Byrne v Byrne

[2000] NSWCA 168

CITATION:	Byrne v Byrne [2000] NSWCA 168
FILE NUMBER(S):	CA 40912/99
HEARING DATE(S):	30 June 2000
JUDGMENT DATE:	30 June 2000
PARTIES :	Doreen Clementine Byrne (Appellant) Mavis Eileen Byrne (Respondent)
JUDGMENT OF:	Meagher JA at 1, 86, 93; Handley JA at 87; Heydon JA at 2

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 2008/99
LOWER COURT JUDICIAL OFFICER :	Naughton DCJ

COUNSEL:	P R Garling SC/S L Bell (Appellant) J H H Blackman (Respondent)
SOLICITORS:	McKenzie Cox (Appellant) Budd & Piper (Respondent)
LEGISLATION CITED:	Family Provision Act 1982 Wills, Probate and Administration Act 1898
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201
DECISION:	Appeal dismissed; appellant to pay the respondent's costs of the appeal

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40912/99
DC 2008/99

MEAGHER JA
HANDLEY JA
HEYDON JA

Friday, 30 June 2000

BYRNE v BYRNE

JUDGMENT

1    MEAGHER JA: I ask Heydon JA to give the first judgment.
2    HEYDON JA:

Background
This is an appeal from orders made by Naughton DCJ on 1 November 1999, after a trial conducted on 27-29 October 1999, that the plaintiff respondent, Mavis Eileen Byrne (whom I will call the de jure wife), should receive a legacy of $125,000 free of costs and expenses related to the litigation about and administration of her deceased husband's estate, and that interest should run on any outstanding part of that legacy from 1 March 2000 at the rate of 9.5 per cent per annum.

3    The deceased died on 25 March 1998 at the age of 83. The will was dated 9 December 1991. It appointed as executors the four appellants. The first appellant had for all or most of the period since 1949 been the de facto wife of the deceased. The will gave all the deceased's property, worth $230,812, to the de facto wife. The effect of the trial judge's orders is to leave her with about $56,000-$61,000. She has at least $220,000 worth of other assets, being her half share in the property in which she and the deceased lived for a large number of years.
4    At the commencement of the oral argument, counsel for the appellant, Mr P R Garling SC (with whom Mr S L Bell appeared), was asked in effect whether there was any position intermediate between complete dismissal of the application and the trial judge's order. His answer was in the negative and was that the appeal should be allowed and the application dismissed completely because any intermediate position would involve the sale of the property and the removal from it of the de facto wife.
5    The deceased was born on 23 April 1914. The de jure wife was born on 6 January 1922, and was thus nearly 78 at the time of the trial. The de facto wife was born on 16 August 1930, and was thus 69 at the time of the trial.
6    On 19 April 1938 the deceased married the de jure wife when she was 16. The couple had four children who survived birth, born on 4 July 1938, 25 September 1939, 8 March 1944 and 9 July 1946 respectively.
7    In September 1949 the deceased commenced a de facto relationship with the de facto wife when he was 35 and she was 19. The children of the deceased and the de jure wife were then aged 11, 10, 5 and 3. Thereafter the deceased did not live with the de jure wife for long periods until an interval of reunion in 1955. After that reunion, the deceased lived with the de facto wife until his death. They had five children who survived birth, born on 31 January 1954, 13 August 1958, 22 November 1962, 14 January 1969 and 31 July 1970 respectively.
8    There were a large number of findings of fact of the trial judge which were not challenged by the de facto wife:

"The plaintiff did not remarry nor did she form a relationship with any other man. From 1949 when the testator began living with the first defendant regularly the plaintiff brought up the four children of her marriage to the testator by herself. That was a considerable struggle for her. Three of the four children left school at age 15 and went to work. The other one left school at age 16 and went to work. ...

The testator's estate was worth $230,812 at the date of death. It comprised mainly a one half interest as tenant in common with the first defendant in a grazing property at Rosebank. That is about 25 kilometres north-east of Lismore and about the same distance west of Byron Bay. The property has an area of 64.71 hectares (160 acres). It is located in a scenic sought after area. The dwelling on the property would appear to be in good condition. It is located on one of the higher parts of the land, having outstanding views to the east, south and west.

