SINGER v BERGHOUSE

Court of Appeal (NSW)|1992-06-05|Before: Kirby P, Windeyer J

KIRBY P, SHELLER and Cripps JJA 5 June 1992, 23 July 1992

TESTATORS FAMILY MAINTENANCE - Family Provision Act - claim by widow - second marriage - entire estate goes to adult son - whether provision inadequate for proper maintenance of widow - widow returns to comfortable home in New York - held: Inadequate provision not shown - error of discretion not shown - appeal dismissed. TESTATORS FAMILY MAINTENANCE - Family Provision Act 1982 - claim by widow receiving no provision pursuant to will - ante nuptial agreement between widow and testator - second marriage for both - parties agree that pre-marriage property is reserved to children of first marriages - post-marriage property to be shared - widow leaves New York to reside with testator in Sydney - unsuccessful search for matrimonial home terminates in death of testator after eleven months marriage - will provides for sharing of post-marriage property and for life estate to widow in any joint real property purchased - no such property purchased at time of death - widow returns to New York with only benefit $8,480 - son of testator takes under will entire estate valued at $464,756 - Master dismisses claim finding no need on the part of the widow for a provision under the Act - on appeal to the Court of Appeal - held: (per Sheller and Cripps JJA; Kirby P dissenting): Although the widow was an "eligible person" under the Act, no error had been shown in the decision of the Master and the appeal from that decision should be dismissed.

Bosch and Anor v Perpetual Trustee Company (Limited) and Ors [1938] AC 463; (1938) 38 SR (NSW) 176 (PC); Hunter v Hunter and Ors (1987) 8 NSWLR 573 (CA) applied.

TESTATORS FAMILY MAINTENANCE - ante nuptial agreement - effect of - whether admissible - whether relevant - whether authorities under Family Law Act 1975 (Cth) applicable - consideration of Bates v Bates (1976) FLC #90-123; In the Marriage of Sykes and Sykes, Dotch and Others (1978) 4 Fam L N 49; (1979) FLC #90-652; Klesnik v Klesnik (1987) FLC #91-837; Faraone v Shabalah (1988) FLC#91-956 considered - held: Such agreements are admissible but not determinative of the application of the Act. Lieberman and Anor v Morris (1944) 69 CLR 69 applied.

MARRIAGE - family provision - eligible person - relevance of marriage for "proper" provision - relevance for "adequacy" of provision under will - changing social attitudes towards duties and expeditious marriage of - significance of second marriages and duties to provide for under will - competing duties between first and second families considered.

De Facto Relationships Act 1984. Family Provision Act 1982, s6, s7, s9, s31. Family Law Act 1975 (Cth), s87.

Kirby P This appeal from Master Windeyer (as Windeyer J then was) challenges the dismissal of a widow's claim under the Family Provision Act 1982 (the Act). In the events which occurred, the widow secured absolutely nothing under the will of her late husband. The entire estate went to his only child by an earlier marriage, an adult son. The appeal thus presents a difficult problem which will become more common as competing claims have to be resolved between members of the testator's "original" family and members of a "succeeding"

family - particularly a spouse. The case is complicated by the execution by the deceased and the widow of an ante nuptial agreement, by which they indicated their intentions as to the disposal of their property on death.

Mrs Bernice Singer (the appellant) is the widow of the late Dr Lionel Singer (the testator). He was a barrister of this Court.

He died in March 1988 aged 67 years. The appellant was his second wife. His first wife had died in 1985. For a time, the testator held office as a member of the Consumer Claims Tribunal. However, in 1982 the Minister purportedly retired him from that office, without compensation. The testator challenged that decision. Eventually, the challenge came before this Court. The result can be read in Singer v Statutory and Other Officers Remuneration Tribunal (1986) 5 NSWLR 646 (CA). Following that decision, the testator received compensation of $250,000 from the New South Wales Government.

The appellant was a widow living in Brooklyn, New York. It was there that she first met the testator in 1986. They eventually agreed to marry. Prior to the marriage, the testator secured the agreement of the appellant to sign a deed in anticipation of the marriage. From Australia, where he had returned, he sent the appellant copy of the deed executed by himself. She took it to a lawyer who explained its terms to her. The Master found that the appellant understood its provisions. She signed it and sent it back to the testator. After their marriage it was later re-executed in Sydney. It was drawn up by the testator's solicitor and friend, Mr Maxwell Berghouse. He later became the executor of the testator's will. He is thus the respondent to this appeal.

The deed (described as an "ante nuptial contract") recites the desire of the appellant and the testator to determine "for all time" the status and entitlement of their assets. It also recites that the respective present assets of each of the parties should be:

"... testamentarily held for the benefit of [their respective] children and/or other descendants and/or other members of [their] separate family as [they] may appoint as... heirs."

The operative part of the deed, relevant to the appellant, reads as follows:

"3. [The appellant] has not and will not at any time in the future have and/or make any claim under the provisions of any legislation enactment of the State of New York of the United States of America; of the State of New South Wales or of the Commonwealth of Australia or under any provision of the common law of the said States and countries with respect to provisions for entitlement to property arising out of the married relationship whether in its subsistence or thereafter... to any of the assets presently owned by [the testator] or to any assets into which these present assets may be converted by or on behalf of [the testator]."

A reciprocal promise was given by the testator to the appellant.

After the parties married in New York in April 1987 they travelled together. Eventually they came to Australia. The testator's home in Rose Bay had been severely damaged by a storm. It was considered uninhabitable or at least unsuitable as a residence for the newly married couple. For a time they resided in the Cranbrook Hotel at Rose Bay. Later they occupied a rented property at Bondi Junction not far away. The testator paid the rent. They spent a great deal of time inspecting properties in the vicinity with a view to purchasing one in which they could live together. The Master accepted that they were looking for

a house in the price range of $150,000 to $200,000 and that it was contemplated that they would purchase it together as joint tenants. Evidence to this effect was given by the respondent.

Unfortunately, the death of the testator intervened. He died on 9 March 1988, that is eleven months after marriage to the appellant. The death was totally unexpected. At the time of his death, the testator had, on average, a life expectancy of thirteen years. There was no reason why the appellant would not have lived with him during such time. By all accounts their marriage was a happy one. The appellant stayed in Sydney for a time after the testator's death. However, understandably, she then returned to New York where she had an apartment and children by her first marriage.

The testator's will was executed on 31 July 1987. Probate in respect of it was granted to the respondent in January 1989.

The Master found that the will, although unusual, was intended to give effect to the ante nuptial agreement. The testator had one son by his first marriage, Joseph. The evidence showed that Mr Joseph Singer was forty-four years of age at the date of the hearing. He had left school without the school leaving certificate. He had worked in various clerical occupations. A photo-processing business in which he had invested had failed, resulting in the loss of the business and of his home. He was apparently a devoted son both to his mother and to his father.

