Andrew working the farm had been any cheaper than another paid worker working the farm (nor was such an inference available on the evidence presented). 
170. [170]
     I acknowledge that Andrew submitted that he was “paid” so as to be available “24/7” on the farm and on call for issues around the commercial properties, but it was not explained to me how paying Andrew to be so available was cheaper than employing someone to do that work (nor was such an inference available on the evidence presented). 
171. [171]
     Also, it is necessary here to consider the submissions of Queen’s Counsel for the estate about Annexure B.  Insofar as it dealt with Tino and Annette’s position if they were to receive the properties (other than the farm) in specie, she submitted that the document incorrectly included in the calculation of their provision the value of assets which Tino and Annette already owned.  She submitted that the correct approach would ignore their interest (and Andrew’s interest) in the Ingham Road Property.  On that approach, rather than Tino and Annette each receiving half of $674,000 (that is, about $337,000) in accordance with the order sought by Andrew, they would suffer a loss together of $225,000. 
172. [172]
     I note that even if Andrew’s interest in the Ingham Road Property were included in the valuation of the property Tino and Annette would receive in specie, the distribution to each of them would be valued at half of $74,887.65. 
173. [173]
     The point is that ignoring the assets Tino and Annette already own when calculating the effect of the order proposed by Andrew creates an even greater disparity between the siblings than on Andrew’s calculations.

Second applicant’s submissions on the first stage

174. [174]
     Tino submitted that the will made adequate provision for Andrew.  He also made submissions about Andrew’s application for an extension of time which I will put to one side for the moment.
175. [175]
     Tino’s position was as follows: Had Andrew’s application never been brought, he would have received from the estate, at the date of his father’s death, $1,272,000 plus the sugarcane crop.  Taking into account his own assets, he would then have had assets of about $2.4 million. 
176. [176]
     With his experience and skills, he could have obtained employment in the cane farming industry.  Alternatively, he could have retired, bought a house (for, say, no more than $750,000) and been left with enough assets to provide financial security for the rest of his life.
177. [177]
     Andrew’s claim in part was motivated by a desire to pass the farm to his children but it was not part of Domenico’s testamentary moral duty to provide for Andrew’s children.
178. [178]
     Further, Andrew’s desire to keep the farm is unrealistic.  The farm is not sufficiently profitable to support Andrew or to service any significant debt – having regard to the Administrator’s report and cash flow projections into 2021.  
179. [179]
     Referring to Mr Smith’s opinion that the farm is sufficiently profitable to service a loan of $520,000, the second applicant acknowledged that whilst perhaps in some years it has been – it is difficult to see, on the basis of the farm’s past earnings history and the cash flow projection for the next 12 months, that it could generate sufficient income to support Andrew and repay any significant amount of debt.
180. [180]
     The second applicant reminded me that the administrator will have no cash available to him after 2 November 2020 to meet estate expenses and, after January, there would be no farm income to replenish the cash available to him.  He would have to start selling estate property to raise money.  The NAB requires all sale proceeds be paid to it until its debt of $1.7 million has been repaid.  It is inevitable, or at least very likely, that the farm or part of it will have to be sold to put the administrator in funds to pay debts other than to the NAB.  (As I understand the evidence, the NAB loan can be repaid by the sale proceeds of all estate assets apart from the farm.  But the point the second applicant made is that the farm, or part of it, will need to be sold to pay other debts.)
181. [181]
     In terms of legal principles, the second applicant submitted that there is no presumption or general rule that a son who has worked on a family farm is entitled to inherit the farm.  Each case depends on its facts.  He submitted that much depends on the size of the estate, whether the farm is profitable and the testator’s obligations to his other children.  He referred me to Blair v Blair [2002] VSC 95 in which, at [74], Harper J said (my emphasis) –

It is a very human thing to derive pride from the fact that for generations the same property has remained within the same family.  It is likewise a natural human desire to pass that property from one generation to the next.  In ascertaining his or her moral duty, a testator might properly take such considerations into account.  But only to a point.  The duty towards a number of possible beneficiaries might be ascertained, and the boundaries of the duty as between each possible beneficiary might be set, after those considerations among many others have been placed in the scales.  Having weighed them all, it may nevertheless be that the duty can only be discharged if the property is sold.  If the deceased had responsibility to make adequate provision for a person’s proper maintenance and support, then that duty must be fulfilled.  It is no excuse that the duty was incompatible with the preservation of the family farm.