The first defendant lives alone on the property which is called "Twin [Springs]". ...

I have ... assumed that the value of the testator's one half interest in the property at date of death was, and is currently, $220,000. ...

… [The] other assets in the estate at date of death were jointly owned farm equipment worth $10,000 and a joint bank account with a credit of $812.51. ...

The plaintiff lives alone in a run-down cottage at Redwood Park, South Australia. That is about 15 to 20 kilometres north of Adelaide at the foot of the Adelaide hills. She is in poor health. She recently had an operation to remove a cancer from one of her legs. She regularly attends the doctor. Two of her children live in New South Wales, one on the central coast and one near the Queensland border. She has a number of grandchildren. She enjoys seeing her children and grandchildren. She has not had a holiday since some time in the 1980's, when she went to England. ...

I find that the plaintiff has had a hard life... She worked hard to bring up her children alone from 1949 when the testator formed his de facto relationship with the first defendant.

The testator worked as a travelling drover, handyman, and farm hand from prior to 1949 when he abandoned the plaintiff and her children for a younger woman, the first defendant. Only after the plaintiff obtained a court maintenance order against him in 1956 did the testator make regular payments to the plaintiff. These were in an amount of $80 a month for herself and $10 a month for each of the children. The testator continued making payments of $100 a month to the plaintiff until 1973. There was an issue as to whether he continued such payments from then until mid-1986. I find that he did. From mid-1986 the testator made no payments to or on behalf of the plaintiff or her children.

From time to time after the testator left the plaintiff permanently in 1955 they met again by mutual arrangement. In 1988 at the plaintiff's instigation, they met together at a country motel for a humble and sad 50th wedding anniversary. Both of them cried. The testator admitted to the plaintiff that he had done the wrong thing by her and the children. She saw him only very occasionally thereafter. On various occasions the plaintiff tried, without success, to persuade the testator to go back to her. At no time did she try to divorce him. There was evidence that on several accessions she refused the testator's request to consent to a divorce.

The plaintiff did not own a home until 1961. In that year the father of the husband of her sister Dulcie died and left her a humble cottage in Broken Hill. ...

In late 1966, after the marriage in Broken Hill of her daughter Jeanette, the plaintiff sold her Broken Hill cottage. She was able with the proceeds, and income from working, to buy another humble cottage for herself in South Australia to where she then moved. Although copy title deeds suggest that from 1966 to 1975 she owned two properties at the same time I find that in substance that was not so. I accept the plaintiff's evidence that although her transfer of the Broken Hill cottage was not registered until 2 April 1975 she had in fact sold it in late 1966 when she left Broken Hill and moved to the cottage which she bought that year in South Australia.

The plaintiff's only present income is a pension. That provides her with $180 a week. She has been a pensioner since 1976.

The cottage she is living in now needs $55,000 worth of repairs and renovations. Its present value is about $70,000. The plaintiff's car is about 20 years old. She finds it difficult to drive because it does not have power steering. She needs the car to go to the doctor, do her shopping and visit friends and her South Australian children and grandchildren. The plaintiff has about $1,300 in the bank. Her only other assets are furniture and clothing. Her home appliances (refrigerator, stove, washing machine, vacuum cleaner, et cetera) all need replacement.

The plaintiff enjoys having her children and grandchildren come to stay and would like to be able to visit them more. She would like to have a holiday. She is worried about her future medical and hospital expenses because she is unable to afford private health insurance. I find that life has been a constant struggle for her for many years.

I find that the plaintiff needs more than $180 a week (current pension entitlement) to live on. Her statistical life expectancy is another eight years. I find that she needs another $40 a week to live on so as to afford her a standard of living which is her proper due in all of the circumstances. That amount for eight years discounted at 3 per cent for present value amounts to $14,880, say $15,000."

