CTHHCA

Blore v Lang

[1960] HCA 73

High Court of Australia|1960-07-01|Before: Windeyer JJ, Myers J

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Source facts

Court

High Court of Australia

Decision date

1960-07-01

Before

Windeyer JJ, Myers J

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

High Court of Australia Dixon C.J. Fullagar, Kitto, Menzies and Windeyer JJ. Blore v Lang [1960] HCA 73

[2]

This is an appeal by an executor against an order made by Myers J. under the Testator's Family Maintenance and Guardianship of Infants Act, 1916-1954 ordering that the respondent do receive a legacy of £5,000 charged upon the whole estate of the testator, with a specific exception, and that the legacy should bear interest from the date of the order. Although it is an executor who appeals from the order the appeal involves only his own beneficial interests; for after the death of the testator and before the respondent commenced her application to the Supreme Court he acquired by purchase from the beneficiaries of the estate charged with the legacy, the whole of their beneficial interests therein. The appellant is the eldest of a family of eight children whom the testator left him surviving when he died on 14th January 1957 at the age of sixty-five years. The respondent is the second child and eldest daughter. No disposition in favour of either of them is contained in the will and codicil, which documents both bear the same date, namely 29th June 1955. The appellant by that time had made his way in life and for that reason and perhaps for the additional reason that his father had assisted him to the extent of £1,000 he may have been considered by the testator to need no further benefaction from him. But no such reason could apply to the respondent who, though married, apparently happily, to a husband employed on the staff of a well-known pastoral house at a remuneration adequate for the subordinate position he holds, possesses no means of her own and is entirely dependent on her husband's earnings, as also are her two children. She was on good terms with her father and no ground is disclosed or suggested by the evidence why her father omitted her from his testamentary dispositions. The testator was an illiterate man who had spent his life in the north-west of New South Wales where he held some 89,693 acres under Western Lands Leases and a little freehold. At the time of the respondent's birth the area held had been smaller. Her early life, in common with the rest of the family, had been a hard one and until she was eighteen years of age she contributed her share and more to the work of an outback homestead and an ever increasing family of brothers and sisters. At eighteen she went away to learn nursing but was intermittently recalled until in her twenty-sixth year she married. Her mother died in March 1948 but for nearly two years before her death the respondent and her husband lived and worked in the neighbourhood of the station. They moved to Swan Reach in South Australia where the testator came to stay with his daughter on five or six occasions.

[5]

Now the first question which s. 3 (1) of the Testator's Family Maintenance and Guardianship of Infants, Act 1916-1954 sets for the court is whether the testator disposed of his property, either wholly or partly by will in such a manner that his daughter, the respondent, was left without adequate provision for her proper maintenance education or advancement in life. It is upon the fulfilment of the condition expressed by these words that the authority of the court to intervene depends, its "jurisdiction" as it is commonly expressed with more respect for the language of Chancery tradition than for juristic theory. The nature and effect of the condition has of course been much examined judicially. It is settled that you look at the circumstances as they were at the time when the testator died and not at the time when the application is made to the court. But the contingencies which a testator ought reasonably to have foreseen are not to be left out of view: Dun v. Dun [1] . The words "advancement in life" have a wide meaning and application and there is nothing to confine the operation of the provision to an early period of life in the members of the family: McCosker v. McCosker [2] . But all the circumstances must be weighed and they include the size of the estate and the claims of the members of the testator's family and others upon his consideration. The section speaks of the testator's having left the applicant without adequate provision for her proper maintenance and advancement in life and in this the words "adequate provision" and "proper" must be given their full value. Cf. Bosch v. Perpetual Trustee Co. [3] . Some moral claim to which a wise and just testator might be expected to respond must exist, but it may arise out of relationship. Cf. In re Ruxton [1] , Fullagar J. "The Act is designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty" per Salmond J. in In re Allen (Dec'd.); Allen v. Manchester [1] , approved in Bosch's Case [2] .

