Moore v Moore, Court of Appeal, unreported, 16 May 1984 consd - reference to rights of

Kirby P In Perrin and Ors v Morgan and Ors [1943] AC 399 (HL) at 415, Lord Atkin warned judges, faced with disputes over wills, of the prospect that they might one day be obliged to meet "the group of ghosts of dissatisfied testators" who "according to a late Chancery judge, wait on the other bank of the Styx to receive the judicial personages who have misconstrued their wills." Waiting there too will be those whose wills have been interfered with unnecessarily or excessively. Cf Kearns v Ellis and Anor, Court of Appeal, unreported, 5 December 1984 per Mahoney JA 21. This appeal should be approached with Lord Atkin's salutary warning in mind.

The appeal, from the Equity Division of the Supreme Court (Master Gressier), concerns a challenge to orders made under the Family Provision Act 1982 (the Act). The orders were made affecting the estate of the late Mr David Golosky (the testator). Master Gressier upheld an application by Mrs Vivian Golosky (Mr Golosky's widow) for an order that provision be made for her out of the estate additional to that made by the testator in his will. The application, and an associated one brought by the widow's daughter, Ms Sondra Chester, was contested by Messrs David and Stephen Golosky, the only children of the testator. They were also named as executors and trustees of the will to which probate was granted by the Court.

The executors' resistance to the claim of Ms Sondra Chester was successful at trial. That claim was dismissed by the Master with costs. No appeal has been brought to the Court against such dismissal.

However, the executors have appealed against the provision made by the Master pursuant to s7 of the Act in favour of the widow. They contend that the Master erred in holding that he was entitled, in the circumstances, to disturb the will. Alternatively, they contend that, if jurisdiction or power existed in the circumstances to make additional provision beyond that made by the will, the provision made by the Master disclosed appealable error authorising and requiring correction by this Court.

Primarily, the executors asserted that the testator, by his will, had made adequate provision for his widow. Put another way, they argued that the widow had not shown a failure on the testator's part to make adequate provision out of his estate. Alternatively, if this argument was rejected, the executors suggested that the Master erred in the exercise of the discretion conferred upon him by disturbing the will excessively; by failing adequate to consider alternative provisions debated before him which would have been more appropriate; or by making orders for provision in favour of the widow which were manifestly excessive to the circumstances proved.

This Court has been greatly assisted in the performance of its function by the extremely clear reasons of Master Gressier. They set out admirably most of the relevant facts and record his findings in a very lucid way. They also refer to the crucial legal authorities which governed the approach to be taken to the application under the Act. They progressed, as the Act and the applicable authority require, through the two stages mandated by s6(1) of the Act, namely first whether the widow was an "eligible person" in respect of whom, for the purposes of s9(1) of the Act there were "factors which warrant" the making of a provision in her favour additional to that made by the will and secondly whether, by the will, the testator made inadequate provision for the widow's proper maintenance and advancement in life and if so what increased provision should be made to ensure that adequate provision was afforded to her as the Act in such circumstances requires.

The Master also recorded quite clearly his impressions of various witnesses who gave oral evidence before him, including the widow. In certain respects he did not accept the widow's statements. I shall return to these. But in most respects so far as the widow's claim was concerned, there was no real contest about the primary facts. Their detail appears in the reasons of the Master. I will confine myself to setting out the most pertinent of these.

In the way the appeal was conducted it is possible to shear away many of the contests which took time at the trial. Some of these revolved around the alleged culinary habits of the widow and her defects in that regard. Some of them related to the suggested selfishness and indifference to the testator of the widow's daughter, Sondra. The former complaints, even if proved, do not loom large. The latter complaints are not pertinent to the widow's claim. They may be disregarded now that her daughter's claim has been abandoned.

The testator was born in 1918. The sons of his first marriage (the executors) were respectively born in 1943 and 1945. The widow is younger than the sons, being born in 1948. Her first marriage lasted from 1969 to 1973. Her daughter Sondra was the issue of that marriage. That marriage ended in divorce. A second marriage was negotiated in 1975. It lasted to 1980 but it too ended in divorce. The widow was (and so far as the evidence discloses still is) a citizen of the United States of America as was (and apparently still is) her daughter.

The first meeting between the testator and the widow occurred when he and his first wife were on vacation in Hawaii. The meeting was a comparatively short one. But it was friendly and the friendship was apparently shared by the testator's first wife. Correspondence ensued which reflected the friendship. Then in January 1987 the testator's first wife died. The testator resumed his correspondence in May 1987, recounting his loneliness and urging that the respondent come to Australia with funds provided by him. As found by the Master, the letters written by the testator constitute:

"... compelling evidence of the fervour and persistence with which the deceased not only pressed his requests that the plaintiff join him in Australia but also made known to her his intentions of providing for her if she would so join him. On 18 August 1987, for example he said: 'I can give you companionship, love - affection - security, plus all the material things in life that could make you very happy. ""

Provided with an air ticket by the testator, the widow arrived in Australia on 2 November 1987. As found by the Master they commenced a sexual relationship after about two weeks following her arrival. The widow took up quite a busy social life with the testator. She lived with him in his home at North Curl Curl. At weekends she accompanied him to a cottage which he owned at Sussex Inlet. From the start, she met resistance from the testator's sons, particularly Mr Stephen Golosky who opposed the testator's plan of remarriage. This caused the postponement of the marriage. However, ultimately it took place on 11 April 1988.

According to the evidence accepted by the Master, the testator appears to have felt insecure about the commitment of the widow to the relationship. He expressed concern that, so long as she retained a property in South Carolina in the United States, she could depart at short notice. He asked her to sell her property. The widow agreed to do so. It was ultimately sold for $US39,000. This was only sufficient to pay out the existing mortgage on the property and costs. It left the widow in effect wholly dependent upon the testator and somewhat insecure in her financial future.