9    Though the above findings are not challenged by the de facto wife, there is one aspect which is challenged by the de jure wife. This relates to the payments of $100 a month. The trial judge found that the testator continued these payments until mid 1986. The de jure wife contends that they ceased to be paid regularly and to any substantial extent in 1973.
10    There was some debate in the course of the oral argument as to whether the respondent should be permitted to advance that contention in view of the fact that no notice of contention had been filed. In my opinion it is not necessary to consider that question; rather it is appropriate to assume that the trial judge's finding is correct.
11    The trial judge dealt with the de facto wife's life since 1949 in findings which she did not contest as follows:

"The first defendant was then 18, having been born on 16 August 1930. She fell pregnant to the testator in early 1953. Her first child by him (Jayne, the third defendant) was born on 31 January 1954. In 1955, when the testator fully abandoned the plaintiff and the children of his marriage, and went to live full-time permanently with the first defendant she was then 25. Her first child was one. The testator was 41.

The testator and the first defendant went droving together in outback New South Wales. They endured difficult living conditions, sleeping in camps and farm outbuildings. Nevertheless, they managed and eventually were able to purchase real estate together. ...All four daughters got married. All five children of the testator and the first defendant live in New South Wales. They are all younger than the children of the testator and the plaintiff.

In 1961 the testator and the first defendant bought their first home together. The first defendant said, and I accept, 'With time and a lot of hard work on both our parts we restored this shell of a house to a beautiful home'. Thereafter the testator worked hard as a proficient income-producing builder. In that work he was often helped by the first defendant. In 1971 they purchased the 64.71 hectare (160 acre) grazing property ('Twin [Springs]') at Rosebank. At the time of the testator's death there was no money owing on it. It was unmortgaged. The testator and the first defendant believed it was then worth $850,000. That was its stated value in the probate application.

In 1978 the testator was in hospital for three months. Thereafter he went into a building partnership with a friend, Mr Richard Templeman. The business was called 'B & T Constructions'.

In 1994 the testator was hospitalised for two weeks with a minor heart attack and gall bladder trouble. In late 1997 he suffered a massive heart attack. He remained ill until his death on 25 March 1998. The first defendant worked hard during the testator's life to help him make income and acquire properties, including 'Twin [Springs]'. She nursed him when he was sick. She helped him to bring up the five children. Throughout their joint lives together they gave each other and their five children mutual help and support. ...

The first defendant is herself in poor health. She suffers from a high cholesterol level and periodic dizziness. She has suffered neck and back pain with frequent headaches since late 1997. She has sustained spinal and postural changes and is presently undergoing chiropractic treatment. Her chiropractor has diagnosed osteoporosis and recommended weekly treatment extending well into the future.

The first defendant's only current income is from t he aged pension ($180 a week). Occasionally she earns a little from selling her paintings. She receives $800 a quarter for agisting stock on the property. That money is used to pay council rates.

Between 1995 and 1997 the testator and the first defendant received $82,816 from the sales of an easement and their joint interest with Mr Templeman in a property at Alstonville. Out of that money a new Subaru car was purchased for the first defendant in December 1997. It cost $33,500. From that money also gifts were made to the children of the testator and the first defendant and various farm expenses were paid.

'Twin [Springs]' has not been used as a working property for a long time. The testator's assets at the date of death did not include farm stock. The first defendant uses the property only as her private home. She allows other people to graze stock on it for a small financial return which is exhausted in paying the rates. The property has areas of undergrowth consisting of camphor laurel, lantana and crofton weed. Its carrying capacity is estimated to be 65 cows. It has dairy farm facilities, a granny flat and a large inground swimming pool. ..."

The trial judge’s reasoning

12    The trial judge was exercising the jurisdiction conferred by the Family Provision Act 1982, ss 7 and 9(2)(a) and (3), which provide:

“7 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 (2) The Court shall not make an order under section 7 or 8 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 the person’s lifetime or out of the person’s 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.
9 (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.”

13    It was common ground that the de jure wife was an "eligible person". The appellate challenges made are subject to the general principles governing appellate review of discretionary decisions: Singer v Berghouse (1994) 181 CLR 201 at 212.
14    In outline, the trial judge's reasoning was as follows:

(a) The provision made in favour of the de jure wife by the testator during his lifetime and out of the estate was inadequate for her proper maintenance and/or advancement in life. The testator made no provision for her out of the estate. He made "minimal provision" during his lifetime - a finding attacked by the de facto wife. There is a related attack on the following finding about the purchase of what the trial judge called a "humble cottage" at Broken Hill which the de jure wife inherited in 1961 from the father of the husband of her sister, Dulcie:
"An attempt was made on behalf of the first defendant to prove that the purchase of the cottage had been financed by the testator for the purpose of providing accommodation for the plaintiff and her children. I find that that was not so."

