HOLCOMBE v HOLCOMBE

(2) Status of a person whom will be regarded as a "natural object of testamentary recognition" is determined by circumstances in which a moral duty may arise between the testator and alleged eligible claimant.

Gleeson CJ. I will ask Meagher JA to give the leading judgment.

Meagher JA. This appeal is an appeal by the second wife of the deceased for an order for her maintenance and advancement. She was unsuccessful in making such a claim before Master Windeyer. The claim she makes is under the Family Provision Act, 1982. To have an order made in her favour she first must demonstrate that there are factors which warrant the making of the application: s 9(1).

The respondent is the deceased's third wife and his widow. Under the deceased's will his entire estate was left to his widow. The appellant is forty-three years old, highly intelligent, well qualified, able to work and in fact working. The respondent is a sixty-six year old Czechoslovakian with no adequate command of English and with no current occupation.

The appellant's net assets at the time of the application before Master Windeyer were at least $120,000.00. The assets of the respondent at the time of her marriage to the deceased were virtually nil. A condition of her leaving Czechoslovakia was that she renounced all proprietary rights she might have in that country. She also, of course, in a geographical sense renounced the company of her children.

The deceased married the appellant in December 1976 and was divorced from her in December 1985. The respondent married the deceased in 1986 and the deceased died in 1987.

Where a married man of modest means in his will leaves all his estate to his widow it would, in my view, require very singular circumstances to upset his testamentary dispositions. In the present case the deceased's means were modest.

He was no pauper, but the net value of his estate at the time he made his will seems to have been about $176,000.00 with a notional estate of $127,000.00. In the present case I see no singular circumstances which would require a Court to find the existence of factors which justify the making of the application.

The matter was heard by Master Windeyer who gave the most careful and detailed consideration to all aspects of it. It is conceded that the Master did not make any error of law; in my view, he did not make any error of fact. I am perfectly content to adopt the learned Master's reasons as the reasons of this Court andI would propose that the present appeal be dismissed with costs for the reasons given by the Master.

Gleeson CJ. I agree with the orders proposed by Meagher JA and with his Honour's reasons for those orders. I would add only a few brief observations of my own.

The testator, whose means have been referred to by Meagher JA, left his whole estate to his widow. The appellant was the second wife of the testator and her marriage to the testator had been dissolved. That marriage was childless. The threshold question which Master Windeyer had to address was whether there were in this case factors which gave the appellant the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased (re Fulop (deceased), (1987) 8 NSWLR 697 at 681). To that question the relatively modest size of the deceased's estate and his obvious moral obligation to his widow are relevant.

In Churton v Christian (1988) 13 NSWLR 241 at 243-244 Mahoney JA said:

By legislation of this kind, the legislature takes power to deal with a person's property, not as he or she would wish to deal with it, but because the legislature, through those it empowers, thinks that he or she should have dealt with it differently. It has taken this power not simply because the persons who may apply under the Act are without proper means: the justification is that the deceased owed a duty to the applicant, and that duty involved that the deceased should have dealt with his propertydifferently, and the failure of duty is to be rectified.

As the cases have shown from the commencement of the history of this legislation, this duty is a moral duty.

The circumstances in which there may be a moral duty upon a testator, who is survived by a widow, to make provision for a former wife, are considered by Young J in O'Shaughnessy v Mantle (1986) 7 NSWLR 142 at 147-148. The circumstances of human relationships are infinitely various and the list given by Young J is not exhaustive, but it is a useful indication of the type of case in which an application by an ex-wife might succeed.

The threshold question in the present case was answered by Master Windeyer in the negative. The Master was not satisfied that there were facts that gave the appellant the status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased. I agree.

At the very least, this was a discretionary decision well open to the Master. His decision was not affected by any error of fact or principle and there is no occasion for appellate intervention.

Handley JA. I agree with both of the previous judgments. In my opinion, the appellant has failed to establish the existence of any error which vitiated the Master's discretionary decision under s 7 and 9 of theFamily Provision Act. In particular, in my opinion, the Master's decision under s 9 has not been shown to

be erroneous by the criteria referred to as long ago as 1936 in House v R (1936) 55 CLR 499. Indeed, in my opinion, the decision of the learned Master was correct.

Gleeson CJ. The order of the Court is that the appeal will be dismissed with costs.

(1) Appeal dismissed with costs. Counsel for the appellant: L J ELLISON/M MACROSSAN Solicitors for the appellant: SA TEEN Counsel for the respondent: J J FERNON Solicitors for the respondent: WAKELING and NOWACKI