Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart
[2009] WASCA 14
•15 JANUARY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ANDRE -v- PERPETUAL TRUSTEES WA LTD as Executor of the Will of BARBARA HELEN OWEN STEWART [2009] WASCA 14
CORAM: STEYTLER P
PULLIN JA
BUSS JA
HEARD: 10 NOVEMBER 2008
DELIVERED : 15 JANUARY 2009
FILE NO/S: CACV 163 of 2007
BETWEEN: SANDRA ANDRE
Appellant
AND
PERPETUAL TRUSTEES WA LTD as Executor of the Will of BARBARA HELEN OWEN STEWART
VIVIENNE STEWART as Executor of the Will of BARBARA HELEN OWEN STEWART
First RespondentsVIVIENNE STEWART
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :ACTING MASTER CHAPMAN
Citation :SANDRA ANDRE -v- PERPETUAL TRUSTEES LTD & ANOR
File No :CIV 1935 of 2007
Catchwords:
Succession - Inheritance - Application under s 6(1) of Inheritance (Family and Dependants Provision) Act 1972 (WA) - Whether adequate provision made for appellant's proper maintenance, support, education or advancement in life - Application brought late - Extension of time sought - Whether 'justice of the case' requires that the applicant be given leave to file out of time - No arguable case
Legislation:
Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6, s 7
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr M M Mony de Kerloy
First Respondents : Mr J C Curthoys
Second Respondent : Mr J C Curthoys
Solicitors:
Appellant: Mony de Kerloy
First Respondents : Jackson McDonald
Second Respondent : Costantino & Co
Case(s) referred to in judgment(s):
Ashhurst v Moss [2006] VSC 287; (2006) 14 VR 291
Banks v Goodfellow (1870) 5 LR QB 549
Bird v Bird [2002] QSC 202
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Clayton v Aust (1993) 9 WAR 364
Collins v McGain [2003] NSWCA 190
Devereaux‑Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Enoch v Public Trustee of Queensland [2005] QSC 194; [2006] 1 Qd R 144
Foley v Ellis [2008] NSWCA 288
Hills v Chalk [2008] QCA 159
Manly v The Public Trustee (Qld) [2008] QCA 198
Mulcahy v Weldon [2002] NSWCA 206
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Re Allen, Deceased [1922] NZLR 218
Re Dennis, Deceased [1981] 2 All ER 140
Re Lauer, Deceased [1984] VR 180
Re McPhail, Deceased [1971] VR 534
Re Salmon, Deceased [1981] Ch 167
Re Sinnott [1948] VLR 279
Re Terlier [1959] QWN 5
Re Walker, Deceased [1967] VR 890
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Valbe v Irlicht [2001] VSC 53
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Warren v McKnight (1996) 40 NSWLR 390
White v Barron (1980) 144 CLR 431
Young v Kestel [2003] WASCA 190
STEYTLER P: This appeal concerns an application under s 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA) (Act). The appellant was some three months late in bringing the application. Under s 7(2) of the Act the application should have been made by 21 June 2007. It was made on 12 September 2007. The appellant applied for leave, under s 7(2)(b) of the Act, to file her application out of time. That section provides that leave may be given if the court 'is satisfied that the justice of the case requires that the applicant be given leave to file out of time'. The acting Master who heard the application was not so satisfied. He refused leave. The appellant contends that he erred in doing so.
The relevant provisions
Section 6(1) of the Act reads as follows:
If any person (in this Act called 'the deceased') dies, then, if the Court is of the opinion that the disposition of the deceased’s estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.
Section 7(1) of the Act identifies five categories of persons by or on behalf of whom an application under s 6(1) may be made. The appellant, who was the daughter of the deceased, fell within category (c). This includes a child of the deceased living at the date of the death of the deceased.
The evidence before the court
The evidence before the court consisted of three affidavits. The first of these is dated 4 September 2007 and is sworn by the appellant. The other affidavits are respectively dated 31 October 2007 and 6 November 2007. Both are sworn by the appellant's sister, Vivienne Stewart. The second of those affidavits merely corrects an error in the first.
The appellant's affidavit
The facts deposed to by the appellant are relevantly as follows.
The appellant's mother ('the deceased' for the purposes of s 6(1) of the Act) died on 24 October 2006. The appellant's father, David Stewart, died on 26 June 2007. At the time of the death of the deceased, she had two surviving children. These were the appellant and Ms Stewart. The appellant was then 57 years old. Ms Stewart was then 59 years old.