He resided in the family home at Rose Bay spending much of his time attempting to rehabilitate it following the damage it had suffered in the storm earlier referred to. Mr Joseph Singer himself married in California in 1987. At his father's death he had no assets of value other than a motor vehicle worth $10,000. At the date of the trial he was working as a carpet salesman. His income in the previous year had been only $13,653. His wife was an actress. The Master found (and it was not contested) that the deceased undoubtedly considered that his son would continue to live in the Rose Bay property.

It is against this background of an uncontested moral obligation to his son, that the deceased's will must be considered. After providing for the payment of debts, the will provided for the payment of any balance of the proceeds of property acquired up to the date of the testator's marriage to the appellant to the testator's son, Joseph. It went on obliging the executor and trustee:

"(c) to pay the balance being property acquired by me after the date of my marriage to the said Bernice Peck to my dear wife for life thereafter to my son Joseph absolutely.

(d) To pay any balance being any real estate purchased by me after the date of my said marriage and regardless in whose name such property might be as at the date of my death, to my dear wife for life and thereafter to my son Joseph absolutely."

In the event, because the testator died before the acquisition of any property, including any real estate, there was nothing to which, under the will, the appellant could lay claim. It is asserted that she departed Australia with money belonging to the estate amounting to $8,480. It was not sought that she should repay this sum to the estate. Under the will, Mr Joseph Singer took the entirety of the testator's estate.

Figures placed before the Court without objection indicated that the nett estate amounted to $454,756. After deduction of the value of the Rose Bay property and the money retained by the appellant, the disposable estate amounted to $170,775.

Various liabilities, including the costs of the hearing before the Master reduced this sum to $125,733. That sum was, in turn, supplemented by the belated discovery of $10,000 on deposit in Hong Kong. However, from the aggregate disposable estate, the costs of the appeal must be deducted. This leaves a final disposable estate (ignoring the home at Rose Bay) of about $130,000. Advances have been made to Mr Joseph Singer on the assumption that the Master's decision would be upheld. Mr Singer has expended a considerable amount on the restoration of the Rose Bay property. However, I do not believe that these actions can foreclose the consideration by the Court of the claim by the appellant under the Act. As I approach the assets available for the disposition of the testator at the time of his death they were:

If the Master's orders are confirmed, Mr Joseph Singer receives the entirety of these assets; the appellant receives nothing.

The appellant, at the time of her marriage to the testator, was in part-time employment as a clerk of the City of New York. Upon marriage, she gave up this employment. She devoted herself to accompanying the testator as his companion in New York and on travels abroad. She described her relationship with the testator as:

This was not contested. She said that prior to their marriage, they had remained "almost daily telephonic communication" across the Pacific.

The appellant described her assets from her first marriage.

She owned a house in Brooklyn which she shared with an unmarried adult daughter. She also held jointly with that daughter a deposit of about $US 150,000 in financial institutions. She was not eligible for public assistance or pension until she attained the age of 65 in June 1994. She was therefore obliged to live on her capital. During her life with the testator she claimed that he was more dependent upon her than she upon him. She paid directly or indirectly towards many joint expenses. She claimed that, before her marriage to the testator, she had intended to work until she qualified for the pension. She had not returned to work following her resumption of living in Brooklyn. She said that the break in her employment had reduced her employability and earning capacity thereby increasing her personal and financial insecurity "at a time of life when I am not well equipped to meet such problems".

The Master accepted that the appellant's health was not good.

He also accepted that she would not work in the future. He inferred that she would receive income from her share of the financial deposit and from rent paid by her daughter for use of the upstairs flat of her home. At the age of 65 she would be entitled to a pension of $460 per month. This is scarcely a picture of affluent widowhood. I believe that judicial notice could be taken that in the United States there is no general publicly funded healthcare system available to the appellant and that medical expenses in that country are extremely high.

This would have been known to the testator. The appellant lost income as well as security and an important element in her identity and feeling of usefulness from her surrender of her pre-marriage occupation. She expended some of her own assets during her relationship with the testator. She fulfilled the functions of a homemaker during their eleven months of marriage. Such functions of comfort

and emotional support were afforded by her faithfully during the marriage. She had no reason to believe that the deceased would die so soon. She had uprooted herself and come to her husband's country on the opposite side of the world. True, it was not certain that they would live permanently in Sydney. He had applied for a Green Card which would have permitted him to engage in employment (as a Rabbi) in the United States. News of the success of this application only came through after the testator's death.

It is possible that had the testator not died he and the appellant would have moved back to live in her apartment in New York. But from the testator's connections with Sydney, the presence here of his son and the persistent search in which he and the appellant were engaged for a matrimonial home, the probabilities seem to favour the setting up of their home in Sydney.

Clearly the appellant was an "eligible person" within s6(1) of the Act. Equally clearly, as widow, she had received nothing in the events which have occurred, under the testator's will. How, then, did the Master explain the entire rejection of her claim?

The explanation comes in a short passage in the Master's reasons:

".. [think that the real relevance of the [ante nuptial] agreement is to show that the parties thought it fair at the time so that the plaintiff could not say that she had expectations of a more affluent life than she had led before marriage in the event of her husband's death. While it is clear that she and the deceased intended to purchase a new home it would almost certainly have been necessary for them both to contribute funds to that and on the evidence of Mr Berghouse they would probably have purchased as joint tenants and if not the provisions of subclause (d) of the will which I have set out would have taken effect if the property had been purchased in the name of the deceased. In any event that did not happen. The plaintiff has a house which is quite comfortable and in which she has lived for many years. She obviously intends to remain there. She has given no evidence of expenses other than some rough figures of the outgoings of the property but she has a large capital sum from which to receive income. There is nothing to suggest that she is not able to lead a perfectly satisfactory life comfortable in her own home with the securing come back of a large capital sum. In many cases the need for maintenance is obvious without any particular expression of the need but in this case no need has been shown for anything new or likely to be required in the future which would not easily be covered by the plaintiff's own resources. By reference to the principle that the Court should conserve its interference in the will strictly to the extent necessary by the operation of the Act, the Master dismissed the claim.

Cf Hunter v Hunter and Ors (1987) 8 NSWLR 573 (CA).

Relevance of the ante nuptial agreement The first attack of the appellant was on the use made by the Master of the ante nuptial agreement entered between the appellant and the deceased.