182. [182]
     Tino submitted that Andrew has been well remunerated for his work on the farm and his work in managing the commercial properties.  He noted that Andrew has lived rent-free on the farm since 1983.  Income generated by the farm and the commercial properties has paid for his private health insurance, fuel, phone, electricity and personal insurances in a total amount of $39,598 per annum.  Between 1983 and 2004, he was paid $1000 per week by way of tax-free drawings (well above the average income for males during that period) and from 2004, that has increased every year in accordance with the CPI.  As at 25 September 2020, he was drawing $1,428.14 per week and the administrator had determined to pay him $1,153.85 per week.  (Andrew’s position was that his drawings included an amount to cover certain expenses.  I have proceeded on that assumption, although the amount remaining after expenses was not made clear to me at the hearing.)
183. [183]
     Tino observed that Andrew asserted expenses which were not paid out of the farm or commercial properties of $42,302.  This amount includes (or probably includes) the expenses of his adult children – but Andrew’s position is that it is “inappropriate for [his] siblings to ask [him] to clarify whether [his] personal expenses include expenses for [his adult] children”. 
184. [184]
     Tino relied upon the evidence about the profitability of the cane farm since Domenico’s death, in support of his submission that Andrew’s proposal is unachievable.  Andrew himself deposed to the following profit or loss achieved or suffered by the farm from 2015 until 2019, which reflected an average annual loss of $1,396 for that period –

185. [185]
     The farm cash flow projection for October 2020 until September 2021 anticipates a loss of $41,775.  Even if that projection were calculated in accordance with Andrew’s more favourable approach to it, resulting in anticipated income of $78,716.00, that amount must cover tax and Andrew’s living expenses and there also ought to be an amount set aside for capital expenditure.  Andrew deposes to expenses of $81,900 per annum – clearly in excess of the cash flow on his own approach to its calculation.

Respondent/Estate’s submissions on the first stage

186. [186]
     The respondent argued that Andrew’s application ought to be dismissed for the following reasons –

1. (a)
   Andrew has failed to meet the threshold to enliven the jurisdiction of the Court.   If the net estate had been distributed in thirds upon the death of the deceased, the combination of Andrew’s one-third and his own assets would have left him in a net asset position of $2.42 million.
2. (b)
   There is no basis for elevating Domenico’s intention that Andrew retain the farm over his intention that his estate be distributed equally among his children.
3. (c)
   Andrew has always been properly remunerated for the work he performed on the farm.
4. (d)
   Andrew’s claim is not one based on promises made to him.
5. (e)
   The unviability of the farm (as an income generating operation) and the legal costs incurred as a result of the litigation are such that the farm must be sold to pay debts, whatever the outcome of this application might be.
6. (f)
   The explanation for Andrew bringing his application out of time is not satisfactory.  In any event, the Court would decline to extend time in this weak case.

187. [187]
     As to relevant principles in the case of family farms, the respondent referred me to Richards v Augustine & Anor [2012] QSC 46 at [98] – [99]; Roberts v Roberts (1992) 9 WAR 549 at 559; Blair v Blair [2002] VSC 95; and Re Flavel: Flavel v Flavel [2020] VSC 19 at [56] – [61].
188. [188]
     I have considered first Re Flavel, in which Cameron J discussed the correct approach in family provision matters generally, and in matters involving farms.  Her Honour said, at [51] (footnotes omitted, my emphasis) –

When deciding whether to make an order for family provision, the Court’s approach is to be careful and conservative, with deference to the terms of the testator’s will and their stated intentions.  Of course, the testator’s expressed intentions as contained in the will are but one of several factors for the Court to take into account, the weight to be attached to such expressions will depend upon the specific circumstances of the particular case.

189. [189]
     Her Honour noted that, in cases where a farm which has been in a family for several generations is the principal asset of an estate, it is not uncommon for a testator to structure their will so that the farm may be kept in the family.  Her Honour then considered some authorities which provided useful guidance as to the Court’s consideration of the testator’s intention in such claims.
190. [190]
     Cameron J referred first to Young v Young (Supreme Court of Western Australia, Malcolm CJ, 26 April 1989).  In that case, the deceased’s son was left the farm in his mother’s will.  He had worked on the farm for some years for minimal remuneration, expecting to inherit it.  His sisters were left items of negligible value; a charge over the farm of $20,000 payable ten years after their mother’s death; and a right to reside on the farm free of charge. 
191. [191]
     Malcolm CJ dismissed the daughters’ application for further provision.  His Honour said, of the deceased’s intention to preserve the family farm, that he was satisfied on the evidence that –

… [I]t was very common in farming families to take the view that it was the moral duty of a testator or testatrix to discriminate between male and female children in certain circumstances.  Where the male had foregone wages, worked on the farm and help [sic] build it up in the expectation of inheritance and the female children were supported by the family through their education to the point where they were qualified to obtain employment which would enable them to live comfortably and independently of the farm, the moral duty was discharged by the male inheriting the farm.  This is such a case.  No doubt the situation would be different if a son left the farm to become a nuclear physicist and a daughter chose to remain on the farm and run it … Each of these cases is dependent on their own facts and circumstances. 

