Singer v Berghouse [1994] HCA 40;

High Court of Australia|1994-09-14|Before: Mason CJ

the applicant having regard, amongst other things, to the applicant's

financial position, the size and nature of the deceased's estate, the

totality of the relationship between the applicant and the deceased,

19. The determination of the second stage, should it arise, involves

similar considerations. Indeed, in the first stage of the process,

the court may need to arrive at an assessment of what is the proper

level of maintenance and what is adequate provision, in which event,

if it becomes necessary to embark upon the second stage of the

process, that assessment will largely determine the order which should

be made in favour of the applicant. In saying that, we are mindful

that there may be some circumstances in which a court could refuse to

make an order notwithstanding that the applicant is found to have been

left without adequate provision for proper maintenance. Take, for

example, a case like Ellis v. Leeder ((9) [1951] HCA 44; (1951) 82 CLR 645.),

where there were no assets from which an order could reasonably be made

and making an order could disturb the testator's arrangements to pay

20. Although the precise nature of the jurisdictional question has

been the subject of some debate, the correct view is that the question

is strictly one of fact, notwithstanding that it involves the exercise

of value judgments ((10) White v. Barron (1980) 144 CLR at 441-443 per

Mason J, 448-449 per Aickin J, 456-457 per Wilson J; Goodman v.

Windeyer (1980) 144 CLR at 509 per Aickin J; Hunter v. Hunter (1987) 8

NSWLR 573 at 576 per Kirby P). The evaluative character of the

decision stems from the fact that the court must determine whether the

applicant has been left without adequate provision for his or her

proper maintenance, education and advancement in life.

21. In White v. Barron ((11) (1980) 144 CLR at 443.), although Mason J held that the question does not involve the exercise of a discretion,

"There is an element of the artificial in saying that

it is only after jurisdiction is established that the

exercise of discretion begins, for the twin tasks which face

the primary judge are similar."

22. In Goodman v. Windeyer, Gibbs J (with whom Stephen J and

Mason J agreed) expressly agreed with this comment and held that

the nature of the inquiry is such that the court is called upon to

exercise a discretion. Gibbs J said ((12) (1980) 144 CLR at 502.):

"(T)he 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".

23. It is clear from this passage that his Honour was conveying that

the primary judge was in essence making a value judgment in much the

same way as a primary judge makes a sound discretionary judgment in

personal injury cases when he or she assesses the quantum of damages

say for pain and suffering, and for loss of amenities of life.

24. Strictly speaking, however, the jurisdictional question, though

it involves the making of value judgments, is a question of objective

fact to be determined by the judge at the date of hearing. This

conclusion may have consequences in terms of what an appellant needs

to demonstrate on appeal, an issue that will be considered shortly.

25. The decision made at the second stage, by contrast, does involve

an exercise of discretion in the accepted sense ((13) White v. Barron

(1980) 144 CLR at 442 per Mason J, 449 per Aickin J, 455 per Wilson

J; Goodman v. Windeyer (1980) 144 CLR at 501-502 per Gibbs J, 509 per

Aickin J). This is evident from the term "may" in s.7, and this

conclusion is not affected by the fact that this section, unlike s.3 of

the Testator's Family Maintenance and Guardianship of Infants Act 1916

(N.S.W.), the predecessor to the present Act, does not contain an

express reference to the court's discretion to make an order for family

provision. The fact that the court has a discretion under s.7 means

that, as stated above, it may refuse to make an order even though the

jurisdictional question has been answered in the applicant's favour

((14) Pontifical Society for the Propagation of the Faith v. Scales

[1962] HCA 19; (1962) 107 CLR 9 at 19 per Dixon CJ; Hughes v. National Trustees,

Executors and Agency Co. of Australasia Ltd. (1979) 143 CLR at 149 per

Gibbs J; White v. Barron (1980) 144 CLR at 442 per Mason J; Re Fulop

Deceased (1987) 8 NSWLR 679 at 680 per McLelland J).