It is tolerably clear that the agreement was designed to protect the assets which each of the parties to the marriage owned at the time of the marriage. The operative provisions contained the promise by each of the parties that they would not make a claim against the assets then presently owned by the other. It did not refer to any claim which might be made in respect of later acquired assets. Nor did it purport to limit in any way any claim by either of them in relation to assets built up during the course of the marriage or any joint property which they may have acquired during the marriage. Had the testator enjoyed a life of the normal span of years of which he had a reasonable expectation at the time of the

marriage, it is probable (indeed virtually certain) that he and the appellant would have acquired joint assets, probably a home jointly owned. Such assets, in the event of the premature death of the testator would have been available to the appellant during her lifetime.

So far as I am aware, this is the first time that an ante nuptial agreement has come before the Court for consideration in the context of the Family Provision Act. Such agreements are frequently considered by the Family Court of Australia in the context of the application of the Family Law Act 1975 (Cth), s87. Such agreements are, by that Act, ineffective so far as they purport to surrender rights for which the Act provides. See Klesnik v Klesnik (1987) FLC #91-837. Nevertheless, such agreements are regularly received intoevidence. They are considered in determining property settlements following the dissolution of a marriage. They provide material often taken to be relevant to the just distribution of the property of the parties to the former marriage. See Faraone v Shabalah (1988) FLC #911-956.

Sometimes they are perceived as relevant to the conduct of the parties because only by reference to such agreements can the conduct be understood. See Bates v Bates (1986) FLC #90-123; In the Marriage of Sykes and Sykes, Dotch andOthers (1978) 4 Fam L N 49; 1979 FLC #90-652; P v P 1985 FLC #91-605.

Counsel for the appellant contended that the Master had erred in taking into account, at all, the existence and terms of the ante nuptial agreement entered between the appellant and the testator. He pointed out that provision is made by s31(2) of the Act for a release by a person of rights to make an application under the Family Provision Act. Such release requires the approval of the Court for reasons of principle which are obvious. The proceedings to gain such approval may be commenced before the death of the person. No such proceedings, whether before or after the death of the testator, were taken in the present case.

Counsel urged the differences between the operation of such agreements in the context of the Family Law Act and in the context of the Family Provision Act. Under the former, the Family Court has extremely wide jurisdiction to alter property interests. Its orders are prospective. The court divides the property of two living persons, each of whom has further life expectancy and needs of future maintenance. Each of them is free to form new relationships, each with their own moral obligations and vicissitudes. Under the latter Act, however, by definition, one of the parties has died. The power of the court is strictly limited. It is confined to the provision of relief to defined persons by reference to defined criteria.

Although in a different context, the words of the High Court (Dixon CJ, Kitto and Taylor JJ) in Delacour v Waddington (1953) 89 CLR 117, 126 are apt: 'For our part we are unable to see any real resemblance between the issues which arise in an application by a wife against her husband for an order for maintenance under the Deserted Wives and Children's Act and an application by a wife, pursuant to the Testators' Family Maintenance and Guardianship of Infants Act against her husband's estate.

Whilst it is obvious that a wife may be guilty of such conduct as to disentitle her to support either in or away from the matrimonial home, many applications under the former Act are doomed to failure, not because a wife living apart from her husband has forfeited her right to or is not entitled to support, but because that support has never been denied to her. In a case such as the present an application under that Act would have failed because the wife would not have been able to show that she had been left without means of support for, upon the facts, there was support available for her at the home established by her husband if she had

cared to take advantage of it.... No doubt the wife's conduct in [a claim under the TFM Act] may well constitute a material factor in considering whether an order should be made, but her conduct should not be regarded as disentitling her to an order unless it has been of such a character as to induce a court to hold that, in the circumstances, there was no moral obligation upon the deceased to make any testamentary provision for her. Indeed, unless this be so, it is difficult to understand the basis upon which a husband or adult child may claim relief on the ground that they have been left, in the words of s3, without adequate provision for the proper maintenance or advancement in life.

I agree with the words of caution urged by the appellant's counsel concerning the application in the context of decisions under the Family Provision Act of decisions made by the Family Court in respect of ante nuptial agreements so far as they affect the exercise of discretion under the Family Law Act s87. Nevertheless, this much is common. Such agreements may not exclude the operation, in each case, of the statute. Lieberman and Anor v Morris (1944) 69 CLR 69, 83. To the extent that agreements purport to do so they have no effect. Nevertheless, as they illustrate what the parties to the agreement themselves, at one stage, considered to be fair and as they illuminate the conduct of the parties after agreement was reached, they will often be relevant to the exercise by the court of the discretion reposed in it. This is so because, whether under the Family Provision Act or the Family Law Act, the criteria for decision are expressed in terms of great generality. The task is not mechanical. Judgment is called for. In reaching that judgment the agreement of the parties may be relevant, although not determinative of the just disposition of the property. It will not be determinative because, in the end, the criteria of the Act must be applied. As well, in many cases, parties to such agreements may be in unequal bargaining positions. Their circumstances may change with the passage of time. Their obligations may alter with the accrual of new and different moral duties.

In the limited way in which he utilised the ante nuptial agreement between the testator and the appellant I see no error on the part of the Master. I do not believe that the exercise of his discretion was vitiated by the use he made of the agreement. So far as the appeal relied upon this argument, it fails.

Nevertheless, I have concluded that the refusal to make any provision under the Act in favour of the appellant indicates that the Master's discretion miscarried. I reach this conclusion with reluctance because I am conscious of a number of rules which control the appellate review of decisions of this character. I collected some of these reasons for restraint in what I said in Hunter v Hunter and Ors (above) at 575-6. In summary form they are:

Determining what is "proper" and "adequate" requires a value judgment which has regard to all the circumstances of the case. Inescapably, the evaluation of those circumstances will afford much room for difference of opinion, without establishing the error which is required to authorise the intervention of an appellate court;

The Act is written against the background of freedom of testamentary disposition. Interference in the provisions of a will is confined strictly to the circumstances provided for in the Act. Specifically, the Act does not authorise a court to redistribute the property of the deceased according to the court's notion of what is right or equitable; and

Acrimonious family contests tend to be prolonged and expensive. Unless appellate courts confine their disturbance of the orders at first instance to cases of plain error, the risk is run that few cases will finish at first instance. There will then be a consequential burden of costs eating away the estate with no equivalent advantage in the accuracy or justice of the ultimate decisions on appeal. Cf White v Barron (1980) 144 CLR 431, 445. See also Tsivinsky v Tsivinsky, Court of Appeal, unreported, 5 December 1991; (1991) NSWJB 149.

