MUSASGHI -v- GEBREMARIAM [2022] WASCA 37 | Case summary

4 In our opinion, the appeal should be allowed. The orders made by the Master should be set aside and different orders should be made by this court.

Court of Appeal (WA)|2022-03-29|Before: Quinlan CJ

1 The appellants appeal against a judgment of Master Sanderson entered after the Master heard a claim by the first respondent under s 6(1) of the Family Provision Act 1972 (WA) (the Act) in respect of the disposition of the estate of his wife (the Deceased) effected by her Will.

2 The Deceased's Will did not make any provision for the first respondent.

3 The Master held that the first respondent had made out his claim. The Master made orders varying the Will to make provision for the first respondent.

4 In our opinion, the appeal should be allowed. The orders made by the Master should be set aside and different orders should be made by this court.

An overview of the relationships between the Deceased and the principal parties to the appeal

5 An overview of the relationships between the Deceased and the principal parties to the appeal is as follows.

6 The first appellant is the Deceased's mother. The first appellant was born in about 1952. She had seven children including the Deceased.

7 The Deceased was born in 1983. The first respondent was born in 1971.

8 The Deceased and the first respondent met in Kenya in 1994. They were living in Kenya as refugees, having moved to Kenya from Ethiopia.

9 About two weeks after meeting, the Deceased and the first respondent began living together. At the time the first respondent was aged 23 and the Deceased was aged about 12. According to the first respondent, it was considered 'culturally acceptable in our country for that kind of arrangement' to be made.

10 The Deceased and the first respondent have two children together, namely the second appellant (Bemnet) who was born on 16 November 1998 and the third appellant (Gideon) who was born on 7 April 2010 and is represented in the proceedings by his guardian ad litem.

11 On 18 December 2001, the Deceased and Bemnet migrated to Australia. It appears they were able to migrate because the Deceased's sister was residing in Australia. At that stage the first respondent was not eligible to migrate to Australia because he and the Deceased were not married.

12 On 3 September 2004, the Deceased returned to Kenya. She and the first respondent were married in Kenya on 8 October 2004. In February 2005, the first respondent migrated to Australia.

13 Between February 2005 and the date of the Deceased's death, the Deceased and the first respondent lived together in Australia.

14 In July 2011, the Deceased was diagnosed with ovarian cancer. She died on 23 April 2017.

15 On 19 February 2017, the Deceased made her Will.

(a) The Deceased appointed the second respondents as her executors.

(b) The Deceased directed the executors to hold her estate upon trust and (subject to the powers set out in the Will) to sell, call in or convert into money any part of her estate, to pay all of her debts, funeral and testamentary expenses associated with her death or the administration of her estate (the estate expenses), and to deal with the balance, relevantly, as set out in cl 6.

17 By cl 6 of the Will, the Deceased directed that the balance of her estate (after payment of the estate expenses) be distributed as follows:

6.1 (a) As to a 45 % share to my son Gideon ... provided he survives me and attains the age of 30 years.

(b) If Gideon fails to attain a vested interest in this gift then I give this 45 % share to my daughter Bemnet... provided she survives me and attains the age of 30 years.

6.2 (a) As to a 35 % share to my daughter Bemnet ... provided she survives me and attains the age of 30 years.

(b) If Bemnet fails to attain a vested interest in this gift then I give this 35 % share to my son Gideon ... provided he survives me and attains the age of 30 years.

6.3 (a) As to a 20 % share to my mother ... provided she survives me.

(b) If [my mother] fails to attain a vested interest in this gift then I give this 20 % share to such of my sister Simret Tewolde Habtemariam and my sister Meareg Tewolde Habtemariam as shall survive me and if more than one in equal shares.

18 In 2012 the Deceased and the first respondent purchased a residential property at 25 Caporn Turn, Queens Park (the Queens Park property) as joint tenants. The property was the family home. The house had four bedrooms and two bathrooms. After the Deceased's death the first respondent continued to live at the Queens Park property.

19 On 3 March 2017, the Deceased and the first respondent signed a transfer of land form in respect of the Queens Park property which had the effect of severing the joint tenancy. It appears that the severance occurred at the initiative of the Deceased.

20 On 16 June 2017, probate in respect of the Deceased's Will was granted to the second respondents as her executors.

21 On 13 July 2020, the second respondents filed an affidavit in the primary proceedings to which they annexed a statement of the assets and liabilities of the Deceased's estate as at 13 July 2020.

22 The statement of assets and liabilities revealed the following:

(a) The total assets of the estate had a gross value of $1,160,809.27.

(b) Those assets comprised cash at bank (including accrued interest on a term deposit due on 15 July 2020) of $892,809.27; a motor vehicle valued at $18,000; and an undivided one half share as tenant in common in the Queens Park property, the half share being valued at $250,000.

(c) The total liabilities of the estate were $253,008.12.

(d) The total liabilities included outstanding loans of $24,964.07 owing to Simret Tesfamariam.

(e) The total liabilities also included outstanding loans of $165,464.80 (being one half of the total amount of the loans for which the Deceased and the first respondent were jointly and severally liable) owing to the Commonwealth Bank of Australia (Commonwealth Bank) and secured by a mortgage over the Queens Park property.

(f) The net value of the estate was $907,801.15.

23 It is important to emphasise that as at 13 July 2020 the value of the whole of the fee simple estate in the Queens Park property was $500,000 and the total amount of the debt (for which the Deceased and the first respondent were jointly and severally liable) owing to the Commonwealth Bank and secured by its mortgage over the Queens Park property was $330,929.59.

The proceedings commenced by the first respondent under the Act

24 On 12 March 2018, the first respondent commenced proceedings in the General Division of the Supreme Court, being CIV 1437 of 2018, for leave to commence an application under s 6(1) of the Act out of time. On 23 May 2019, Acting Master Whitby ordered, relevantly, that pursuant to s 7(2)(b) of the Act, the first respondent have leave to commence an application under s 6(1) of the Act out of time.

25 On 13 June 2019, the first respondent commenced his proceedings in the General Division of the Supreme Court under s 6(1) of the Act, being CIV 2033 of 2019, for adequate provision to be made out of the Deceased's estate for his proper maintenance, support and advancement in life.

