Mr. Rayment, for the appellant, seeks the restoration of the order of Waddell J. He argues, in the first place, that it should be restored because it was right; alternatively, the Court of Appeal should not have interfered with it because of its discretionary nature. The latter argument is clearly relevant to the actual provision that the trial judge ordered to be made, as there can be no doubt that a decision as to the provision that "the court thinks fit" to be made out of the estate of the testator is a decision of that nature. The argument may not carry the same force when the question under consideration is whether the court should have assumed jurisdiction to make any order at all. Section 3 (1) does not describe the jurisdiction of the court in terms which confer a discretion; it provides simply that if it be the fact that a testator disposes of his property by will "in such a manner that the widow, husband, or children of such person, or any or all of them, are left without adequate provision for their proper maintenance, education, or advancement in life as the case may be", then the court may at its discretion proceed to make an order. Having regard to the guidance of the Privy Council in Bosch v. Perpetual Trustee Co. Ltd. [32] , the court, in order to answer that jurisdictional fact, "must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father". I note that Mahoney J.A. cites a passage from a joint judgment of Dixon, Williams and Kitto JJ. in Ellis v. Leeder [33] for the proposition that the jurisdiction conferred by the Act is a discretionary jurisdiction. The extent to which that case does support the proposition would, I think with respect, invite closer consideration in a case in which an answer was really material. In my opinion, this is not such a case. Whether or not the assumption by Waddell J. of jurisdiction to vary the will was based on a finding of fact or an exercise of discretion it was, I think, a correct decision. Mr. Morling, for the executors, argued in support of the decision of Mahoney J.A. that there never was any jurisdiction to make an order. He draws a picture of the widow, aged fifty-nine at the date of death of the testator, without dependants, owning two pieces of unencumbered real estate to an aggregate value of approximately $100,000 plus a car and $14,000 in cash or mortgage. On top of this, the testator bequeathed to her an annuity of $5,200 a year.