I keep all of the foregoing principles in mind. I have nonetheless concluded that the failure of the testator, in effect, to make any provision whatsoever for his widow in the events which occurred requires intervention. That failure not only enlivens the operation of the Family Provision Act, because she stands first amongst the eligible persons qualified to make a claim but also, in the evidence of this case, it requires that some provision should be made. The failure of the Master to order provision to be made amounts, in my view, to error. It requires that the appeal be allowed.

The basic criterion for the application of the Act remains the somewhat nebulous but oft-repeated one stated by Salmond J in In Re Allen (Deceased); Allen v Manchester [1922] NZLR 218, 220:

"The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances."

This passage was approved by the Privy Council in Bosch and Anor v Perpetual Trustee Co and Ors (1938) 38 SR (NSW) 176, 189; [1938] AC 463, 679. It has been applied repeatedly by the High Court of Australia. See eg Worladge and Anor v Dodderidge and Ors (1957) 97 CLR 1, 11; Goodman v Windeyer (1980) 144 CLR 490, 497. There is no relevant amendment to the language of the present Act which requires a different approach. The purpose of legislation such as the Family Provision Act is, relevantly, in the words of the Privy Council in Dillon v Public Trustee of New Zealand [1941] AC 303, 304:

"To secure on grounds of public policy that a man who dies leaving an estate which he distributes by will, shall not be permitted to leave widow and children inadequately provided for."

Significance of marriage to proper and adequate provision How then can it be said that to make a will that makes no provision in certain eventualities which have here occurred for a widow fails to reach this criterion or the standards set by the Act? I realise fully the changes in our society in community perceptions of the status of marriage. They are reflected, in part, in the provisions of the Family Law Act 1975 (Cth) and in the Family Provision Act itself. They are also reflected in other statutes such as the De Facto Relationships Act 1984. It is necessary to read with care, and a degree of caution, decisions on the Testators' Family Maintenance and Guardianship of Infants Act written by judges against the background of social expectations of earlier times. In such times, in this country as in the United States of America, attitudes to marriage and other intimate personal relationships were different. But the fact remains that marriage is still a most important institution not only for the individuals involved but for their children and society. Even those who do not accept that it is divinely ordained or necessarily permanent or exclusive recognise its high importance. It involves the public commitment of one individual to another in a relationship of mutual comfort and support.

It is impossible to say that any will by which a spouse makes a provision that affords no benefit to the other will necessarily, and by that fact alone, attract the application of the Family Provision Act. In each case the Court's discretion is enlivened. No absolute rule can be laid down. It is possible to conceive of circumstances where a spouse would secure no provision. Clearly, if a widow were a millionaire, a claim on the modest estate of her husband who had left her nothing would fail. It would not enliven the criterion stated in s9(2) of the Act expressed, as it is, in terms which require attention to whether the provision actually made by the will is "inadequate for the proper maintenance, education and advancement in life of the eligible person'. But I consider that such cases are exceptional.

Normally, at the least, the public commitment of marriage and the mutual dependency it usually betokens, will bring with it obligations to consider, and make provision against, the contingencies of life which may befall the other party to the marriage. These will include illness, unexpected expense, accidents or other tragedies, chronic disease, nursing home expenses and so on: the companions of old age when the companionship of marriage is over.

Powell J has observed that, as a broad rule, the obligation to make adequate provision for the proper maintenance or advancement of a widow requires that, to the extent to which his assets permit him to do so, a husband should ensure that she is, by his provision, secure in a home, that she has income sufficient to permit her to live in the style to which she is accustomed and that she has available to her a fund to which she might resort in order to meet unforeseen circumstances. Luciano v Rosenbloom (1985) 2 NSWLR 65, 59 (SC). I agree with those general observations.

As Ihave stated earlier, the position of the appellant was scarcely affluent. She has returned to New York, a widow for a second time, after a tragically short marriage to the testator. She has not returned to the position, even the financial position, which she enjoyed before her marriage to him. She lost her employment. She is unable to secure new employment. She must utilise her capital before qualifying for the pension in two years time. She incurred expense whilst living with the testator. The disruption to her life and well being would have been very considerable. There is no evidence that she was anything other than an affectionate, supportive wife to the testator.

The appellant acknowledges fully the moral obligations which the testator owed to his son. In earlier times, Mr Joseph Singer would have been considered disentitled to a claim on the basis that he was an "able bodied son". This stereotyped classification has been abandoned in this State. See Hunter v Hunter and Ors (above), 580f. It still survives in Victoria. See Anderson v T E Boneras and Or [1990] VR 527.

But it is said that the appellant can live comfortably; that she did not expect to make a financial "profit" out of her marriage to the testator; and that Mr Joseph Singer is in much greater "need" of provision given his problematical economic capacity and that of his actress wife. With the appellant, I fully concede that a wise and just testator would make proper provision for the son in a case such as this. Undisputed is Mr Joseph Singer's right to live in the home in which he grew up with his father and mother and which he is now restoring. But the question remains whether his needs prevail to the total exclusion of the widow's needs. I think not.

A cclue to what the testator himself considered just is the provision he made by his will that any real estate purchased by him after the date of his marriage to the appellant ("and regardless in whose name such property might be at the date of my death") should be held by the appellant for life and only thereafter to his son. It is true that it is possible that the appellant and the testator would have abandoned the search for a property in Sydney's eastern suburbs. Their searches were vigorous and continued right up to the date of the testator's death. It would have been natural for them to have purchased a property together. He had the capital with which to do so - or at least with which to contribute. The appellant would then have had an asset, partly at least funded by the testator. She would have enjoyed the benefit of this asset for life. It is completely unthinkable that the Court would have deprived her of that entitlement and put the son in the position which he now seeks to hold. In short, the testator clearly contemplated the provision of property by his will to the appellant which, at least for her life, would have been a significant economic asset to her. It is the chance of his premature death, rather than the will and the disposition of the testator, which has deprived her of that economic benefit.

Similarly it was chance which deprived the appellant of the benefits which would have accrued to her, as spouse of the deceased, had the testator not made a will before he died. As it was four months elapsed between the testator's marriage to the appellant and the making of the new will. Had he died during this period, before the will was made, the appellant's entitlement to his estate would have been governed as on an intestacy. Had the testator, out of affection, over-ridden the original intention of the parties expressed in the ante nuptial agreement and, by his will, divided his estate equally between his widow and his son it is, to put it no higher, extremely doubtful that the Court would have disturbed such a will in an application by the son under the Act. Such are the consequences which attach to the obligations and expectations of marriage itself. Yet according to the Master's findings they do not apply in this case and the widow is left with nothing. Of course, the foregoing instances do not provide a perfect test for the appellant's claim. That claim must stand or fall in the terms of the Act. What might have occurred in different circumstances cannot determine what should occur here. Every case depends upon its own facts and the application of the statute to those facts. But it is still appropriate to note these arguments. They illustrate the importance which the law traditionally, and still in our society, attaches to the fact of marriage for the provision to the married partner upon the death of the other of "proper" maintenance.