26 The evidence at the hearing before the Master of the application under s 6(1) of the Act included:

(a) affidavits of the first respondent sworn 13 June 2019, 21 June 2019 and 18 March 2020;

(b) affidavits of the second respondents sworn 19 September 2019 and 13 July 2020;

(c) affidavit of the first appellant sworn 20 February 2020; and

(d) affidavits of Bemnet sworn 31 July 2019 and 21 February 2020.

Objections were made to some passages in some of those affidavits.

27 There was expert evidence before the Master from Stephen Tucker, a certified practising valuer. Mr Tucker swore an affidavit on 31 July 2020 to which he annexed a report dated 26 June 2020. In his report, Mr Tucker said that the agent's commission and other costs on the sale of the Queens Park property would be about $15,000 ‑ $20,000. Mr Tucker also said in his report that a two bedroom villa in Queens Park could be purchased for about $260,000 (being the median value referred to in his report) and that stamp duty of about $8,265 would be payable on the purchase.

28 At the hearing before the Master, the first respondent gave oral evidence. However, none of the other deponents was required for cross‑examination.

The submissions of the parties at the hearing before the Master

29 The hearing before the Master occurred on 10 August 2020.

30 The first respondent's case at the hearing before the Master in relation to the second stage of the process was set out in pars 45 and 47 ‑ 51 of the first respondent's written submissions as follows:

Discretionary question

With respect, a wise and just testator would have left the entirety of her share in the Queens Park Property to her widower [the first respondent]. Further, it should have been left free and clear, without the mortgage loan debts. There are no special circumstances in this case to suggest [the Deceased's] moral duty required less than this.

...

Further, [the first respondent] should be provided with a cash provision, in the vicinity of $30,000.

As at 13 July 2020, such a provision in total would be valued at $445,464.80, being 49% of the value of the estate, calculated as [the] sum of the following:

(a) $250,000 for one half of the Queens Park Property (free and clear);

(b) $165,464.80 for half of the Commonwealth bank account loans; and

(c) $30,000.

If Bemnet retains 35% of the estate (with or without the removal of the age restriction), then she will receive approximately $315,000. The evidence on behalf of Bemnet demonstrates that she would be able to buy a 2 bedroom villa comfortably within this price in Queens Park. Indeed, her own evidence is the range of value in such properties is between $170,000 to $270,000 depending on age, location and general presentation.

If Gideon is to receive the remainder of the estate (with or without the removal of the age restriction), then he would receive approximately $136,170.

There is sufficient cash in the estate to achieve these testamentary dispositions. It is the size of the estate, plus the amount of cash held by the estate, that allows the primary need of [the first respondent], including the Queens Park Property, and the needs of Bemnet and Gideon to be met (footnote omitted).

31 Three features of the first respondent's written submissions before the Master in relation to the second stage may be noted. First, the amount of the provision sought for the first respondent (namely about $445,464.80) included payment of one half (namely about $165,000) of the amount owing to the Commonwealth Bank under its mortgage over the Queens Park property and not the total amount owing (namely about $330,000). Secondly, the first respondent's calculation of the amounts that should be received by the first respondent (namely about $445,464.80), Bemnet (namely about $315,000) and Gideon (namely about $136,170) made no allowance for the legal costs of the proceedings. Thirdly, the first respondent's written submissions made no provision for the first appellant.

32 The appellants' case at the hearing before the Master in relation to the second stage of the process was set out in pars 11‑ 15 of the appellants' written submissions as follows:

The [first respondent] contends that he should receive provision from the Deceased's estate such that he receives:

(a) the Queens Park house on an unencumbered basis; and

(b) a further sum for contingencies.

The [appellants'] position is that, given the significant competing claims of need, this is not an estate which can afford and justify the [first respondent] receiving provision whereby he obtains the unencumbered title to the Queens Park house, because:

(a) the estate is not large;

(b) the estate cannot afford to fund the repayment of the total mortgages over the Queens Park house - $331,000 (approximately) which comprises 41% of available cash (after legal fees and Simret's debts are paid);

(c) such a provision would place a significant burden on the limited funds in the estate, for the purpose only of providing one of the competing claimants with a roof over their head when that need can be met in a more modest and affordable way;

(d) the [first respondent] and Bemnet are both 'parents' to Gideon and take care of him in separate residences 'week about';

(e) Gideon is 10 years old and will require a substantial fund to meet his needs to adulthood.

The [appellants'] contention is that the Deceased's interest in the Queens Park house should be realised by a sale of the property and the net proceeds of sale should form part of her residuary estate. The [first respondent] should then receive 30% of the Deceased's residuary estate.

The [appellants] contend that this variation can be achieved by inserting a new clause 4A in the Deceased's Will as follows:

'Directions as to the sale of my interest in property at 25 Caporn Turn, Queens Park

I direct my executors to realise my interest in the property at 25 Caporn Turn, Queens Park, and to deal with my share of the net proceeds derived from the sale of my share of the Property as part of my residuary estate under clause 6.'

The [first respondent] receiving a share of the residue could be achieved by inserting a new clause 6 for the residue of the estate as follows:

After the words: 'I give the balance of my estate to be distributed as follows:

6.A As to a 30% percent share to my husband, [the first respondent];

6.1(a) as to a 30% percent share to my son, Gideon Mulugeta Taye provided he survives me and attains the age of 18 years to be held on trust by Janice Christine McKay;

6.1(b) If Gideon fails to attain a vested interest in this gift then I give this 30% share to my daughter Bemnet Mulugeta Taye.

6.2(a) as to a 30% percent share to my daughter Bemnet Mulugeta Taye;

6.3(a) as to a 10% percent share to my mother [the first appellant]'

(footnote omitted)

33 The reference in the appellants' written submissions to 'Simret's debts' is to the outstanding loans owing by the Deceased to Simret Tesfamariam. See [22(d)] above.

34 At the hearing before the Master, counsel for the first respondent made, relevantly, these oral submissions:

(a) If the first respondent were to receive '[the Deceased's] half [share of the Queens Park property] plus the discharge of the mortgages in their entirety [that] would be effectively 50 per cent of the [Deceased's] estate' (ts 23). (That submission was inaccurate in that if the first respondent received the Deceased's undivided one half share in the Queens Park property and the total debt secured against the Queens Park property was paid from the Deceased's estate, then the first respondent would receive, in effect, substantially in excess of 50 per cent of the value of the Deceased's estate).