192. [192]
     The daughters were also unsuccessful on appeal in which Pidgeon J said (my emphasis) –

In my view a wise and just testator, who has as one of his assets a farm on which he has resided or occupied for the greater part of his life and personally conducted and which is subsequently conducted by one of his children, would wish to make provision to preserve that farm even if it gives a greater benefit to the beneficiary conducting the farm.  This would, a fortiori, be the position if the farm has been in the family for a number of generations.

It would still be necessary to make proper provision for other members of the family.  This is often achieved by making provision that there be annuities charged on the family property or legacies payable, either immediately, or charged on the farming property and paid over a period.  As the trial judge pointed out this is not a question of sexual discrimination.  The appropriate provision may be made in favour of a daughter conducting the farm.  His Honour said he was satisfied on the evidence before him that it was very common in farming families to take the view that it was the moral duty of a testator, in certain circumstances, and in the circumstances that were before him, to discriminate in favour of the person carrying on the farm.  I would consider that this is a fact known to the court and would not necessarily have to be established by the evidence. 

193. [193]
     Cameron J noted that Pidgeon J’s observations in Young v Young were repeated by his Honour in Roberts v Roberts.  The facts of Roberts v Roberts are complicated.  Put simply, the deceased farmer died intestate.  He had two sons and seven daughters.  All of his children left school at about 15.  None was tertiary educated. 
194. [194]
     The sons worked the farm with him.  They were not in receipt of a regular wage and had to supplement their income by other casual work and certain Commonwealth grants.  Though, with the assistance of their father, they had personally accumulated assets which were worth over $110,000 at the date of their father’s death.
195. [195]
     None of the daughters was well off and some were badly off.  
196. [196]
     The sons, and four of the daughters, applied for further provision from their father’s estate than that which they would have received on intestacy.  The sons sought provision which would put them in a position to be able to buy their own farms.
197. [197]
     In deciding that the intestacy distribution did not provide adequate provision for the sons, the Commissioner at first instance relied upon the following facts (none of which were challenged on appeal) –

• The sons were trained by their father to be farmers.  They commenced working on the farm when they were 15 and 16 years old.
• Before their marriages, they were paid almost nothing, although they were provided with board and lodgings.  Even after their marriages, they were paid relatively low wages.  They did though receive reward for their labour by way of an interest in various farming assets which they acquired with their father.
• After their father suffered his first heart attack, they did all the heavy work on the farm, although their father “[held] the purse strings”.
• By their efforts, the sons increased the value of their father’s estate.
• The sons were encouraged to work on the farm by the promise of their father that they would each receive a farm.
• If the sons were to be able to continue farming, an occupation into which they had been led by their father, they would need a reasonable capital base to do so.

198. [198]
     The Commissioner was of the view that had the father ensured (by his will) that each of his sons was able to purchase a farm, he would have failed to discharge his responsibilities to the rest of his family.  However, the father ought to have ensured his sons were able to purchase a farm without acquiring too much debt.  The Commissioner recognised the “understandable desire” of the sons to each own a farm, but considered that if their aspiration was met, then their sisters would be deprived of the assistance they might otherwise legitimately expect from the estate of their parents.  However, because the sons’ work contributed to their father’s estate, special provision ought to have been made for them. 
199. [199]
     The sons unsuccessfully appealed from the Commissioner’s decision, arguing that the Commissioner had failed to give due weight to their moral claims on their father’s estate and had given too much weight to their sisters’ claims – including because of the sisters’ lack of contribution to the estate.
200. [200]
     Pidgeon J noted that it was not suggested that the jurisdictional threshold had not been met.  Adequate provision had not been made for any of the applicants.  The question on appeal was therefore the manner in which the Court’s discretion ought to have been exercised. 
201. [201]
     In dismissing the appeal, Pidgeon J said that a farm is not to be awarded to a son, to the exclusion of other children with legitimate competing interests, and sons of farming families do not have a right to inherit the farm to the exclusion of their sisters if proper provision has not been made for the sisters.^[17]  Pidgeon J held that the Commissioner’s views were open and that he did not misapply relevant principle.  
202. [202]
     Cameron J observed that Roberts v Roberts had been applied in Victoria in Blair v Blair [2002] VSC 95.  The deceased in Blair v Blair had two sons: one (the plaintiff), who had assisted on the farm from time to time, who was bequeathed 20 per cent of the estate; and the other (the defendant), who had lived and worked on the farm more consistently, who was bequeathed the balance of the estate which included the farm.  
203. [203]
     In allowing the plaintiff’s application for further provision and granting the plaintiff a small increase, Harper J, who was concerned about the balance between testamentary freedom and moral duty, said (at [71]) (my emphasis) –