Events moved quickly following the marriage of 11 April 1988. The sale of the widow's American property and the enrolment of her daughter in a high school near the matrimonial home at North Curl Curl suggested, clearly enough, that the relationship had the indications of permanency. This was reinforced by a holiday which the couple took in Hong Kong following the marriage and a further overseas holiday which was planned to include the widow and her daughter. The Master found that the widow had a "good relationship" with the testator, at least "for the most part". He was satisfied that the testator was "genuinely disturbed and upset" by some of the conduct of the widow's daughter. The oral evidence of the widow, which the Master did not accept was:

".. her statements to the effect of the following that, in the context of the deceased's age and health, 'age is just a number to me' and 'it never crossed my mind that [the deceased] was an elderly frail man [who] might not have many years left'; that, in the context of statements made to her by the deceased about some wills of his, she was not interested in 'will making'; that she did not contemplate the possibility' of remarriage; and that she had not thought of how she might expend her legacy of $150,000. "

The mention of the legacy brings me directly to the financial arrangements which the deceased made in May and June 1988.

No doubt with some stimulus from his sons who were unhappy spectators to the testator's remarriage to the widow, the testator in mid May and early June 1988 executed deeds by which he released certain debts and transferred certain property in favour of his sons. The Master summarised the position in terms which have not been disputed. They relate to the diminution of the testator's estate shortly before his death

"The first involved a transfer of real estate dated 27 May 1988 from the deceased to the [sons] for an expressed consideration of $450,000 (it is common ground that $150,000 part of the consideration was paid to the deceased and $300,000 part of it was forgiven). The second transaction involved a transfer of an interest in other real estate from the deceased to his grandchildren for an expressed consideration of $350,000 fit is common ground that the deceased executed the release dated 8 June 1988 in respect of this amount of $350,000). The third transaction involved the transfer of an interest in still other real estate from the deceased to a company called Golosky Nominees Pty Ltd for an expressed consideration of $75,000 (and it is also common ground not only that the [sons] control this company but also that the deceased executed another release dated 8 June 1988 in respect of this amount of $75,000). In short, an in effect, the decease forgave debts totalling $725,000 shortly before his death and thereby benefited, directly or indirectly, the [sons] and their children, albeit in unequal proportions. "

The children referred to, the testator's grandchildren, were six in number. At the time of the Master's decision they were Kamanda (20), Adam (19) and Brooke (14 1/2) the children of Mr Stephen Golosky and Karen (19), Lee (17) and David (15) the children of Mr David Golosky.

The evidence is silent concerning the benefits which these children took otherwise than by the aforementioned disposition on the part of the testator. Indeed, in the presentation before the Master of the precise financial position of the testator's grandchildren the executors were less than forthcoming. Such evidence as existed was largely extracted by the Master himself. In this Court, it was pointed out, for the widow, that it was the duty of the executors to adduce all relevant evidence to assist the Court to perform its functions under the Act. The Court should not be left to speculation. That is so. However, in this hard fought case I believe that it is probably reasonable to assume that, had any other benefits accrued to the testator's grandchildren,(eg by the will of their grandmother, the testator's first wife) or from their maternal parents, it would have been brought out in evidence on behalf of the widow. However that may be, under the transfer of an interest in real estate, each of the grandchildren was to acquire, at majority, a portion of the testator's notional estate worth $58,330.

I return to the chronicle. The deceased made two wills within a day of each other. At first was a so called "fake will" bearing date 14 June 1988 seemingly typed by the testator himself. This provided that all of the deceased's real and personal property should pass to the widow. In the event of her predeceasing him, this will provided for the home at North Curl Curl to pass to the testator's grandchildren. The cottage at Sussex Inlet was devised to the grandson David and to the son, Mr David Golosky, the present executors to be joint trustees to hold the grandson David's interest until he "becomes of age".

That will was followed on 15 June 1988 by a further will. It is this will to which probate was granted on 17 July 1989 to the sons of the testator, being the executors named in it. Apart from the usual provisions revoking earlier wills, the relevant terms of the will, disposing of the estate of the testator, read:

"3. I direct that my wife Vivian Elizabeth Golosky be permitted to occupy the freehold property known as No 59 Griffin Road, North Curl Curl as her own residence free of rental but subject to payment by her of all municipal, water and sewerage rates and charges and other charges levies or taxes in respect of the property all usual insurances and the cost of maintenance and repairs to the improvements thereon until she shall remarry or enter into a permanent de facto(r)(sic) marriage relationship or until her death whichever shall first occur and she shall be entitled while she so occupies the property to sublet portion of the property and to receive the rental income so obtained.

4. I give devise and bequeath all my right title and interest in and to the freehold property known as and situated at No 59 Griffin Road, North Curl Curl subject to the right of occupation herein granted to my wife Vivian Elizabeth Golosky unto my Trustees upon Trust for such of my grandchildren David Boyd Golosky, Karen Anne Golosky, Leigh Michelle Golosky, Adam Paul Golosky, Kimanda Lee Golosky and Brooke Louise Golosky as shall survive me if more than one in equal shares as tenants in common for their own sole use and benefit absolutely.

6. I give devise and bequeath the sum of One Hundred and Fifty Thousand Dollars ($150,000.00) unto my wife Vivian Elizabeth Golosky for her own sole use and benefit absolutely.

7. I give devise and bequeath all my right title and interest in and to the freehold property known as and situated at No 103 Jacobs Drive, Sussex Inlet together with the books and contents therein unto my Trustee upon Trust for such of my sons David John Golosky and Stephen Paul Golosky and my grandson David Boyd Golosky as shall survive me if more than one in equal shares as tenants in common for their own sole use and benefit absolutely.

8. I give devise and bequeath all the rest and residue of my estate... unto my Trustee upon Trust for my sons David John Golosky and Stephen Paul Golosky or the survivor of them if more than one in equal shares as tenants in common for their own sole use and benefit absolutely... "

There can rarely have been a case where the Court has had before it an expression of the testator's wishes so proximate to his death. On the very day the last mentioned will was executed by the testator he was involved in a motor vehicle accident. He was driving his car when it ran off the road and crashed. The widow, who was passenger in the car, was also injured. The testator was taken to hospital. He lingered for two days. However, on 17 June 1988 he died. The thirty week relationship (and the twelve week marriage) of the widow to the testator came to an abrupt end. The last will came to light. The summons commencing the present proceedings was filed in August 1989. The Master determined the summons in December 1990. No satisfactory explanation was given to the Court as to why the appeal of the executors took such an inordinate time to reach a hearing.

