Succession - Family provision - Appeals - Decision of associate judge - Associate judge erred in finding appellant's right to occupy property did not confer upon her the powers of a life tenant and in subsequently using discretion to create life interest - Appeal upheld - Order set aside.

Testator's Family Maintenance Act 1912 (Tas), s 3(2).

Settled Land Act 1884 (Tas), ss 53 and 46.

In re Eastman's Settled Estates [1898] WN 170; In re Baroness Llanover's Will [1903] UKLawRpCh 59; [1903] 2 Ch 16; In re Boyer's Settled Estates [1916] 2 Ch D 404, referred to.

In re Paget's Settled Estates [1885] UKLawRpCh 175; [1885] 30 Ch D 161, applied.

Succession - Family provision - Requirement for adequate and proper maintenance - Whether applicant left with insufficient provision - Claims by spouse or partner - Sufficient provision - Application dismissed.

Testator's Family Maintenance Act 1912 (Tas), s 3(2).

Succession - Family provision - Procedure - Orders and other procedural matters - Costs - Costs of appeal as distinguished from costs of the originating application - Where appeal upheld - Where associate judge erred - Respondents as executors of the estate ordered to pay appellant's party and party costs of the appeal from the estate - Respondents granted an indemnity certificate in respect of the costs of the appeal.

Judgment Number: [2020] TASFC 9

JOHANNE PATRICIA WILLIAMS v MARTIN JOHN WILLIAMS

and JENNIFER WILLIAMS (AS EXECUTORS OF THE WILL

3 Appellant's application under the Testators Family Maintenance Act 1912 dismissed.

4 Costs of the appeal of both the appellant and the respondents be paid from the estate.

5 Respondents granted an indemnity certificate under Appeal Costs Fund Act 1968.

JOHANNE PATRICIA WILLIAMS v MARTIN JOHN WILLIAMS

and JENNIFER WILLIAMS (AS EXECUTORS OF THE WILL

1. In this appeal the decision of Holt AsJ in Williams v Williams (No 2) [2018] TASSC 61 is challenged.
2. His Honour did not make an order when he published his reasons on 5 December 2018, but rather he expressed his conclusion as to the form of his contemplated orders pursuant to the Testator's Family Maintenance Act 1912 (the TFM Act), making further provision for the applicant out of her late husband's estate and invited the parties to "provide an agreed draft of the orders to be made or, failing agreement, their respective drafts". In default of agreement he contemplated resumption of the hearing to finalise the terms of the order.
3. The orders were not made until 25 May 2020 in the terms of a draft agreed by the parties, but subject to an inconsequential amendment.
4. The applicant's husband Derwyn John Williams (the testator) died on 20 February 2016, aged 70 years. He left an estate having a value of a little over $1 million. By clause 6 of his will, he left the bulk of his assets to his two children and made provision for the appellant, leaving her a one-third interest in an investment property in Invermay, which by the time of the trial, had been sold and the respondents held in respect thereof, the sum of $177,407.
5. By clause 4 of his will, the testator also left the appellant a right to occupy the couple's home at St Helens for so long as she used it as her principal residence, and subject to a requirement that she pay rates, water charges, taxes, insurance premiums and maintenance costs. The testator also left to the appellant his household furniture and two motor vehicles of modest value. As a result of the testator's death the appellant also became entitled to receive a Department of Veterans' Affairs (DVA) pension of about $450 per week and a DVA gold health card.
6. After canvassing the largely uncontroversial evidentiary material Holt AsJ concluded, as a matter of fact, that the appellant was left without adequate provision for her proper maintenance and support.
7. He reached that conclusion on the basis that if the appellant wished to continue to live at the home at St Helens for the rest of her life, and was able to do so, the provision in the will was adequate for her proper maintenance and support in that she would have a secure home and her personal independent asset base, as well as DVA pension and health care entitlements. On the other hand, his Honour said at [52] of his reasons for judgment:

"52 However, in the event that the applicant, through circumstance or choice, would need to or wish to move from the home at St Helens, the applicant's resources would be far more limited. She would have her house in Launceston, or a substitute home to live in, a small capital fund and a pension and healthcare card. In the event that the house in Launceston became unsuitable for her needs she may not have sufficient funds to be able to purchase a suitable new home. If she could afford to purchase a new home, the cost of so doing might substantially erode her modest capital base. Selling and purchase costs would need to be considered as well as the possibility of extra money being needed for any building work which might be required for the applicant's changing needs with advancing years."

