Pontifical Society; jurisdictional question; adult son

Dixon C.J. with whom McTiernan J agreed

Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1962/19.html?context=1;query=scales;mask_path=au/cases/cth/HCA

Facts at [4]
...The respondent��Scales�had made no great savings but an uncle on his father's side had left him a legacy and they had been able to purchase a home, subject to a mortgage, and a motor car. (at p18)

Headnote
...adult son fifty years of age and in good financial circumstances - Testator separated permanently from wife and son when son four years of age - No communication with them afterwards except by sending or causing to be sent to wife small monthly payments - Son having no recollection of father - No attempt by son to get in touch with him - Son helping to support his mother for eighteen years - Testator leaving a substantial estate - No provision for son in his will - Provision therein for payment to his widow of monthly sum for life - Residue of estate given to ten named charities

5 ...legislation of Queensland upon the subject is to the same effect as that of other States. It speaks of "adequate provision for the proper maintenance and support" of the wife, husband or children and, like the Victorian legislation, does not employ also the words "education or advancement in life" as does the statute in New South Wales, but that is not a matter of any importance, at all events in the present case. [CF section 6 of WA Act includes these words]
...The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. It seems certain that if at any time they had been brought face to face the son would not have known his father and the father would not have known the son. The mother may have been wrong in discouraging her son from getting in touch with the testator, as he says she did. Doubtless some reason lay under the feeling he ascribed to his mother that "it might cause trouble if he chased after him". But the result of that and of the testator's attitude was that neither would know the other or have any direct knowledge concerning him. In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator's death. (at p18)

6. 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. An observer of the course of development in the administration in Australia of such statutory provisions might be tempted to think that, unchecked, that is likely to become the practical result. Perhaps this Court and other Courts of Appeal have attached too much significance to the discretionary aspects of orders under appeal and have accordingly allowed orders to stand which no member of the Court of Appeal would himself have made, had he sat at first instance. (at p19)

Adult son
7. In the present case the application for a provision for maintenance and support is by an adult son. In In re Sinnott�[1948] VicLawRp 48; (1948) VLR 279 in the course of what is perhaps the soundest and most illuminating of all the discussions of the statutory provisions, Fullagar J. remarked: "No special principle is to be applied in the case of an adult son. But the approach of the Court must be different. In the case of a widow or an infant child, the Court is dealing with one who is prima facie dependant on the testator and prima facie has a claim to be maintained and supported. But an adult son is, I think, prima facie able to 'maintain and support' himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act" . ..In the course of a well-known judgment Salmond J. in In re Allen dec'd. (1922) NZLR 218 said: "The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances (1922) NZLR, at p 220 ."