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

marriage. She returned to Brooklyn after the testator's death. She

no longer works and the job she held previously does not exist.

Master Windeyer accepted that her health was not good, adding:

"I think it should be taken that she will not work in the future".

13. The Master assessed the appellant's position in the following

way, converting American into Australian currency. The appellant owns

a house in Brooklyn, worth about $230,000. It is divided into two

apartments. She lives downstairs and her daughter upstairs. She

receives rent from her daughter of $460 a month; the market rental

is about $630 a month. She has $320,000 invested in bank deposits;

two bear interest and one is a tax free investment which does not bear

interest but which, the Master said, "is presumably increasing in

value". She is entitled to a pension at age 62 of about $370 a month,

14. Joseph Singer was 44 years of age at the time of

Master Windeyer's order. He has had a somewhat intermittent work

history and since his father's death has been working on the damaged

Rose Bay house. He has no assets of any value other than a car. He

is a salesman but earns very little. His wife is an actress who does

part-time work and earns about $200 a week from odd jobs.

15. Master Windeyer decided that the testator had not "failed in a

moral obligation to make proper provision for the maintenance and

advancement of his wife, she being the person he was bound to consider

first". There seem to be two considerations which led to that

decision. The first is the ante nuptial agreement which the Master

did not consider decisive but which he clearly accepted as reflecting

the wishes of the parties. In particular, he thought that:

"the real relevance of the 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".

The other factor, which is not so explicit in the Master's reasons, is

"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."

16. In the Court of Appeal Sheller JA, with whom Cripps JA

concurred, saw the ante nuptial agreement as having no greater

significance than that ascribed to it by Master Windeyer. In passing,

it may be noted that, by reason of s.31(2) of the Act, a release by a

person of his or her rights under the Act is ineffective unless the

court has given its approval to the release. No such approval was

given (or sought) in the present case. Reference should also be made

to s.32(2) whereby evidence of a statement made by a deceased person

is, subject to the section, "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".

17. In so far as Master Windeyer and Sheller JA attributed no

greater significance to the terms of the ante nuptial agreement than

to provide evidence of what the parties themselves saw as fair at the

time, no criticism can be made of their approach. But it is evidence

of what the parties thought at the time. In particular, the untimely

death of the testator was not anticipated; but what was anticipated

18. Sheller JA countered the appellant's argument that it was

strange and unusual that the testator had made no provision for his

wife to whom he had been happily married, by saying:

"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."

19. Sheller JA concluded his judgment by saying: "I am not

persuaded that the Master erred in the exercise of his discretion".

It is apparent from his Honour's conclusion and other references in

his judgment that he placed heavy emphasis on what he saw as the

discretionary nature of the task which the Master had to perform. In

doing so, his Honour was, in my respectful view, in error.

20. Before this Court counsel for the respondent also took his

stand to a considerable extent on the "discretion" vested in

Master Windeyer. That submission invites consideration of what is the

discretion which exists, if it exists at all, in the court dealing

with an application under the Act.

21. Section 7 of the Act empowers the court to order such provision

out of the estate of a deceased person as, in the opinion of the

court, ought to be made having regard to the circumstances at the time

the order is made. Certainly, the decision that provision ought to

be made involves the making of a value judgment in the light of the

evidence. But that is not to say that the court has a discretion to

refuse relief if that judgment leads to the conclusion that provision

ought to be made. Part of the difficulty which affects this area

of the law lies in the use of "discretion", in relation to both the

making of an order and the terms of the order to be made.

22. Mason J approached the matter in White v. Barron in the

following way ((22) [1980] HCA 14; (1980) 144 CLR 431 at 441.):

" The question whether the testator left the appellant

widow 'without adequate provision' for her 'proper

maintenance' was to be determined by the primary judge by

reference to circumstances as they existed at the date of

the testator's death. Once this question was answered

in the affirmative, it was for the court to exercise its

discretion to order adequate provision for proper

maintenance for the appellant by reference to circumstances

as they existed at the date of the order."

23. When reference is made to earlier decisions of this Court to

support the discretionary nature of orders made for provision out of

the estate of a deceased person, it should be remembered that, at the

time, the court to which application was made was expressly empowered

"at its discretion" to make an order. Decisions such as Coates v.