It is in these circumstances not surprising that the effect of [the deceased’s] will is to leave the farm to [the defendant].  In my opinion, this reflected his testamentary wishes.  That being so, I have no jurisdiction to interfere with them unless I am satisfied on the balance of probabilities that their fulfilment would amount to an abuse of [the deceased’s] freedom of testamentary disposition.  Such an abuse will arise if by leaving the farm to [the defendant], [the deceased] was in breach of his moral duty to [the plaintiff].  Once such a breach is established, however, [the plaintiff] is entitled to such amount as is adequate to provide for his proper maintenance and support.  If that amount cannot be provided without selling the whole or part of [the deceased’s] interest in [the farm], then so much must be sold as is required to remedy the breach.  [The deceased’s] wish that [the defendant] have the farm as the third generation of the family to run [the farm] must in those circumstances yield to [the plaintiff’s] entitlement.

204. [204]
     Cameron J also repeated Harper J’s observations at [74], set out above at [181]. 
205. [205]
     Harper J ordered a modest increase in provision to the plaintiff, recognising that the defendant had, throughout the deceased’s lifetime, benefited from his joint use of the farmland from the deceased.
206. [206]
     Upon her Honour’s consideration of the authorities mentioned above, Cameron J concluded (at [62]) that “although the testator’s intention to maintain the family farm may be a relevant consideration, that intention is not paramount and will not preclude further provision where the testator’s moral duty has not otherwise been fulfilled”. 
207. [207]
     In the application before her Honour, which was brought by three of the deceased’s four children, Cameron J concluded that each applicant’s needs exceeded the provision made for them in their father’s will.  Her Honour made further provision for each of them, on the basis of detailed evidence as to their needs.  That further provision had to come from the deceased’s fourth child’s entitlement under the will (originally 89.5 per cent of the estate), which included the farm, by way of a charge against it. 
208. [208]
     Richards v Augustine and Anor involved a daughter’s (Carol’s) claim for further provision from her father’s estate.  The deceased had four children, Carol and her sister, and two sons.  The respondents to Carol’s application were her two brothers.
209. [209]
     Their father left his land and cattle brand to his sons and legacies of $45,000 to his daughters, with the residue of the estate to be divided equally between the four children.  The reason why the deceased chose to leave his land to his sons was that his daughters “were not Augustines”. 
210. [210]
     Having been satisfied that Carol had demonstrated need, Peter Lyons J was of the view that the deceased had not given the consideration of a wise and just testator to the competing claims of his children.  He ordered further provision from the estate for Carol.
211. [211]
     In the course of that matter, Peter Lyons J was referred by the parties to family farm cases, the effect of which were, in his Honour’s view, correctly expressed in de Groot and Nickel, Family Provision in Australia, LexisNexis Butterworths, 3^rd ed, 2007 at para 3.3 (my emphasis) –

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.  In proper circumstances, provision can be made by way of annuities or legacies charged on the property, or a legacy payable immediately, none of which threaten its viability.

212. [212]
     The estate submitted that Andrew had not provided sufficient evidence of his need for further provision to enliven the court’s jurisdiction.  He was required to demonstrate that the benefit he was to receive under the will was inadequate for his proper maintenance and support – but he had not done so.  He had not detailed his needs, nor had he explained how further provision from the estate would meet his needs. 
213. [213]
     Relying on Slack v Rogan (2013) 85 NSWLR 253 at [127], the estate submitted that, as a capable testator, the deceased was in a better position than the court to determine what provision would be adequate for the proper maintenance and advancement in life of his children and considerable weight ought to be given to his testamentary wishes. 
214. [214]
     I pause here to consider that paragraph from Slack v Rogan in full context.  The applicant in that case was the deceased’s foster child, who had been left nothing in her will and whose financial position was precarious.  In deciding that it was appropriate to order further provision in favour of the applicant in an amount which would “discharge his debts and provide a buffer for his contingencies”, White J said (my emphasis) -

126. [126]
     The question of whether the provision, if any, made for an eligible applicant is adequate for his or her proper maintenance, education or advancement in life is to be assessed having regard to the facts and circumstances of each individual case.  The assessment involves a broad evaluative judgment which is not to be constrained by preconceptions and predispositions: Bladwell v Davis.  This really means that there are no definite criteria for the exercise of the “evaluative judgment”.