As recorded in the reasons on the Master, it was common ground at the trial that the value of the property at North Curl Curl was $260,000 and that of the cottage at Sussex Inlet was $65,000. On the appeal it was agreed that the property was valued at $280,000.

It was also common ground that the widow took, by survivorship, an amount of $15,559 in cash being the proceeds in a joint bank account conducted with the testator. The following further assets were included in the estate, viz:

With the accrual of interest upon the money in banks and the proceeds of the life policy, the liquid assets of the estate available to the executors amounted to $402,255.22 at the date of trial. The executors paid debts and distributed to themselves amounts totalling $219,509.75. By their affidavit, sworn and read at the trial, the executors stated that the funds of the estate available for distribution totalled $211,192.90. The two items of real estate had not been realised by the time of the trial. Nor was the personal property accurately valued. It was estimated to be worth less than $40,000. It comprised mostly various "memorabilia" of the testator, being furnishings and other necessities of life in the property at North Curl Curl; but also personal items, doubtless in some cases of sentimental value to the testator's sons, and possibly his grandchildren. In the aftermath of the dispute between the parties it did not prove easy to resolve their differences over these items.

Neither of the testator's sons asserted financial need. Each of them has taken substantial benefits as a result of the deeds of May and June 1988. Each was a residuary beneficiary of the deceased's estate in accordance with his last will. As found by the Master, Mr David Golosky's financial statement showed him to have a surplus of assets over liabilities of about $679,000. Mr Stephen Golosky's surplus was given as $714,000. In short, each was the well to do son of a relatively wealthy father with a substantial accumulation of assets, part of which the deceased had disposed of shortly before making his last will and the rest of which he disposed of by that will. In round terms, the assets of the deceased a month before his death comprised nearly $1.5 million. The estate for distribution by the will comprised about $750,000. By the will, the deceased provided for his widow a legacy of $150,000 (CL6) and the life occupation of the North Curl Curl home (CL4). It was this provision that the widow claimed to be inadequate, in the circumstances of her relationship to the testator, the size of his estate and her proved needs.

So far as those needs were concerned, the evidence showed that the widow twice returned to the United States following the death of the testator. However, on each occasion she came back to Australia. She stated that it was her intention to remain in this country. In accordance with the provisions of the will, she lived in the property at North Curl Curl. At the time of the trial she was working as an administrative officer with a courier company earning $370 per week. She supplemented this sum with income from a boarder who was paying her $50 a week for occupation of the lower part of the home. This appears to have been a rent substantially lower than the real estate evidence showed to be the proper rent of the "downstairs flat". According to the evidence its value was $150 per week whilst the upstairs area, where the widow lives, was assigned a rental value of $240 per week.

The widow gave evidence (which was not challenged) that her general health was good. However, in the accident in which the testator received his ultimately fatal injuries, she received injuries to her leg which required treatment with analgesics. At the time of the trial, the prospects of her recovering damages from the testator's third party insurer were uncertain. Apparently, they denied liability claiming that the accident was caused because the testator suffered a heart attack.

The widow gave evidence of her intention to remain in Australia. She had begun an external college studies course in justice studies. This was pursued externally because the widow was unable to obtain leave from her employment to attend lectures. Her only sources of income were from her employment, from the boarder and (by inference) from interest on the legacy and the cash received as survivor to the joint bank account.

The primary decision: fee simple in the matrimonial home Having recounted the foregoing facts, Master Gressier came to his conclusion in respect of the widow's claim in a short passage in his reasons: "Apart from her interests under the deceased's will, the [widow's] assets are few and her income is modest.... Her present assets reflect the facts that since the deceased died she has made two visits to the USA and has paid $15,000 to her parents... Of course, this bald statement of some of the main features of this case must be read in the light of the background already outlined above. Nevertheless, one is left with a broad picture of a very short marriage between an elderly wealthy man and a still reasonably young woman whose home until 1987 was in the USA and whose parents still live in that country, and whose cash resources are somewhat more than $150,000 and who has a present and qualified right to live in a home worth $260, 000.

I have considered all of the circumstances of this case including, in particular, the evidence of the deceased's criticisms of the [widow] and of his statement about a fake will' Nonetheless, it is my conclusion that a fair and reasonable person in our community would say, having regard especially to CL3 of his last will, that he made inadequate provision for her proper maintenance and advancement in life. Her right to occupy the home in question (without any provision whatever for substituting any other home or accommodation at any future time) would, in my view, having regard to her age, her ties with the USA and the circumstances of the sale of her home in Southern Carolina, be seen as an inappropriate provision. In my view, the [widow] should have the North Curl Curl property absolutely. As I see it, this view of mine does give rise to another question. If the [widow] is to have that property is the legacy of $150,000 still an appropriate provision? Is it less than an appropriate amount or more than an appropriate amount or should some other provision take its place. Again, I have had regard to all the circumstances of the case. It is my conclusion that the Court should not interfere with this provision of the deceased's will. In short, as I see it, the [widow's increased provision should be an enlargement of her rights in relation to the North Curl Curl property and nothing else. "

The executors complained that the Master's reasoning provided no proper or clearly identified justification for his conclusion that inadequate provision had been made for the widow so as to authorise disturbance of the testator's will. It was suggested that the will, so lately made, constituted a delicate and carefully thought out provision which was proper both for his new wife and for his children by his first wife and his grandchildren. It spoke virtually at the moment of his death. It reflected his appreciation of the various moral claims which were upon him. It provided a roof over his widow's head for the rest of her life. But it secured to his descendants the ultimate remainder interest in the principal real estate of his remaining property. The six grandchildren were entitled by CL4 of the will to the freehold of the North Curl Curl property, subject always to the widow's right of occupation during her lifetime.