One other related finding which must equally be under challenge is:
“It was, I find, only by virtue of the sympathy and generosity of the father of her sister’s husband that the plaintiff was able to acquire her first property.”

Another is:
“Because of her desperate financial situation, caused by the testator having abandoned her and the children, a home was left to her by the father of the husband of her sister. To that extent the testator was financially relieved from buying her and the children a home or paying rent for them, or from doing so partially.”

(b) The trial judge said:
"I find the style of living to which the plaintiff was accustomed prior to the testator's death was lower than that which was her proper due. That is so because of the difficult situation in which the testator left the plaintiff when he abandoned her, and his and her children, permanently in 1955. … Her lifestyle to date, I find, has been hard and frugal …”.

While these findings are not challenged by the de facto wife, she challenges several related findings which the trial judge put thus:
“I find that by leaving her and the children when he did the testator freed himself of financial and other personal responsibilities for the purpose, and with the result, of enabling him to begin and continue a new life for himself and his de facto partner. That included the joint purchase of various properties.”

Another related finding which the trial judge arrived at because the testator and the de facto wife during their joint lives together gave each other and their five children mutual help and support was:
“The plaintiff and her four children were consequentially deprived of such help and support from or shortly after 1949, except for the court order initiated maintenance payments of $100 a month ($25 a week) from 1956 to 1986.”

A further related finding is:
“[The de jure wife] contributed to the testator’s acquisition of interests in properties by saving him money in the bringing up of the children and providing them, and her also, with a home in which to live.”

(c) The trial judge said:
"The plaintiff … contributed to the testator's welfare by caring for him and being a homemaker in the usual domestic ways, while he was living with her. She also contributed, single-handedly, to looking after the children when he started his new life with the first defendant."

There were no challenges to those findings.
(d) The trial judge said:
"I take into account that the plaintiff remained willing and able to receive the testator back into her life after he had abandoned her, as the testator knew."

The de facto wife did not challenge the correctness of that finding but challenged its relevance.

(e) The trial judge found that:

"The first defendant owned a one half interest in the property 'Twin [Springs]' which is worth about $220,000. In addition she had significant benefit between 1995 and 1997 from the $82,816 realised from the sale of joint interests in an easement and another property at Alstonville. Those benefits included a new car which cost $33,500 and the ability to be able to spend money on her children and the property.”

Those findings were not attacked.

(f) The trial judge said:

"Although [the de facto wife] contributed to the financial and personal welfare of the testator, and the care of his five children by her, over many years continuing up to the date of death, the testator also contributed to her financial and personal welfare. In so doing the plaintiff was consequently deprived … to a significant extent."

The de facto wife challenged the validity of the conclusion in the second sentence, but not the premises in the first.

(g) The trial judge said:
“I find that the plaintiff needs house repairs and renovations to be carried out to her cottage which will cost about $55,000. I find that she needs a new car and that an appropriate allowance for that, including on-road costs such as registration, insurance and dealer charges, is $30,000.
I find that the plaintiff needs more than $180 a week (current pension entitlement) to live on. Her statistical life expectancy is another eight years. I find that she needs another $40 a week to live on so as to afford her a standard of living which is her proper due in all of the circumstances. That amount for eight years discounted at 3% for present value amounts to $14,880, say $15,000.
The above three amounts total $100,000. To them should be added an amount for contingencies. These include renewal of home appliances, medical and hospital expenses, holidays, including to see her children and grandchildren in New South Wales, the expense of having her children and grandchildren to stay with her, and further home repair and maintenance expenses as the need for them may arise. There are probably other items but the ones I have listed will provide sufficient example by way of justification. An amount for contingencies should, in all the circumstances of the case, including recognition of the rights of the first defendant, be restricted to $25,000.”