26. The principles of law which regulate the circumstances in which

an appellate court may review the exercise of a judicial discretion

are not in doubt ((15) House v. The King [1936] HCA 40; (1936) 55 CLR 499 at

27. However, in the context of family provision cases, the principles governing the review of a decision on the jurisdictional question are

not settled. In Goodman v. Windeyer ((16) (1980) 144 CLR at 501.),

Gibbs J did not decide whether an appeal from a decision on the

jurisdictional question should be governed by the principles that

regulate appeals from decisions made in the exercise of a discretion.

Similarly, in Kearns v. Ellis ((17) Unreported, New South Wales Court

of Appeal, 5 December 1984 at 8-9.), Mahoney JA raised the issue but

28. Kirby P, by contrast, has held that the principles that govern

appellate review of discretionary decisions should apply ((18) Hunter

v. Hunter (1987) 8 NSWLR at 576; Golosky v. Golosky, unreported, New

South Wales Court of Appeal, 5 October 1993 at 15; Singer v. Berghouse,

unreported, New South Wales Court of Appeal, 24 July 1992 at 12-13.

See also White v. Barron (1980) 144 CLR at 435 per Barwick CJ). In

our view, this is the correct approach. In this respect we should

express our agreement with the following comments of his Honour in

Golosky v. Golosky ((19) Unreported, New South Wales Court of Appeal,

"Unless appellate courts show restraint in disturbing the

evaluative determinations of primary decision-makers they

will inevitably invite appeals to a different evaluation

which, objectively speaking, may be no better than the

first. Second opinions in such cases would be bought at

the cost of diminishing the finality of litigation in a

troublesome area and, sometimes at least, with a burden of

costs upon the estate which should not be encouraged."

29. Accordingly, Sheller JA was correct in dealing with the appeal

to the Court of Appeal on the footing that it was necessary for the

appellant to show that the Master made "an entirely erroneous estimate

of what, in the circumstances, was an adequate provision for the

(appellant's) proper maintenance, education and advancement in life".

30. As recent cases in this Court have made plain ((20) See, e.g. Mallet v. Mallet [1984] HCA 21; (1984) 156 CLR 605 at 623 per Mason J, Deane J concurring.), it is important that the courts do not disregard or discount the

non-financial contributions made to the property and finances of the

parties to a marriage or marriage-like relationship, such as the

contributions made by parties as home-makers and parents, which are

not directly productive of a monetary return. In this case, however,

the relationship was one between two people with comparable assets

who, at a late stage of their lives, agreed to marry on the basis of

a written agreement about their respective future interests in their

existing and any subsequently acquired property. The evidence is

that, while the deceased and the appellant shared expenses when

travelling, the deceased paid their hotel and rental expenses for the

31. In these circumstances, and paying careful regard to the need to

take due account in an appropriate case of contributions which are not

directly productive of a monetary return, we do not think that the

case is one in which the appellant has established that the Master's

"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 (be) covered by the

(appellant's) own resources."

That was a conclusion which the Master was entitled to reach on the

materials before him. For our part, we are content to rely on the

reasons given by Sheller JA for holding that the appellant failed to

show that the Master's estimate was wholly erroneous. In particular,

we agree with the following comments by his Honour:

"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 s.9(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."

32. Section 33(1) of the Act provides that the court may order that

the costs, charges and expenses of family provision proceedings be

paid out of the estate or notional estate of the deceased in such

manner as it thinks fit. However, nothing in the Act precludes this

Court from making an order for costs against an unsuccessful

applicant. Accordingly, the appeal must be dismissed with costs.

TOOHEY J This appeal is from an order of the Court of Appeal of New

South Wales which dismissed an appeal by the present appellant from a

decision of Master Windeyer refusing her claim for relief under the

Family Provision Act 1982 (N.S.W.) ("the Act").

2. Lionel Singer ("the testator") and Bernice Singer ("the

appellant") were married in New York on 7 April 1987. The testator

was 66 years of age at the time; the appellant was 57 years of age.