127. [127]
     In my view, respect should be given to a capable testator’s judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act [NSW] interferes with the freedom of testamentary disposition.  Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life.  But it must be acknowledged that the evidence that can be presented after the testator’s death is necessarily inadequate.  Typically, as in this case, there can be no or only limited contradiction of the applicant’s evidence as to his or her relationship and dealings with the deceased.  The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive.  Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed …

215. [215]
     In Slack v Rogan, White J found that the deceased’s cognition was impaired at the time she made her will and she failed to acknowledge that the applicant was a proper object of her testamentary bounty. 
216. [216]
     Returning to the estate’s submissions, it referred to Andrew’s unwillingness to entertain any other means by which he might achieve his desire to remain living and working on the farm, such as by way of a share farming agreement with his siblings. 
217. [217]
     The estate also submitted that whilst the deceased clearly intended Andrew to receive the farm, he also clearly intended each of his children to receive an equal distribution from the estate.  That that was his long held intention may be inferred from the terms of his previous will and his equal treatment of his children in the past.
218. [218]
     The deceased’s previous will was dated 10 November 1999.  It bequeathed the farm to Andrew and the other property to Annette and Tino but contained an “equalisation clause” in the following terms -

I FURTHER DIRECT that notwithstanding the preceding provisions of this my Will I DIRECT that my trustees shall as soon as practicable after my death cause a valuation to be made of all my assets comprising my estate and to ascertain as near as practicable the value of the individual devises and bequests made to each of my children as aforesaid at the date of my death and as ascertained by such valuation then the child or children receiving the greater value of my estate shall pay to the other or others of them such amount as such be required so that each of my said children shall receive an equal payment or value of my estate at the time of my death.  Any such inequality in value shall be paid by such child or children to the other or others of them within twelve months from the date of my death and the amount so owing shall constitute a charge on any real estate devised and bequeathed by me to the child owing such money to the other or others of them.  I FURTHER DIRECT that in calculating the value of my estate and the value thereof devised and bequeathed to each of my said children the amount of debt owing by me shall be deducted from the gross value of such estate and be shared equally by my said children. 

219. [219]
     I note that, in 1999 when that will was written, Andrew had been working the farm for more than 15 years – although Domenico had not yet handed over control of it to him.  Also, by 1999, Tino and Annette had finished their studies and embarked on their professional careers.
220. [220]
     It is worth comparing the equalisation clause from the 1999 will with the equalisation clauses in the 2010 will which read (my emphasis) –

8 I DECLARE that each devise or bequest referred to above is conditional upon:-

1. (a)
   the recipient accepting liability for an amount of debt or payment of an amount of money calculated in the manner set out in the next clause of my will; and

2. (b)
   my beneficiaries accepting that all moneys owed either to me or by me or them to any company, trust, partnership or other entity being forgiven and removed from the balance sheet of that entity as at the date of my death to the intent that any inequality in the capital or loan accounts of me and my children shall cease to exist as at the moment of my death and will be disregarded for the purposes of my estate.

9 I DIRECT that:-

1. (a)
   notwithstanding the preceding provisions of this my Will my trustees shall as soon as practicable after my death cause a valuation to be made by a Valuer appointed by my trustees or if they cannot agree upon one then a Valuer appointed by my Accountant of all assets comprising my estate to ascertain as near as practicable the value of the individual devises and bequests made to each of my said children.

2. (b)
   in carrying out the valuation, the valuer shall value all of the farming land as land for cane farming purposes only and shall ignore any other potential uses of that land (on the basis that while the land adjoins residential land and [sic] the likelihood of any realistic development of the land is negligible considering the amount of land under development in the district) and shall exclude any crops or plant and equipment passing under my Will;

3. (c)
   if upon receipt of the valuation any of my children are dissatisfied with the same he or she may at his or her expense obtain another valuation and the value to be placed on any item of property shall be the average of all valuations so obtained;

4. (d)
   if there shall be any inequality in the value of my estate so devised or bequeathed to each of my children as aforesaid at the date of my death as ascertained by that valuation then the child or children receiving the greater amount of my estate shall assume an appropriate amount of the debt owed by me or any company or entity in which I have an interest as director, shareholder, partner or trustee, and/or pay to the other or others of them such amount as shall be required so that each of my children receives an equal payment or value of my estate at the time of my death; and

5. (e)
   Any adjustment in value shall be paid by such child or children to the other or others of them within twelve (12) months from the date of my death and the amount so owing shall constitute a charge on any real estate devised and bequeathed by me to the child owing such money to the other or others of them.