National Trustees Executors and Agency Co. Ltd. ((23) [1956] HCA 23; (1956) 95 CLR

494.), McCosker v. McCosker ((24) [1957] HCA 82; (1957) 97 CLR 566.), Pontifical

Society for the Propagation of the Faith v. Scales ((25) [1962] HCA 19; (1962) 107

CLR 9.), as well as White v. Barron, must be read in this light. Even

so, Dixon CJ suggested in Scales ((26) (1962) 107 CLR at 19.):

"Perhaps this Court and other Courts of Appeal have attached too much

significance to the discretionary aspects of orders under appeal". At

least so far as s.7 of the Act is concerned, the court is empowered to

order that such provision be made out of the estate "as, in the opinion

of the Court, ought, ... to be made for the maintenance, education or

advancement in life" of an eligible person. If the court is of that

opinion, it is hard to see on what footing the court may decline to

order some provision ((27) However, it may be that the assets of the

deceased are such that no effective order can be made: Ellis v. Leeder

[1951] HCA 44; (1951) 82 CLR 645.). Of course, in reaching that opinion the court

must have regard to all the considerations which the Act makes

relevant, in particular those in s.9(3). But even then the

discretionary nature of this step should not be overstated. The task

of the court is to give effect to its opinion that some provision ought

24. Indeed s.9 points the way in which the court is to exercise its

jurisdiction under the Act. In the case of an "eligible person",

who qualifies as such only because he or she is a former spouse

or a dependent grandchild or a dependent member of the deceased's

household, the court must first determine whether there are factors

which warrant the making of the application ((28) s.9(1).). By

clear implication, that initial inquiry is not required in the case of

a widow or widower. But the court is enjoined against making an order

under s.7 unless it is satisfied that the provision (if any) made for

the eligible person is, at the time the matter is before the court,

inadequate for the proper maintenance, education and advancement in

life of the eligible person ((29) s.9(2).). Finally, the court is

empowered, in determining whether any provision should be made, to take

into consideration such factors as any contribution made by the

eligible person to the property or welfare of the deceased, and the

character and conduct of the eligible person ((30) s.9(3).).

25. The structure and contents of the Act do not point to the

exercise of a merely discretionary judgment by the court. Rather,

they require the court to conduct the inquiry which the various

provisions identify. That is, the court must first be satisfied that

the provision (if any) made by the deceased is inadequate for the

proper maintenance, education and advancement in life of the eligible

person. If it then appears that the deceased has not made adequate

provision for the eligible person, the court is empowered to make an

order in favour of that person. The terms of the order it makes is

not so much the exercise of a discretion as an assessment of what is

required, in all the circumstances, to make that provision which ought

to be made. If that approach is not strictly in conformity with the

approach taken in the cases to which reference has been made earlier

in this judgment, the explanation lies in the language chosen by the

26. It is clear that the majority in the Court of Appeal were

influenced by what they regarded as the discretionary nature of the

judgment below, coupled with the absence of detailed evidence as to

the appellant's "intentions or needs for the future".

27. Kirby P would have allowed the appeal. His Honour accepted that

the testator's will must be considered against the "background of an

uncontested moral obligation to his son". Nevertheless he was clearly

influenced by the fact that if Master Windeyer's orders stand,

"Mr. Joseph Singer receives the entirety of these assets; the

28. In dealing with the appellant's own financial position, it is

true, as the respondent said, that Kirby P made errors. One is of

importance. His Honour said that the appellant "also held jointly

with (her) daughter a deposit of about $US150,000 in financial

institutions". In fact, as already noted, the amount is $A320,000

and is not shared with her daughter. His Honour also said that the

appellant was not eligible for a pension until she reached 65. Again,

as noted earlier, she was entitled to a pension at 62, increasing

when she reached 65. The conclusion reached by Kirby P: "She was

therefore obliged to live on her capital" must be read in the light of

these circumstances. Nevertheless, the reason why Kirby P would have

allowed the appeal is more fundamental and his Honour's ultimate

conclusion that some provision should be made is not fatally flawed by

29. The policy underlying comparable legislation has been stated

by this Court and other courts on many occasions. Inevitably,

particularly in the older decisions, emphasis has been placed on the

obligations of a testator as husband and father. Necessarily, those

statements must now accommodate the changing position of parties to a

marriage or de facto relationship, including the heightened earning

capacity of women. Nevertheless, the observations of Salmond J in

In re Allen, deceased; Allen v. Manchester ((31) (1922) 41 NZLR 218 at

220.), which have been referred to so often by this Court and other

courts, have not lost their force ((32) See Bosch v. Perpetual Trustee

Co. Ltd. (1938) AC 463 at 479; Goodman v. Windeyer [1980] HCA 31; (1980) 144 CLR 490

"The Act is ... designed to enforce the moral obligation of

a testator to use his testamentary powers for the purpose

of making proper and adequate provision after his death for

the support of his wife and children, having regard to his

means, to the means and deserts of the several claimants,

and to the relative urgency of the various moral claims

upon his bounty."