(b) The first respondent's position was that 'overall with the cash in the estate, [there was] sufficient to give [the first respondent] 50 per cent and either Bemnet 30 per cent and Gideon 10 per cent or Bemnet and Gideon 20 per cent each to cover their needs based on the information in the affidavits' (ts 42).

35 At the hearing before the Master, counsel for the appellants made, relevantly, these oral submissions:

(a) It would 'take around $331,000 as at today's date to discharge' the total debt secured against the Queens Park property (ts 44).

(b) If the first respondent received the Queens Park property unencumbered plus $30,000 'the net result for [the first respondent] ... is that he would own unencumbered the four bedroom two bathroom home in Queens Park and have $30,000 cash at bank' (ts 44).

36 The Master published his reasons for decision on 22 September 2020.

37 The Master observed that on 3 March 2017 the first respondent and the Deceased had signed the transfer of land form in respect of the Queens Park property which had the effect of severing the joint tenancy. The Master then said [5]:

It would be open to the [Deceased's] estate to seek sale of the Queens Park property under s 126 of the Property Law Act 1969 (WA). In fact given the way the will is structured it is difficult to see how the executors, properly advised, would not take that step.

38 Next, the Master said that the first respondent did not have the financial resources to purchase the Deceased's undivided one half share in the Queens Park property and consequently '[t]he proper approach ... is to anticipate if no provision is made from the [Deceased's] estate to safeguard the [first respondent's] position the Queens Park property will be sold' [5].

39 The Master noted that counsel for the appellants had conceded that the Deceased's Will had not made adequate provision for the first respondent's proper maintenance, support and advancement in life [6]. The Master decided that the concession was properly made and that the jurisdictional question should be resolved favourably to the first respondent [6]. The Master explained [6]:

At present the [first respondent] is unemployed. He is studying for a qualification as a nursing assistant. His original affidavit showed his income was not meeting his outgoings. As at the date of trial the enhanced social security benefits applying at present had improved his position. But the question of whether the will made adequate provision for the [first respondent] is to be determined as at the date of death of [the Deceased]. All the evidence is one way. The will of [the Deceased] did not make adequate provision for the [first respondent].

40 Next, the Master gave attention to 'what provision should be made from the [Deceased's] estate for the [first respondent]' [7].

41 The Master said the first respondent contended that the Deceased's Will should be varied so that:

(a) the first respondent received the whole of the Queens Park property;

(b) the outstanding loans to the Commonwealth Bank which were secured by the mortgage over the Queens Park property were repaid from the Deceased's estate; and

(c) the first respondent received a cash provision of 'around $30,000 to cover contingencies' [8].

42 The Master recorded that it was accepted on the first respondent's behalf that, while he was not currently working, the first respondent had the capacity to work and was likely to find some employment in the future. The Master found that this was 'clearly the case'. Since he had arrived in Australia, the first respondent had been employed 'sometimes in as many as three jobs'. So, while the first respondent 'sought the security of residing in the former matrimonial home, he did not seek provision out of the estate that would allow him to remain in the property without obtaining gainful employment' [9].

43 The Master said 'there is no hard and fast rule to the effect that a widow or widower is entitled to remain in the matrimonial home' and '[e]ach case must be decided on its merits' [10].

44 The Master observed that there was 'no doubt that [the appellants] all have valid competing claims as to the [Deceased's] estate' [11]. The Master elaborated [11] ‑ [13]:

At present, [Gideon] spends one week with [the first respondent] and one week with his sister, [Bemnet]. There are presently on foot proceedings in the Family Court which will determine whether [the first respondent] or [Bemnet] should have custody of [Gideon]. But either way, [Gideon] will be cared for by [the first respondent] and [Bemnet]. He does not have any immediate need for funds. That is not to say from time to time some provision, if made, would enhance his position. Perhaps the provision of tutoring for his studies; or the provision of sporting equipment. But he does not have a demand for funds in the same way as the [the first respondent] and [Bemnet] have a demand for funds.

[Bemnet] is studying and working part time. She is undertaking a teaching degree. She is presently renting a unit. At 21 years of age and caring part time for her brother, she would clearly benefit from any provision from [the Deceased's] estate. It was accepted by [the first respondent that] she has ... a legitimate claim on [the Deceased's] estate.

[The first appellant] clearly had a strong relationship with [the Deceased] and has a strong relationship with [Gideon and Bemnet]. [The first appellant] provided assistance to [the Deceased] at the expense of her own business. After the death of [the Deceased] she was paid a benefit from the estate and when these proceedings were commenced she repaid that benefit in part. She is now on a pension and has very limited means. She too has a claim on the bounty of [the Deceased]. (footnotes omitted)

45 The Master set out in his reasons the submission by counsel for the appellants in relation to the nature and extent of the variation that should be made to the Deceased's Will [14]:

[Counsel for the appellants] submitted the proper variation to [the Deceased's Will] would be to require the sale of the Queens Park property with provision made to allow [the first respondent] to buy a unit in Queens Park. Counsel pointed out the present property was a four bedroom, two bathroom dwelling which was occupied by [the first respondent] with [Gideon] residing in the home every other week. In the context of an estate with limited assets it was submitted proper provision could be made if that property was sold and a property more suited to [the first respondent's] needs was purchased by him. Evidence was led by [the appellants] as to the availability of units in the Queens Park area.

46 The Master rejected that submission by counsel for the appellants. The Master explained [15]:

The difficulty with this approach is that it required the sale of the former matrimonial home. While the proposal put by counsel was not without merit it would be a drastic step to force [the first respondent] to sell the property in which he wishes to reside. True it is, the result will be capital in the estate will be tied up in the Queens Park property. Nonetheless, that seems to me to be the inevitable consequence of making adequate provision for [the first respondent]. I am satisfied that adequate provision here means [the first respondent] should have the Queens Park property with the liabilities discharged from the assets of the estate. I am also satisfied he ought have a lump sum of $30,000. That is a reasonable figure to tide him over until he can find productive employment.

47 Finally, the Master said that, subject to hearing from the parties, the costs of all parties should be borne out of the estate [16].