1. His Honour then concluded, at [56], as to the exercise of his discretion, that as s 3(2) of the Act, specifically authorised the making of provision consisting of a life interest in a dwelling house belonging to the estate, such an interest, with allowance for the appellant to have the benefit of income from the capital should the house be sold, in substitution for the bequest of a one-third interest in the Invermay investment property, would result in there being adequate provision.
2. By the orders that were ultimately made by the associate judge, with the consent of the parties, clauses 4 and 6 of the will were deleted and a new clause 4 was inserted, giving the appellant a life estate in the terms of the Settled Land Act 1884 (SLA) and on the trusts created by the new clause.
3. In making those orders Holt AsJ, in my view, fell into error by overlooking that s 53 of the SLA applies to a devise of a right of residence such as that enjoyed by the appellant prior to the purported further provision made by his Honour - see In re Paget's Settled Estates [1885] UKLawRpCh 175; [1885] 30 Ch D 161 at 164-165.
4. Sections 53 and 46 of the SLA provide, relevantly:

"53 Other limited owners who are to have powers of tenant for life

(1) Each person as follows shall, when the estate or interest of each of them is in possession, have the powers of a tenant for life under this Act, as if each of them were a tenant for life as defined in this Act, namely:

(f) A tenant for his own or any other life, or for years determinable on life, whose estate is liable to cease in any event during that life, whether by expiration of the estate, or by conditional limitation, or otherwise, or to be defeated by an executory limitation, gift, or disposition over, or is subject to a trust for accumulation of income for payment of debts or other purpose;

(2) In every such case, the provisions of this Act referring to a tenant for life, either as conferring powers on him or otherwise, and to a settlement, and to settled land, shall extend to each of the persons aforesaid, and to the instrument under which his estate or interest arises, and to the land therein comprised."

"46 Prohibition or limitation against exercise of powers void

(1) If in a settlement, will, assurance, or other instrument executed or made before or after, or partly before and partly after, the commencement of this Act, a provision is inserted purporting or attempting, by way of direction, declaration, or otherwise, to forbid a tenant for life to exercise any power under this Act, or attempting, or tending, or intended, by a limitation, gift, or disposition over of settled land, or by a limitation, gift, or disposition of other real or any personal property, or by the imposition of any condition, or by forfeiture, or in any other manner whatever, to prohibit or prevent him from exercising, or to induce him to abstain from exercising, or to put him into a position inconsistent with his exercising, any power under this Act, that provision, as far as it purports, or attempts, or tends, or is intended to have, or would or might have, the operation aforesaid shall be deemed to be void.

(2) For the purposes of this section an estate or interest limited to continue so long only as a person abstains from exercising any power shall be and take effect as an estate or interest to continue for the period for which it would continue if that person were to abstain from exercising the power, discharged from liability to determination or cessor by or on his exercising the same."

1. Sections 53 and 46 are in terms identical to provisions considered In re Paget's Settled Estates (above). Indeed, in Tasmanian Perpetual Trustees Limited v Smith [2009] TASSC 85, Holt AsJ expressly so observed and noted that "[t]he correctness of the decision in Paget is now beyond question". He cited In re Boyer's Settled Estates [1916] 2 Ch D 404, in which Sargant J said at 411-412:

"... if I am right in my view that the two applicants are at the present time beneficially entitled to possession of this settled land, then I think that they are brought within s58, sub-s 1(vi), because they are persons 'whose estate is liable to cease' 'by conditional limitation', that is, by way of a limitation under which they take, not during the whole of their lives, but only during the period for which they continue to occupy in pursuance of their desire, ... It seems to me that all the cases that have been cited tend in that direction - and particularly In re Paget's Settled Estates [1885] UKLawRpCh 175; 30 Ch D 161, In re Eastman's Settled Estates [1898] WN 170, and In re Baroness Llanover's Will [1903] UKLawRpCh 59; [1903] 2 Ch 16."