30. Kirby P, in effect, asked rhetorically: How could it be said

that a testator who was able to make provision but made no provision

at all for his wife had met the obligation which the Act imposes?

This Court may ask the same question, adding: particularly when some

provision could well have been made for the testator's wife without

affecting his obligation to make provision for his son.

31. As things stood at the time of Master Windeyer's order, Joseph

Singer was to receive the house at Rose Bay, worth $380,000 or

thereabouts (subject to a mortgage), and disposable assets of about

$176,000. Mr Singer swore an affidavit in connection with the

appellant's application to which he exhibited a medical certificate

referring to a "nervous disorder". But the certificate was issued

on 8 July 1983 and its purpose was to explain the impact on him of

unsuccessful litigation in which he was involved relating to a

partnership business. Notwithstanding his intermittent work history,

nothing was said in the affidavit to indicate that Mr Singer is unable

to work. Much of his time in recent years has been spent in restoring

the house in Rose Bay and thereby of course enhancing its value to

32. In those circumstances the proper conclusion is that the gift of

the Rose Bay house constituted adequate provision by the testator for

his adult son and that provision for his widow should be made from the

33. While it is undoubtedly true that the Supreme Court would have

been assisted by more specific evidence from the appellant as to her

financial position, her application under the Act did not stand to be

determined on a current needs basis. Indeed, Sheller JA said: "The

appellant's claim was said expressly by her counsel not to be based

on any present need." The gravamen of the appellant's complaint does

not lie in her needs at the time of the testator's death; rather,

it asserts a failure by the testator to make proper and adequate

34. The appellant was younger than the testator by some eight years.

She had a greater life expectancy. She has no job and, by reason

of her age and indifferent health, no real prospect of employment.

She has suffered the dislocation, financial and otherwise, of

moving to Australia and returning to the United States. In all

the circumstances there was no adequate provision made for the

appellant by the testator. And in all the circumstances it seems to

me inevitable that, in terms of s.7 of the Act, some provision ought

to have been made by the Court for her maintenance and advancement in

35. Since this matter has been before the courts on four occasions

(including the application for special leave to appeal), it is

imperative that no more of the estate be consumed in legal costs than

is absolutely unavoidable. It is therefore desirable that this Court

dispose of the matter. An amount of $50,000 is reasonable provision

for the appellant in all the circumstances, without however requiring

her to account for the $8,400 she has received. I would order

36. The appeal should be allowed. The parties should be given an

opportunity to file written submissions on the question of costs.

GAUDRON J Bernice Singer, the appellant, married Lionel Singer in

the United States of America in 1987. Their personal and financial

circumstances were very similar. They were both of mature years: she

was 57 and he was 66. Both had been married before. Mrs Singer was a

widow with two adult children, Mr Singer a widower with an adult son.

They each had a home of their own and their assets were of much the

same value, his mainly in Australia and hers in the United States.

Both earned or were in a position to earn income from their personal

exertions: Mrs Singer had permanent part-time employment with the

City of New York; Mr Singer was a qualified rabbi and, as well, had

recently resumed practice as a barrister of the Supreme Court of New

2. The position changed somewhat after the marriage. Mr Singer

returned to Australia where he was able to practise as a barrister

and, as well, discharge his duties as a rabbi. Mrs Singer, on the

other hand, gave up her employment to be with and look after her

husband. After arrival in Australia, they spent some time looking for

a house or other residential accommodation which, it seems, was to

be bought in joint names with money provided by Mr Singer. Mr Singer

3. The relevant provisions of Mr Singer's will are set out in other

judgments. It is sufficient to note that the will contained provision

for property acquired after the marriage to go to Mrs Singer for life

and thereafter to Mr Singer's son, Yossef, who is also known as

Joseph. No property was acquired after the marriage and Mrs Singer

took nothing under the will. Instead, the entire estate, the net

value of which at the date of death was $454,756, passed to the son.