It was suggested that, by her evidence at the trial, the appellant had not shown "need" for a provision. I realise that it is common in these cases to talk of "need". The Privy Council itself referred to "need" in Bosch (above, 477).

However, the statute does not use this word. It is much safer, in my view, to return in every case to the language used in the Act. This addresses attention to whether the provision made is "inadequate for the proper maintenance" relevantly, of the widow. Later in its judgment in Bosch the Privy Council drew attention to the fact that the court is not concerned merely with inadequacy. It is also concerned with what is "proper" maintenance. That phrase still has relevance to the obligation to a surviving spouse.

As there was absolutely no provision made, in the circumstances which have occurred, the only question is whether the total want of any provision is "inadequate" for "proper maintenance" or not. It is not suggested that the character or conduct of the widow disentitled her. See s9(3)(b) of the Act. It is

clear that she made a contribution to the welfare of the testator, both financial and as a home-maker during the period they lived together, short though it was. See s9(3)(a) of the Act. It is also appropriate to keep in mind the disruption she underwent, the loss of her stable employment, the obligation to call on her own capital for a time at least and the want of any provision for her old age, whose contingencies are legion. In Goodman v Windeyer (above) 499, Gibbs J also emphasised the necessity to consider the likely effect of inflation and the passage of time, with its unforeseeable problems, upon the position of potential claimants on the testator's estate: "The fact that inflation steadily erodes the purchasing power of money is something of which a wise and just testator would be aware and which he would take into account in making his testamentary dispositions. For example it could not be said that adequate provision had been made for the proper maintenance of a claimant because she had an income large enough for her present support, when it could reasonably be foreseen that the purchasing power of that income would be so reduced by inflation that it would be inadequate in a few years time."

Whilst the moral duty to his son was substantial it was not such, in my respectful opinion, as to blind the testator to exclude entirely provision for his lawful wife against the events which have happened. Thus, although there is little direct evidence of "need" in the sense of an urgent financial imperative, there is certainly ample evidence of outgoings and of economic loss consequent upon the marriage. And the amount of evidence of the need for "proper maintenance" such as could be given, does not have to be great to secure a provision to the widow under the Act because, by the will, the appellant was left nothing at all in the events that happened.

Substituted orders: provision of a legacy to the widow

In these circumstances, I have concluded that the Master's discretion miscarried. There then remains the question of whether the discretion to provide relief under the Act should be exercised in favour of the widow. In my view there is no reason why it should not and every reason why it should be exercised. See Benney v Jones (1991) 23 NSWLR 559, 569 (CA).

The orders of the Master should be set aside to allow orders affording provision to be made.

Should the matter be returned for re-trial or may this Court safely substitute its exercise of discretion for that of the Master? There are a number of reasons which would favour returning the matter for retrial. They include the comparative paucity of evidence, at the original trial, concerning the income and outgoings of the appellant as well as the inevitable changes in the circumstances of the parties and of the estate since the trial. The provision to be made should be made in the light of the condition of the estate at the time of the court's order. As against these considerations, it is relevant to take into account the largely undisputed nature of the facts at first instance; the narrowing of the area of dispute in the appeal; the comparatively small amount which is involved in any legacy which would be ordered and the high costs which would be incurred in a retrial. Without objection, the parties placed before the Court a summary of the current position of the estate. I believe that the Court can safely act upon the basis of that summary and proceed to make its own order.

Provision under the Act should be made. In the notice of appeal, the appellant sought a legacy of $100,000 from the estate. I do not believe that a sum of that order would be warranted to conform to the statute in the way the courts have

said is necessary. The case, both at trial and in this Court, has been conducted upon the assumption that the sum of $8,480 was received by the appellant from the deceased's estate. Provision should be made in favour of the appellant under the Act out of the estate. It should be made in the form of a legacy of $50,000. This would help to cover costs of dislocation and relocation, loss of income and incidental expenses. From this sum credit must be given for the moneys already received by the appellant from the estate.

Set aside the order of Master Windeyer dismissing the appellant's summons with costs;

Declare that the appellant was an eligible person in relation to the deceased person, Dr Lionel Singer, being a person who was the wife of the deceased person at the time of the deceased person's death;

Order that provision be made out of the estate or notional estate or both of the deceased for the appellant in the sum of $50,000, such legacy, after credit is allowed for the sum of $8,480 received by the appellant, to be paid to the appellant within twenty-eight days and if not then paid to carry interest from the date hereof at the sum of 13 per cent per annum;

Liberty reserved to the appellant to apply to the Equity Division after twenty-eight days if the legacy is not paid for orders pursuant to s24 of the Family Provision Act 1982 designating particular property as notional estate of the deceased;

Order the respondent to pay the appellant's costs of the summons; and

Order the respondent to have, in respect of the costs of the appeal, a certificate under the Suitors' Fund Act 1951.

Sheller Jaintroduction This is an appeal from a decision of Master Windeyer, as he then was, given on 4 April 1990 in which he dismissed the appellant's application for an order under s7 of the Family Provision Act 1982 (the Act). The appellant, who was born on 18 June 1929, is the widow of Lionel Singer who died on 9 March 1988 aged 67. They were married in New York on 7 April 1987. The deceased left a will dated 31 July 1987, probate of which was granted to the respondent, Maxwell Berghouse on 23 January 1989. Under the will the deceased gave the whole of his estate to his executor on trust for sale and thereafter to hold the proceeds of sale on trust as follows:

"2.(1)(a) To pay all my just debts funeral and testamentary expenses and all duties whether Death Estate Succession or otherwise whether State or Federal.

(b) To pay any balance, being property and/or the proceeds from property acquired up to the date of my marriage to BERNICE PECK on 7 April 1987, to my son AVROM YOSSEF PESAH SINGER (known as JOSEPH SINGER).

(c) To pay the balance being property acquired by me after the date of my marriage to the said BERNICE PECK to my dear wife for life thereafter to my son JOSEPH absolutely.

(d) To pay any balance being any real estate purchased by me after the date of my said marriage and regardless in whose names such property might be at the date of my death, to my dear wife for life and thereafter to my son JOSEPH absolutely."

"3. I DIRECT my Executor to bind himself to the terms of a Deed of Ante Nuptial Settlement made on 9 March 1987 between myself and my dear wife and I further declare I have no further interest in the ante nuptial estate of my dear wife."