48 On 12 October 2020, the Master made orders, relevantly, as follows:

1. By way of codicil pursuant to section 10 of the Family Provisions Act 1972 (WA), the last Will and Testament of Melat Tewolde Habtemariam dated 19 February 2017 be varied as follows:

1.1. The following clauses be inserted after clause 5:

"5.1 Bequest to Mulugeta

I give, devise and bequeath to my husband Mulugeta Taye Gebremariam:

(a) all of my interest in the property at 25 Caporn Turn Queens Park, Western Australia, being the land more particularly described as Lot 307 on Deposited Plan 69626 contained in certificate of title Volume 2772 Folio 207 free of any mortgage; and

(b) the sum of $30,000."

"5.2 Full loans secured by mortgage to be paid out by my estate

I direct my executors to pay the whole of the loans secured by mortgage to Commonwealth Bank of Australia against 25 Caporn Turn Queens Park, including the loans I have jointly with my said husband, and including any fees to discharge the mortgage, to enable the devise in clause 5.1 above to be made free of any mortgage."

1.2. Clause 6.1(a) be varied by substituting the number '30' with the number '21'.

1.3. Clause 6.2(a) be varied by substituting the number '30' with the number '21'.

1.4. Clause 2.4 be varied before the full stop at the end of the sentence by including the words "other than the trust referred to in clause 6.1 (for my son, Gideon) for which the trustee shall be Janice Christine McKay of Unit 22, 65 Palmerston Street, Perth".

49 One of the effects of those orders (in particular, the insertion of the new cl 5.2 into the Deceased's Will) was that the total amount owing under the Commonwealth Bank's mortgage over the Queens Park property (namely about $330,000) was to be paid from the Deceased's estate.

The estate pay all the parties costs, including reserved costs, of this action and CIV 1437/2018 to be taxed if not agreed the [second respondents' costs] on a trustee basis.

51 One of the effects of that order was that the whole of the legal costs of the parties to the primary proceedings were to be paid out of the residuary estate (to which the first appellant, Bemnet and Gideon were entitled) and none of those costs were payable out of the provision which the Master made for the first respondent.

52 The appellants rely upon four grounds of appeal.

53 Ground 1 alleges, in essence, that the Master erred in finding, in effect, that adequate provision for the first respondent's proper maintenance, support and advancement in life required that the Deceased's Will be varied so that:

(a) the first respondent received the Deceased's undivided one half share in the Queens Park property;

(b) the outstanding loans to the Commonwealth Bank, which were secured by the mortgage over the Queens Park property, were repaid from the Deceased's estate; and

(c) the first respondent received $30,000.

54 The particulars of ground 1 assert that, in determining the net value of the Deceased's estate, the Master found that there were secured debts over the Queens Park property of 'just over' $165,000 when the evidence was that the secured debts over the Queens Park property were $330,929.59.

55 Ground 2 alleges, in essence, that the Master erred in finding that the 'inevitable consequence of making adequate provision for [the first respondent]' [15] was the variation of the Deceased's Will so that the first respondent received the whole of the Queens Park property on an unencumbered basis, in circumstances where the Master failed to consider, alternatively failed to give any or any proper weight to, the competing claims of the beneficiaries under the Will and the financial needs of those beneficiaries.

56 Ground 3 alleges, in essence, that the Master erred by failing to provide adequate reasons:

(a) for his evaluation of the amount that would constitute adequate provision for the first respondent's proper maintenance, support and advancement in life; or

(b) for his conclusion that the Will should be varied in the manner referred to at [48] above.

57 Ground 4 alleges, in essence, that as a consequence of the errors referred to in grounds 1 and 2, alternatively the error referred to in ground 3, the Master erred in determining that adequate provision for the first respondent's proper maintenance, support and advancement in life required that the Deceased's Will be varied in the manner referred to at [48] above, when all that was required, in the circumstances, was that:

(a) the Deceased's undivided one half share in the Queens Park property be realised by a sale of the property;

(b) the net proceeds of sale of the Deceased's undivided one half share form part of her residuary estate; and

(c) after the net proceeds of sale of the Deceased's undivided one half share were credited to the Deceased's residuary estate, the first respondent receive 30% of her residuary estate.

58 As to ground 1, counsel for the appellants submitted that the Master found at [3] of his reasons that the debt secured against the Queens Park property was 'just over $165,000'. However, as at 10 July 2020, the debt secured against the Queens Park property was in fact $330,929.59.

59 It was submitted that the effect of the Master's orders was that the first respondent 'received' the Queens Park property (that is, the first respondent, in addition to his existing undivided one half share, was given the Deceased's undivided one half share) with the whole of the secured debt being discharged from the Deceased's estate. The discharged debt was about $330,000 and not the sum of about $165,000 referred to by the Master at [3] of his reasons. According to counsel for the appellants, the Master made an error in finding that the amount of the secured debt was 'just over $165,000' and, on the basis of that error, in deciding upon the provision that should be made for the first respondent.

60 As to ground 2, counsel for the appellants noted that the Master stated at [10] of his reasons that 'there is no hard and fast rule to the effect that a widow or widower is entitled to remain in the matrimonial home'. Counsel submitted that, notwithstanding this statement of principle, the Master's approach, in deciding upon what provision should be made for the first respondent, appears to have been that:

(a) 'it would be a drastic step to force [the first respondent] to sell the [Queens Park] property in which he wishes to reside' [15];

(b) the result of not ordering the sale of the Queens Park property would be that 'capital in the [Deceased's] estate will be tied up in the Queens Park property' [15]; and

(c) '[n]onetheless, that seems ... to be the inevitable consequence of making adequate provision for [the first respondent]' [15].

61 Counsel for the appellants referred to the first respondent having said, in his affidavit sworn 18 March 2020, that he 'would like to keep [his] home' at the Queens Park property and that '[d]ue to [his] age and limited earning capacity' the first respondent did not believe that he would 'ever be able to afford to buy another home if [he were to] lose this one' [32].

62 It was submitted that the Master's approach was erroneous. The determination of adequate provision for the first respondent's proper maintenance, support and advancement in life was 'a relative question, requiring consideration of the nature, extent and character of the [Deceased's] estate and the other demands upon it at the time of the making of the order'.

63 It was also submitted that, apart from observing that there were competing claims, the Master did not attempt to quantify those claims by reference to the Deceased's bounty. Also, the Master did not take into account or address that the sale of the Queens Park property would deliver a higher return to the beneficiaries, but would also provide a capital sum for the first respondent while still permitting the purchase of a smaller home (a villa or a unit) for the first respondent on an unencumbered basis.