4. Probate of Mr Singer's will was granted to the respondent,

Maxwell Berghouse, and in due course Mrs Singer applied under s.7 of

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

of the estate for her "maintenance, education or advancement in life".

5. The application, which was heard by Master Windeyer (as he then

was), was dismissed. In the course of his ruling, the Master noted

the circumstances of the marriage between Mr and Mrs Singer, their

life together and the personal and financial circumstances to which I

have earlier referred and the details of which are set out in other

judgments. He found that Mrs Singer's job with the City of New York

no longer existed, that her health was not good and that she would not

work in the future. He also noted the terms of an agreement, which

has been referred to as an ante-nuptial settlement, and the somewhat

precarious financial circumstances of Mr Singer's son. Again, the

relevant terms of the ante-nuptial settlement and the details of the

son's circumstances are set out in other judgments and need not be

repeated. The Master also noted that Mrs Singer "ha(d) given no

evidence of expenses other than some rough figures for the outgoings

on the property but (that) she ha(d) a large capital sum from which

to receive income". He found that there was nothing to suggest

that Mrs Singer "is not able to lead a perfectly satisfactory life

comfortable in her own home with a secure income backed by a large

capital sum" and added that "no need ha(d) been shown for anything now

or likely to be required in the future which would not easily (be)

6. The Master's decision dismissing Mrs Singer's application was

based on the consideration that "recent cases such as Re Fulop ((33)

(1987) 8 NSWLR 679.) and Hunter v. Hunter ((34) (1987) 8 NSWLR 573.)

make it quite clear that the provisions of the will are only to be

interfered with when the (Act) requires that to be done". It is

apparent from the Master's earlier finding as to Mrs Singer's needs and

resources that he considered that, at least in a case where no

provision was made by the deceased person, the Act only required such

interference if it were shown that an applicant had needs or

requirements that could not be met from his or her own resources.

7. Mrs Singer appealed unsuccessfully to the Court of Appeal. It

was held by majority (Sheller and Cripps JJA, Kirby P dissenting)

that it had not been shown that "the Master erred in the exercise of

his discretion". As will later appear, I do not think it is strictly

accurate to describe the power conferred by s.7 as a discretion,

notwithstanding the fact that it is phrased in terms of what the court

may do. But no matter how the power is described, an analysis of the

relevant provisions of the Act discloses, in my view, that there is an

error apparent in the Master's decision and another, arguably more

8. Section 7 of the Act confers power on the Supreme Court of New

South Wales to make an order for provision out of the estate of a

"Subject to section 9, on an application in relation to

a deceased person in respect of whom administration has been

granted, being an application made by or on behalf of a

person in whose favour an order for provision out of the

estate or notional estate of the deceased person has not

previously been made, if the Court is satisfied that the

person is an eligible person, it may order that such

provision be made out of the estate or notional estate,

or both, 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."

9. Section 9 provides, amongst other things, as to whether an order

can be made and whether an order should be made. There is special

provision, in s.9(1), in the case of an application "by an eligible

person who is such a person by reason only of paragraph (c) or (d) of

the definition of `eligible person'" in s.6 of the Act ((35) Par.(c)

relates to former spouses of the deceased, while par.(d) concerns

grandchildren and some time dependents and members of the household of

the deceased.), but that is of no relevance in this case ((36)

Section 9(1) provides that in such a situation "the Court shall first

determine whether, in its opinion, having regard to all the

circumstances of the case (whether past or present), there are factors

which warrant the making of an application and shall refuse to proceed

with the determination of the application and to make the order unless

it is satisfied that there are those factors".). Mrs Singer is an

eligible person by reason of par.(a)(i) of that definition, being a

person who "was the wife ... of the deceased person at the time of

10. Putting s.9(1) to one side, the question whether an order can be

made under s.7 is governed by s.9(2) which relevantly provides:

"The Court shall not make an order under section 7 ...

in favour of an eligible person out of the estate or

notional 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."

11. The questions whether and, if so, what order should be made are

governed by s.9(3) and (4) which provide:

"(3) In determining what provision (if any) ought to be

made in favour of an eligible person out of the estate or

notional estate of a deceased person, 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:

(4) Nothing in subsection (3)(a) limits the generality

of subsection (3)(b), (c) and (d) and the Court may consider

a contribution of the same nature as that referred to in

subsection 3(a) or of a different nature in so far as it

considers it relevant under subsection 3(b),(c) or (d)."

