Dun v Dun

The application came on to be heard before Roper C.J. in Eq. on 15th and 16th August 1956 when his Honour reserved judgment. He delivered judgment on 30th August 1956. Judgment had been delivered by this Court in Coates v. National Trustees Executors & Agency Co. Ltd. [1] on 6th June 1956 but that decision was not brought to his Honour's notice. This was unfortunate because the question whether the crucial date for determining whether the applicant has been left without adequate provision for his or her proper maintenance is the date of the death of the testator or is the date when the application comes on to be heard which was so strenuously argued before his Honour had already been decided in favour of the former date by this Court in Coates's Case [1] . Unaided by that decision his Honour naturally decided to follow the decision of Harvey C.J. in Eq. Re R. A. Forsaith (Dec'd.) [2] , in favour of the latter date a decision which had stood in New South Wales for thirty years and must be presumed to have been within the knowledge of the New South Wales legislature when it authorised the court to extend the time for making an application under the Act. In the course of his reasons his Honour said "I think it is clear that had the widow brought an application under the Testator's Family Maintenance Act within twelve months of the grant of probate in his estate, and had that been heard within the normal reasonable time thereafter, her application must have failed, whether the time for considering the circumstances had been taken as the date of death or as the date of the hearing of the application. At the present time, however, the circumstances relating to the application are essentially different. It is notorious that the cost of living has soared, and the annuity provision in her favour has decreased in value very significantly. On the other hand, the value of the estate, which has remained undistributed, has increased vastly, partly by the accumulation of large profits, particularly from the farming property, and partly by the fact that the farming property itself has been sold and yielded a much higher figure than its probate valuation." Having discovered the existence of Coates's Case [1] soon after his Honour had delivered judgment the executors promptly appealed to this Court. Naturally they contend on the one hand that his Honour's order, founded as it is on Re R. A. Forsaith (Dec'd.) [2] , and therefore made on the basis that the question whether the applicant has been left without adequate provision for her proper maintenance should be decided in the light of the size of the testator's estate and of her financial position in August 1956 cannot stand, and on the other hand rely on his Honour's statement that if it had been brought within twelve months of the grant of probate her application must have failed. That statement is entitled to the greatest respect. But it was made at a time when his Honour considered that he was free to decide whether the widow had been left without adequate provision for her proper maintenance in the light of all the circumstances that existed in August 1956. His Honour therefore was never forced to decide this problem in the light of the circumstances existing at the date of the death of the testator. I can only express my misgivings as to the correctness of the decision in Coates's Case [1] , particularly in a State like New South Wales where an application can now be made with the leave of the Court at any point of time prior to the distribution of the estate and where the scope of the Testator's Family Maintenance Act has been extended to cover intestacy. But I am bound by the decision of the majority in that case and I must dispose of the appeal accordingly. That case decides that the date of death is the crucial date for determining whether the applicant has been left by a testator without adequate provision for his or her proper maintenance, education and advancement in life. In order to decide this question the Court must put itself in the position of the testator immediately before his death and consider what he should have done in all the circumstances of the case, treating the testator for that purpose as a wise and just rather than a fond and foolish husband or father. In Coates's Case [1] the Chief Justice said: "But it is important to see what exactly is involved in that interpretation. It means that the court determining the application must look at the will which the testator leaves and the dispositions if any which it contains in favour of his widow or children as the case may be and consider whether they amounted to an adequate provision for her or their proper maintenance and support. But the very question what is proper maintenance and support involves the future of the widow or children to be maintained or supported. It is, however, the future stretching forward from the date of the testator's death and therefore considered as from that date. It involves what is necessary or appropriate prospectively from that time. To determine that question contingent events must be taken into account as well as what may be considered certain or exceedingly likely to happen. When a court is called upon to consider such a question many years after the date as at which the court must take its stand, all the advantage is available of knowing the events that have occurred. The intervening events may be taken into consideration because they suggest or tend to show what antecedently might have been expected. But they must not be outside the range of reasonable foresight. If all contingencies that might reasonably have been anticipated have been taken into account, it would be difficult to say that the actual occurrence of some event which antecedently no one could reasonably have foreseen shows that the maintenance or support was not proper or the provision therefor was not adequate. It is therefore impossible to treat actual intermediate occurrences as more than evidentiary facts. The ultimate question must remain one of adequate provision for proper maintenance and support as at the date of the testator's death" [2] . His Honour added "But it would not be a proper exercise of discretion if the facts as they exist at the time the order is made were left out of account. If a child, through some accession of fortune, had ceased before the hearing of the application to require any further provision for his maintenance or support it would not be a proper exercise of discretion to make an order in his favour on the ground that it was only after his father's death that his needs were thus met. It is not a discretion to give more than what is adequate for proper maintenance in the circumstances as they have come to exist. On the other hand it is not a discretion to make a provision for proper maintenance and support which exceeds any provision that the foresight, wisdom, and fairness of a reasonable man in the testator's situation would have led him to make for the proper maintenance and support of the widow or child applying" [1] . From these passages it is apparent that the Court, in order to decide whether a testator has fulfilled his moral duty to make adequate provision for the proper maintenance of his widow and children, is entitled to attribute to him a high degree of foreseeable prescience. Every future event intervening between the date of death and the date the application is heard can be taken into account provided it is not outside the range of reasonable foresight.