The net value of the estate at the date of death was $454,755 Included was a house property at 55 Beamount Street Rose Bay valued at $275,000. The balance was said by the Master to consist for the most part of the proceeds of life policies. It was not disputed before the Master that in the events which have happened under the will the whole property passed to the deceased's son Joseph. At the date of the hearing by the Master the net value of the estate was in the order of $556,000.

In his judgment the Master made findings as to the circumstances and history of the marriage and the married life of the appellant and the deceased. None of the Master's findings is contested by either party. The couple met in 1986 and became fond of each other immediately.

Both had been previously married. After they met the deceased ascertained that he was to receive an amount of $250, 000 from the New South Wales Government, by way of compensation for loss of office as a member of the Commercial Claims Tribunal.

That knowledge apparently made a difference to the parties and accelerated their marriage.

The appellant was, prior to her marriage to the deceased, in part time employment which she gave up on marriage. The appellant and the deceased stayed in the appellant's home in New York for a short time after their marriage, returned to Sydney and remained there from May until September 1987 and then spent September to December 1987 in the United States.

They eventually came to Sydney some months prior to his death and remained there. The appellant contributed to their expenses on travelling. They did not intend to live in the deceased's property in Rose Bay but stayed in the Cranbrook Hotel for a while and then in a rented property in Bondi Junction the deceased paying the rent. They spent a lot of time inspecting properties with a view to purchase. They looked at houses and home units in the price range of $150,000

$200,000. The Master accepted that they contemplated purchasing a home probably as joint tenants. It is clear that the deceased was not in good health during the marriage but it is equally clear that his early death was unexpected.

The appellant returned to New York after her husband's death.

She no longer worked. The job that she held previously no longer existed. Her health was not good. The Master thought that she would not work in the future. He described her assets, the value of which he converted into Australian dollars. She owned a house in Brooklyn worth about $230,000 divided into two apartments. Her daughter lived upstairs and she lived downstairs. Prior to her marriage they lived together downstairs and the appellant let the upstairs apartment. The appellant had $320,000 invested in various bank deposits, two of which bore interest, and one of which appeared to the Master to be a tax free type investment which was not then paying interest but was, he presumed, increasing in value. Although the appellant received income from these investments, there was no evidence of what precisely was her income from them. She also received rent from her daughter from the upstairs flat of $460 per month. She agreed that

the proper rental was approximately $630 per month. At age 62 she will become entitled to a pension of about $370 per month and at age 65 $460 per month. All these figures are in Australian dollars.

The deceased's son, Joseph, the sole beneficiary under the will, was at the date of the hearing 44 years of age. He was the only other eligible person in relation to the deceased within the meaning of s6(1) of the Act. He left school in 1964 without the Leaving Certificate and worked in various clerical storeman salesman type jobs for some years. After two other business ventures in 1979 he went into a photo processing business. There was a series of disputes with his partner. He says he lost his home and business and by the end of 1983 was virtually penniless. He went to the United States and worked in a laboratory there. He returned home in 1985.

After his mother's death in 1985, he looked after the deceased. This took a considerable amount of time as the deceased was not accustomed to looking after himself. The deceased and he went overseas in 1986. On returning home they found that the Rose Bay home had been badly damaged by a storm and was not properly habitable. They moved into a hotel, the deceased paying the rent. Since the deceased's death Joseph has done a great deal of work on the house, work that had been planned prior to the deceased's death. Joseph has expended his own monies on the work but for the most part has been repaid from the estate. The estate has benefited from the improved value of the property as the result of Joseph's efforts. In 1987 he married in California. His wife was an actor doing some part time work and earning about $200 per week for odd jobs. Joseph had no assets of any value other than a 15 year old Mercedes motor car worth about $10,000. He lived with his wife in the Rose Bay property and worked as a salesman for Cadry's Carpets. For the year ended 30 June 1989 he earned $13,653. There was no doubt the deceased considered that his son would continue to live in the Rose Bay property.

Prior to their marriage the appellant and the deceased had consulted Mr Berghouse, the respondent, on a professional basis. They were friends as well as clients of Mr Berghouse.

They went to discuss wills and a proposed ante nuptial agreement. Mr Berghouse gave the deceased a draft agreement but suggested it should be checked by a New York lawyer. The appellant returned to New York. On 9 March 1987 the deceased sent her a letter enclosing the ante nuptial agreement which he had signed. The appellant took it to her own attorney, Mr Godlin, who said that he did not know why it was needed but nevertheless he explained it to her. The Master was in no doubt that the appellant understood its provisions. She signed it and sent it back to the deceased. This was the ante nuptial settlement referred to in CL3 of the will. It contained the following provisions:

"AND WHEREAS Bernice and Lionel, by ante nuptial contract, are desirous of determining for all time, between themselves the status of and entitlements to such assets as they each presently own, being real property, personal property, choses in action and any other property as from the time when they intermarry,

AND WHEREAS Bernice desires that her present assets or any assets into which the said assets may be converted shall be for such use or disposition as she shall herself desire and shall be, testamentarily held for the benefit of her children and/or other descendants and/or other members of her separate family as she may appoint as her heirs

AND WHEREAS Lionel is in accord with those desires as immediately aforesaid

AND WHEREAS Lionel desires that his present assets or any assets into which the said assets may be converted shall be for such use or disposition as he shall himself desire and shall be, testamentarily held for the benefit of his children and/or other descendants and/or other members of his own separate family as he may appoint as his heirs

AND WHEREAS Bernice is in accord with those desires as immediately aforesaid

IT IS HEREBY AGREED and covenanted between Bernice and Lionel in consideration of the (sic) presents as follows:

(CLI and CL2 contained covenants by the deceased in respect of the appellant's assets in the same terms, mutatis mutandis, as the covenants by the appellant in CL3 and CL4 in respect of the deceased's assets)

Bernice has not and will not at any time in the future have and/or make any claim under the provisions of any legislative enactment of the State of New York, of the United States of America, of the State of New South Wales or of the Commonwealth of Australia or under any provision of the Common Law of the said States and Countries with respect to provisions for entitlement to property arising out of the marriage relationship, whether in its subsistence or beyond and/or arising out of testamentary capacity or intestacy, to any of the assets presently owned by Lionel or to any assets into which these present assets may be converted by or on behalf of Lionel.

Bernice further covenants that she will not at any time take any action which may prevent or hinder or impede Lionel from dealing with or disposing of his aforesaid assets.

These agreements and covenants herein may be pleaded in bar to any claim, by Bernice and/or Lionel made contrary to such agreements and covenants, wheresoever and within the jurisdiction of whichever court such claim is made."