12. The question under s.9(2)(a) is whether "the provision (if any)

made ... by the deceased person ... is ... inadequate". That is

different from the question whether adequate provision has been made.

If the latter were the question posed by s.9(2)(a), the fact that

provision had not been made might well lead to the conclusion that

it was not adequate. But that is not the case when the question is

whether the provision (if any) is inadequate. That is a question

that can and must be answered regardless of whether provision has

been made. And as earlier indicated, the answer to that question

determines whether or not an order can be made under s.7.

13. The preliminary question under s.9(2)(a) and the first question

directed by s.9(3), namely, whether provision ought to be made,

involve considerable subjective assessment and may be said to call for

the making of a value judgment ((37) See with respect to the "value

judgment" required under s.3 of the [Testator's Family Maintenance and

](/cgi-bin/viewdoc/au/legis/nsw/consol_act/tfmagoia1916523/)Guardianship of Infants Act 1916 (N.S.W.), the predecessor to the Act,

White v. Barron [1980] HCA 14; (1980) 144 CLR 431 at 434-435 per Barwick CJ, 449

per Aickin J and Goodman v. Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 509

determined in favour of an applicant, there is no power under s.7 to

make an order for provision out of the estate or notional estate but,

assuming no issue arises under s.9(1), if both are determined in

favour of the applicant, such an order must be made. This follows

from the direction in s.9(2)(a) that "(t)he Court shall not make an

order ... unless it is satisfied that the provision (if any) made ...

by the (testator) ... is inadequate", the opening words of s.7,

namely, "(s)ubject to section 9", and the incongruity that would be

involved if s.7 were to be construed as allowing the Court to make or

refuse to make an order for provision contrary to the opinion formed

in accordance with s.9(3). The same considerations lead to the

conclusion that, once a decision has been made under s.9(3) as to

what provision ought to be made, that is the provision that must be

made under s.7. Thus, putting s.9(1) to one side, a decision under

s.7 is not a discretionary decision in the usual sense of a discretion

whether or not to make an order at all. Rather, a decision under s.7

is one that is dictated by the subjective assessments or value

judgments required by s.9(2)(a) and (3). However, where a subjective

assessment or value judgment is concerned, appellate review depends on

essentially the same considerations as those which apply in cases

involving the exercise of a discretion ((38) Hunter v. Hunter (1987) 8

NSWLR at 576 per Kirby P See generally, O'Sullivan v. Farrer [1989] HCA 61; (1989)

168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ and

14. As earlier indicated, the Master disposed of the application by

asking whether the Act required "the provisions of the will ... to be

interfered with". That was a proper approach in so far as the Act

required the making of an order for provision if the issues under

s.9(2)(a) and (3) were to be determined in favour of Mrs Singer and

required that no order be made if either issue were to be determined

against her. But at no stage did the Master expressly ask or answer

either the question directed by s.9(2)(a) or that directed by s.9(3).

15. Although the questions under s.9(2)(a) and (3) are distinct,

there is no necessity that they be decided separately from each other

or from the ultimate question to be determined under s.7. It is thus

possible that the Master determined all questions compendiously by

determining that the Act did not require an order to be made. It is

also possible that he simply determined the question raised by s.9(2).

The Court of Appeal appears to have approached the case on the basis

that the decision was based on that sub-section, the issue being

identified in the judgment of Sheller JA (with which Cripps JA

agreed) as the making of "an order ... (based) on speculation and,

contrary to the prohibition contained in s.9(2) of the Act". I shall

assume, although it is far from clear, that the Master was addressing

that question and that, in so doing, he made an independent assessment

16. It is well settled that the preliminary question which arises

under testators' family maintenance legislation, namely, whether the

provision (if any) is inadequate, is to be determined in the light of

all the circumstances of the case ((39) Bosch v. Perpetual Trustee Co.

(1938) AC 463 at 476.). It follows, at least as a matter of law, that

the issue goes beyond the question whether the applicant has needs and

requirements that cannot be met from his or her own resources.