The deceased's will
When she died, the deceased left a will dated 21 July 1989. Clause 5 of her will dealt with two properties owned by her. The first, a property in Albany (Albany property), was left to her two daughters as tenants in common in equal shares. The second, a home unit in Claremont (Claremont unit), was left, together with its contents, to Ms Stewart. By cl 6 of the will the deceased left the residue of her estate to her daughters equally. However, as matters have since transpired, the effect of the will, after valuing the estate, is that Ms Stewart will receive about $1,164,000 (or approximately 83% of the estate). The appellant will receive about $235,000 (or approximately 17% of the estate).
Events relating to the will
The deceased and Mr Stewart were married on 25 September 1943. For some 52 years, they lived together at their farming property, 'Malladup', some 30 km southeast of Broomehill in Western Australia. In 1995 they left Malladup and moved to Perth. There, they lived in the Claremont unit. Malladup was leased to the owners of an adjoining property.
After they moved to Perth, the deceased and her husband suffered poor health. By 2002, it had become apparent that Mr Stewart was unable to care for himself. The deceased was unable to care for him. He consequently moved out of the Claremont unit and into a nursing home. The deceased, too, became unable to care for herself and, from about April 2003, obtained full‑time care in the Claremont unit. Ms Stewart began handling her parents' financial affairs. She did so, in the case of the deceased, pursuant to a power of attorney granted by the deceased.
There was little communication between the two sisters. However, on about 8 July 2003, Ms Stewart sent the appellant a faxed copy of an undated letter written by their father. The letter was addressed to the deceased and Ms Stewart. In it, Mr Stewart said that he was unable to finance the additional expenditure arising from the need for the deceased to have full‑time care. He said that the sale of the Albany property would not provide sufficient funds and spoke of the need to 'realise the farm'. The appellant subsequently consented to the sale of the Albany house in order to meet the costs of her mother's full‑time care. She did so even though she found it surprising that this was necessary.
The appellant did not then know that, in her will, the deceased had left the Albany property to the two sisters in equal shares but had left the Claremont unit and its contents to Ms Stewart alone. If she had known that, she might have objected to the sale of the Albany property.
The Albany property was sold in late 2003 for $505,000. Malladup was sold in 2005.
The appellant first saw the will when she was in Perth for the deceased's funeral in late October 2006. She became aware of the value of the estate on about 16 November 2006. She was concerned that her share was less than she had anticipated. She appreciated, for the first time, that she would get less than 20% of the estate. A lengthy exchange of correspondence between the appellant and Perpetual Trustees WA Ltd (Perpetual) followed. Perpetual and Ms Stewart had been jointly appointed as executors of the deceased's will.
In a letter to Perpetual dated 10 April 2007, the appellant said that, when regard is had to the assets held by the deceased at the time of making her will, the 'intent' of the will was 'to distribute … [the deceased's] assets in a ratio of approximately 1 1/2:2 in favour of [Ms Stewart]'. The appellant said that, as matters had turned out, the ratio was 'quite out of line with [the deceased's] intention when she made the will'. In letters dated 12 July 2007, written respectively to Perpetual and to Ms Stewart, the appellant repeated her contention that the proposed distribution under the will did not give effect to the deceased's evident intention.
The appellant's financial circumstances
The appellant has been married to her husband, John Andre, since 1972. He was then, and still is, a farmer. He farms a property known as 'Ceres'. This encompasses approximately 3,200 ha of land in South Australia. The appellant and her husband live on the farm. The appellant says that she and her husband 'only make a modest income from "Ceres"' and that they have three children to 'support and assist in making their respective ways in the world'. The children are adults. Their birth dates are respectively 25 April 1974, 7 March 1976 and 15 November 1979.
The appellant points, by way of comparison, to the fact that Ms Stewart has no dependants or liabilities of which the appellant is aware. She also asserts that Ms Stewart received significant financial support from her parents while they were alive.
The relationship between the appellant and her mother
The appellant says that, although she did not live near her parents after her marriage, she remained in constant contact with them 'by frequent letters and telephone calls'. She also travelled to Perth when she could, to visit them. Before they fell ill, her parents used to stay with the appellant and her husband from time to time at their farm. The appellant says that she and her parents were always on very good terms.