The document so executed was not apparently that prepared by Mr Berghouse. The Master regarded it as a strangely worded document but said that its effect was clearly to provide that neither party would make any claim against the other or the estate of the other at the date of execution "or to any assets into which these present assets may be converted by or on behalf of Lionel (Bernice)". The Master said that the provisions of the will were clearly intended to give effect to the agreement. He went on to say that although the agreement did not prevent the claim from being brought it was admissible under s9(3)(c) and s9(3)(d) of the Act. He considered it might not have been admissible and might have been held to have been irrelevant had the marriage lasted for a reasonably long period of time. The appellant did not deny that both she and the deceased intended that their own real estate properties go to their own children.

s31 of the Act enables a person, with the approval of the Court, to release his rights to make an application under the Act in relation to a deceased person; compare s87 of the Family Law Act 1975 and Lieberman v Morris (1944) 69 CLR 69.

"(2) A release by a person of his rights to make an application in relation to a deceased person has no effect except as provided in subs(3).

(3) A release by a person of his rights to make an application in relation to a deceased person, being a release in respect of which the Court has given its approval under this section, shall have effect to the extent to which the approval has been given and not revoked and shall, for the purposes of this Act, be binding on the releasing party."

No such approval has been sought in the present case.

"In any proceedings under this Act, evidence of a statement made by a deceased person shall, subject to this section, be admissible as evidence of any fact stated therein of which direct oral evidence by the deceased person would, if he were able to give that evidence, be admissible." " Statement" includes any representation of fact whether or not in writing; subs(1).

Prior to this enactment statements by a testator were admissible for only a limited purpose. "The signed statement, itself, is no evidence of the truth of its contents (re Richard Edward Jones (1921) 21 SR (NSW) 693; re G Hall (deceased) (1930) 30 SR (NSW) 165 and In the will of Jolliffe (1929) QSR 189) though statements made by a testator in his lifetime may provide some evidence of the reason why he has disposed of his estate in a particular way"; per Taylor J in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 24.

The Master considered that the real relevance of the agreement was to show that the parties thought its terms fair at the time they signed it. In the event of her husband's death the appellant could not say that she had expectations of a more affluent life than she had led before the marriage. For my part, I do not regard it has having, in the circumstances of this case, any greater significance in determining whether an order and if so what order should be made in favour of the appellant.

The Master concluded that the deceased did not fail in a moral obligation to make proper provision for the maintenance and advancement of the appellant, she being the person he was bound to consider first. He said:

"The plaintiff has a house which is quite comfortable and in which she has lived for many years. She obviously intends to remain there. She has given no evidence of expenses other than some rough figures for the outgoings on the property but she has a large capital sum from which to receive income. There is nothing to suggest that she is not able to lead a perfectly satisfactory life comfortable in her own home with a secure income backed by a large capital sum. In many cases the need for maintenance is obvious without any particular expression of the need but in this case no need has been shown for anything now or likely to be required in the future which would not easily covered by the plaintiff's own resources."

S7 of the Act provides, relevantly, that subject to s9, if the Court is satisfied that an applicant is an eligible person, it may order that such provision be made out of the estate of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.

s9 (2) provides that the Court shall not make an order under s7 in favour of an eligible person out of the estate of a deceased person unless it is satisfied that "(a) The provision (if any) made in favour of the eligible person by the deceased person either during his lifetime or out of his estate;

is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person."

In Re Fulop Deceased (1987) 8 NSWLR 679 at 680 McLelland J said that in an application under the section "the ultimate function of the Court is to determine first, whether the provision, if any, made in favour of the plaintiff by the deceased either during his or her lifetime or out of his or her estate.....is inadequate for the proper maintenance, education and advancement in life of the plaintiff, and secondly, if so, what (if any) provision or further provision ought to be made out of the estate for those purposes. In each case the Court has regard to the circumstances at the time of the determination."

It is important on an appeal from a decision refusing to make an order to consider the extent to which the judgment appealed from is discretionary. What Mason J, as he then was, described in White v Barron (1980) 144 CLR 431 at 442 as the correct approach to the exercise of power under s3 (1) of the Testator's Family Maintenance and Guardianship of Infants Act 1916, which contemplated a two stage approach similar to that described by McLelland J, was expressed by Dixon CJ and Williams J in McCosker v McCosker (1957) 97 CLR 566 at 575 as follows:

"The power of the Court to make an order under the Act depends upon proof that a testator has died leaving a will which does not make adequate provision for the proper maintenance, education or advancement in life of the applicant. If that is proved, the Court may at its discretion, and taking into consideration all the circumstances of the case, make an order."

In Goodman v Windeyer (1980) 144 CLR 490 at 502 Gibbs J, as he then was, with whose reasons for judgment Stephen, with one minor reservation, and Mason JJ agreed, said:

"Tt is commonly said that the fact that the applicant has been left without such adequate provision is a condition of jurisdiction, but to express the matter in that way shows 'more respect for the language of Chancery tradition than of juristic theory'; per Dixon CJ in Blore v Lang (1960) 104 CLR at 128; the condition is, strictly speaking, a condition of the power. The decision of the question whether this condition has been fulfilled 'involves the application to the facts of a legal criterion', to use the words of Aickin J in White v Barron at 431, but the nature of the criterion is such that in its application the court, in my respectful opinion, is called upon to exercise a discretionary judgment. As Dixon CJ pointed out in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19, the words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards: see In re Hodgson, deceased [1965] VLR 481 at 491-2, per Sholl J. For those reasons I share the view expressed by Mason J in White v Barron at 443 that the twin tasks which face the primary judge are similar, and that it would be artificial to say that the exercise of discretion begins only when the judge has completed the first of his tasks and decided that the appellant was left without adequate provision for proper maintenance."

When this Court is invited to overturn such a discretionary judgment and substitute its own judgment care must be taken as was pointed out by the learned President in Hunter v Hunter (1987) 8 NSWLR 573 at 576. What is inadequate

and what is proper in a particular case involve value judgments. Different solutions from different courts are to be expected. But it is not the function of an appeal Court to impose its preferred view over that of the trial court, if the latter represents a sound exercise of the discretion. To adapt the language used by Priestley JA with the agreement of McHugh JA, as he then was, in Moran v McMahon (1985) 3 NSWLR 700 at 723, the appellate Court is not to act upon its own conclusions but only to alter the trial judge's decision if it is convinced either that the judge acted upon some wrong principle of law, or that the refusal to make an order or the amount of the provision ordered to be made involved, in the judgment of the appellate Court, an entirely erroneous estimate of what, in the circumstances, was an adequate provision for the applicant's proper maintenance, education and advancement in life. The question for us is whether the Master exercising his discretion soundly could have refused the application.

s9 (3) of the Act provides the Court may take into consideration-

"(a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to -

(i) the acquisition, conservation or improvement of property of the deceased person; or

(ii) the welfare of the deceased person, including a contribution as a homemaker;

(b) the character and conduct of the eligible person before and after the death of the deceased person;

(c) circumstances existing before and after the death of the deceased person; and (d) any other matter which it considers relevant in the circumstances." Consideration of what maintenance, education or advancement in life of the eligible person is proper and whether the provision (if any) made is inadequate will, in the particular case, in large measure dictate what matters the Court considers relevant. Some matters are generally relevant, other matters are made relevant by the circumstances of the particular case. In White v Barron at 440, Stephen J warned against appellate Courts propounding general rules by reference to which the discretion is to be exercised.