[10]

Once it is decided that the case is one in which the Court may make an order providing for the applicant, the question what provision ought to be made depends on somewhat different considerations. For it must be determined according to the circumstances that obtain at the time the application is before the Court. In that it is unlike the former question. By the time the respondent's application was made the appellant had contracted to buy the shares of his four brothers and his sister but that does not seem to be a relevant matter except in so far if at all as it may evidence the real value of the testator's estate. Exactly why Myers J. fixed £5,000 as the amount of the legacy the respondent should receive is the subject of some dispute. Myers J. took the appellant as admitting in the witness box that, putting aside the house at Broken Hill, the estate was worth £30,000, but the transcript of the appellant's evidence does not seem to bear that construction. In stating the order he would make his Honour said this: "I cannot but feel that the testator did owe a moral duty to the applicant and a duty at least as great as the duty he owed to any of his children. In those circumstances it seems to me that the amount which he should have provided for her must be the same amount as he provided for his other children. I think if they are all to be regarded as equally entitled, she is equally entitled to share with them so that she should have taken a one-sixth share of her father's estate. Rather than make an order in that form which might cause some difficulties in view of the events that have happened, I think the proper order would be to give her a legacy equal to a one-sixth share. I therefore order that the applicant receive a legacy of £5,000 charged on the whole of the testator's estate except the real property in Broken Hill; such legacy to carry interest only from this day". In attacking this exercise of discretion the appellant contends that his Honour was mistaken in taking equality as a basis and erred in taking £30,000 as the net value of the estate - and further contended that, considered simply as a provision for the respondent, the amount is excessive. It is in this part of the case that the real difficulty lies. It seems fairly evident that the parties, perhaps because their attention was so absorbed in mutual personal controversy, never did bestow enough care in laying before the Court the materials for estimating the real value of the estate whether at death or at the time when the application came to be heard. It was thought enough, so it would seem, to state what values where submitted for death duty and categorically to restate those values. Perhaps in the exercise of this difficult jurisdiction of the Supreme Court some guess work is unavoidable, but to take measures to reduce that element and to enforce the tradition of ascertainment of facts secundum allegata et probata might be the proper course for this Court to adopt in its appellate jurisdiction. But when all is said and done we are dealing in this case with an appeal in adverse litigation between parties although it does arise in the probate jurisdiction. Ultimately the matter to be decided is whether £5,000 is too much. I do not think that in substance the discretion of Myers J. in fixing it was exercised by any arithmetical process. It was done by a consideration of the whole circumstances, though certainly including in the consideration a comparison with the position of other children. It is not a sum that strikes me as in itself too large if all the material before the court is collated and weighed. It may be unfortunate that in the events that have occurred since the testator's death the incidence must be upon the appellant, but that cannot affect the matter. In the end after a full consideration of the case I have come to the conclusion that it is not such a sum as to justify the interference of an appellate Court with the amount.

[13]

The deceased, who died in January 1957 aged sixty-five years, left surviving six sons and two daughters ranging from twenty-two to forty-one years of age. His wife had died in 1948. By his will made in June 1955, he appointed his eldest son, Matthew George, as executor and divided his estate - except the house in Broken Hill, which he devised elsewhere - in equal shares between four sons and one daughter. The applicant, the eldest daughter, then aged thirty-eight, was one of the children omitted from the will. Until she was eighteen she had lived on the station, sharing its work and its hardships. His Honour said that the family had had "to endure a life of great loneliness and hard labour, and even for a country like Australia, unusual hardship. I do not think that she" (i.e., the applicant) "can truthfully be said to have done any more than any other member of her family in the sense that during this period all the children did what they could to keep the property going and to look after their parents and each other, but being older she had to work harder and endure more than the younger children." In 1936 she left home to work in neighbouring towns and earn her own living. She married in 1944 and has two young children. Her health is not good, and during the past seven years she has been in hospital on no less than eight occasions. Her husband is a manager employed by Dalgety & Co. Ltd., first at Swan Reach in South Australia and now at Wilcannia, and his remuneration is about £1,500 a year. She and her husband have practically no assets. Her situation is no better than that of any of the beneficiaries and is worse than that of some. She was, it seems, always on good terms with her father, who in 1956 gave her £150 and a tea service. The deceased visited the applicant from time to time and last stayed with her in 1956. There is no explanation for her omission from the will. It may be added that there seems to be no explanation why a brother, Gerald, was also omitted, although there may have been some reason for the father's making no provision for his eldest son, Matthew George, who owned a neighbouring property, Lake Stewart Station. However that may be, the evidence disclosed no reason why it was that five children, and five children only, were selected as beneficiaries.