221. [221]
     The estate also referred to the deceased’s wife’s will, which provided Andrew with a right of first refusal to operate the cane farm. 
222. [222]
     The estate observed that Andrew had been fairly remunerated for his work on the farm and that Annette and Tino had personally guaranteed loans to the value of $1.5 million over the years, to ensure the continuation of the farm.  But for those guarantees, the farm or at least parts of it would likely have been sold years ago. 

Consideration

223. [223]
     Andrew’s approach to this application was rigid. 
224. [224]
     Rather than identify his needs both in monetary (in terms of, for example, income needs or a provision for contingencies or the cost burden of his dependents) and non-monetary (such as, for example, the need for a house and an occupation) terms, his position was, in effect, that nothing less than his proposal would be adequate.
225. [225]
     Even if I thought that there was room to contemplate some increase in the provision for Andrew (and I am not saying here that I reached that conclusion), he did not produce evidence which would allow me to properly consider an alternative to his assertion that he ought to be permitted to inherit the farm upon the payment of $520,000 to the estate.

Adequate provision?

226. [226]
     I remind myself of the principles which must guide my approach in this matter, which I summarised in Niebour-Pott.  They include that a court is not to intervene merely because it thinks it would have been good, fair or more equal for the testator to have benefitted the applicant in a certain way.  The consideration of whether adequate provision has been made for an applicant must show due regard for freedom of testamentary disposition.  A person has a right to dispose of their property by will as they see fit and a court will only interfere if a testator has abused that right.  Considerable weight must be given to the testamentary wishes of a capable testator.
227. [227]
     At the first stage of the inquiry, a court must consider an applicant’s “need” for maintenance, education and advancement in life.  “Need” is a relative and an elusive concept.  The question of need must not be too narrowly focused.  It must consider matters such as present and future needs, including the need to guard against unforeseen contingencies.  “Need” is a flexible word which means more than “want” but falls far short of “cannot survive without”.  
228. [228]
     “Need” is to be assessed in light of all of the circumstances.  It is not a case of looking in isolation at the value of the assets which the applicant has and deciding whether the person has enough to get by on, comfortably or otherwise.  The applicant’s assets and income are just two of the factors to consider in determining whether adequate provision has been made.  The inquiry is not confined to the material circumstances of the applicant.
229. [229]
     The legislation does not authorise a redistribution of the estate according to indeterminate and unreliable concepts such as fairness or equality.  The court is not to endeavour to achieve an overall fair disposition of the deceased’s estate or some kind of equity between the claimants.  The court’s role is not to address the sense of wrong felt by an applicant.  Having said that, the statute is to be given full operation, according to its terms, even though it encroaches on testamentary freedom. 
230. [230]
     Whilst the farm is a significant asset of the estate, I infer that Domenico’s attachment to it was not as deep as seen in other cases (for example, Richards v Augustine & Anor).  The farm was one asset in a deliberately diversified portfolio of assets.  I infer that Domenico was comfortable selling off parts of it for residential development on two occasions.  He was astute to the need to acquire income earning properties of other kinds to ensure continuous positive cash flow across all of his entities.  Any personal attachment he had to the farm was not such as to prevent his regular travel to Holland.
231. [231]
     That is not to say that I do not infer that Domenico wished his farm to pass to Andrew.  I infer that he did but only if that could be done in such a way as to ensure equality between his three children.  In my view, the wording of Domenico’s will makes it plain that his priority was equality of distribution.  Under the will, Andrew’s inheritance of the farm is conditional upon his agreeing to equalise the distribution with his siblings.
232. [232]
     I consider it appropriate to approach this case from a position which pays due respect to Domenico's desire that his children be treated equally under his will (Re Flavel; Blair v Blair; Slack v Rogan).
233. [233]
     I consider that to be especially appropriate when Domenico’s desire to so treat his children was expressed at a time at which he had an understanding of their various positions in life (that is, in 2010).  And especially so when that desire had been long held (c.f. his 1999 will and the equal gifts to his children throughout his lifetime).
234. [234]
     In my view, given the size of Domenico’s net estate, his clear testamentary intention that his children were to benefit equally under his will, does not, on its face, reflect a failing in his moral duty to any of his children.   
235. [235]
     In the face of his capable father’s clear testamentary intention, and the fact that Andrew would apparently have been left in a relatively comfortable financial position (that is, a position that did not “sound like” there was a need) had the estate been distributed in thirds in accordance with the will, Andrew assumed a heavy evidential burden to persuade the Court that his father had failed in his moral duty to him and that his needs exceeded the provision made for him in the will. 
236. [236]
     In my view, he did not discharge that burden. 
237. [237]
     I accept that Andrew has an attachment to the farm and a desire to remain living and working on it, with his sons, into the future.  And I accept that such a desire is relevant to his needs.  But he produced very little evidence to establish that his needs would not be provided for by anything less than his proposal, which would see him with the lion’s share (80 per cent or more) of his father’s estate. 
238. [238]
     Indeed, I am concerned on the evidence that his proposal would leave him in a perilous financial state and in no way provide him with adequate provision while the property remained in specie.  Without the income of the commercial properties available to him, it is difficult to see how he would be able to meet his expenses year in and year out – especially while carrying a debt of $520,000.
239. [239]
     Andrew may be forgiven for expressing his arguments in the emotive language of “unfairness” and “desperation”.  I have no doubt that he expected to inherit the farm and that he struggles to imagine a life other than the life he has lived for many years.  I acknowledge too that needs ought not only to be evaluated in financial terms.  But it is not enough to cry “unfair” or to point to the personally disappointing consequences of the administration of the will in accordance with its terms.  Before a court may interfere with a will, there must be evidence of need, albeit including, I acknowledge, in an intangible sense, and evidence to establish the inadequacy of the intended provision.
240. [240]
     In terms of his moral claim, I accept, of course, that Andrew worked on the farm for decades.  But he lived rent free and was paid for his work.  Indeed, the evidence suggests that the source of his drawings included rent from the commercial properties.  In other words, the farm did not general enough net income to sustain him.
241. [241]
     There was no evidence placed before me to suggest that Andrew was paid less than a farm worker or manager and in that sense that he achieved cost savings for the farm.  Nor was there any real attempt made to persuade me that Andrew contributed substantially more than a paid worker or manager to the farm would have contributed – if indeed that was the case. 
242. [242]
     I acknowledge that Andrew was able to put his diesel fitting skills to use on the farm but I have no sense, on the evidence, of the scale of his additional contribution in that regard. 
243. [243]
     Nor was there any evidence presented that he contributed to the building up of the asset.  His evidence seemed to be to the effect that he ran the farm like his father ran it.  There was, for example, no evidence placed before me that under his stewardship the farm’s profitability improved.  Indeed, the evidence persuaded me that the farm was propped up by the income earnt by other assets – at least in the recent past.  That is not to say that that was Andrew’s fault.  Farming is subject to the vagaries of weather and markets.
244. [244]
     In his affidavit of 11 December 2019, Andrew says that his parents were aware of the fluctuations in the sugar market over time and, for that reason, they diversified “into different forms of income and investment, such as holding both farming properties and commercial properties”.  He continued (at [6.10]) –