These findings, and the trial judge’s description of them as “an objective calculation of the plaintiff’s reasonable requirements in all of the circumstances”, were not challenged.

(h) From the findings just set out, and after taking account of the assets and needs of the de facto wife, the benefits conferred on her by the testator by giving her a half share of “Twin Springs”, the receipts from assets sales in 1995 and 1997 and in other ways, the trial judge drew the conclusion, which was challenged, that the de jure wife had an entitlement to a greater share of the testator’s estate than the de facto wife. He quantified it at $125,000. He appreciated that this would cause the de facto wife’s home to be sold, but found that it would soon have to be sold anyway.

15    It is convenient to approach the arguments put on the appeal by reference to the grounds of appeal.

Ground 2

16    This ground, which relates to the question of what provision the testator made for the de jure wife in his lifetime, is as follows:

“His Honour erred in finding that the Testator did not finance the purchase of a cottage at Broken Hill for the use of the Respondent.”

This ground was supported by the following written submissions of the de facto wife (paras 19-20).
"His Honour, at Red 8J, found that the testator did not finance the purchase of a cottage at Broken Hill for the use of the Respondent from 1954 to 1966.

The First Appellant deposed to the fact that Kelvin Byrne sent money from the sale of 'Popran' properties and money they earned in the early 1950's to Frank Blore (being the Respondent's brother-in-law) supposedly for the purchase of a property at Tibooburra (see Blue 141, Blue 90 O, Blue 14R, Blue 15Q). The First Appellant was not challenged in cross-examination on this evidence. The only relevant person at Tibooburra was Frederick Blore, Frank Blore's father. We now know that no property was purchased at Tibooburra by Kelvin Byrne. Both Frederick Blore and Frank Blore are deceased. It is submitted that the obvious fate of the money sent to the Blore's was that it was used to pay for the purchase of the house at Chapple Street, Broken Hill which the Plaintiff lived in from 1954 (Blue 22R, Blue 75T0 and eventually was left to her by Frederick Blore in a codicil to his will dated 1955 (Blue 111D)."

17    The de jure wife responded in her written submissions as follows (para 8):

"There is also a suggestion that the deceased sent money to Mr Frank Blore (the Respondent's brother-in-law) to pay for the cottage which Mr Frederick Blore provided for the Respondent first by way of occupation and then by way of a gift under his will.

(a) There is no documentary evidence of any such payments.

(b) It is said that the money was sent to Tibooburra but tat does not mean that it has to have gone to either Mr Blore. There could have been another explanation of where the money went.

(c) The first Appellant refers to money being sent to Mr Frank Blore from, apparently, 1949 (Blue 14D, 141K). There was no identification by anyone of any property at Tibooburra which the deceased owned. At that time he was working as a miner in Broken Hill (Blue 72M-Q).

(d) Both Mr Frank Blore and Mr Frederick Blore are now dead (Blue 5F, Black 42X).

(e) Mr Blore bought the property outright, without a mortgage, in September 1954 (Blue 40P).

(f) It was shortly before this that the Respondent's son, Lance, had an accident on Mr Blore's property and the humane and believable explanation that he felt some sense of responsibility and compassion for the Respondent with her family, her injured son, and lack of support form the deceased (Blue 75U-76G, Black 44)."

18    In short, the de facto wife's contention was that there was an arrangement between Mr Frank Blore, Mr Frederick Blore and the testator by which the testator sent money to Mr Frank Blore which he gave to Mr Frederick Blore to buy a Tibooburra property for the testator, and that in 1954 this was used to buy the Broken Hill cottage.
19    On the other hand, the de jure wife’s contention is put thus in her second affidavit:

“On Mothers Day 1954, we were at Frederick ‘Pop’ Blore’s property at Tibooburra where the deceased was working as a station hand. Our eldest son, Lance, had an accident there and suffered a serious injury to his eye. The Deceased packed us all up to rush Lance to the Broken Hill Hospital where he left us and drove off out of town in the Vanguard. Lance was flown by the Flying Doctor Service, to the Adelaide Hospital where the Surgeon operated but was unable to save the eye. Lance had a long and traumatic recovery period in hospital. We were in Adelaide for several months at this time. During our long stay, Jeanette and I stayed with my parents. After we returned to Broken Hill, we had to live with my sister, Dulcie Blore, in her home in Williams Street. Dulcie had been caring for David and Bobby, my other children with the Deceased, during the time that Lance, Jeanette and I were in Adelaide. During the entire period we were in Adelaide, approximately six months, the Deceased did not give us any money or even contact me to see how Lance was. My parents were my only means of support at that time. Later on, my sister’s father-in-law, Frederick ‘Pop’ Blore, decided to set myself and the children up at a house at Chapple Street, Broken Hill. I believe that he did this because of Lance’s terrible accident and injury, which had occurred on his property at Tibooburra whilst the Deceased was employed as a station hand there. Frederick ‘Pop’ Blore was terribly upset and shocked by this and also by the way the Deceased had abandoned us at the Broken Hill Hospital and then driven off in my new car. Because of this, Frederick ‘Pop’ Blore let us live in the house at Chapple Street. It wasn’t until about 7 years after this, at the time of Frederick ‘Pop’ Blore’s death, that I learnt that he had left the Chapple Street house to me in his Will.”

20    It is difficult to evaluate these competing contentions. The three parties to the alleged arrangement are dead. For the most part the de facto wife and the de jure wife can only offer memories of their beliefs about events which they lacked much personal knowledge of at the time and which in any event happened nearly fifty years ago. There is no documentary evidence either of the arrangement or of any payments pursuant to it.
21    The primary source of the funds is said by the de facto wife to be the sale of a country property called "Popran" and the sale of a saw milling business: Blue 1/14J. She does say in her first affidavit that some of the funds came from savings from their wages and from other earnings which she and the deceased made in the early 1950's.
22    "Popran" was a property near Calga which was occupied by the testator and the de jure wife between 1945 and 1950 on which the testator set up a saw mill. The documentary evidence about "Popran" is as follows. On 19 February 1948 the testator and Mr A M Blakeney purchased 80 acres of land at Gosford as tenants in common. The land was transferred to the Calga Pastoral Company by a Memorandum of Transfer dated 5 April 1950 for £175. By a Deed of 5 March 1950 the testator and Mr Blakeney transferred 50 acres of land in the parish of Popran to the Calga Pastoral Company for £1,275. BY a Memorandum of Transfer dated 5 April 1950 the testator and Mr Blakeney transferred some land to the Calga Pastoral Company for £1,325. These sums total £2,775. It is clear that the testator was part owner of land in or near the parish of Popran in 1950 and sold it. If that land was the property called "Popran", the documents summarised above indicate that the de jure wife was not correct in asserting that the testator did not own "Popran", but only occupied it with the de jure wife as tenants. However, the evidence casts no light on whether any of the land sold was mortgaged or on the extent to which the testator was beneficially interested in it, and hence no light is cast on how much, if any, the testator realised from the sales after any mortgagee and Mr Blakeney took what was their due. There was no documentary evidence about the sale of the saw milling business.
23    Even if funds were generated in 1950 in consequence of those real estate transactions, the actual purchase of the cottage was not effected by Mr Frederick Blore until 30 September 1954 (Blue 1/40P).
24    The competing positions of the de facto wife and the de jure wife in the evidence were as follows. The de facto wife said in her first affidavit, paragraph 5, that she believed that the funds derived from the sale of the Popran properties and the saw milling business “were forwarded to Frank Blore for the purchase of a property by [the testator] at Tibooburra. After the sale of ‘Popran’ all goods and chattels from that property (including pots, pans, linen, crockery) was packed into trunks and sent to Frank Blore” (Blue 1/14J-K). The de jure wife in her second affidavit, paragraph 16, denied that the testator received money from any sale of “Popran” and said that the testator lacked the money to buy any property at Tibooburra or anywhere else. “The few pots and pans, linen and crockery which we had at ‘Popran’ would have been left behind or given away when we left. Certainly, none of this was ever given to Frank Blore” (Blue 1/72F-K). The de facto wife in her second affidavit responded:

“Proceeds of the sales were sent to Frank Blore and his family.
I packed the ‘few pots and pans, linen and crockery’ referred to by the Plaintiff in her second Affidavit (paragraph 16) including souvenir towels of the opening of the Sydney Harbour Bridge into metal trunks which were sent to Broken Hill.”