64 As to ground 3, counsel for the appellants reiterated, in effect, the arguments made in support of ground 2.

65 It was also submitted that the Master, when assessing the claims of the beneficiaries under the Deceased's Will, found:

(a) with respect to Gideon, that Gideon did not have any immediate need for funds, save for provision from time to time to enhance his position (perhaps, tutoring for his studies or the provision of sporting equipment), and Gideon did not have a demand for funds in the same manner as the first respondent and Bemnet [11];

(b) with respect to Bemnet, that Bemnet would benefit from any provision from the estate and that the first respondent accepted that she had a legitimate claim [12]; and

(c) with respect to the first appellant, that the first appellant was in receipt of a pension, had very limited means and had a claim on the Deceased's bounty [13].

(a) the Master's finding with respect to Gideon appears to have been made upon the assumption that, during his childhood and irrespective of whether the first respondent or Bemnet was responsible for his care and custody, Gideon would have no needs that would remain unmet and would not have any need for funds to finance his advancement in life; and

(b) the Master did not make any findings as to how Bemnet's claim on the Deceased's bounty could co-exist with the first respondent's need for provision from the Deceased's estate, beyond stating that Bemnet would benefit from any provision.

67 It was submitted that, beyond the Master's assertion that 'it would be a drastic step to force [the first respondent] to sell the [Queens Park] property in which he wishes to reside' [15], it is difficult for the beneficiaries under the Deceased's Will to discern why that result ensued and why the Master made the orders that he did.

68 Further, the Master did not give adequate reasons as to how the orders he intended to make reflected a just division of the Deceased's estate in proportion to the relative urgency of the claims of the beneficiaries under the Deceased's Will and the first respondent.

69 As to ground 4, counsel for the appellants acknowledged that the re‑exercise of the discretion conferred on the Master only arises if the appellants make out one or more of grounds 1, 2 and 3. It was submitted that if the appellants establish any of grounds 1, 2 and 3 then this court should re‑exercise the discretion which arises at the second stage of the process.

The first respondent's submissions on the appeal

70 As to ground 1, counsel for the first respondent submitted that the Master did not make the alleged error in ascertaining the amount of the debt secured against the Queens Park property. It was submitted that it is plain from his reasons that the Master was referring to the statement of assets and liabilities of the Deceased's estate when he observed that '[t]here were secured debts ... of just over $165,000' [3]. The Master did not find that the whole of the debt secured against the Queens Park property was about $165,000.

71 As to ground 2, counsel for the first respondent submitted that the Master stated, correctly, that '[t]he proper approach ... is to anticipate [that] if no provision is made from the [Deceased's] estate to safeguard the [first respondent's] position the Queens Park property will be sold' [5]. After addressing the case law, the Master also stated, correctly, that '[e]ach case must be decided on its merits' [10]. It was submitted that the Master did not apply a presumption that the first respondent, as a widower, should be entitled to remain in the family home unless 'drastic' steps or consequences applied. The Master merely found that, in the present case, it would be a 'drastic' step to force the first respondent to sell [15].

72 Counsel contended that the Master addressed without elaboration, at [11] ‑ [14] of his reasons, the competing claims of the beneficiaries under the Deceased's Will. The Master did not fail to give any (or any proper) weight to their competing claims.

73 Counsel emphasised that the Master did not find that the 'inevitable consequence of making adequate provision for [the first respondent]' was the variation of the Deceased's Will so that the first respondent received the Queens Park property on an unencumbered basis. Rather, so it was argued, the Master found that tying up capital of the estate in the Queens Park property was the 'inevitable consequence of making adequate provision for [the first respondent]' [15].

74 As to ground 3, counsel for the first respondent submitted that the Master did not fail to recognise that providing the Queens Park property to the first respondent free from encumbrances required the transfer to the first respondent of the Deceased's undivided one half share and the application of $330,929.59 from the Deceased's estate to discharge the secured debt.

75 Counsel argued that, given that the first respondent already held an undivided one half share of the Queens Park property, it is self‑evident that it would be a drastic step to force the first respondent to sell.

76 It was submitted that the Master did not fail to give adequate reasons in relation to his decision as to how the Deceased's Will should be varied or as to why the orders he intended to make reflected a just division of the Deceased's estate having regard to the competing claims of the beneficiaries under the Deceased's Will and the first respondent.

77 As to ground 4, counsel for the first respondent argued that none of grounds 1, 2 and 3 had been made out and, consequently, no occasion arose for this court to re-exercise the discretion conferred on the Master at the second stage of the process.

The repayment of the outstanding loans to the Commonwealth Bank and the discharge of its mortgage over the Queens Park property

78 After the Master made his orders on 12 October 2020 (see [48] above) and before the hearing of the appeal on 10 September 2021, the second respondents, as executors of the Deceased's Will and trustees of her estate, repaid the whole of the outstanding loans to the Commonwealth Bank. Upon repayment, the Commonwealth Bank discharged its mortgage over the Queens Park property.

The orders made by the court on 14 September 2021

79 On 10 September 2021, this court heard the appeal and reserved judgment. When judgment was reserved, we informed the parties that the court would make an order requiring the parties to file an agreed memorandum which set out facts and circumstances relevant to the re‑exercise by this court of the discretion which arises at the second stage of the process in the event that this court concluded that one or more of grounds 1, 2 and 3 had been made out.

80 On 14 September 2021, this court made the following order:

By 4.00 pm on 7 October 2021, the parties are to file an agreed memorandum which sets out particulars of the following:

(a) The assets of the Deceased's estate (the Estate) and their value as at 10 September 2021.

(b) The liabilities of the Estate and their amount as at 10 September 2021.

(c) The legal costs of each of the parties in relation to CIV 1437 of 2018 and CIV 2033 of 2019 and whether those costs have been agreed or assessed.

(d) The assets, liabilities, income and expenses of each of the first appellant, the second appellant, the third appellant and the first respondent as at 10 September 2021.

(e) The estimated market value of the whole of the property at 25 Caporn Turn, Queens Park as at 10 September 2021.

(f) Any encumbrances, and the amount (if any) secured by any encumbrances, over the whole or any part of the property at 25 Caporn Turn, Queens Park as at 10 September 2021.