1. Boyer was referred to with approval by the Full Court in Hoppe v McDavitt [1961] VicRp 64; [1961] VR 381 at 403-404.
2. In these circumstances I am of the view that ground 1A of the amended notice of appeal must succeed. That ground asserts that:

"In his reasons published on 5 December 2018, [the associate judge] overlooked the effect of s5(1)(f) of the Settled Land Act 1884 and thereby wrongly concluded at [55] that the Appellant's right to occupy 6 Medea Street St Helens did not confer upon her the powers of a life tenant under that Act with the consequence that:

(a) he erroneously determined at [56] that provision should be made pursuant to s3(2) of the Testator's Family Maintenance Act 1912 by creation of a life interest in that property; and

(b) he deprived her of her one third interest in the investment property at 9 Goodwin Street Invermay."

1. In this regard, counsel for the appellant, Mr McElwaine SC and Mr Wells, submit in their written submissions:

"By overlooking this point, his Honour focused his attention upon the wrong question as to what further provision should be made out of the estate of the deceased in the exercise of his discretion pursuant to s 3(2) of the TFM Act. Moreover, he erroneously concluded that the appellant had been left without adequate provision for her proper maintenance and support, being the jurisdictional threshold that arises under s 3(1). It is not open to engage in pure speculation as to what conclusion his Honour may have reached on the threshold jurisdictional question and, thereafter, the discretion to make provision in favour of the appellant if he had understood the application of the Settled Land Act 1884 to clause 4 of the will. Success on this ground requires that there be a new trial and the balance grounds are simply not relevant as each assumes that his Honour was correct in thinking that it was necessary to create a life tenancy pursuant to the Settled Land Act."

1. That submission is undeniably correct. I do not find it necessary to consider any of the other (and original) grounds of appeal.
2. In written submissions filed on behalf of the respondent, Mr Read SC argues as follows:

"By her appeal the Appellant enjoins the Court to conduct an appeal by way of rehearing[1]. The Court is obliged 'in accordance with (the) legislation ... applicable in this case, to perform the appellate function as established by Parliament'[2]. The appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'[3]. 'In every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law'[4].

It follows that the statement made in the appellant's submissions at [25] that success on Ground 1A 'requires there be a new trial' and the order sought at [43(iii)] that 'the application of the appellant be remitted to a Judge of this Court for rehearing' are wrong in law."

1. The respondent contends that this Court must rehear the appellant's application for provision and that "on the rehearing this court ought to dismiss the appellant's claim as she does not meet the first stage test[5] because as at the date of death she was not left without adequate provision for her proper maintenance and support". The respondent submits that "[i]n the event that we are wrong about the first stage no provision should be made from the estate by reason of the size of the estate and the competing claims of the other beneficiaries". Finally and in the alternative, the respondent submits that the provision made by Holt AsJ is appropriate because:

"7.1. It provided for significant additional benefits to the appellant together with the circumstances listed above:

7.1.1 [cl.4.4] the right to elect to have some or all of the capital proceeds subject to the life estate paid as a bond to an accredited provider of aged care in return for the provision of residential aged care to the Life Tenant, and

7.1.2 [cl.4.5] the right to elect to have some or all of the capital subject to the life estate applied to purchase land in any State outside Tasmania.