As indications that the provision made by the testator were adequate, it was pointed out, additionally, that the widow had a relatively short association with the deceased at the time of his death. That brevity was to be contrasted with the lifetime's association of the two sons and of their children. In weighing up the competing claims of his natural family and his new spouse, it would be entirely normal and proper to expect that the testator would ensure that proper provision was made also for his sons and grandchildren. He would do this against the background of the earlier dispositions, shortly before the last will, by which already significant benefits had been provided to the sons and grandchildren. But they remained the principal proper beneficiaries of the distribution of the estate which had been built up during the forty seven years of his first marriage with their mother and grandmother and by the bonds of blood and affection that were normal to the kind of relationship which they enjoyed with the testator.

Whilst it was true that the widow had come to Australia and sold her property in the United States at the urging and insistence of the testator, this was a decision which she had made voluntarily. So much may be allowed. But it does not release the testator of the obligations which, in result, the Act imposes to ensure that proper provision is made for the maintenance and advancement in life of a spouse.

As pointed out by the executors, the widow made no contribution to the acquisition, conservation or improvement of the North Curl Curl property nor to any other assets of the testator. This is not a case where she had sufficient time, in her relationship with the testator, to make a substantial contribution to his life as a home maker. On the other hand, in March 1988, the testator was admitted as a patient to the Manly District Hospital for some four or five days. This was a consequence of a fluid build up, as it was described. As well, the testator required insulin. Although he portrayed himself differently in his letters to the widow before the marriage, he appears to have been relatively frail and in poor health. The prospects of a long life together between the widow (then aged 40) and the deceased (aged 70) must have appeared fairly remote.

Much of the executors' fire was directed at the primary or "jurisdictional" question as it is sometimes called. It was urged that the Master had no "jurisdiction" to disturb the will because, on its face, it provided benefits which were not "inadequate" for the proper maintenance, education and advancement in life of the eligible person". Competing submissions were received on the barren question of whether this primary or "jurisdictional" point is discretionary in nature, thereby attracting the well known limitations upon appellate interference. At the least, it is evaluative in character, yielding to no simple affirmative or negative classification. In such circumstances, an appellate court will naturally hesitate before disturbing the conclusion of the primary decision maker. Although this is not a case which turned upon the impression of witnesses or relevant determinations of their credit, the advantages which the Master enjoyed included the opportunity to hear and consider the entirety of the evidence as it unfolded. His reasons are careful and admittedly accurate in fact finding. Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged. See White v Barron and Anor (1980) 144 CLR 431, 445; Tsivinsky v Tsivinsky, Court of Appeal, unreported, 5 December 1991;

(1991) NSWJB 149; Singer v Berghouse, Court of Appeal, unreported, 23 July 1992; (1992) NSWJB 66 at 13 (SLG). Amongst judges there is an inevitable variation in attitudes towards the competing claims of testamentary freedom and the moral obligations upheld by the Act. An examination of reported and unreported decisions at first instance and in this Court will bear out, as I believe, the differing emphases and the inclinations of judges as they approach the inescapably wide powers and discretions conferred upon them under the Act, as under its predecessor. Recognition of this fact provides a further reason for appellate restraint.

As an alternative to their first submission, the executors argued that, if it was established that the testator had, by his will, made inadequate provision for his widow, the disturbance of the provisions of the will was excessive in the three respects mentioned in the opening of these reasons. In particular, it was complained that the Master had failed to give adequate, or any apparent, consideration to the alternative minimal adjustments of the carefully framed testamentary dispositions which would have achieved proper provision for the widow without depriving the grandchildren of their interests in the remainder to the North Curl Curl property upon the contingencies stated in the will. Putting it bluntly, the executors complained that the Master had failed adequately, or at all, to give consideration to the alternative ways whereby adequate provision could have been made for the widow, short of depriving the testator's descendants of the interest which he had intended them to have in his principal remaining real estate. In particular, the following two possibilities were mentioned, viz:

The provision to the widow of a life estate in the North Curl Curl property which would have the advantage of removing the contingencies which were felt to be unfair and which could unreasonably deprive her of a widow's normal expectation of a provision of a secure home somewhere. Cf Luciano v Rosenblum (1985) 2 NSWLR 65 (SC) 69; or

(Preferably) increasing the legacy in favour of the widow so as effectively to provide her with sufficient funds to acquire, as it was described, a two bedroom apartment in the vicinity of the North Curl Curl residence - or in the United States if she chose - without the restrictions imposed upon the use and duration of that residence. It was not seriously contested the legacy which was provided would not be sufficient to purchase a home, standing alone and without increase.

In approaching this appeal, it is appropriate to say that (save for the minor dispute about the discretionary/evaluative character of the primary or "jurisdictional" question) there was no real difference between the parties concerning the principles to be applied by this Court. Relevantly, they are: 1. The order made in favour of the widow, being made as a result of the two stage consideration of her application, each of which involves either evaluation or the exercise of a discretion, will not be disturbed by this Court on appeal unless a relevant error of principle is shown; significant error of fact finding is demonstrated; or unless the resulting outcome is so manifestly unreasonable as to invite disturbance although the appellate court cannot precisely point to the error of principle or fact finding which has occurred. See White v Barron and Anor (1980) 144 CLR 431, 434; Goodman v Windeyer and Ors (1980) 144 CLR 490, 497; Hunter v Hunter and Ors(1987) 8 NSWLR 573 (CA) 575f; Singer v Berghouse (above) per Sheller JA.

2. In testing the Master's decision it is appropriate to keep in mind the principles which governed the approach which he was obliged to take to the widow's application under the Act. Relevantly, these included:

(a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9, 19; White v Barron and Anor, above, 458; Hunter, above, 576;

(b) The purpose of the jurisdiction is not the correction of the hurt feelings or sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testators household and to consider whether, as claimed, the provision made by the will is inadequate for that person's proper maintenance and advancement in life. See Heyward v Fisher, Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81.