Explanation for the delay
The appellant says that she was not initially aware of her ability to make a claim under the Act. She says that even if she had been aware of this, she probably would not have lodged a claim by 21 June 2007. This was because she did not then think it appropriate to take her sister to court. She was also concerned about the effect of any such action on her father's health. It was only after her father's death that she began seriously to consider whether she could take some action to address what she saw as the unfairness arising from the will. She says that her delay is also attributable to her endeavours to resolve the dispute by agreement.
Ms Stewart's affidavit
Ms Stewart's evidence is relevantly as follows.
Relationship with the deceased
She had been taking care of her parents since about 18 November 1995, when the deceased had a serious motor vehicle accident. Ms Stewart then had full‑time employment with the US Consulate General in Perth. She took the deceased to medical and hairdressing appointments and to the dressmaker. She also did the weekly shopping and assisted the deceased in other ways. In September 2003, she assumed responsibility for the administration of the deceased's financial affairs. She continued to manage these affairs until the deceased's death on 24 October 2006. She asserts that the appellant gave her 'no physical, financial or emotional assistance with the care of [her] late parents whatsoever'.
Relationship with the appellant
It is obvious, from the affidavit, that the two sisters have a strained relationship. Apart from her complaint concerning the lack of physical, financial or emotional assistance from her sister, Ms Stewart makes a number of other complaints concerning the appellant, none of which is presently relevant. She says that the appellant was made aware of what was being done by her in the conduct of the deceased's financial affairs. She rejects the appellant's criticisms concerning her conduct of those affairs.
Sale of the Albany property
Ms Stewart says that the Albany property was sold at the instigation of her father in order to fund the full‑time care required by the deceased. She says that the appellant made no objection.
The financial position of the appellant and Ms Stewart
Ms Stewart says that she and the appellant each received $1,023,000 from the sale of Malladup on 1 March 2005. They received a further 'cash sum' from the proceeds of the sale of sheep on about 12 November 2004 and 17 November 2004. When her father's estate was wound up and distributed, each of the sisters received a sum in excess of $1,300,000.
Ms Stewart believes that the appellant and her husband 'consistently derive a very substantial profit from the sale of livestock on Ceres'. This belief is based upon correspondence annexed to her affidavit in which there are references to the sale of livestock. She also believes that the total value of the livestock on Ceres is approximately $2 million. This belief is based on her own experience with farming during her time at Malladup, on a reference in correspondence between the appellant and her father to the sale of 200 lambs at $100 each and on other documents produced by her, including an article reporting that there were 800 cows and 12,000 sheep at Ceres.
Ms Stewart also believes that the appellant has an interest in a beach house in Robe in South Australia. She says that she has stayed there during summer holidays with the appellant.
Ms Stewart says that none of the appellant's children is financially dependent on the appellant or on her husband. Their oldest son, Peter, is a 33‑year‑old married farmer with one child. He is a graduate of Roseworthy College and is an assistant manager at Ceres. He lives at Ceres with his wife and child in a separate dwelling, some 500 metres from the main farmhouse. The second child, Alexandra, is a 31‑year‑old single woman with tertiary qualifications in sales and marketing. She has purchased her own residential unit and is living and working in Melbourne. The third child, Lucille, is a 28‑year‑old married woman with one child. She has tertiary qualifications in hospitality, but is no longer working. Her husband is a farmer and vigneron who works at his family properties in the same area as Ceres.
Ms Stewart has never been married. In February 2000, she was diagnosed with breast cancer and, after taking a year's sick leave and long service leave, retired from work in December 2000. In February 2000 she underwent a combined hysterectomy and mastectomy. She had further major surgery in February 2001, when her other breast was removed. She suffers from lymphoedema and attends weekly physiotherapy for this condition. Her oncologist has advised her that, although her breast cancer is in remission, she will always require some form of medication at 'significant cost'.
Ms Stewart says that a substantial portion of her $100,000 superannuation fund, accrued during the course of her employment, went towards paying off her mortgage and her personal upkeep and medical expenses. She currently has 'cash and personal property assets worth approximately $2,200,000'. She is also the registered proprietor of real property in Nedlands worth approximately $1 million.
The acting Master's reasons
The acting Master, in his reasons delivered on 3 December 2007, found that the delay in bringing the application was 'relatively short' and that the explanation for it was 'adequate'. However, he was not persuaded that the appellant had established that she had an arguable case.