In response the de facto wife repeated that proceeds of the sales had been sent to Frank Blore and his family and that the pots and pans had been sent to Broken Hill.

25    The controversy about the pots and pans may be put on one side. The submission of the de facto wife that the de jure wife’s explanation that the Broken Hill cottage was bought by Mr Frederick Blore because he was upset when Lance, the de jure wife’s oldest child, lost an eye in an accident on his property (Blue 1/75T) rests only on belief is not correct. In re-examination she gave the following evidence (Black 63D-J):

“Q. Did Pop Bloore ever tell you a reason why he was letting you live in that house without paying rent?
A. He - I was given - when he bought the house, he told me he had bought it because of Lance’s accident, we had nowhere to live, and of course it cost money to rent a house, and he just - I understood he bought it as a property for himself, for me to live in for as long as I so wished to do.
Q. When you say because of Lance’s accident, was Pop Bloore involved in Lance’s accident in any way?
A. Well, Lance was on Pop Bloore’s property, Wittabranga(?) at Tibooburra. Kelvin was up there working.
Q. So the accident occurred on Pop Bloore’s Station?
A. Yes, yes.”

No application was made to cross-examine her further on that evidence. In cross-examination she earlier gave the following evidence (Black 44B-E):
“And I suggest to you that in all probability the money that Kelvin Byrne sent to Frank Bloore or Frederick Bloore was used to purchase that property in Chapple Street?
A. That is absolutely untrue.
Q. Well you don’t know whether Frank Bloore received money or not do you?
A. I know that Mr Bloore, Pop Bloore, better than that if that was true he would have told me so.”

There does not appear to be any reason why Mr Frederick Blore would not have told the de jure wife that the Broken Hill cottage had been funded by the testator if it had been.

26    In all the circumstances it cannot be said that error has been demonstrated in the trial judge's preference for the de jure wife's explanation of the genesis of her occupation and then ownership of the Broken Hill cottage over that of the de facto wife. Contrary to what the de facto wife's written submissions say, her explanation cannot be described as "obvious" or the "most cogent explanation", nor can the de jure wife's explanation be described as "mere speculation that is not based on any fact". The de jure wife's explanation is supported by direct evidence of what Mr Frederick Blore said to her and explains the fact that she began to occupy the cottage in 1954, not 1950. If any substantial monies derived from the sale of "Popran" were the source of the funds, one would expect the purchase to have taken place in 1950. The de facto wife's theory does not explain either the delay or the change in plan from the testator buying a Tibooburra property to Mr Frederick Blore buying a Broken Hill cottage, save that the appellant argued that talk of buying a Tibooburra property was a cloak, as it were, to conceal from the de facto wife what provision was being made for the de jure wife. If that explanation were given by the deceased one would have expected in the next 40-odd years some inquiry from the de facto wife of the testator as to how the Tibooburra property was going, and why it was not assisting the deceased’s new family in its financial difficulties, particularly in view of the fact that there was evidence that some of the money earned by the de facto wife and the testator was sent in the early 1950's for the "running costs" of the Tibooburra property (Blue 1/14P).
27    However, the evidence is silent on whatever inquiries were made by the de facto wife in that regard.
28    On the other hand 1954, the year of purchase of the cottage on 30 September, and of the de jure wife's occupation of it, was the year of Lance's injury, the year when the testator left the de jure wife and Lance at the Broken Hill Hospital, and a year when the de jure wife was surviving only on the charity of her sister and her parents.
29    In my opinion it has not been shown that the trial judge was not correct in finding that the purchase of the cottage had not been financed by the testator for the purpose of providing accommodation for the de jure wife and her children, but rather came from Mr Frederick Blore's "sympathy and generosity"; and in finding that that cottage was not a provision for the de jure wife which emanated form the testator. The de facto wife's evidence leaves it obscure as to how much money was sent and on what basis she formed the belief that the money was sent.