(c) Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano (above) 69 to 70;

(d) A mere right of residence will usually be an unsatisfactory method of providing for a spouses, accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore, Court of Appeal, unreported, 16 May 1984, per Hutley JA, 2;

(e) Considering what is "proper" and by inference what is "improper" as a provision in a will, it is appropriate to take into account all of the circumstances of the case including such matters as the nature and quality of the relationship between the testator and the claimant; the character and conduct of the claimant; the present and reasonably anticipated future needs of the claimant; the size and nature of the estate and of any relevant dispositions which may have reduced the estate available for distribution according to the will; the nature and relative strengths of the competing claims of testamentary recognition; and any contributions of the claimant to the property or to the welfare of the deceased. See Re Fulop Deceased (1987) 8 NSWLR 679 (SC); Churton v Christian and Ors (1988) 13 NSWLR 241 (CA), 252.

Most of the foregoing principles, so far as they affected the performance by Master Gressier of his function, were either expressly referred to, or sufficiently implied, in the approach which he took. However, as I have said, in the end, the passage by which the Master came to his conclusion was quite brief. It is

therefore possible for this Court to perform its function with similar economy. The will's provision was inadequate I would reject the first argument for the executors. I would uphold the Master's determination that the circumstances were such as to establish sufficient authority to disturb the will for its failure to make adequate provision for the widow. I reach this view because, in the circumstances, the limitation placed by the testator upon the provisions of a residence for his widow was unreasonable and unduly restrictive.

There may have been a time when social attitudes to the rights of male testators to rule the residential arrangements of their widows (and other long term partners) from the grave by the terms of a will would have been upheld by courts as appropriate and reasonable. But not so today. At least not so in the case of a woman such as the widow here. As the testator knew, she was much younger than he. She had moved with her daughter across half the world at his pleading insistence. She had sold up her residence in the United States as he demanded. She was still a young woman. Her retinue of friends in Australia would be limited. Her parents lived in the United States. For such a woman, left alone, a large house in the suburbs of Sydney, with extended gardens, a separate, rentable apartment and accommodation for a large family in her widowhood, would probably be unsuitable and even uncongenial. Why should she not be allowed to return to the United States with her daughter if the reason for her coming to this country had disappeared and if her family lived in her place of birth? What reason could justify the requirement that she reside in the testator's family home, save for the high possibility that, should she not do so the home would revert to grandchildren? Yet if the widow left the North Curl Curl home she would need to acquire another, either in the United States or in Australia. The legacy of $150,000, even supplemented by the cash in the joint bank account, would not suffice to purchase even a small apartment in the vicinity of that in which the widow had lived with the testator. Still less would it provide anything over, in this quite substantial estate, to protect the widow against exigencies and to afford her the kind of financial security which the testator promised when she abandoned her life in the United States and came to join him in this country.

Against these considerations it is appropriate to weigh others which derive from the enhanced freedoms which women enjoy in contemporary Australian society. A high proportion of marriages is now dissolved. Had the testator survived, it was possible that his relationship with the widow might not have endured. She might have decided, for other reasons, to return with her daughter to her homeland. The same independence of spirit which appears to have marked her earlier relationships and her decision to venture to Australia after such a brief encounter with the testator might have taken her away. These were considerations which the testator, acting with justice and wisdom, might have taken into account in providing for his widow.

Matters such as these rule out an inflexible rule that every spouse or every widow is entitled, as of right and in every case, to look to a testator to provide accommodation for life. Such inflexible rules used to exist in this area, as for example the previous rule that an "able bodied son" was disentitled to a claim under the predecessor to the Act for that reason alone. That rule has now been abandoned in this State. See Hunter (above), 580f; cf Anderson v Teboneras and Anor [1990] VR 527. So should inflexible rules about spousal provision.

Allowing fully for these considerations, I conclude nonetheless that the provision made by the testator was inadequate. The widow had, in a sense, burnt her bridges on the demand of the testator. Although her daughter was held not to

have a separate claim under the Act she was clearly a responsibility of the widow, as the testator well knew. The widow's earning capacity is small. The estate is comparatively large. Even if the relationship between the widow and the testator was brief, the commitment of the widow was not. Her expectations were, as promised, if not luxury at least to handsome provision. The making of such provision would not deprive any with a greater need of their calls upon the testator for provision. In these circumstances I have concluded, as the Master did, that the provision made was inappropriate as to the conditional right of residence in the testator's family home and inadequate as to the legacy and cash sums which the widow received. The primary argument of the executors must therefore be rejected.

The primary discretion to make provision miscarried

That leaves the secondary argument. It is that the provision made by the Master evidenced error. It is here that the executors were obliged to overcome the well known restraints which inhibit appellate intervention in discretionary orders generally and determination of what is necessary for proper maintenance and support in a case such as this, in particular. In Scales (above) at 19, Dixon CJ observed:

"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. "

However, I remind myself of my duty not to yield to the temptation to disturb the Master's discretionary determination simply because I would have made a different order at trial. I am especially conscious of the need to promote finality of litigation in acrimonious disputes of this kind and to reduce the burden of costs upon estates and family members. Nevertheless, for a number of reasons I have concluded that the Master's discretion miscarried and in such a way as to permit and require this Court, in the appeal, to substitute a different order.

First, although the Court has been informed, without dispute, that alternative orders were canvassed before the Master, they find no reflection in his reasons. In particular, there is no discussion of the comparative advantages and disadvantages of providing a life estate in the North Curl Curl property. This would have retained the remainder in that property to the grandchildren (as the testator wished) but afforded the widow greater flexibility of residence, more independence and an enlarged recognition of her own freedom of action than the will afforded. Especially if an order were made of the kind provided in Moore v Moore (above) the legitimate wishes of the testator would have been preserved whilst, at the same time, providing more adequately for the legitimate expectations of the widow to have provided for her accommodation at least equivalent to that which she lost by the sale of her property in South Carolina.

The other option canvassed before, but not discussed by, the Master was the enlargement of the legacy. Properly enhanced, this could have provided the widow with funds sufficient to purchase an apartment in Australia or in the United States as she preferred. It would have released her from the obligations of residence imposed by the terms of the will. From such a substantial estate, it would have preserved the family property for the benefit of the grandchildren, as the testator wished. Such an order would have conformed more closely to the rule that, in cases of this kind, the provisions of the will should be disturbed as little as possible conformably with the requirement to secure the objectives of the Act.