[15]

The provision which his Honour made for the applicant - viz., a legacy of £5,000 - was determined by reference to a series of transactions that took place in July 1957 when the executor, Matthew George, bought from each of the five beneficiaries his or her share of the estate for £6,000 - i.e., a total of £30,000. On the basis of these sales, his Honour fixed the net value of the estate, apart from the Broken Hill house, at £30,000. His Honour then considering that the applicant should have been a beneficiary equally with her four brothers and her sister, gave her one-sixth of the value of the estate - i.e., £5,000. Even if his Honour had been correct in concluding that the applicant was entitled to one-sixth of her father's net estate - and to this we shall return - we are not satisfied that the evidence as a whole justified the value of £30,000 which was adopted as the basis of calculation. From what we have said, it appears that the executor did in July 1957 pay a total of £30,000 for the assets of the estate less liabilities, but we do not regard those transactions as constituting a reliable guide to the value of the station property, stock and plant, either at the date when Matthew George made his purchases or at the time of the hearing of the applicant's application - and the latter is the date when, in an ordinary case, the value of the estate is to be ascertained: In re Borthwick; Borthwick v. Beauvais [1] , per Lord Greene M.R. [2] ; Coates v. National Trustees Executors and Agency Co. Ltd. [3] , per Kitto J. [1] . In December 1956 the deceased had agreed to sell "Whitta Brinnah" as a going concern to his son Francis for £30,000, of which £10,000 was to be paid to creditors and the balance, £20,000, at the rate of £1,500 a year without interest. Had this sale been carried out, the price of the assets less liabilities would have been £20,000. Moreover, after the death of the deceased, the branch manager for Dalgety & Co. Ltd. at Broken Hill valued the station, livestock, motor cars and vehicles and plant at about £30,000 for probate purposes, but the deceased had debts that can properly be described as station debts amounting to about £11,000. The bargain that Matthew George made really obliged him to pay nearly £45,000 for "Whitta Brinnah" as a going concern - i.e., debts (£11,000), duties and other liabilities (£3,700), and £30,000 to the beneficiaries. It is true that in ordinary circumstances such sales (even although, being sales to an executor, they might be expected to be at top prices) might be regarded as a safe guide to value - as his Honour did regard them - but it is apparent from the evidence that Matthew George himself and those conducting the case before Myers J. were under the impression that what Matthew George was paying was the same amount as that for which the deceased was prepared to sell, and his son Francis was prepared to buy, "Whitta Brinnah" as a going concern some six or seven months earlier. A misapprehension of this sort might not be regarded as having great significance if there were good reason for thinking that Matthew George fully appreciated the value of what he was buying, but the evidence points rather the other way. His evidence, with that of his brother Francis, suggests that he understood the latter's arrangement with the deceased and that he believed he was making an arrangement to the same effect with his brothers and sister who were beneficiaries. Like the rest of the family, Matthew George had little schooling - nine months at a convent in Wilcannia - and it is not difficult to see how the misapprehension might arise. We have already adverted to the fact that it was an error into which counsel who was crossexamining Matthew George, himself fell. We think, therefore, that upon the evidence as a whole it was wrong to make provision for the applicant on the footing that the net value of the deceased's estate without the Broken Hill house was £30,000. The provision of £5,000 could not, therefore, be sustained even upon the basis that the applicant was entitled to one-sixth of the net value of her father's estate.

[17]

However, in our opinion, this basis is itself wrong. The jurisdiction conferred by the Act is to interfere with the testator's dispositions when he has left a member of his family without adequate provision for his or her proper maintenance, etc., and the extent of the interference authorized is to order such provision as the court thinks fit for that persons's proper maintenance. Bad conduct or character may disentitle a member of the family to needed assistance, but good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the court. Nor, in a case where a testator has chosen to dispose of his estate according to his inclination, ought the generous treatment of a child who has no need of the testator's bounty be used to determine the provision to be made for a child whose need has been disregarded or overlooked. The measure to be applied is not what has been given to the one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case. The Testator's Family Maintenance Act is legislation for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of what may appear to the court to be a fair distribution of a deceased person's estate among the members of his family. As has been said in another context, the Act is to provide maintenance, not legacies. Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instance, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same. This is not such a case, and the provisions made by the will, as to some children at any rate, could not properly be regarded as provision for maintenance. The testator, independently of need, has chosen to confine his bounty to five of his children. There is, therefore, no justification for using the gifts so made as the measure of the provision to be made for one to whom nothing has been given, but who should receive something for her proper maintenance.

Blore v Lang - [1960] HCA 73 - HCA 1960 case summary — Zoe