The initial success of the farming properties allowed for my parents to diversity their portfolio, which they did by borrowing against the farms for the purchase of the commercial properties.  The farms have continued to contribute their income to the family entities to allow my parents to operate the entities as a whole.

245. [245]
     Thus, the significant decisions, which have contributed to the value of the estate, were Domenico’s and his wife’s (c.f. Fellows v Patterson). 
246. [246]
     Further, on the evidence, I have no real sense of the time Andrew put into the commercial properties.  He deposes to managing the commercial properties “along with Elders Real Estate”.  In terms of his commitment to his management of the commercial properties, he says, “Since I began managing the commercial properties, I have approved every request which has been made by Elders Real Estate”.  This suggests (unsurprisingly) that Elders assumed the role of property manager under, in effect, instruction from Andrew.  I note the evidence of Andrew’s dissatisfaction with Elders in 2019 – but his desire then was to engage an alternative agent.  He did not suggest taking on the role of property manager himself.
247. [247]
     Although Andrew was based in Ayr, and his siblings were not, I do not find that he cared most for his father.  I find that they at least cared equally for him.  Indeed, the evidence tendered by Annette demonstrated the time and effort she alone put in to ensuring her father was well cared for, particularly after his return from Holland in 2013.  The exhibits attached to her affidavit revealed that she invited ideas from her brothers about their father’s care.  It was not suggested to her that Andrew had contributed in any way to the arrangements she put in place for her father.
248. [248]
     I do not accept that Andrew has “given all [his] adult life to the farms and running warehouses for almost no financial return and a simple lifestyle”, as he stated in his affidavit sworn on 10 June 2019.  His suggestion that he worked for almost no financial return ignores his asset position (c.f. Hughes; Young v Young; see also Roberts v Roberts).
249. [249]
     Andrew asserts that whilst he received benefits from the farm those benefits “in no way” compare to what he could have earned had he worked in the mining industry as a diesel fitter.  I am prepared to accept, on the strength of Andrew’s hearsay assertion, that the average salary of experienced diesel fitters is (I assume currently) between $100,000 and $120,000, without overtime.  I am also prepared to accept that mining companies offer diesel fitters even higher salaries.  But while that might be the position currently, the evidence presented included no information about how the salaries of diesel fitters compared to a male’s average weekly earnings before the mining boom or the demand for diesel fitters more generally.  Nor does that comparison take into account the tax on a diesel mechanic’s income; the cost of a home (to rent or buy); Andrew’s expenses which have been met by the business for many years; or the complications of fly in/fly out mine work for a father with primary responsibility for four children. 
250. [250]
     Andrew repeatedly asserted that if further provision were not made for him, he would be stripped of his home and his livelihood.  But that assertion did not grapple with the fact that he would have received more than $1.2 million from his father’s estate which might reasonably be expected to cover the cost of a home and leave a surplus.  Nor did it address his age – close to 60 – and his intentions when it came to retirement, particularly in the light of his evidence about his medical conditions. 
251. [251]
     I infer that Andrew would struggle to find work other than farm work, particularly given his age; and that if he desired to work into his sixties and beyond, his work options might be limited to self-employment on his own farm.  However, while Andrew asserted that a small farm would not generate sufficient income for him to live on, there was very little attempt to support such a proposition by reference to figures.  I appreciate that the farm provides a place of employment for two of Andrew’s children.  But the evidence did not explain why he and his sons could not efficiently run a smaller farm, perhaps with different crop and, importantly, no debt. 
252. [252]
     Nor did Andrew attempt to satisfy me that the only way to achieve adequate provision (in terms of an income and residence) was as he proposed, involving the farm in specie.  For example, he did not attempt to satisfy me that provision of, say, $2 million, was inadequate. 
253. [253]
     Overall, Andrew did not produce sufficient evidence to persuade me that his needs exceeded the provision made for him in Domenico’s will.