There are three further considerations which lead me to the conclusion that the Master's orders evidence error. The first is that, having provided the widow with the fee simple in the North Curl Curl property, the Master does not appear sufficiently to have reconsidered the amount of the legacy which was obviously intended by the testator, in part at least, to provide for the welfare and accommodation of the widow if she were to elect no longer to reside in the North Curl Curl home. Although the Master said that he took into consideration the possibility of reducing the legacy, my impression is that he failed to look at the aggregate provision which was then, as a result of his orders, afforded to the widow with necessary reduction of the sums available to the testator's natural family (his sons and grandchildren). Although the remainder in the North Curl Curl home, in the case of a widow of the respondent's age would, or could, be long delayed and much diminished in value, it was the clear wish of the testator that it should go to his grandchildren. That is far from an irrational or unjust wish. It is one which the Court should respect, so far as doing so is consistent with the attainment of the objectives of the Act.

Secondly, the resulting order which the Master made is, in my view, unreasonably excessive when all of the considerations of the relationships between the testator and the widow and the prospects and possibilities of their respective lives, assets and needs are taken into account. It is not appropriate to tinker with the order which the Master has made. But in my view it is sufficiently excessive as to demonstrate error and to permit the intervention of this Court.

Thirdly, the Master's orders failed adequately to address what I have called the memorabilia of disputed items in the schedule of personal property of the testator in which the natural family had a legitimate interest. I refer to his collection of figurines; items of jewellery from the executors' mother's possessions, jewellery of the deceased, his stamp collection and Chinese vases. These were still in dispute at the time of the trial. By affidavits filed in this Court it appears that the disputes were largely resolved with apparent good sense. The widow surrendered the memorabilia valued at $47,000. The retained items of furnishing and home contents appear to be those necessarily implied in the right of residence. The items retained by her were valued at only $1,350. I take these facts into account.

Because I am of the view that the Master's discretion miscarried, it is necessary to set aside his orders and to consider those which should be made by this Court. The Court has said many times that it is necessary, against the possibility of such orders, for executors to place before the Court evidence of the up to date position concerning the estate. This Court's orders must be correct at the time they are made in disposing of the appeal. This Court does not reconsider the disposition of the estate at the time of the orders at first instance.

No affidavit was originally provided by the executors. Accordingly, the Court directed that the parties confer to place before the Court evidence concerning the components of the estate indicating matters of agreement and disagreement. In accordance with the Court's orders this was done, as stated above.

Having considered the material placed before the Court I have come to the conclusion that, in lieu of providing to the widow the fee simple in the North Curl Curl property, it is appropriate to increase the legacy provided by CL6 of the will from $150,000 to $300,000.

I have chosen this course rather than a life estate for several reasons.

First, it will terminate the relationship between the widow and the deceased's natural family. In the circumstances of this case, I consider that this is in the best interests of each. A life estate, even one conforming to orders of the kind made in Moore v Moore, would harness the parties together, potentially over a very long time. It could give rise to further acrimony and costly disputes. The testator knew of the tensions between his new wife and his natural family. Acting wisely and justly, he would have made arrangements to ensure that the potential for friction was reduced. As well, for the reasons explained by Hutley JA in Moore, the provision of a life estate has disadvantages. The provision to the widow of a sum sufficient to enable her to purchase an apartment for herself is much to be preferred. It accords with a recognition of the independence of the widow whilst retaining respect for the testator's wish that his grandchildren should succeed to the North Curl Curl properly. Provided with an adequate amount with which to purchase an apartment, the widow might decide to remain in Australia or to do so for a time, or to return to the United States. She will be released from the control of the residential requirement of the right of occupation contained in the will.

The Court did not have placed before it, either at first instance or on appeal, proper evidence concerning the cost of the purchase of an apartment equivalent to that surrendered by the widow in South Carolina or appropriate to her needs in the vicinity of North Curl Curl. However, having regard to the apparently modest equity which the widow had in the South Carolina property and the valuation given for the North Curl Curl property (as well as drawing upon some knowledge which the Court is permitted to have concerning real estate prices in the current depressed market in Sydney) it would seem that an allowance of about $250,000 would be sufficient to ensure that the widow could purchase appropriate accommodation. She would then have, from a legacy of $300,000, an amount over to cover the acquisition of a motor vehicle, the necessary costs of acquisition of the new property and relocation, as well as the reasonable costs of travel should she decide to return to the United States.

It is appropriate that the executors, for their part, should allow the respondent a proper interval, say four months, to relocate herself from the North Curl Curl property which has been her home in Australia until this time. Orders should be made to protect her in this respect. In the event of disputes concerning items in the home at North Curl Curl, it should be left to the Master in the Equity Division to determine what should justly be surrendered by the widow to the family. The guiding principle should be the return to the testator's family of personal properly formerly belonging to the testator which is of legitimate sentimental value or of family interest. The balance should remain with the respondent.

In respect of the respondent's costs of the appeal I would follow the practice of the Court concerning the costs of a spouse in such cases. In respect of the enhanced legacy, the respondent should receive this free of deductions for rent or occupation fee, or necessary costs. She should not receive interest unless the legacy (or balance thereof) are not paid upon her surrender of the North Curl Curl property to the appellants as proposed.

To achieve the foregoing, I propose the following orders:

2. Set aside the orders of Master Gressier dated 14 December 1990;

In lieu thereof, order that: In lieu of the provision made for Mrs Vivian Chester Golosky in the will of the late David Golosky

(b) Delete from CL4 the words "subject to the right of occupation herein granted to my wife Vivian Chester Golosky"; and

(c) Delete from CL6 the words and figures "One hundred and fifth thousand dollars ($150,000) and substitute the words and figures "Three hundred thousand dollars ($300,000)".