(g) Any employment of or business carried on by each of the first appellant, the second appellant and the first respondent as at 10 September 2021.

(h) Any marital or domestic relationship of each of the first appellant, the second appellant and the first respondent as at 10 September 2021.

(i) The school attended by the third appellant as at 10 September 2021 and any proposed or anticipated change to his schooling arrangements.

(j) Any orders of the Family Court of Western Australia in relation to the parenting and maintenance of the third appellant as at 10 September 2021.

(k) The estimated legal costs of each of the parties to this appeal.

The agreed memorandum filed in response to the court's orders made on 14 September 2021

81 On 8 October 2021, the parties filed an agreed memorandum in response to the court's orders made on 14 September 2021.

82 The assets of the Deceased's estate and their values as at 10 September 2021 were as follows:

Right of contribution from [the first respondent] for mortgage repaid in full (assuming Master's orders made on 12 October, 2020 are set aside)

Interim payment made to [the first respondent] (pursuant to order of Le Miere J on 26/6/2019) (assuming the Master's orders made on 12 October, 2020 are set aside) (entirety paid by estate to payment of mortgage but treated as interim payment to [the first respondent])

83 The liabilities of the Deceased's estate as at 10 September 2021 were as follows:

Loans from Simret Habtemariam (these loans are not agreed by the first respondent and were stated by the executors to be unconfirmed in their evidence (see GAB203, para 14))

Legal fees of executors in Supreme Court Proceedings (including disbursements and counsel fees)

One half of the mortgage payments made by [the first respondent] from date of death

One half of the advance made to [the first respondent] used to pay mortgage payments

84 The solicitor and own client legal costs of each party in relation to CIV 1437 of 2018 and CIV 2033 of 2019, none of which have been assessed or agreed, are as follows:

[The first respondent] (including GST, disbursements and counsel's fees)

[The first appellant] (including GST and 1/3 counsel's fee)

[Bemnet] (including GST, disbursements and 1/3 counsel's fees)

[Gideon] (including GST, disbursements and 1/3 counsel's fees)

Estate - [see the liability stated in the table at [83] above]

(a) the first appellant was aged 68 years;

(b) the total value of her assets was $12,000 and her liabilities were $5,000; and

(c) her income (an aged pension) was $1,071.00 per fortnight and her expenses were $901.40 per fortnight.

(a) Bemnet was aged 22 years;

(b) the total value of her assets was $11,000 and her liabilities were $10,205.90; and

(c) her income (comprising wages and a Centrelink child allowance) was $2,049.44 per fortnight and her expenses were $1,791.00 per fortnight.

(a) Gideon was aged 11 years;

(b) he had no assets or liabilities; and

(c) he had no income and his expenses were $6,722.00 per annum (of which Bemnet paid $3,375 per annum and the first respondent paid $3,347.00 per annum).

(a) the first respondent was aged 50 years;

(b) the total value of his assets (including his undivided one half share in the Queens Park property) was $338,063 and his liabilities (including his obligation, on the assumption that the Master's orders made on 12 October 2020 are set aside, to reimburse the second respondents, as executors of the Deceased's Will and trustee of her estate, for one half of the debt secured against the Queens Park property the whole of which the second respondents have discharged) were $171,829.55; and

(c) his income (comprising wages and a Centrelink child allowance) was $1,874.35 per fortnight and his expenses were $1,065.65 per fortnight.

(a) the agreed value of the Queens Park property was $580,000;

(b) the mortgage on the property held by the Commonwealth Bank had been discharged (on or about 4 May 2021); and

(c) the only encumbrance on the property was a memorial lodged by Legal Aid against the first respondent's undivided one half share in respect of a debt of $3,000 owing by the first respondent to Legal Aid.

(a) the first appellant was not employed and received an aged pension;

(b) Bemnet was employed by Curtin University as a student adviser; and

(c) the first respondent was employed by Mediserve Pty Ltd as a casual carer.

91 As at 10 September 2021, none of the first appellant, Bemnet or the first respondent was married or in a relationship.

92 As at 10 September 2021, Gideon attended Gibbs Street Primary School, East Cannington. He had been accepted into the Specialist Soccer Academy at Lynwood Senior High School for the 2022 year, without a scholarship. There will be charges and extra costs levied by the Academy for camps and interstate or overseas competitions. Those charges and extra costs cannot be estimated because they will be raised at the end of each year and relate to the number of events that Gideon attends. The number of events held will vary each year.

93 As at 10 September 2021, parenting orders made by the Family Court of Western Australia on 13 November 2020 in respect of Gideon were subsisting. Pursuant to those orders:

(a) Bemnet and the first respondent have equal and shared parental responsibility for decisions concerning Gideon's long‑term care, welfare and development; and

(b) Gideon spends 10 nights per fortnight with Bemnet and four nights per fortnight with the first respondent.

94 The order of the Family Court of Western Australia made on 13 November 2020 that Gideon spend 10 nights per fortnight with Bemnet and four nights per fortnight with the first respondent is to be compared to and contrasted with the position as at the date of the hearing before the Master on 10 August 2020. As at the date of the hearing before the Master, Bemnet and the first respondent cared for Gideon in separate residences 'week about'.

95 The estimated legal costs of the appellants in relation to this appeal are $21,385.66. The estimated legal costs of the first respondent in relation to this appeal are $22,000.

The financial benefit for the parties under the Deceased's Will and under the Master's orders

96 The financial benefit for the parties under the Deceased's Will, based on the statement of the assets and liabilities of the Deceased's estate as at 13 July 2020, and without taking into account the costs of selling the Deceased's undivided one half share in the Queens Park property and the further costs of administering the Deceased's estate, was approximately as follows:

(a) first appellant: $181,560;

(b) Bemnet: $317,730;

(c) Gideon: $408,511; and

(d) first respondent: Nil.

97 The financial benefit for the parties under the Master's orders made on 12 October 2020, based on the statement of the assets and liabilities of the Deceased's estate as at 13 July 2020, and without taking into account the further costs of administering the Deceased's estate and the Master's orders made on 12 October 2020 concerning the costs of the proceedings, is approximately as follows:

(a) first appellant: $92,467;

(b) Bemnet: $161,817;

(c) Gideon: $208,051; and

(d) first respondent: $610,929.

