PRICE v ROBERTS

appropriate - unable to find error in decision; (Per Priestley JA): decision discretionary - no material misunderstanding of facts - decision not so clearly at variance as to what might reasonably be expected as to justify a finding of error.

Priestley JA The chief facts of this case are set out in Clarke JA's reasons. The judgment arrived at by the trial judge was a discretionary one. His reasoning on the materials before him does not in my opinion show any material misunderstanding of the facts of the case or the relevant principles. Nor did he arrive at an answer so clearly at variance with what might be reasonably expected to be the outcome that the court would be justified in thinking there must have been some error involved in the way he reached his conclusion.

I therefore feel constrained to agree with Clarke JA that the appeal should be dismissed with costs.

Clarke JA Mrs Catherine Roberts died on 4 September 1989 leaving a will whereby she gave small legacies to the War Widows' Guild and to the children of her daughter, Lorraine May Price ("the Appellant") and the residue of her estate to her son Graham Hugh Roberts ("the first respondent"). Probate was duly granted and the estate was valued for probate purposes at approximately $340,000.

The appellant, who was left nothing, brought an application under the Family Provision Act 1982 ("the Act') which in due course came on for hearing before Master Windeyer (as he then was). The learned Master found that at the time of hearing the estate was constituted by a property, 1 Cross Street, Strathfield, which was estimated to be worth $275,000, and about $58,000 in cash. The deceased's husband had predeceased her, dying in 1974, and the appellant and respondent, who were born in 1944 and 1946 respectively, were her only children. The learned Master found that the appellant had a fund of about $67,000 and concluded that in ordinary circumstances proper provision for her maintenance and advancement would require more than that. He also concluded that "if it were proper to make an order in favour of the appellant there would be no difficulty in so doing as the estate of the deceased would be sufficient to provide for the needs of both the appellant and respondent".

I should interpolate the observation that the learned Master overstated the appellant's fund by approximately $10,000, however, that is not a matter of moment on the primary question which is raised in this appeal. The learned Master refused the appellant's applications upon the ground that the appellant had been convicted in 1987 of murdering her husband. In this respect the Master found that "the crime of murder, with all its necessary constituents, of a husband, with no mitigating circumstances must be that type of conduct which would justify the deceased in making the will she did looked at as if it were made at the hearing date".

The appellant submits that this was an erroneous approach to the appellant's application. Her counsel contends that a court ought to have considered her application initially without regard to her conviction, determined that she had made out a case for relief under the Act and then, having determined that she had made out a case for relief, considered her conduct. While it was accepted that conduct was relevant and that criminal convictions may lead to the rejection of a claim in particular circumstances that result should not follow in this case. That was because an isolated act of criminal conduct not directly affecting the deceased should not be seen by the courts as the type of conduct which would disentitle an applicant to relief under the Act.

According to the evidence for the first respondent the deceased made a will in 1982 leaving her estate to the first respondent and the appellant and her children. The evidence did not, however, reveal any further details of that will or indicate the share in the estate left to each beneficiary.

It is apparent that it was subsequent to this time that the deceased's attitude to the appellant changed but the learned Master made no finding as to when and in what circumstances that occurred. Accordingly to the first respondent the deceased's attitude to the appellant changed after she received an Easter card from the appellant criticising her for not maintaining contact with the appellant and her family and signed "The family you and Graham reject". On the other hand Mrs Smith, a close friend and supporter of the appellant expressed her view that the relationship between mother and daughter changed when the deceased first learned of the murder charge.

Although there was no finding on this aspect of the case it seems unlikely to me that there was a dramatic change in the deceased's feelings for her daughter upon her first becoming aware of the charge of murder. The fact is that this appellant's husband died in 1980 and if, as the first respondent said, the deceased made a will in 1982 including the appellant she must have retained some feelings for her. However the findings which were made go no further than establishing that the change occurred some time after 1983 when the appellant's last avenues for relief from the conviction of murder had been fully exhausted. In these circumstances I do not think it open to this Court to proceed upon the basis that there was any specific incident which caused the final breach between mother and daughter.

Whether it was solely the conviction for murder, or the sending of the card, or a combination of both that led to the final split it is clear that by April 1987 the deceased had resolved to exclude her daughter from her will. Although it was not established that any particular event had caused the deceased to act in the way that she did I agree with the learned Master that that feature of the case should not be given undue weight. After all, as has been said more than once, the deceased was not able to give the court her reasons for the course she took.

Could it be said that the Master erred in refusing to make an order in favour of the appellant in these circumstances. Pursuant to s9(3)(b) of the Act the court may take the character and conduct of an eligible person (the applicant was an eligible person) before and after the death of the deceased into account in deciding whether to make any provision, and if so what provision, in favour of that person.

The Act is structured differently from the Testator's Maintenance Act 1916 but there was in that Act a provision (s3(2)) enabling the court to refuse to make an order in favour of any person whose "character or conduct" is such as to entitle him or her to the benefit of such an order. That section had been interpreted to allow the courts to take into account conduct of an applicant after the death of the deceased (Re G de Poli and the Testator's Family Maintenance Act 1964 NSWR 424).