Postpone the coming into effect of O.3 for a period of four months from this date, or such shorter or longer period as the parties may agree or as a Judge or Master of the Equity Division may order upon reasonable cause being shown;

The legacy, or the balance of the legacy as the case may be, as referred to in O.3(c), to be payable to the respondent upon the date upon which she surrenders occupation of the subject premises at North Curl Curl to the appellants;

Interest to accrue upon the legacy, or balance of the legacy as the case may be, from such date of surrender; such interest to be in the amount calculated as provided by the Rules of Court;

Such legacy, or balance of the legacy as the case may be, to be paid to the respondent free of any deduction in the nature of rent or occupation fee for the period of her residence in the subject premises from the death of the late David Golosky to the date of the surrender referred to in O.5;

Confirm the cost orders (O.2 and O.3) of Master Gressier concerning the costs of the proceedings at first instance;

Order that the costs of the appellants of the appeal be paid on the trustee basis, and of the respondent of the appeal on the solicitor and client basis, out of the estate of the deceased; and

Order that the respondent be at liberty to retain and dispose of all items of personal property remaining in the subject premises; but reserve to the appellants leave to apply to a Judge or Master in the Equity Division of the Supreme Court, within 28 days of these orders, for variation of this order to exclude therefrom any item of personal property situate at the said residence which the appellants prove is of special sentimental or family value to them or to their children.

Handley JA In this appeal I have had the benefit of reading in draft form the reasons for judgment of Kirby P. I gratefully adopt his Honour's statement of the material facts and the history of the proceedings which I need not repeat. I am in general agreement with his reasons for concluding that Master Gressier was correct in holding that the provision made by the deceased in favour of his widow was inadequate for her proper maintenance. I do not wish to add anything to his Honour's reasons on that issue. I am unable, with respect, to agree with his further conclusion that the Master's discretion to determine the quantum of the appropriate order miscarried, and that this Court is entitled, consistently with established principles, to substitute a less favourable order for the widow.

The provision made by the deceased for his widow comprised a legacy of $150,000, a right of residence by will in the matrimonial home, and his share of a joint bank account with a credit balance of $15,559 which accrued to her by survivorship.

It will be noted that the deceased's will provided a right of residence for his widow for life and a legacy of $150,000. The Master found that the widow intended to remain in Australia. This finding was not, and could not be challenged. Her daughter has now been living in Australia for some six years and she has probably established a circle of friends here and for that reason would

herself prefer to remain. If the daughter remains her mother is likely to remain also. Given the widow's age and general health and her wish to remain in Australia it is conceivable that she could reside in the former matrimonial home in exercise of her right of residence for forty years or more. She would lose her rights under the will if she remarried, entered into a de facto relationship, left Australia permanently, ceased to reside in the house, or failed to maintain and insure it in accordance with the conditions in the will. Her interest was therefore conditional and precarious but if she observed those conditions her housing needs were provided for until old age or ill health forced her into a retirement village or nursing home.

The deceased no doubt considered that he had properly provided for his widow's need for housing during her lifetime and in addition she would have the legacy of $150,000. He did not provide that legacy in order to meet her need for housing in whole or in part.

We have held that the provision made by the deceased for the housing of his widow was inadequate because of the conditions and restrictions which applied and the lack of flexibility they offered. The majority propose to provide a legacy of $300,000 for the widow in lieu of her benefits under the will. The proposed legacy therefore incorporates the existing legacy of $160,000 and provides an additional $150,000 from which she is to meet her need for housing.

The executors did not lead evidence at the trial to establish the cost of a two bedroom home unit in the same area of an equivalent standard and with equivalent ocean views. This statement assumes that such a unit could be accepted as proper provision for the widow given the promises made to her by the deceased and the standard of accommodation he provided for her in his lifetime. I am not prepared to take judicial notice in favour of the appellants who led no evidence on the point that a two bedroom home unit of this standard could be purchased and the widow's legal and removal expenses and stamp duty paid for out of the additional $150,000 provided by the order favoured by the majority. In my respectful opinion the proposed provision for the widow's housing needs is clearly inadequate.

As the President recognised in his reasons for judgment, the sale of the widow's house in South Carolina at the request and urging of the deceased left her wholly dependent upon him and somewhat insecure in her financial future. In particular it left her dependent on him for her housing needs. The deceased recognised this in his will although we are holding that his provision was inadequate. In my opinion a minimum provision for the housing needs of the widow, although it would not have been "proper" provision, would have involved the grant of a life estate in the former matrimonial home together with the right for the widow, in a proper case, to require the property to be sold and the proceeds invested in another property more suitable for her requirements. It is noteworthy that if provision of this kind had been made by the deceased in his will or were now to be ordered by this Court, the value of such a life estate for this widow with a life expectancy of some forty years would greatly exceed the additional legacy of $150,000 proposed by the majority. This can be demonstrated from the present value tables in Luntz "Assessment of Damages" 3rd ed. 1990. The present value of $280,000 (the agreed value of the former matrimonial home at the time of the hearing before us) payable in forty years time at an assumed interest rate of 6% is only $27,216. If an interest rate of 7% is assumed the present value would be $18,704. In other words, the financial benefit for the widow of an order converting an unrestricted life estate in the

former matrimonial home into a fee simple would be $27,216 or less. Equally this would be the immediate cost of such an order to the grandchildren if they had been entitled in remainder expectant on a life estate for the widow.

The inadequacy and inappropriateness of the order proposed by the majority is also demonstrated by the fact that under it the widow, in certain events, could be worse off than she was under the will. If, in the events that happened, the widow did live in the former matrimonial home for forty years her housing requirements would have been provided for during that period and she would have had the full benefit of her legacy of $150,000. The present value in that event of her right of residence over that period would be $280,000 less $27,216 or $252,784. I realise that there are many reasons why the widow might not occupy the former matrimonial home for forty years or indeed for more than a few years. Nevertheless in the event supposed the provision made by the deceased in his will, which this Court and the Master have both held was inadequate, would have been substantially more beneficial to her than the $300,000 legacy proposed by the majority.

The majority are disturbing the Master's order for the benefit of the deceased's grandchildren. They were aged between 14 1/2 and 20 at the date of hearing before the Master. As the President has demonstrated, the established principles direct the Court to respect testamentary freedom and to disturb the testamentary dispositions of a deceased person only so far as is necessary in order to provide proper maintenance for an eligible person. The deceased's grandchildren were not necessarily eligible persons within s6(1) of the Act and there was no evidence that they were in fact or that factors existed within s9(1) which warranted any of them making applications under the Act.