98 The financial benefit for the parties under the Master's orders made on 12 October 2020, based on the statement of the assets and liabilities of the Deceased's estate as at 13 July 2020, and after taking into account the Master's orders made on 26 October 2020 concerning the costs of the proceedings (and the amount of those costs as set out in the table at [84] above), but without taking into account the further costs of administering the Deceased's estate, is approximately as follows:

(a) first appellant: $38,572;

(b) Bemnet: $67,502;

(c) Gideon: $86,788; and

(d) first respondent: $610,929.

The relevant provisions of the Act and the applicable legal principles

If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.

100 Section 6(3) empowers the Court to attach 'such conditions to the order as it thinks fit'.

101 Section 10 provides that an order takes effect as a codicil to the will or, in the case of intestacy, as a modification to the applicable rules of distribution.

Every order in which provision is made or altered shall specify the part or parts of the estate of the deceased or, where applicable, the part or parts of the distributed estate out of which such provision shall be raised or paid, and prescribe the manner of raising and paying such provision.

103 Section 14(6) empowers the Court to make such order as to the costs of any proceeding under the Act as it deems just.

104 Section 14(7) provides that the Court may give such consequential directions as it thinks fit for the purpose of giving effect to an order made under the Act.

105 By s 6(1) of the Act, the court is required to carry out a two-stage process.

106 The first stage involves the determination of whether the disposition of the deceased's estate effected by his or her will or the law relating to intestacy is not such as to make adequate provision from his or her estate for the proper maintenance, support, education or advancement in life of the claimant. The first stage has been described as the 'jurisdictional question', which means no more than that the court's power to make an order in the claimant's favour is conditioned upon the court first being satisfied of the state of affairs referred to in the opening passage of s 6(1), ending with the words 'made under this Act'. See Singer v Berghouse;[1] Vigolo v Bostin.[2]

107 The first stage involves a question which is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decision arises from the fact that the court must determine whether the claimant has been left without 'adequate' provision for his or her 'proper' maintenance, etc. See White v Barron;[3] Goodman v Windeyer;[4] Singer (210 ‑ 211) (Mason CJ, Deane & McHugh JJ).

108 The second stage, which only arises if the 'jurisdictional question' is determined in the claimant's favour, involves the exercise of discretion: the court may order that such provision as the court thinks fit be made out of the deceased's estate for the proper maintenance, etc, of the claimant. See White (442 ‑ 443) (Mason J), (449 ‑ 450) (Aickin J); Goodman (501 ‑ 502) (Gibbs J), (509) (Aickin J); Singer (211) (Mason CJ, Deane & McHugh JJ).

109 The question which arises at the first stage must be formulated and determined as at the date of death of the deceased, having regard to all material facts that existed at the date of death, whether the deceased knew of them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts. See Coates v National Trustees Executors and Agency Co Ltd;[5] Hughes v National Trustees, Executors and Agency Co of Australasia Ltd;[6] White (437) (Barwick CJ), (441) (Mason J), (448 ‑ 449) (Aickin J); Goodman (498 ‑ 499) (Gibbs J).

110 In Coates, Dixon CJ observed that, in determining the question which arises at the first stage, the court must look to what is 'necessary or appropriate prospectively' from the date of death, including events which are contingent as well as those which are certain or exceedingly likely to happen (508). Advantage may be taken of hindsight if the subsequent occurrences are within 'the range of reasonable foresight' (508). See also White (441) (Mason J).

111 At the second stage the court exercises its discretion to order adequate provision for the proper maintenance, etc, of the claimant by reference to the circumstances as they exist at the date of the order. See Coates (509) (Dixon CJ); White (441) (Mason J); Goodman (498 ‑ 499) (Gibbs J).

112 In Bosch v Perpetual Trustee Co Ltd,[7] Lord Romer (delivering the advice of the Privy Council) observed that the discretionary power given to the court at the second stage 'must always be one of great difficulty and delicacy' and 'must always be one largely of guess‑work, especially in a case ... which is concerned with children of tender age of whose needs in the future nothing can be predicted with any certainty' (483).

113 The discretionary power conferred by the Act at the second stage is to interfere with a deceased's dispositions when he or she has left a claimant without adequate provision for his or her proper maintenance, etc. Freedom of testamentary disposition is a relevant and important consideration. See Pontifical Society for the Propagation of the Faith v Scales.[8] The court is empowered to order such provision from the deceased's estate as the court thinks fit, but the court is not empowered to award more than what is 'adequate' provision for the claimant's 'proper' maintenance, etc. See Coates (509) (Dixon CJ); Blore v Lang.[9] Those propositions are derived from the statutory text. In particular, the words 'for that purpose' at the end of s 6(1) refer to the purpose identified earlier in s 6(1), namely ensuring that 'adequate' provision is made from the deceased's estate for the claimant's 'proper' maintenance, etc. The text and purpose of s 6(1) qualify the court's power at the second stage. The power is confined by the text and purpose to the making of orders which will ensure that 'adequate' provision is made from the deceased's estate for the claimant's 'proper' maintenance, etc.

114 The word 'proper' connotes something different from the word 'adequate'.

115 For example, a small sum may be sufficient for the 'adequate' maintenance, etc, of the claimant but, having regard to all the circumstances, including the size of the deceased's estate and the lifestyle to which the claimant had become accustomed during the deceased's lifetime, may be wholly insufficient for his or her 'proper' maintenance, etc. By contrast, a sum may be quite insufficient for the 'adequate' maintenance, etc, of the claimant, and nevertheless be sufficient for his or her maintenance, etc, on a scale that is 'proper' in all the circumstances. See Bosch (476); Worladge v Doddridge;[10] White (457) (Wilson J).

116 The determination of whether the provision, if any, made for the claimant is 'adequate' for his or her 'proper' maintenance, etc, involves not only a scrutiny of the requirements of the claimant for maintenance, etc, that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased. See Goodman (496 ‑ 497) (Gibbs J); Hunter v Hunter;[11] Singer (209 ‑ 210) (Mason CJ, Deane & McHugh JJ).

117 Plainly, the totality of that relationship would include:

(a) any sacrifices made or services given by the claimant to or for the benefit of the deceased;

(b) any contributions by the claimant to building up the deceased's estate; and

(c) the conduct of the claimant towards the deceased and of the deceased towards the claimant.

