Money in bank accounts $ 45,000
21 The properties of the appellant at Lewisham, and Darlinghurst and Athens provide the appellant's present income stream. Subject to allowable expenses, the local properties produced a net profit of $23,696 in 1997-1998. Currently the Sydney properties produce $665 per week for the appellant. Retention of these properties also offers the appellant capital growth, especially since they were acquired before the imposition of capital gains tax. To date the appellant has seen fit to retain them and, as indicated, he placed before the Court no evidence as to his income needs as regards his present or future living requirements. Nor was there any exploration of the impact of the appellant turning 65 in January 2000 as regards his own pension entitlements.
22 In 1979 the appellant and the deceased purchased an apartment in Athens in equal shares. Each contributed to its acquisition from their savings. The present value is $170,000. It has been rented for some time.
23 Not long before the deceased's death, the appellant drew sums totalling $30,000 from her bank account, thereby leaving little over $1,000 in that account. The appellant gave evidence that he did this with the authority of the deceased and that it represented proper reimbursement for expenses that he had incurred for the household. There was an issue about this at trial. It was also pointed out that the appellant has not paid any rent on account of his continuing residence in the deceased's unit since her death in 1997.
24 The rights and wrongs in relation to the matters referred to in the preceding paragraph were not the subject of clear findings at trial. What is clear is that the Master addressed the question of the appellant's present need for support from the estate on the basis that the appellant would retain the cash which he withdrew from the deceased's bank account during her final days and would not be required to account to the estate for the use or occupation of his long time family home, presumably up to the time when it is sold (as it would have to be if the order below stands). During the appeal the respondent informed the Court that the matter should continue to be addressed on this basis, at least unless and until the Court was minded to overturn the Master's decision.
25 The Act prohibits the Court from ordering provision out of an estate unless satisfied of various matters (s9(2)). The Master was not satisfied. There is necessarily an element of broad judgment involved in this and that explains why the High Court has endorsed the proposition that the principles governing appellate review of discretionary decisions apply.
26 On this basis we were not persuaded that the Master erred in his conclusion, especially bearing in mind the realisable assets available to the appellant, the likelihood that the arrangements under which the appellant lived with the deceased assisted him in building up his own assets, and the absence of evidence as to his present income and outgoings or his intentions or needs for the future (cf Singer at 213). The Master was also entitled to pay some regard to the competing claims of the Greek niece and nephew as he did. We would reject the appellant's submission that adequate provision by a deceased person requires the deceased to ensure that an eligible person must be provided for to such a level as would ensure that his or her available assets are not reduced in consequence of the death and that the eligible person should not be obliged to re-arrange or re-organise his or her available assets.
27 In many cases, adequate provision for a surviving spouse will require that the spouse continue to have access to the "matrimonial home". But this is not a universal proposition. The failure to make unit 10 available to the appellant absolutely (as submitted at trial and on appeal) or alternatively, for the appellant's lifetime (as submitted on appeal) does not constitute appealable error in the particular circumstances of this case. There was no evidence of special attachment to Unit 10. Unit 9 was available as was other accommodation that the appellant might decide to acquire or rent following the winding up of the affairs of the deceased.
28 In par 14 above we referred to an additional submission, to the effect that the Master made a particular factual error in the course of his judgment which affected his ultimate determination. In par 67 he said this:
It seems to me, however, that there is something strange, illogical, and even unreal, in a person who has assets totalling in value almost $900,000 claiming he has been left without adequate provision, to the extent that he must receive a further asset (being Unit 10) having a value of $210,000. That would mean that, in the event that the plaintiff were successful in his claim, he would then have assets totalling well in excess of $1,100,000. It is all very well for Counsel for the plaintiff to say that if it became necessary for the plaintiff (as was suggested on behalf of the defendant) to move into Unit 9, his income would be significantly reduced. But, if the plaintiff, in such circumstances, were to dispose of the Lewisham property and invest the proceeds of sale of about $500,000, those proceeds would, even at a conservative 5 per cent interest, return to him $25,000 a year. Thus his income would then total almost $40,000 a year, an amount considerably greater than the income which he is presently receiving.