Although they were natural objects of the deceased's bounty, their claims could not compete with the widow's claim to have proper provision made for her maintenance. In my respectful opinion there should be no question in this case of cutting down what would otherwise be proper provision for the widow in order to preserve in whole or in part benefits that the deceased's grandchildren took under his will. The deceased had already made substantial provision for them in his lifetime. Shortly before his death, he transferred to them, as tenants in common in equal shares, an undivided half interest in a property at Brookvale for a purchase price of $350,000. He appears to have settled this sum on Golosky Nominees Pty Ltd as trustee of the Orchard Road Unit Trust and then by deed dated 8 June 1988 he released that trust from all claims by him in respect of that sum. The Master treated this deed as releasing the unpaid purchase money of $350,000 due from the grandchildren.

It is not clear that the transaction was a release of the grandchildren's debt as found by the Master. According to the executors' affidavit of 28 August 1990 the deceased did not receive the purchase price but settled that sum on Golosky Nominees as trustee of the Orchard Road Unit Trust and then executed a deed of release of that sum in favour of the trustee. The unit trust deed and the deed of release but not the settlement were in evidence. A transaction in the form described would leave the grandchildren owing the sum of $350,000 to the trustee. I suspect that the sum settled by the deceased may have been used to subscribe for units in the trust which were then allotted by his direction to the grandchildren or that in some other way the release of the settled sum in favour of the trustee operated for their benefit. However the Master's finding that the deceased released the unpaid purchase price due from the grandchildren was not challenged and it should therefore be accepted.

The deceased also transferred an undivided one third share in a property at 53 Griffin Road, North Curl Curl to Golosky Nominees for $75,000 and then released that debt. The evidence does not disclose whether the company received this gift beneficially or as an accretion to the Orchard Road Unit Trust. There was no evidence as to the ownership of the shares in the company or the units in the trust and the corporate and trust balance sheets and profit and loss accounts were not in evidence. The Court does not know whether the grandchildren have any interest in that company or that trust and if so the nature and value of any such interest.

On the evidence and the findings of the Master, each of the six grandchildren received a share in the Brookvale property worth $58,333, and a legacy of $3000. One of them also received a devise of a one-third interest in the deceased's house at Sussex Inlet. At the date of death this interest was worth $21,666. This grandchild therefore received $83,000 from his grandfather and the others $61,333. It is clear therefore that the deceased made substantial provision for his grandchildren apart from the devise of the former matrimonial home subject to the widow's right of residence. In these circumstances there is no reason, in my opinion, for the Court to reduce the provision for the widow that is otherwise proper in order to conserve the interests of these grandchildren particularly as a complete statement of the their financial positions was not placed before the Court. The executors were primarily responsible for ensuring that the true financial position of the beneficiaries was before the Court in evidence.

The only ground relied upon to support the challenge to the Master's discretionary decision as to quantum was the excessiveness of his order. None of the other familiar grounds for appellate intervention referred to in House v The King (1936) 55 CLR 499 at 504 to 505 were relied upon. The Master ordered additional provision for the widow which at the date of his order was worth $260,000 less the value of her existing right of residence under the will which may have been substantial. The majority favour substituting additional provision in her favour worth $150,000. I have already referred to the fact that the provision in the will could turn out to be worth more in present day terms than $150,000, that the present value of an unrestricted life estate in the former matrimonial home would be worth approximately $250,000, and that there is no basis for concluding that the widow could meet her reasonable needs for housing out of the $150,000.

Moreover, at the date of death and at the date of trial the widow had no furniture, furnishings, household effects or car of her own. While the contents of the former matrimonial home, apart from certain special items which the Court was informed had been released to the executors, may not have been particularly valuable, it would cost the widow a substantial sum to now furnish and fit out a home unit at her own expense.

In these circumstances I can discern no proper basis for concluding that the Master's discretion as to quantum miscarried or that his order was appealably excessive. In my opinion this Court is not entitled, consistently with established principles, to interfere with the discretionary decision of the Master as to quantum. Indeed, in my opinion, that decision was correct. Accordingly, the appeal should be dismissed with costs.

1. Appeal allowed;
2. Set aside the orders of Master Gressier dated 14 December 1990;

In lieu thereof, order that: In lieu of the provision made for Mrs Vivian Chester Golosky in the will of the late David Golosky (a) Delete CL3; (b) Delete from CL4 the words "subject to the right of occupation herein granted to my wife Vivian Chester Golosky"; and (c) Delete from CL6 the words and figures "One hundred and fifty thousand dollars ($150,000)" and substitute the words and figures "Three hundred thousand dollars ($300,000)".

Postpone the coming into effect of O.3 for a period of four months from this date, or such shorter or longer period as the parties may agree or as a Judge or Master of the Equity Division may order upon reasonable cause being shown;

The legacy, or the balance of the legacy as the case may be, as referred to in O.3(c), to be payable to the respondent upon the date upon which she surrenders occupation of the subject premises at North Curl Curl to the appellants;

Interest to accrue upon the legacy, or balance of the legacy as the case may be, from such date of surrender; such interest to be in the amount calculated as provided by the Rules of Court;

Such legacy, or balance of the legacy as the case may be, to be paid to the respondent free of any deduction in the nature of rent or occupation fee for the period of her residence in the subject premises from the death of the late David Golosky to the date of the surrender referred to in O.5; Confirm the cost orders (O.2 and O.3) of Master Gressier concerning the costs of the proceedings at first instance;

Order that the costs of the appellants of the appeal be paid on the trustee basis, and of the respondent of the appeal on the solicitor and client basis, out of the estate of the deceased; and

Order that the respondent be at liberty to retain and dispose of all items of personal property remaining in the subject premises; but reserve to the appellants leave to apply to a Judge or Master in the Equity Division of the Supreme Court, within 28 days of these orders, for variation of this order to exclude therefrom any item of personal property situate at the said residence which the appellants prove is of special sentimental or family value to them or to their children.]