7.2. It takes into account the competing claims of the other beneficiaries.

7.3 The appellant has sold Hart St since the death of the testator. This means she now has

7.3.1 Secure life time accommodation in the matrimonial home or another residence of her choice,

7.3.2 An income sufficient to permit her to live in the style to which she is accustomed, her income exceeds her expenditure by $137.20 pw. There is nothing in the evidence to suggest she has had to restrict her life style,

7.3.3 A fund to enable her to meet any unforeseen contingencies. That fund at trial sat at about $225,000 and would have been considerably more but for the costs of this litigation,

7.3.4 A DVA "Gold Card"); which fully pays all health care (including specialist and hospital) treatment and medication for the appellant,

7.3.5 A DVA Energy Supplement, at the date of trial worth $369.20 per year , and

7.3.6. Payment by DVA for community nursing in her own home, including assistance with showering and dressing."

1. For my part I do not accept the submission that this Court must "rehear" the appellant's claim for provision under the Act. To my mind that submission confuses the notions of rehearing and redetermination. On a review of the materials below I am satisfied that the judgment appealed from was infected by error. However s 46 of the Supreme Court Civil Procedure Act 1932, does not oblige this Court to "rehear" the matter further by reviewing all of the evidence as to the appellant's claim to have been left without adequate provision for her maintenance and support, and, if satisfied as to that claim, to assess the quantum of proper provision.
2. Section 47 of the Supreme Court Civil Procedure Act provides that a Full Court, shall have power to affirm, reverse, or vary any judgment, order, or determination appealed from, and to give any judgment or make any order or determination which ought to have been given or made, and to grant a new trial in any cause or matter in which there has been a trial (whether with or without a jury), and to make such further or other order as the case may require.
3. Section 50 of that Act specifies the circumstances in which a new trial shall not be ordered by the Court pursuant to s 39 of the Act. None of those circumstances are engaged in the present case. If I wrong as to that, and the case can properly be characterised as one in which Holt AsJ misdirected himself, then I would nonetheless be of the opinion for the purposes of s 50 that a substantial wrong has thereby been occasioned to the appellant.
4. I was originally of the view that this was not an appropriate case for the Court to permit the appellant, pursuant to s 48 of Supreme Court Civil Procedure Act, to adduce further evidence by affidavit as to her present financial and personal circumstances. The appellant foreshadowed an application for leave to do so, as such evidence would have been necessary in order for the Court to exercise its discretion as to the quantum or nature of any further provision to be made, if the anterior jurisdictional question arising under the Act was resolved in the appellant's favour. That later question of the exercise of discretion is to be addressed on the basis of the evidence at the date of the re-hearing.
5. My concern was that such a course might lead to answering affidavits and the possibility of cross-examination before the Court. I was further concerned that it was neither practical nor desirable that such an exercise be undertaken by three judges for the reason that each judge could come to a different view as to the disposition of the appellant's claim, each view founded in principle.
6. The same difficulty would not arise as to the re-determination of the jurisdictional question arsing under the Act, namely whether the appellant had been left without adequate maintenance and support, as that question is to be determined as at the date of the deceased's death, and could be re-determined on the basis of the materials already before the Court.
7. The Court accordingly put aside the application for leave to adduce further evidence until after it had heard and considered submissions from counsel confined to the jurisdictional question. For the reasons that follow the Court had no need to return to the question of further evidence as to the appellant's present circumstances.
8. Counsel for the appellant in their written submissions in reply contended as follows:

3 Derwyn John Williams died on 20 February 2016. The affidavit of assets and liabilities prepared for the purpose of obtaining a grant of probate in common form disclosed gross assets of $1,089,343.00 and net assets of $1,062,906.00. In that list, the matrimonial home at Medea Street, St Helens was valued at $170,000.00, the investment property at 9 Goodwin Street, Invermay was valued at $148,500.00 and the unit development at 26-28 Circassian Street, St Helens was valued at $650,000.00. Prior to the filing of the originating application on 8 December 2016, the respondents had partially administered the estate. As recorded in the reasons published by the Associate Judge on 26 April 2018 (the extension of time application):

(a) Martin Williams had taken title to the Circassian Street units and had satisfied the requirement to pay $130,000.00 to Susan Prior and $40,000.00 for each of her three children; and

(b) the investment property at Goodwin Street had been sold, and the respondents had received a net amount of approximately $180,000.00.