The acting Master made a number of important findings. One of these was that the appellant appeared to be 'a person of some means'. He mentioned, in this respect, that she had not disputed receiving the sums which Ms Stewart said had been received by her upon the sale of Malladup and its stock, or the sum of approximately $1.3 million from her father's estate. He also found that, apart from one sentence in the appellant's affidavit (to the effect that she and her husband made only a modest income from their farm), there was very little evidence of her financial position. Next, he found that there was nothing in the relationship between the appellant, Ms Stewart and the deceased which would disentitle either the appellant or Ms Stewart from a distribution from the estate. Finally, he found that both were in a comfortable financial position and mature in age.
Having referred to some of the applicable principles, the acting Master compared the respective positions of the appellant and Ms Stewart. He went on to conclude that the deceased had 'adequately discharged [her] moral duty towards her children including the [appellant]'. He said that this was particularly so when regard is had to six considerations, as follows:
(a)the appellant and Ms Stewart were approximately the same age;
(b)the appellant was married with adult children whereas Ms Stewart was not married;
(c)the appellant and her husband live on a farm and derive an income from it which is at least 'adequate';
(d)Ms Stewart has had significant health issues and retired from her employment in December 2000;
(e)Ms Stewart has spent a significant part of her time taking care of her parents in the latter part of their life and the appellant had had a limited opportunity do so; and
(f)the sale of the Albany property reflected 'the deceased's money being spent on the deceased at the discretion of the deceased and the direction of the deceased'.
He concluded, after taking all of the circumstances into account, that it 'could not be said that the deceased acted otherwise [than] in accordance with a wise and just testatrix who felt morally bound by virtue of the prevailing community standards'.
Grounds of appeal
There are three grounds of appeal.
The first is that the acting Master erred in embarking upon a consideration of the merits of the appellant's case when the application before him was only one for leave to bring the application out of time.
The second is that the acting Master erred in embarking upon a comparison between the situations and contributions respectively made by the appellant and Ms Stewart 'in circumstances where none of the appellant's evidence was directed to those matters or could or should have been, or … where there was no evidence or no proper evidence upon which to make such comparisons'. This ground also alleges that the acting Master evaluated the strengths and/or weaknesses of the appellant's case when that was not his function and without the relevant evidence being before him.
The third ground is that the acting Master erred in making findings about the appellant's financial position and income when there was insufficient evidence before him to make any such findings.
The applicable principles
Before considering these grounds, it is convenient to set out the applicable principles.
Leave to file out of time
It is necessary to start with the words of the Act. Section 7(2) provides that no application under s 7(1) shall be heard by the court unless:
(a)the application is made within 6 months from the date on which the Administrator becomes entitled to administer the estate of the deceased in Western Australia; or
(b)the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time.
The time limit provided by s 7(2)(a) is there for obvious reasons. There is a public interest in the prompt administration of estates. Six months is ordinarily more than long enough for a potential claimant to decide whether to bring an application for provision under s 6(1) of the Act. After the lapse of that time, beneficiaries and others who may be affected should ordinarily be entitled to assume that there will be no challenge to the will.
In Re Salmon, Deceased [1981] Ch 167, Megarry VC, speaking of a similar time limit, said (175):
[T]he time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus, I think, no triviality: the applicant must make out a substantial case for it being just and proper for the Court to exercise its statutory discretion to extend the time.
This passage has been quoted on a number of occasions: see, for example, Clayton v Aust (1993) 9 WAR 364, 366 (Malcolm CJ, Rowland & Franklyn JJ concurring); Bird v Bird [2002] QSC 202 [22] (White J); Hills v Chalk [2008] QCA 159 [34] (Keane JA). Other judgments recognising that the applicant for an extension bears the onus of satisfying the court that the justice of the case requires a grant of leave include Re Walker, Deceased [1967] VR 890, 892 (Lush J); Hills [217] (Fraser JA); and Young v Kestel [2003] WASCA 190 [79] (Heenan J, McLure J concurring).
Section 7(2)(b) of the Act provides a broad discretion to extend time, requiring only satisfaction that 'the justice of the case' requires a grant of leave. Where a broad discretion of that kind is conferred, a court should be careful not to confine it by resort to considerations that are not found expressly or by implication in the words of the statute. However, it is clear that the discretion is one that must be exercised judicially, in accordance with what is just, and that 'the onus lies on the plaintiff to establish sufficient grounds for taking the case out of the general rule, and depriving those who are protected by it of its benefits': Salmon (175) (Megarry VC); Clayton (366).