The Privy Council in Bosch v Perpetual Trustee Co Ltd (1938) AC 463 at 476 explained the interaction in this context of the words "proper" and "adequate" or "inadequate". Their Lordships said:

"The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate.' A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances. A father with a large family and a small fortune can often only afford to leave each of his children a sum insufficient for his 'adequate' maintenance. Nevertheless, such sum cannot be described as not providing for his 'proper' maintenance, taking into consideration 'all the circumstances of the case' as the subsection requires shall be done." Their Lordships quoted at 477-478 with approval from the judgment of Stout CJ in In re Allardice, (1910) 29 NZLR 959 at 969-970 when he summarised the principles to be followed in administering an equivalent section as follows: "1, That the Act is something more than a statute to extend the

provisions in the Destitute Persons Act; 2, that the Act is not a statute to empower the Court to make a new will for a testator; 3, that the Act allows the Court to alter a testator's disposition of his property only so far as it is necessary to provide for the proper maintenance and support of 'wife, husband or children' where adequate provision has not been made for their proper maintenance and support by the will of the testator; 4, that - in the case of a widow.....- the Court will make more ample provision than in the case of children, if the children are physically and mentally able to maintain and support themselves.

The whole circumstances have to be considered. Even in many cases where the Court comes to a decision that the will is most unjust from a moral point of view, that is not enough to make the Court alter the testator's disposition of his property. The first inquiry in every case must be what is the need of maintenance and support; and the second, what property has the testator left." In Goodman v Windeyer at 497 Gibbs J after referring to the principles settled in Bosch's case said:

"Tt is clear from their Lordship's reasons that the court, in considering what constitutes proper maintenance, both for the purpose of deciding whether the condition precedent to the exercise of the powers given by s3 (1) (of the Testator's Family Maintenance Act) has been fulfilled, and for the purpose of deciding what provision should be made by order for such maintenance, must consider not merely the need for maintenance, but all the circumstances of the case." Again in White v Barron, after referring to Bosch's case Wilson J at 457 said:

"All the circumstances, including the size of the testator's estate at the date of death and the style of life to which the widow had been accustomed during his lifetime are relevant to this question. Generally speaking, it may be wrong in principle for a court to assume jurisdiction under this legislation in order to build up out of the estate of the testator the capital assets of an elderly widow. But conversely I do not think a wise and just testator would think it right for his widow to be required to draw on her own capital assets in satisfaction of her need of proper maintenance, especially when he had the means to protect her from the risk of financial anxiety in the future by a provision which enabled her to conserve her own capital." Both these cases were relied upon by the appellant. As Gibbs J pointed out in Goodman v Windeyer at 499 and 500 in deciding whether an applicant widow has made out a case for relief the Court is bound to consider the likely effect of inflation and pay regard to the contingencies of life, including the possibilities that the effect of inflation will render the applicant's income inadequate and that degenerating health may increase in its severity as time goes on and place heavier financial burdens upon her.

Apart from these general considerations there is a particular consideration. The Master said that it was clear that the appellant and the deceased intended to purchase a new home.

Almost certainly it would have been necessary for them both to contribute funds to that and on the evidence of Mr Berghouse they would probably have purchased as joint tenants. The will provides that if this had happened the appellant would have had a life estate in such property. Account should be taken, in determining what provision, if any, should be made, of the intentions or wishes of a testator, if expressed in the will but defeated by some mistake or oversight or subsequent events; compare Bosch's case at 481-2. The provisions of CL2 (1)(d) of the will did not take effect because no such property was purchased.

The appellant's claim was said expressly by her counsel not to be based on any present need. As counsel accepted, there was no evidence of the present income of the appellant from the $320,000 she had invested in various bank deposits. Two of these bore interest. One, which was said to be apparently a tax-free type investment, was not paying interest but the Master presumed increasing in value. The respondent's counsel argued with some force that such an investment together with the letting out of part of the house at a rental lower than the proper rental, suggested that the appellant had no present need for further income. It was accepted by the appellant's counsel that the appellant gave no evidence of expenses other than some rough figures for the outgoings on the property. The Master concluded that there was nothing to suggest that she was not able to lead a perfectly satisfactory life comfortable in her own home with a secure income backed by a large capital sum. The appellant made no claim for the life estate to which she would have been entitled under the will, if a house or home unit had been purchased. The notice of appeal sought an order for a lump sum of $100,000, acknowledged to be an ambit claim. Beyond this nothing was put before the Court to support or justify a lump sum figure.

The Master found that prior to the marriage the appellant had been in part time employment but gave that up on marriage.

There is no evidence of her earnings from that employment. He found that she no longer worked and the job she held previously no longer existed. Her health was not good and he thought it should be taken that she would not work in the future. The thrust of the appellant's argument was that, again to adapt the language of the Privy Council, a wise and just rather than fond or foolish husband would have provided for her maintenance by bequeathing a sum to protect her so far as possible from the anxiety of future contingencies. It was said that we should take account of the well-known expense of health care in the United States and the effects of inflation.

It was acknowledged that the deceased's son had a competing claim for provision under the will.

The appellant argued that it was strange and unusual that the deceased made no provision whatever in his will for his wife to whom he had been happily married. I must say that I find it extraordinary that the appellant presented scant or no evidence as to her present income and outgoings or as to her intentions or needs for the future or as to what lump sum provision applying appropriate discount tables would be required to meet these claims or needs, if they existed. In my opinion, in the circumstances of this case, for the Court, in the absence of any such evidence, to make an order for the payment to the appellant of a lump sum is to do no more than act on speculation and, contrary to the prohibition contained in s9 (2) of the Act, to alter the deceased's disposition of his property in the absence of proof that he has inadequately provided for the appellant.

I am not persuaded that the Master erred in the exercise of his discretion and would dismiss the appeal with costs.

Cripps JA I agree with Sheller JA. Appeal dismissed with costs. Kirby P dissenting. Counsel:

Respondent: MD Broun QC Solicitors: Appellant: Theodore Frellich

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