SAMSLEY v BARNES

4. That the respondent, as executrix, pay out of the estate the costs of the appeal but have, in respect thereof, a certificate under the Suitors' Fund Act 1951.

Samuels JA I have read the transcript of the oral argument by consent heaard by Meagher JA alone, and the written submission. I have also read in draft Meagher JA's judgment and I agree with him.

Meagher JA This is an appeal by Mr Joseph Charles Samsely, the de facto partner of the late Miss Jullian Marie Mason, against the refusal of Master Hogan to make an order in his favour under s7 of the Family Provision Act 1982 against the estate of the late Miss Mason, the executrix of whose will is the respondent Mrs Barnes, one of her sisters. Miss Mason died on 20 December 1984, and by her last will, dated 23 July 1980, left her entire estate to her nephew, Mr Paul Barnes, the only child of the executrix.

Miss Mason and Mr Samsely lived together from 1966 until her death. It was an apparently an amicable enough union, although in 1973 they separated for a period variously estimated at 6 weeks and 3 months. They lived at his premises at 37 Brady Street, Croydon. She was born on 9 August, 1944; she never married, and had no children. He was born on 14 August, 1930, married in 1955, separated from his wife in 1963 and was divorced in 1975. He had three children of his marriage, two of whom are still living, both married with children.

Mr Samsely bought his house with his own money, except for a bank mortgage, which he discharged with his own money. He paid Council and water rates on it. She did not pay rent. He gave her a small weekly housekeeping allowance. She employed that allowance, together with moneys of her own, in purchasing food and paying other household expenses, including the telephone account. There is a dispute, largely irrelevant, about exactly how much of her own funds were thus employed.

Mr Samsely is employed as a motor mechanic by an employer with whom he has worked for 17 years. He intends to work as long as he can. He receives $320.00 per week. By the time he reaches 65 years of age he will have worked for 25 years and become entitled to the benefits of long service leave. On the other hand, he has no insurance or superannuation benefits entitlement. He has mild arthritis and a minor heart complaint. The assets which he owns are his house, which is unencumbered, and is worth some $220,000.00; an old motor car; a savings account which, at the date of hearing, was some $13,000.00 in credit ($8,000.00 of which had been accumulated in the two years preceding the hearing); and a cheque account which at the date of hearing was $1,200.00 in credit (not $12,000.00 as the Master found).

From 1966 until 1975 Miss Mason worked as a hospital cleaner. In 1975 she won $30,000.00 in a lottery, whereupon she retired from work. Presumably when that money had been spent, in about 1980 she recommenced work as a part time cleaner, and remained so employed until she died. Her estate is not large. As at the date of the appeal, her estate assets amounted to some $66,500.00, $60,000.00 of which is represented by Queensland real estate. On the other hand estate liabilities amounted to over $44,000.00, the bulk of which, triste dictu, consisted of legal costs. At the date of the appeal, therefore, the net value of her estate was $22,000.00.

The beneficiary, Mr Paul Barnes, is now about 27 years of age. He is the godson of Miss Mason and Mr Samsely. Since he turned 21 he has lived in Sydney. He is mainly unemployed. He often chooses to remain unemployed even though work is available for him. Since he has neither employment nor the will to obtain employment, he has no assets. He is not unacquainted with drugs. Although Miss Mason regarded him as "the son I never had", his behaviour to her was not unbearably filial. He lives with his mistress, who is also unemployed, in rented premises. He always expected to inherit his aunt's estate and still expects to inherit the whole of his mother's estate and the whole of his father's estate. His

attitude hardly excites either sympathy or admiration: he has elected to pursue a life of idleness, financed by Social Security hand-outs over $400.00 per fortnight, until his remainders fall in.

The Master's ultimate finding, - and the whole of his reasoning, should be set out in full:

"T have come to the conclusion that the deceased failed to make adequate provision for the plaintiff. It is clear, however, in my view, on the evidence, that the plaintiff has not established any need."

The Act requires the Court to make an initial determination whether an applicant has been left with "inadequate" provision for his "proper maintenance, education and advancement in life". If that determination is made in the affirmative, the applicant may (but need not necessarily) obtain an order in his favour:

S9(3). The Act does not use the expression "need". However, many judges have used, and still do use, that expression. In this context, I am unable to appreciate what the word "need" means, unless it means "a need for further provision to ensure adequate maintenance, education or advancement'. The findings of the Master are therefore internally contradictory. A finding of inadequate provision necessarily involves a finding of need. Conversely, a finding of no need nessarily involves a finding of no inadequate provision.

Since the Master applied a wrong legal test, and also made a major error of fact (mistaking $1,200.00 for $12,000.00), his decision must be reviewed afresh by this Court.

On such a review, however, I have come to the conclusion that Mr Samsely is not entitled to an order. It is not enough for him to rely on the domestic bliss he conferred on Miss Mason. Nor is it enough for him to point to the unworthiness of Mr Barnes. He must show that he is bereft of adequate provision. He already has a large unencumbered house. He may, if he wishes, sell it and purchase a more modest establishment instead. He has a steady job which yields him a regular income. He has set aside savings which can act as a cushion against future contingencies. He has the ability to save $4,000.00 a year. In his affidavits he did not refer to any inability to do anything he reasonably wanted to do. He does not say that some enterprise he reasonably wishes to embark on will be frustrated through lack of funds. He has no call on his resources except to provide for himself. He already has sufficient means to provide him not only with bread and butter but also with a little cheese and jam (see Fullagar and Menzies JJ in Blore v Lang (1960) 104 CLR 124 at 135). The appeal should therefore be dismissed with costs.

I should add that I sitting alone heard the oral submissions of Counsel. The Court has considered the matter on the basis of the written submissions together with a transcript of the oral submissions. This course, eminently sensible, could, of course, only be taken with the consent of both parties.

Solicitors for the Appellant: C P White and Sons Solicitors for the Respondent: Lloyd and Lloyd