See Coates (510) (Dixon CJ); Hughes (147) (Gibbs J); Goodman (497) (Gibbs J).

118 Any such sacrifices, services or contributions (whether described as giving rise to a moral duty/moral claim or not) are a relevant consideration (as part of the totality of the relationship between the claimant and the deceased), but are neither a necessary nor a sufficient condition for the making of an order under the Act. See Permanent Trustee Co Ltd v Fraser.[12]

119 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of maintenance, etc. The propriety of the provision, if any, for the claimant is to be assessed by reference to all the circumstances including contemporary accepted community standards. See Bosch (476 ‑ 479); Worladge (11) (Williams & Fullagar JJ), (15 ‑ 18) (Kitto J); White (440) (Stephen J), (441 ‑ 445) (Mason J), (457) (Wilson J); Goodman (497, 502) (Gibbs J); Singer (209 ‑ 211) (Mason CJ, Deane & McHugh JJ), (227 ‑ 228) (Gaudron J).

120 The capacity of a court to make 'adequate' provision for the 'proper' maintenance, etc, of the claimant may be constrained by practical considerations such as the size and nature of the deceased's estate, and competition from other persons having competing claims upon the deceased's bounty, and their relative urgency. See McCosker v McCosker;[13] Singer (227) (Gaudron J); Barns v Barns.[14]

121 In Scales, Dixon CJ pointed out that the words 'adequate' and 'proper' are always relative and that what the testator regarded as 'superior claims or preferable dispositions' is a relevant consideration:

The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning (19).

122 In Vigolo, Callinan and Heydon JJ made this comment about the interaction between the word 'adequate' and the word 'proper':

The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future [114].

123 A claimant may fail to establish that the disposition of a deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc, even though no provision was made for him or her in the will. See Goodman (505) (Murphy J); Singer (210) (Mason CJ, Deane & McHugh JJ).

124 The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer (227) (Gaudron J).

125 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks.[15]

126 The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, include an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter (579) (Kirby P).

127 Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for the claimant's proper maintenance, etc. See Singer (227) (Gaudron J). Compare Gorton (6 ‑ 12) (Bryson J); Collicoat v McMillan.[16]

128 Often 'need', in the sense of the claimant's inability to satisfy his or her financial requirements from his or her own resources, and a 'moral claim', in the sense of a claim arising from the totality of the relationship between the claimant and the deceased (for example, sacrifices made or services given by the claimant to or for the benefit of the deceased or contributions by the claimant to building up the deceased's estate) and contemporary accepted community standards, will co-exist. Sometimes there may be a strong 'moral claim' but no 'need'. Sometimes the 'moral claim' may be slight but the 'need' dire. Whether the court should intervene or not will depend on all the circumstances of the case; in particular, whether the value judgment made upon an examination of those circumstances is that the claimant has been left without 'adequate' provision for his or her 'proper' maintenance etc. See Re Sinnott, deceased.[17]

129 In Vigolo, Callinan and Heydon JJ construed the words 'maintenance', 'support' and 'advancement' in s 6(1):

'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education [115].

130 The term 'moral duty' has been used as a shorthand expression referring to a deceased's 'duty' to make adequate provision for the proper maintenance, etc, of persons within the statutory class, the nature and extent of that 'duty' in any case being determined by reference to the totality of the relationship between the claimant and the deceased, and contemporary accepted community standards. Where 'moral duty' has been used in this sense, the term 'moral claim' has referred to the 'right' which is correlative to that 'duty'. See Permanent Trustee Co (27 ‑ 29) (Kirby P); Collicoat [43] ‑ [45] (Ormiston J).

131 In Vigolo, Gleeson CJ held that the concept of the 'moral duty' of a deceased was useful as part of an exposition of the legislative purpose embodied in s 6(1), and in the understanding and application of the statutory text [21]. His Honour referred to the observations of Mason CJ, Deane and McHugh JJ in Singer (209) to the effect that it was doubtful that references to 'moral duty' or 'moral obligation' provided useful assistance in elucidating the statutory provisions, and may well be understood as amounting to a gloss on the statutory language. Gleeson CJ said [21]:

In Singer v Berghouse ((1994) [1994] HCA 40; 181 CLR 201 at 209), Mason CJ, Deane and McHugh JJ doubted that the statement of Salmond J, [in In re Allen; Allen v Manchester [1921] NZGazLawRp 155; [1922] NZLR 218 at 220 ‑ 221] provided useful assistance in elucidating the statutory provisions. I do not share that doubt. I add, however, that it is one thing to seek assistance in elucidating statutory provisions, and another to substitute judicial exposition of statutory purpose for the legislative text. Their Honours went on to describe references to 'moral obligations' as a gloss on the statutory text. If, by that, they meant that such references are not to be used as a substitute for the text, I agree. If they meant that such references are never of use as part of an exposition of legislative purpose, then I regret that I am unable to agree (A detailed examination of this aspect of Singer v Berghouse appears in the judgment of Ormiston J in Collicoat v McMillan [1999] 3 VR 803 at 815 ‑ 821). The descriptions of references to moral duty or moral obligations as a gloss upon the text was not new. In 1956, in Coates v National Trustees Executors and Agency Co Ltd ((1956) [1956] HCA 23; 95 CLR 494 at 523), Fullagar J said: 'The notion of "moral duty" is found not in the statute but in a gloss upon the statute. It may be a helpful gloss in many cases, but, when a critical question of meaning arises, the question must be answered by reference to the text and not by reference to the gloss.'

132 In Vigolo, Callinan and Heydon JJ noted that for many years several justices of the High Court had found it convenient and generally useful to resort to the concepts of 'moral duty' and 'moral claim' in deciding both whether, and how much, provision should be made for a claimant under the Act [121]. Their Honours added:

In our respectful opinion they have not been wrong to do so. These are not concepts alien to, or in any way outside, the language of s 6 of the Act [121].

133 By contrast, Gummow and Hayne JJ said in Vigolo that references to the 'moral duty' of the deceased and the 'moral claim' of the claimant, as a convenient shorthand expression, may mislead, and it is therefore better to forego any convenience that those expressions may offer in favour of adherence to the statutory language [73].

MUSASGHI -v- GEBREMARIAM [2022] WASCA 37 (29 March 2022)

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