It is also settled that the strength of the case of an applicant for an extension of time is a relevant consideration. In a number of cases it has been said to be relevant to ask whether the applicant has 'an arguable case': Clayton (367 ‑ 368); Re Lauer, Deceased [1984] VR 180, 185 ‑ 186 (Young CJ); Ashhurst v Moss [2006] VSC 287; (2006) 14 VR 291, 317 (Hansen J); Re Walker (892); Re McPhail, Deceased [1971] VR 534, 548 (Gowans J); Hills [77] (Keane JA), [217] (Fraser JA); Young [79]. Other formulae have also been used. In Re Terlier [1959] QWN 5, Townley J said (6) that, if it was 'improbable' that the substantive application would succeed, 'it seems idle to grant the extension' (although others have understood the use of the word 'improbable', in the context in which it was used, to have been intended to mean that the application was bound to fail: Re Walker (892); Hills [217] (Fraser JA)). The words 'a case fit to go to trial' were used in Re Dennis, Deceased [1981] 2 All ER 140, 145 (Browne‑Wilkinson J); and, in Warren v McKnight (1996) 40 NSWLR 390, 395, Hodgson J used the expression 'so weak that it would be pointless … to go to a full hearing on the merits'. In other cases there has been a general assessment of the strength of the applicant's case: Valbe v Irlicht [2001] VSC 53 [31] (Gillard J); Re Walker (892); Enoch v Public Trustee of Queensland [2005] QSC 194; [2006] 1 Qd R 144 [6] (Wilson J); and see generally the discussion by Muir JA in Hills [76] ‑ [77].
It seems plain enough that, if there is no arguable case on the merits, the application will be doomed from the outset and the justice of the case will not require that there be a grant of leave. However, when there is an arguable case the strength of that case may be an important factor (although still only one factor to be considered in the overall exercise of a wide discretion): Hills [77] (Muir JA), [216] ‑ [218] (Fraser JA); Enoch (145); Ashhurst [110] ‑ [111]; Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; cf Young [79].
In the present case the respondent's contention is that the acting Master found, rightly, that the appellant's case is so weak as to make it pointless for it to go to a full hearing on the merits. That contention requires consideration of the principles applicable to applications under s 6(1) of the Act.
The two‑step process provided for by s 6(1) of the Act
Provisions such as s 6(1) of the Act reflect longstanding attempts to find a balance between the notion of absolute freedom of disposition by will, on the one hand, and that of moral responsibility of the testator, on the other. In Banks v Goodfellow (1870) 5 LR QB 549, 563 ‑ 565, the court (Cockburn CJ, Blackburn, Mellor & Hannen JJ) said (563):
The law of every civilised people concedes to the owner of property the right of determining by his last will, either in whole or in part, to whom the effects which he leaves behind him shall pass. Yet it is clear that, though the law leaves to the owner of property absolute freedom in this ultimate disposal of that of which he is thus enabled to dispose, a moral responsibility of no ordinary importance attaches to the exercise of the right thus given.
The court went on to say (564):
The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law.
In its attempt to find the balance between these competing interests, s 6(1) requires the court to undertake the two‑stage process identified by the High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 (see also Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [5] (Gleeson CJ), [56] (Gummow & Hayne JJ), [112] (Callinan & Heydon JJ)). The majority in Singer (Mason CJ, Deane & McHugh JJ) described the first stage as follows (208):
The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life.
The second stage, which only arises if the first is determined in favour of the applicant, requires the court to decide what provision ought to be made under the deceased's estate for the applicant: Singer (208). In answering that question, the court will take into account the relevant facts as they exist at the time of making the order: Bondelmonte v Blanckensee [1989] WAR 305, 307 (Malcolm CJ).
The first stage has come to be described as the 'jurisdictional question'. That means only that the court's power to make an order under s 6(1) is conditional upon the court being of the opinion that the disposition is not such as to make adequate provision from the estate for the proper maintenance, support, education or advancement in life of the applicant: Singer (209).
The principles governing appellate review of discretionary decisions apply to a review of a decision on the jurisdictional question: Singer (212); Vigolo [82] (Gummow & Hayne JJ). Consequently, there must have been some error of law or mistake of fact, or some other error such as the taking into account of an irrelevant consideration or the disregarding of a relevant consideration, or the result must be so unreasonable as to indicate some latent error: Mulcahy v Weldon [2002] NSWCA 206 [24] (Hodgson JA, Handley JA & Campbell AJA concurring); Foley v Ellis [2008] NSWCA 288 [83] (Sackville AJA, Beazley JA concurring). The judgment at the second stage is discretionary and the usual principles governing the review of a judicial discretion apply there also: Singer (211).