Ability to repay $520,000

254. [254]
     Another difficulty for Andrew was the quality of the evidence upon which he relied to establish that he would be able to meet a debt of $520,000 were I to make the orders he sought.  I infer that he appreciated that the court would not contemplate an order which simply gave him the farm debt free, because of the burden that would place on his siblings.
255. [255]
     It is therefore – obviously – critical to the success of Andrew’s application that the court be satisfied that he is in a position to pay $520,000 to the estate on the basis that he would be able to borrow that amount (over 15 years).
256. [256]
     In my view, the evidence presented on this issue by Andrew (Mr Smith’s evidence) was completely inadequate.  It was hearsay (in effect, “the mortgage broker told me …”) upon vague hearsay (after I told him to assume “strong” security and a “reasonably assured cash flow”).  Or it was opinions offered about rural lenders, on the run, in cross-examination or re-examination without appreciating all of the facts (such as the use of the farm as security for the NAB loan).
257. [257]
     With respect, the suggestion that no better evidence was available (than that given by Mr Smith) because, until a loan application is made one is “dealing with the abstract” (see the exchange at T2-81) overlooks the fact that experts are routinely (and properly) asked to assume facts which, from the expert’s perspective, are hypothetical. 
258. [258]
     It is, in my view, reasonable to assume that the mortgage broker to whom Mr Smith spoke, or a representative of one of the banks mentioned late in Mr Smith’s testimony, or any other rural lending expert could have been asked –

• to nominate the matters relevant to a decision to grant a loan or not, in the present circumstances, which were likely to include cash flows and the farm’s valuation – but which may have included other matters;
• to assume certain things about those relevant matters (which would ultimately need to be proven in evidence);

and from there,

• to offer an opinion as to whether a lending institution or their lending institution would be prepared to lend Andrew $520,000.

259. [259]
     That was not done.
260. [260]
     The hearsay evidence presented did not persuade me that Andrew would be able to raise $520,000 on the security of the farm.  Nor did it persuade me that the farm would be able to service such a debt. Further, Andrew’s vague evidence about cutting costs to make repayments if he needed to was unsatisfactory. He had no idea of the cost of repayments on a loan of $520,000.

Conclusion and orders

261. [261]
     Domenico’s overarching desire was for all of his children to ultimately benefit equally from the financial decisions he made throughout his lifetime.
262. [262]
     Implementing his testamentary intentions would have left each of his children with a provision which, on its face, did not suggest inadequacy or a failing of moral duty. However, I acknowledge that an equal distribution had consequences for Andrew which required careful consideration. 
263. [263]
     Andrew’s position was that adequate provision could only be achieved by way of his proposal.  I am not persuaded of that on the evidence.  Andrew’s position was an inflexible one.  Perhaps for that reason, but regardless of the reason, the evidence presented by him did not allow me to reliably evaluate his “need” – financial and intangible – so as to determine whether further provision (falling short of his stated position) was necessary.
264. [264]
     Even if I were to extend time, Andrew could not satisfy the evidential burden he carried in this matter.  I therefore dismiss his application.  It follows that Tino’s application also is dismissed.