It was a second marriage for both of them. The testator's first wife

died in 1985. He was a barrister of the Supreme Court of New South

Wales and, although in retirement at the time of his marriage to the

appellant, he had returned to practice on a limited basis. He had one

child, an adult son. The appellant was a widow at the time of her

marriage to the testator. She had two adult children, a son and a

daughter. She was living in Brooklyn, U.S.A. when she met the

3. After marriage they travelled together for a time and then came

to Australia. The testator had a house at Rose Bay but it had been

severely damaged by a storm and for a time they lived at the Cranbrook

Hotel at Rose Bay, then in a rented property at Bondi Junction. They

took steps to find a house which they had in mind to buy as joint

tenants. However the testator died, unexpectedly, on 9 March 1988,

4. Before their marriage the testator prepared a deed in

anticipation of marriage which he sent to the appellant. She took it

to a lawyer who explained its terms to her. She signed it and sent it

back. Later, after the marriage and when the parties were living in

Sydney, the deed was re-executed in the presence of the testator's

solicitor and friend, Maxwell Berghouse, who is the executor of his

5. The deed recites that each of the parties desires, with the

accord of the other party, that her or his present assets, or assets

into which they may be converted, be for her or his own use or

disposition and shall be "testamentarily held" for the benefit of

their respective children or other members of their separate families.

In consideration thereof each party covenants not to make any claim

on those assets and will not impede the other from dealing with or

6. The testator made a will on 31 July 1987. The will was drawn by

the respondent. The testator left his estate to the respondent as

executor, on trust for sale and to hold the proceeds upon trust to pay

"all my just debts funeral and testamentary expenses and all duties".

7. The testator disposed of the balance in the following way:

1. To pay any balance, being property or the proceeds of property

acquired up to the date of marriage, to his son Yossef Singer,

commonly known as Joseph Singer.

2. To pay any balance, being property acquired after the date of

marriage, to the appellant for life and thereafter to his son.

3. To pay any balance, being "real estate purchased by me after

the date of my said marriage" to the appellant for life and

thereafter to his son.

8. Clause 3 of the will directed the executor "to bind himself to

the terms of a Deed of Ante Nuptial Settlement made on 9 March 1987"

and declared that the testator had "no further interest in the

9. The effect of the will was that the testator's entire estate

passed to the son, Joseph. The estate, at the date of death,

consisted of the house at Rose Bay, valued at $275,000 and other

assets, mainly in the form of money in the bank and the proceeds of

life insurance policies, amounting to $291,735. The gross estate

was $566,735, with liabilities of $111,979, leaving a net estate of

$454,756. At the time of Master Windeyer's order the Rose Bay house

had an agreed value of $380,000 (subject to a mortgage of $30,000).

The cash in hand had been reduced to $176,000, in part in the

discharge of liabilities, though payments had been made to

Joseph Singer to reimburse him for moneys spent in restoring

the house. This does not take account of $8,400 which, in

Master Windeyer's words, "seems to have been taken by the widow". The

precise circumstances relating to this payment do not appear.

10. The appellant applied, pursuant to s.7 of the Act, for an order

making provision out of the estate "for her maintenance, education and

advancement in life". The application was refused by Master Windeyer.

It should be said immediately that, while s.9(3)(b) of the Act

empowers the court to take into consideration "the character and

conduct of the eligible person before and after the death of the

deceased person", there was no suggestion that anything in the

character or conduct of the appellant operated to "disentitle" her

from an order under the Act, to use the language of some of the

cases ((21) See, for instance, Hughes v. National Trustees, Executors

and Agency Co. of Australasia Ltd. [1979] HCA 2; (1979) 143 CLR 134.). By all

accounts the marriage, though short-lived, was a happy one.

11. Attention should also be drawn to s.9(2) of the Act which

precludes the court from making an order under s.7 unless it is first

satisfied that the provision (if any) made in favour of the eligible

person is inadequate for the proper maintenance, education and

advancement in life of that person. In the present case, by reason

of the terms of the will and the assets of the deceased, there was

no provision at all made for the appellant in the testator's will.

Subject to a finding of inadequate provision, it is possible to focus

on s.7 of the Act which empowers the court to order such provision out

of the estate "as, in the opinion of the Court, ought ... to be made

for the maintenance, education or advancement in life" of the person

12. The appellant was in part-time employment before her marriage

to the testator though in the late 1960s she had two strokes which

disabled her from working for some years. She gave up employment on

At a glance

Court

Decision date

Before

Source

Judgment (650 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (22)

Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201; (1994) 123 ALR 481; (1994) 68 ALJR 653 (14 September 1994)