4 The appellant made an affidavit on 10 July 2018 and in it relevantly deposed as follows. Her date of birth is 29 May 1950. She first met Derwyn Williams in mid 1995. They commenced cohabitating shortly thereafter. He, with her assistance, commenced construction of what became the matrimonial home at 6 Medea Street, St Helens in 1995. The appellant provided physical and emotional assistance throughout that process. In 1997, she moved to Launceston to be with her son as he was then attending Launceston College. She obtained employment with the Examiner Newspaper. She purchased a property at 54 Hart Street, Newstead for her and her son to live in. She paid $61,000.00 for the property, of which she contributed $30,000.00 and the balance was funded by a mortgage in favour of the Bass & Equitable Building Society. She maintained regular contact with Derwyn Williams whilst she lived in Launceston. At that time he was in paid employment as a fire spotter for between 3 and 4 months of each year. She regularly travelled to St Helens to be with Derwyn, and he would likewise regularly travel to Launceston to be with her.

5 The appellant married Derwyn on 11 March 2006. From that time she relocated to St Helens and the couple lived at 6 Medea Street. She performed the household tasks and he paid for the council rates, the water and sewerage charges and the electricity bills. The appellant made a contribution to the weekly grocery expenses, but otherwise paid from her own resources for personal items. She continued to work in Launceston for between 2 and 3 nights per week, whilst commuting from St Helens. When in Launceston she stayed in a caravan that was parked in the rear yard of the investment property.

6 Whilst married, Derwyn received income from the rental properties at Circassian Street. As disclosed in the affidavit of Martin Williams sworn on 6 June 2020 that rental income was reasonably significant. That property comprised six units on a single title. Five of the units contained two bedrooms, and the other three. The rental income varied from between $115.00 and $185.00 per week. The total rent, as at the date of his affidavit, was approximately $3,000.00 per month. Council rates on the units were approximately $4,800.00 per annum, the water rates $5,926.00, the insurance $1,520.00 and the land tax $720.00 each per annum.

7 Returning to the appellant's affidavit, she explained that as a married couple they maintained a 'communal purse', to which they contributed equally. They used this fund to pay for travel, food, fuel and accommodation expenses. They often travelled interstate, particularly to Queensland.

8 Following the death of Derwyn, the appellant suffered severe stress, anxiety and was ultimately diagnosed with depression. She was then in receipt of weekly counselling. She has not worked since February 2016 due to 'general deterioration and old age'. Her income as at February 2016 was derived from renting her property at 54 Hart Street, Newstead in the sum of approximately $210.00 (net) per week. She then had approximately $17,000.00 in superannuation. Her total assets were between $293,000.00 and $313,000.00 as at the date of death, the most significant components of which were the value of the Hart Street property ($260,000.00), the superannuation of $17,000.00 and a bank account of approximately $8,000.00. She did not then have significant liabilities.

(a) applied for and was successful in receiving a war widow pension with a yearly income of approximately $23,400.00;

(b) due to her financial circumstances, she was compelled to sell 54 Hart Street. It sold in March 2018 and she received a net sum of approximately $255,000.00;

(c) she continued to suffer depression, for which she receives medication;

(d) her only income is her pension of approximately $450.00 per week;

(e) her weekly external liabilities (rates, insurance etc) then totalled $120.30 and her additional discretionary expenditure then totalled $192.50. Her total assets were approximately $226,000.00. That did not include her superannuation, which by then had evaporated because 'I have had to withdraw it to support myself financially and to contribute to my legal fees for these proceedings'.

