(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."
30 When talking of the need to provide a house and a sum for contingencies the President is clearly referring to passages in Luciano v Rosenblum and other cases. As was pointed out by the Court of Appeal in Elliott v Elliott, unreported, 29 April 1986, such a type of provision only applies where it can be said there has been a long and happy marriage and a widow has helped build up the estate of the deceased.
31 In Permanent Trustee v Fraser 36 NSWLR 24 at page 47 Sheller JA had the following to say:-
"Once it is accepted that adequate provision for her proper maintenance and advancement in life required secure accommodation for life as well as a capital sum to meet exigencies, this need is not met by giving her only a life interest in the home unit. Commonly people in the community need to move from their own home into a unit in a retirement village and then into nursing accommodation and then into total care accommodation: see Young J in Christie v Christie …The need can be met if the respondent is given the home unit absolutely. She then has a greater flexibility as well as greater security."
32 It is to be noted that the facts which Sheller JA was dealing with are quite different from the present case.
33 In Salmon v Blackford 18 February 1997 the Court of Appeal was dealing with a case where the trial Judge had given a fee simple to the deceased widow. Sheller JA said:-
"The principal point according to Mr Gibb was that his Honour failed to take into account that by reason of the widow's advanced years and the probability that her adopted son would be the natural object of her bounty, the effect of the order made was likely to be that the adopted son, whom the deceased had no intention to benefit, would be the beneficiary of half the estate. I have great difficulty in seeing how a submission of this sort has any weight in the circumstances of this case.
The matter that this Court must consider is whether the order that his Honour made was in such terms that one could only come to the conclusion that in some way his discretion must have miscarried. It is well established that proper provision is not to be measured solely by the need for maintenance. It should, in the case of this respondent and in the circumstances of this case, free her mind from any reasonable fear of any insufficiency as her age increases and her health and strength fails. I may say in this regard that her life expectancy, according to the tables, was something over eleven years at the time of the hearing. If one comes to the conclusion that for her proper maintenance an order such as the present is appropriate, it seems to me to matter not at all that she has an adopted son of an earlier marriage and that he may be the ultimate beneficiary of her bounty."
34 This seems to indicate a different approach to that referred to by the High Court in White v Barron. In the present case the plaintiff made a will in 1991 before the death of the deceased. In that she forgave part of the debt due by her son Peter and provided for loans to secure him some accommodation. The residue was held to pay the income to her two sons during their life and thereafter the capital was to go to her sister the deceased but if she predeceased the plaintiff (which happened) it was to pass to Mr Henderson, the defendant, or in default to his wife.
35 There is no evidence of any change to the will but if there was it would seem unlikely that the plaintiff's views of what her sons should receive would be likely to change. She clearly did not want them to have any substantial capital.
36 It is to be remembered that, of course, in this case I am dealing with the provision to be made by a sister for her sibling. One is not concerned with a widow's claim. Ordinarily, of course, such a claim by a sister would be one which would not call for the provision of a secure home. Even children, in the ordinary course, can not expect such a provision by a testator unless there is a very large estate. See for example Shearer v Public Trustee Young J 23 November 1998.
37 In the present case, however, there are no other claimants to the testator's estate except the defendant and his claim does not relate to his financial situation but to the care which he extended to the deceased over the last five or six years of her life. One can thus perhaps be somewhat more generous in an assessment of what is appropriate. For example, although this is not precisely in point, Young J in Anasson v Phillips, 4 March 1988, said the following:
"... with a very large estate ... there is a great temptation on a court to be over-generous with other people's money. This is especially so when the court can see that plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes and there is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the court has no power to re-write the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty.
If the estate is a large one, the court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs, because they have been associated with a wealthy testatrix is a relevant factor. These principles all, I think, flow from cases such as Re Buckland (1966) VR 404, especially at page 412."