In Vigolo, Callinan and Heydon JJ suggested that the questions which the court has to answer in assessing a claim under the Act do not necessarily always divide neatly into two. They went on say [122]:
Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and … changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.
(See also Manly v The Public Trustee (Qld) [2008] QCA 198 [33] (Daubney J, McMurdo P & MacKenzie AJA concurring).)
Questions arising at the first stage
When dealing with the first stage, the court is required to make an evaluative assessment whether the testatrix has made 'adequate provision from [her] estate for the proper maintenance, support, education and advancement in life' of the applicant: s 6(1) of the Act. When doing so, the court 'must place itself in the position of the [testatrix] and consider what [she] ought to have done in all the circumstances of the case, treating the [testatrix] for that purpose as a wise and just, rather than a fond and foolish … [person]': Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 478 ‑ 479 (Lord Romer). The question whether the appellant was left without 'adequate provision' must be answered at the date of death. In White v Barron (1980) 144 CLR 431, Mason J said (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. See generally Coates v National Trustees Executors and Agency Co Ltd (1956) 59 CLR 494. There Dixon CJ observed that in determining the initial question of jurisdiction the Court must look to what is 'necessary or appropriate prospectively from that time', that is, the date of death, including events which are contingent as well as those which are certain or likely. Advantage may be taken of hindsight so long as the subsequent occurrences fall within 'the range of reasonable foresight' ((1956) 95 CLR at 508).
In answering the first question, the court should not proceed upon the assumption that 'the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court': Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, 19 (Dixon J). There must have been a breach by the testator of moral duty (in the sense in which that expression is used by the majority in Vigolo) in not making adequate provision for the proper maintenance, support, education or advancement of the applicant in the sense that the testatrix failed to make a 'testamentary provision … which a just and wise [person] would have thought it [her] moral duty to make in the interests of [her child] … had [she] been fully aware of the relevant circumstances': Re Allen, Deceased [1922] NZLR 218, 220 (Salmond J); Hills [145] (Muir JA). This formula follows from the statutory language which, as Gleeson CJ pointed out in Vigolo [5] ‑ [6], requires an assessment to be made by reference to criteria that are expressed in the most general terms. He said that 'fitness' and 'propriety' are 'value‑laden concepts' and that these values 'must have a source external to the decision‑maker'. He pointed out that '[m]orality is the source of many of the values that are expressed in the common law, in statutes and in discretionary judicial decision‑making' (see also Callinan & Heydon JJ [113] ‑ [121] and cf Gummow & Hayne JJ [64] ‑ [73]).
'Adequate' and 'proper'
In Vigolo [114] Callinan and Heydon JJ said, of the use of the word 'proper', that:
It implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all of the relevant surrounding circumstances … The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.
As Buss JA has pointed out in Devereaux‑Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [72], the word 'proper' connotes something different from the word 'adequate'. He went on to say [73]:
For example, a small sum may be sufficient for the 'adequate' maintenance, etc, of the claimant but, having regard to all the circumstances, including the size of the deceased's estate and the lifestyle to which the claimant had become accustomed during the deceased's lifetime, may be wholly insufficient for his or her 'proper' maintenance. By contrast, a sum may be quite insufficient for the 'adequate' maintenance, etc, of the claimant, and nevertheless be sufficient for his or her maintenance, etc, on a scale that is 'proper' in all the circumstances. See Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476; Worladge v Doddridge (1957) 97 CLR 1 per Kitto J at 14 ‑ 15; White per Wilson J at 457.
Then, after mentioning that, in making the determination of adequacy, the court is involved not only in scrutiny of the requirements of the claimant that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased, Buss JA went on to say [77]:
'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of maintenance, etc. The propriety of the provision, if any, for the claimant is to be assessed by reference to all the circumstances including contemporary accepted community standards. See Bosch at 476 ‑ 479; Worladge per Williams and Fullagar JJ at 11, per Kitto J at 15 ‑ 18; White per Stephen J at 440, per Mason J at 441 ‑ 445, per Wilson J at 457; Goodman per Gibbs J at 497, 502; Singer per Mason CJ, Deane and McHugh JJ at 211, per Gaudron J at 227.
(See also Bondelmonte (308) (Malcolm CJ).)