In these circumstances it would seem to me that the issues which arise under the old and the new Act are broadly the same. In each instance in which an issue as to character or conduct arises the court is required to give what has been described as a value judgment. Bearing these considerations in mind I see no reason why the court should not seek guidance from authorities on the earlier provision except, perhaps, insofar as the onus of proof is concerned. There is, however, no question in this case concerning onus.

The most relevant authority is In the Will of Gilbert (46 SR 319) a decision more often referred to on the question of the power of an appellate court to interfere with a discretionary judgment. In that case, which concerned the giving of false evidence by an applicant in her application for relief under the Testator's Family Maintenance Act Jordan CJ said (at 321): "S3(2) of the Act provides that the Court may refuse to make an order in favour of any person whose character or conduct is such as to disentitle him to the benefit of such an order. I think that this means character or conduct relevant to the purposes which the Act is intended to serve, for example, misconduct towards the testator or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default."

"No authority has been cited as a guide to the limits or the extent of the meaning of the words 'character or conduct'. I apprehend that it may well be difficult, if not impossible, to lay down any general principle which would express all that the words connote. But I am of the opinion that they include such matters as affect the worthiness of the applicant, that is a widow, husband or child of the testator, to expect provision for proper maintenance, education or advancement in life as the case may be.

Illustrations rather than attempted definition it seems to me are more satisfactory. The words 'character or conduct' are used in apposition; both are related to the purpose of the Act. 'Character' would enable the court to have regard to the question whether the need for maintenance arose from the mode of life and the habits or actions of the applicant; 'conduct' would have regard to the relations between the applicant and the testator. It is of course not suggested that the fields of inquiry are separate or would not most often cover parts of the same area."

It cannot be doubted that the character and conduct spoken of are related to the purposes of the Act but I do not think that there should be an inflexible approach to the application of s9(3)(b) of the Act nor should the field of inquiry be limited by the terms of the illustrations given by the judges in Gilbert. For instance, the

character and conduct of an applicant could have a direct impact upon the deceased, such as where a son steals from his mother, or it may have a more subtle effect on the relations between the two where, for example, the son steals from the mother's best friend leading the mother to feel great shame.

Because the statutory provision is expressed in such general terms I do not think that there should be any qualification upon the character or conduct taken into account except insofar as it must be borne in mind that it must be relevant to the purposes of the Act. In the present case the evidence demonstrated that the deceased was concerned by the charge and later conviction of her daughter for the murder of her husband and that these events and the sending of the card at Easter 1983 led her to withdraw from the company of her daughter to a substantial extent.

On this aspect of a claim under the Act the Court's understanding of community standards are, as it seems to me, as relevant as they are in considering whether a moral obligation has been established (see Kearns v Ellis and Anor, New South Wales Court of Appeal, 5 December 1984, unreported, Mahoney JA at 7; White v Barron 144 CLR 431 at 440, 445).

In Kearns Mahoney JA said in the context of the content of a moral obligation:

"No doubt there is no single community feeling or judgment upon the matter. It is to be determined according to the feeling and judgment of the fair and reasonable man in the community, the spokesman of which is and must be the court itself"

I respectfully agree with this statement which was applied by Bryson J in Katherine Wentworth Wentworth v Peter Fitzwilliam Neville Wentworth (Estate of the Late George Neville Wentworth) (14 June 1991, unreported; cf Davis Contractors Ltd v Fareham Urban District Council 1956 AC 696 at 728) and, as I have said, consider that a substantially similar approach should be taken in regard to a question raised in relation to s9(3)(b) of the Act. In this respect I would point out that it has been held in this Court that an applicant who brings an application under the Act is required, as he or she was under the earlier Act, to establish a moral claim. (Benney v Jones (1991) 23 NSWLR 559 at 569; Bosch v Perpetual Trustee Co Ltd 1938 AC 463 at 478-9; Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR at 146-7.)

In my opinion the learned Master followed a correct approach and it could not be said that he committed any error of principle. Nor could it be said that he took irrelevant matters into account or failed to have regard to all relevant matters. Did he, nonetheless, reach an erroneous conclusion? The question is not a complex one, yet the answer is not simply found.

The appellant had been convicted of a very serious crime and although the deceased was not, in the strict sense, a victim of that crime the evidence supported two conclusions. First, that the deceased's attitude to the appellant changed following the conviction and, secondly, that the need which the appellant established was contributed to in a significant way, if not caused by, her own criminal conduct.

In these circumstances I do not think that it can be said that the Master was wrong when he concluded that sensible members of the community would not have felt that in the circumstances the appellant should have been provided for in the will.

There are, as I see it, two possible approaches to the problem in this case. According to the first, one enquires whether the appellant has established in all the circumstances, including her proven criminal conduct, a moral claim. The

other approach focuses more directly on the appellant's character and conduct and enquires whether in the light of that conduct the court should make an order in favour of the applicant. In the present case I think that the same result would be reached whichever approach is followed and that is that the appeal should fail.

In all the circumstances I am of opinion that the appeal should be dismissed with costs.

Counsel for the appellant: G Miller QC and R Bell Solicitors for the appellant: John Boyd and Son

Counsel for the respondent: J Campbell QC and R Woods

Solicitors for the respondent: Maddocks Cohen and Maguire