10 Shortly prior to the death of Derwyn Williams the appellant interpolating from the language of s3 of the TFM Act enjoyed maintenance and support derived from:

(a) the matrimonial home at 6 Medea Street which she shared with Derwyn Williams;

(b) the financial contribution that Derwyn made to the marriage, which must have been primarily derived from the rental income received from the investment property at Invermay and the six units at St Helens;

(c) the capital value of her investment property at 54 Hart Street, Newstead ($260,000.00) and the weekly rental derived therefrom of approximately $210.00;

(d) her superannuation entitlement of $17,000.00; and

(e) the obvious comfort and support that a wife derives from the assets of her husband of approximately $1M together with the ability to generate income from an asset base of that value.

11 On any objective view, the appellant was significantly provided for by Derwyn Williams. The Associate Judge at [15] of his reasons published on 5 December 2018 draws attention to the decision of Hallan J in Gargano v Coves [2018] NSWSC 985. The moral duty of Derwyn Williams, in the particular circumstances, acting wisely and justly, required significantly greater provision in favour of the appellant than the household furniture and effects and motor vehicles that he owned , the right to reside in the matrimonial home (but subject to personally paying the expenses of residence) and a one third interest in the Invermay investment property. Tellingly, he did not leave for her a sum of money sufficient to ensure that she could continue to live in the style to which she was accustomed, and for which he had provided, during the course of the marriage. Specifically, he deprived her of an entitlement to receive income from the St Helens rental properties. She was not in employment from the date of death, and her only source of regular income was the rental from the Hart Street property, until she successfully applied for a DVA pension. That pension to her was worth significantly less than the security of knowing that Derwyn Williams was entitled to receive much more from renting the St Helens property, some undisclosed amount of rental from the Invermay investment property plus his irregular work as a fire spotter. She also had the comfort of knowing that, as each grew older, Derwyn Williams had a very significant capital asset based that could be used to continue to generate income or sold from time to time to create significant net funds.

12 Accordingly, this Court should conclude that as at the date of death, the appellant was not secure in the matrimonial home, was not provided with an income stream sufficient to permit her to live in the style to which she was accustomed during the marriage and nor was she provided with assets, or an income stream, sufficient to meet unforeseen contingencies for the balance of her life. For these reasons, she satisfies the threshold test at s3 of the Act." (Footnotes omitted.)

1. Senior counsel for the appellant distilled those submissions in oral argument to the proposition that, under the will, the appellant received a one third interest in the Invermay property, no entitlement at all to the St Helens investment property, a right of residence under clause 4, provided that she paid all of the expenses and also all of the costs of maintaining that property, and no fund was left for her to maintain herself for the balance of her life. He pointed out that the appellant was not young as at the date of her husband's death, was not in good health, and was not with that provision, able to continue to live as she had been accustomed. In counsel's submission it was plainly inadequate for the deceased to only provide for her for the right of residence and the one-third interest in the investment property.
2. In his written submissions, counsel for the respondent's argued as follows:

"4 The only reason the Learned Associate Judge concluded that the first stage test was met was the (erroneous) difference between the right of residence and a life estate. At [51] he found, in effect, that the appellant was otherwise properly provided for.

5 On the rehearing this court ought to dismiss the appellant's claim as she does not meet the first stage test because as at the date of death she was not left without adequate provision for her proper maintenance and support.

5.1 The appellant's circumstances relevant to adequate provision for her proper maintenance and support were (if the Will is not altered):

5.1.1 She had the powers of a tenant for life in respect of the home at St Helens and was able to sell that home to purchase another home or place the capital in an authorised investment and in that event to have the income from that investment,

5.1.2 In the event she did not exercise the power of sale she had ongoing rent free accommodation in the home she had occupied with her husband but subject to the payment of expenses,

5.1.3 all home contents and a motor vehicle (Nissan Pulsar),

5.1.6 A capital/contingencies fund of about $380,000 consisting of

5.1.6.2 about $60,000 from her share in Goodwin St,

5.1.7 an indexed income for life exceeding her expenses (DVA) ,

5.1.8 her future medical and related expenses fully paid for life (DVA) ,

5.1.9 She had no significant liabilities and no dependants.

5.2 We also rely on the testator's judgement as to who should benefit from the estate. The submissions we make are those made at first instance and appear at AB 238 - 239.