McLure JA in Devereaux‑Warnes said of the use of the word 'adequate' in this context [9]:
Ordinarily, what is adequate financial provision is assessed by reference to, inter alia, the size of the estate, the need and moral claim of the applicant(s) and the need and moral claim of other persons who have a legitimate claim upon the bounty of the testator. I should add for completeness that 'need' is not determined by reference only to minimum standards of subsistence and that I use the concept of 'moral claim' in the way approved by the majority in Vigolo v Bostin (2005) 221 CLR 191.
'Need'
There is no doubt that the question whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is a factor in determining whether 'adequate' provision has been made for the 'proper' maintenance etc of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 [42] (Tobias JA). In Devereaux‑Warnes [81] ‑ [85] Buss JA said, in this respect:
The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.
'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10 ‑ 11.
The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575.
Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6 ‑ 11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47].
Often 'need', in the sense of the claimant's inability to satisfy his or her financial requirements from his or her own resources, and a 'moral claim', in the sense of a claim arising from the totality of the relationship between the claimant and the deceased (for example, sacrifices made or services given by the claimant to or for the benefit of the deceased or contributions by the claimant to building up the deceased's estate) and contemporary accepted community standards, will co-exist. Sometimes there may be a strong 'moral claim' but no 'need'. Sometimes the 'moral claim' may be slight but the 'need' dire. Whether the court should intervene or not will depend on all the circumstances of the case; in particular, whether the value judgment made upon an examination of those circumstances is that the claimant has been left without 'adequate' provision for his or her 'proper' maintenance etc. See Re Sinnott [1948] VLR 279 per Fullagar J at 281.
'Maintenance', 'support' and 'advancement'
In Vigolo [115] Callinan and Heydon JJ said, of the words 'maintenance', 'support' and 'advancement':
'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education.
Did the acting Master err?
In the present case, the acting Master addressed only the first of the two stages mentioned in Singer, the so‑called 'jurisdictional question'. As I have said, he found that the appellant had failed to establish that she had an arguable case that adequate provision had not been made from the deceased's estate for her proper maintenance, support, education or advancement in life.
The grounds of appeal essentially raise one proposition. It is that the acting Master erred in embarking upon a consideration of the merits of the application when all that was before him was an application for an extension of time, with the result that he did not have the benefit of all of the evidence bearing upon the merits.
This contention falls at the first hurdle. I have said that 'the justice of the case', for the purposes of s 7(2)(b), will not require a grant of leave in a case in which no arguable prospect of success has been shown: Clayton (367 ‑ 368); Warren v McKnight (1996) 40 NSWLR 390, 395 (Hodgson J); Re Lauer (186); Ashhurst (317); Re Walker (892); Hills [31], [76], [77], [216] ‑ [218]; Young [79]. It is the appellant who sought the indulgence of an extension of time. It was for her to satisfy the court that the justice of the case required a grant of leave to file her application out of time: Young [79]; Re Walker (892). If the only evidence before the court (which, so far as it was relevant, was clear and undisputed) failed to make out an arguable case and, indeed, revealed that there was no arguable case, it was open to the acting Master to conclude, as in effect he did, that it would be pointless to grant leave and that he could consequently not be satisfied that the justice of the case required that leave be granted. It is no answer to this proposition to say that other, unidentified, evidence might later have emerged or been placed before the court that put a different complexion on things. It was for the appellant to satisfy the court, at this stage, that the justice of the case required a grant of leave. She failed to do so.
This conclusion seems to me to be sufficient to dispose of the appellant's grounds of appeal, as framed. However, counsel for the appellant contended, in the course of argument, that the evidence before the court revealed an arguable case and that the acting Master erred in his conclusion to the contrary. Even though it is unnecessary to do so, I will deal with his submissions to that effect.
The submission that an arguable case was shown depended upon the following propositions:
(a)there was little difference between the respective financial positions of the appellant and Ms Stewart;
(b)Ms Stewart had no greater moral claim on the estate than the appellant (or at least no significantly greater moral claim);
(c)when the will was made in July 1989, its effect would have been to divide the assets of the deceased between the appellant and Ms Stewart on a ratio of 1 1/2:2 in favour of Ms Stewart;
(d)because of events which had since transpired (at a time when Ms Stewart was handling her mother's finances pursuant to a power of attorney), the ratio had in fact turned out to be 17:83 in favour of Ms Stewart;
(e)the disparity was gross and unfair in the circumstances.