Conversely, if an applicant does establish needs and requirements of

that kind, he or she will have gone a very long way towards satisfying

and, as a general rule, will satisfy the requirement in s.9(2)(a) of

the Act. That was the point of Hunter v. Hunter to which the Master

17. There may be cases where, given the circumstances and the size

of the estate, an applicant will, in practical terms, only succeed by

proving needs and requirements that cannot be satisfied from his or

her own resources. But that is a practical consideration only. And

it will not even be a practical consideration in a case where the

estate is sufficient to meet the moral claims of all members of the

18. This is not a case of a small estate and competing moral claims.

It is clear that Mr Singer's estate was sufficient to provide for

Mrs Singer and, as well, to satisfy any moral claim of his son. There

was, thus, no practical necessity for Mrs Singer to establish needs

and requirements which could not be met from her own resources. Nor,

as I have indicated, was there a legal requirement for her to do so.

The Master's decision proceeded on the basis that, either as a matter

of practical necessity or as a matter of law, Mrs Singer had to

demonstrate some need of that kind and, to that extent, it is apparent

that the decision was reached without having proper regard to all the

circumstances of the case. That was an error which should have been

19. It is also well established that the preliminary question that

arises under testators' family maintenance legislation, namely whether

the provision is inadequate, is similar to, or "may come ... very

close to" the question as to what provision ought to be made ((40)

White v. Barron (1980) 144 CLR at 449 per Aickin J, speaking in

relation to the questions that arose under the Testator's Family

Maintenance and Guardianship of Infants Act. See also Goodman v.

Windeyer (1980) 144 CLR at 509 per Aickin J). To put the matter in

the context of s.9, the question that arises under s.9(2)(a) is not

wholly distinct from that which arises under s.9(3). And the matters to

which regard may be had under s.9(3) are, or usually will be,

circumstances to be taken into account on the preliminary question

20. One matter to which regard may be had under s.9(3) is the

"contribution (by the applicant) ... whether of a financial nature or

not ... being a contribution directly or indirectly to ... the welfare

of the deceased person" ((41) See s.9(3)(a)(ii).). Mrs Singer made a

most significant contribution - one might even say sacrifice - to the

welfare of her husband. She gave up her employment with the City of

New York to be with and look after him. It may be that that

contribution is not strictly a financial contribution, but it is one

which, to a very large extent, can be measured in money terms.

21. The tendency of the courts to overlook or undervalue women's

work, whether in the home or in the paid work force, has often

been remarked upon ((42) See, for example, Scutt and Graham, For

Richer For Poorer: Money, Marriage and Property Rights, (1984),

especially Ch 3; Scutt, Women and the Law, (1990), Ch 3; Graycar and

Morgan, The Hidden Gender of Law, (1990), Ch 5; Waring, Counting for

Nothing: What Men Value and What Women are Worth, (1988). And see

also Australian Law Reform Commission, Report No.69, Pt 1, Equality

Before The Law: Justice for Women, (1994) at 11-13.). To my mind,

that is what is involved in the failure to acknowledge the significant

contribution involved when a wife gives up paid employment to be with

and look after her husband. To put the present matter in terms

appropriate to appellate review, the failure to acknowledge that by

giving up her paid employment Mrs Singer made a significant

contribution to her husband's welfare amounted to a failure to have

regard to a relevant circumstance - indeed, a very relevant

circumstance. For that reason, as well as for the error apparent in

the Master's decision, Mrs Singer's appeal to the Court of Appeal

should have been allowed. Similarly, her appeal to this Court should

22. My view is a minority view and it is, thus, unnecessary for me to consider the issues which would fall for determination if the Master's

decision were set aside. I should, however, note that I agree with

the view that the ante-nuptial settlement was a matter properly taken

into account for the limited purposes identified by Sheller JA. In

particular, it was relevant to show that Mrs Singer "could not say

that she had expectations of a more affluent life than she had led

before (the) marriage". Equally, however, there was nothing in the

circumstances of the case to suggest that she expected or should have

expected a less affluent one. But that is what she has: she no

longer has employment and, as the Master found, she will not work in

23. Mrs Singer was only employed by the City of New York for a short

time and, given her health and age, it may be that she would not have

stayed in employment for very long. But the fact is that she is now

worse off than she was when she married Mr Singer and, in a real

sense, worse off because she married him. That warrants a finding

that Mrs Singer was not adequately provided for and, also, the making

of an order in her favour under s.7 of the Act.