5.3 It takes into account the competing claims of the other beneficiaries. The submissions we make as to this are those that were made at first instance and appear at AB 242 - 244." (Footnotes omitted.)

1. In oral argument counsel for the respondents pointed out that the testator and his family historically had been builders, that the testator, "was a hunting, shooting and fishing man" and that he and his family did not lead a lavish lifestyle. He pointed out that the couple maintained a communal purse to which the appellant contributed, and that a wise and just testator would know that the appellant had her Hart Street property to do what she wanted with, and would know she was going to get the pension and the health benefits that come with the DVA pension.
2. In exchanges with counsel the Court was informed that the appellant's DVA pension was some $450 per week plus health benefits which she did not have when her husband was alive, and that before his death the appellant did not work and her only income was $210 per week from her own rental property. The deceased's only income was the rental from the St Helens units of some $725 per week before expenses, plus some incidental income earned from work as a fire spotter.
3. After considering counsel's submissions I was persuaded that, as contended by Mr Read, it could not be said that the appellant had been left without proper maintenance and support, and her application for provision under the Act failed at the jurisdictional stage.
4. Accordingly I joined with the other members of the Court in upholding the appeal, setting aside the orders made by Holt AsJ on 25 May 2020 and dismissing the appellant's application under the TFM Act.
5. The parties agree that the costs of the originating application and the application for the extension of time for the making of that application be determined by Holt AsJ. However the respondents sought an order that the appellant pay their costs of the appeal, and the appellant sought the opposite order. In my view there is no reason why the successful appellant should not have her costs, notwithstanding that her application was dismissed.
6. The proper order is that the costs of the appeal of both the appellant and the respondents be paid from the estate. The order of the Court was that the appeal be allowed. This Court allowed the appeal because of an error which the appellant was entitled to have corrected. One effect of the error was that the appellant was deprived of her interest in the property at Invermay in favour of something to which she was already entitled She should not be visited with an obligation to pay costs. Nor should the respondents as executors be visited with any personal responsibility for costs. For that reason I would order that the respondents, in their capacity as executors of the estate, pay the appellant's party and party costs of the appeal. I would order that the respondents' costs be paid from the estate. Pursuant to the Appeal Costs Fund Act 1968, the respondents should in that same capacity be granted an indemnity certificate in respect of the costs of the appeal.
7. The question of the costs of the appeal is to be distinguished from the costs of the originating application. The question of who should pay the costs of the application will call for a further exercise of discretion. That the application failed will be an important factor. However there are potentially different considerations which apply to family provision claims generally, see Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 per Gaudron J at [6], and there may be other material considerations which apply to this case.

JOHANNE PATRICIA WILLIAMS v MARTIN JOHN WILLIAMS

and JENNIFER WILLIAMS (AS EXECUTORS OF THE WILL

1. I joined in an order allowing the appeal but dismissing the appellant's originating application for further provision, for the reasons given by Estcourt J. I agree with his Honour's proposed orders as to costs.

JOHANNE PATRICIA WILLIAMS v MARTIN JOHN WILLIAMS

and JENNIFER WILLIAMS (AS EXECUTORS OF THE WILL

1. I agreed with the orders of the Court, and I agree with the reasons of Estcourt J. I also agree with the orders as to costs proposed by Estcourt J.

[1] Supreme Court Civil Procedure Act 1932, s 46 and s 191B.

[2] Fox v Percy [2003] HCA 22, 214 CLR 188, Gleeson CJ, Gummow and Kirby JJ at [25] and [27].

[3] Fox v Percy (above) Gleeson CJ, Gummow and Kirby JJ at [23].

[4] Fox v Percy (above) Gleeson CJ, Gummow and Kirby JJ at [29]. See also Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, 331 ALR 550 at [43] and ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [62] and [63].

[5] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 (at 208-209).