Proposition (a) is not sustainable.
At the time of the deceased's death on 24 October 2006, Ms Stewart had received an amount somewhat in excess of $1 million, each of the sisters having received that amount from the sale of Malladup and its sheep. The superannuation fund of $100,000 to which she had become entitled had largely been spent on paying off her mortgage, her personal upkeep and medical expenses. Seemingly, the only other property that she then had was her Nedlands home, valued at $1 million at the time of swearing her affidavit. Although she deposes, in her affidavit, to later having had cash and personal property worth approximately $2.2 million, that sum seemingly consisted of the money received by her from the sale of Malladup and its sheep and the further amount of $1.3 million which each of the sisters received in the winding up of their father's estate.
As I have said, the appellant, too, had received in excess of $1 million from the sale of Malladup and its sheep. In addition, her husband seemingly has a half interest in the 3,200 ha farm in South Australia. There is no evidence concerning the value of the land. The uncontested evidence is that the total value of the livestock on the farm is approximately $2 million. In addition, the appellant had an interest in the beach house in Robe. None of the appellant's children was financially dependent upon her.
Proposition (b), too, is not correct. There is no challenge to the acting Master's finding (which was borne out by the evidence) that Ms Stewart had 'spent a significant part of her time taking care of her parents in the latter part of their life'. As the acting Master recognised, this does not reflect adversely on the appellant, as she had had a limited opportunity to take care of her parents, but it does suggest that Ms Stewart had a significantly greater moral claim on the estate than the appellant.
As to propositions (c) and (d), nothing follows from the fact that the Albany property was sold at a time when Ms Stewart was handling her mother's finances. Counsel for the appellant acknowledged that there was nothing in the evidence to support a suggestion that she had acted in order to benefit herself or for any other improper purpose.
As to proposition (e), although the disparity might be categorised as 'gross', it is questionable whether it could be categorised as 'unfair', even if this was the yardstick for success in an application under s 6(1) of the Act. However, it is not the yardstick. It was, as I have said, incumbent upon the appellant to establish that she had an arguable case that the will had not made adequate provision from her mother's estate for her proper maintenance, support, education or advancement in life.
As I have also said, adequacy is concerned with quantum whereas propriety prescribes the standard of maintenance etc: Devereaux‑Warnes [77] (Buss JA). Adequacy is assessed by reference to, inter alia, the size of the estate, the need and moral claim of the applicant and the need and moral claim of other persons who have a legitimate claim upon the bounty of the testator: Devereaux‑Warnes [9] (McLure JA).
In this case, no arguable case has been made concerning 'need' on the part of the appellant in any sense relevant to the operation of s 6(1) of the Act. There is no suggestion that the very substantial assets available to the appellant, and the income derived by her and her husband from the farm, are insufficient to maintain her at an appropriate or 'proper' standard in the circumstances. Nor is there any suggestion that she had any need for financial assistance towards her support, education or advancement in life. There is simply no evidence of 'need' on her part in any relevant sense of that word.
There is also no suggestion that the appellant has any moral claim to greater financial provision than was in fact made for her. She does not suggest, for example, that she made any sacrifices for, or provided any services to, the deceased or that she made any contributions to the deceased's estate. No doubt, she did what she could as a dutiful daughter, given her absence in another state. However, there is no doubt that this was considerably less than the contribution made by her sister. It is important to bear in mind in this respect that, where 'need' (in the sense of the applicant's established inability to satisfy her financial requirements from her own resources) is not shown, it will be difficult to make good an entitlement under s 6(1) absent some powerful moral consideration, such as a moral obligation to compensate the applicant for proven contributions to the testatrix's welfare or assets during her lifetime: Re Sinnott [1948] VLR 279, 281; and see the helpful discussion of Vigolo by Barbara
Hamilton, 'Vigolo v Bostin: Is the concept of "moral duty" still relevant to a family provision application?' (2005) 26 Queensland Lawyer 22.
Nothing else has been pointed to that would arguably support a contention that adequate provision for the appellant's proper maintenance, support, education or advancement in life was not made by the will. The fact that the appellant received proportionately less than had been envisaged, in circumstances as they existed at the time of the making of the will some 17 years earlier, does not assist her.
In the circumstances, the acting Master was right to find that there is no arguable case enlivening an exercise of the power to make an order under s 6(1) of the Act.
I would dismiss the appeal.
PULLIN JA: I agree with the President.
BUSS JA: I agree with the President.
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