Grounds 7 and 13

30    These grounds also relate to the question of what provision the testator made for the de jure wife in his lifetime. They are as follows.

“7. His Honour erred in finding that the Testator made minimal provision for the Respondent during his lifetime. …
13. His Honour erred in failing to find that the Testator had adequately provided for the Respondent during his lifetime.”

31    These grounds were supported by the following written submissions of the de facto wife (paragraphs 25-28):

“His Honour, at Red 13F, found that the testator only made minimal provision for the Respondent during his lifetime.
It is submitted that the testator did make substantial provision for the Respondent during his lifetime. The testator supported the Respondent from the date of their marriage in 1938 to at least 1949. The level of support between 1949 to 1956 is not clear.
Nevertheless the Respondent claimed that she and the testator rented a house in Broken Hill from 1951 (Blue 84). No claim for maintenance or money was made by the Respondent until after she was aware that the testator was living with the First Appellant and that he had a child with her.
The Testator continued to pay the Respondent maintenance till 1986 long after all the children had turned 16 and the youngest had left home in 1966. During the time this maintenance was paid the Respondent purchased property in Adelaide and any mortgages had been paid off.
It is further submitted that the testator sent money to Broken Hill in the years from 1949 to 1953 and, on the balance of probabilities, that money was used to purchase the house in Chapple St Broken Hill.
In all the circumstances of the lives of the First Appellant, the Respondent and the testator from 1949 to 1998, adequate provision was made for the Respondent by the testator during his lifetime.”

32    The de jure wife’s written submissions, paragraphs 5-7 and 9 were as follows:

“There is a mystery about where moneys were sent by the deceased during his life. There is no doubt that he paid moneys to the Respondent between 28/11/56 and 24/1/73 (Blue 31-36). There is however a denial by the Respondent that she received any regular payments from the deceased after this.
There is a claim by the first Appellant that the deceased was sending money to the Respondent or for her benefit up to 1986.
(a) This is denied by the Respondent (Black 30T).
(b) The claim by the first Appellant that she posted cheques by certified mail to addresses in Broken Hill, the only receipt for such postage being to an address which was never suggested to be an address of the Respondent (Blue 112).
(c) Cheque butts for the period 2/3/83 to 30/6/83 and 9/7/86 to 1/12/86 (Blue 259-313). These show a total of $600 drawn to ‘Poll Tax’ (Blue 263,273, 286, 296, 305).
(d) The first Appellant says those words were written on the cheque butts by the deceased as he did not want anyone to know he was paying the money, that she never saw the cheques herself although she was told they were made out to ‘M A Byrne’, and that no one else saw the cheque butts (Black 86R-87J).
(e) Bank statements for the joint account of the deceased and the first Appellant from 9/12/81 to 1/12/88. These show that some of the cheques payable to ‘Poll Tax’ referred to above were processed by the ANZ Bank. It is not clear from the evidence what the branch of the ANZ Bank were the cheques which were referred to in the statements were paid to.
(f) It may be that the court could draw an inference that some of the cheques, at least, went to a bank account in Broken Hill. However, by this time the Respondent was living in Adelaide (Black 31J-K).
(g) There is certainly no evidence that the moneys were paid to any account in the name of the Respondent.
Even if the alleged payments were provided to the Respondent until 1986, this showed that the deceased regarded himself as obligated to provide financial support to the Respondent. Even on the first Appellant’s evidence this was terminated 12 years before the death of the deceased. There is no doubt that he did not make any provision for her in his will, let alone adequate provision.
His Honour was entitled to assume that the only provision made by the deceased for the Respondent during his life time were the maintenance payments which were made through the courts and the irregular payments to which she referred. “

33    The contention in the de facto wife’s written submissions about the Broken Hill cottage has already been rejected.
34    It is common ground that no provision for the de jure wife was made by the testator after 1986.
35    It is also common ground that some provision was made up to 1949. However, it was far from satisfactory. In about September 1938, soon after the wedding, the testator was jailed for six months; Lance, who was aged two months, was placed in foster care, and the de jure wife was wholly dependent on her mother. The de jure wife then described the ensuing years up to 1955 as follows (Blue 1/4F-R and 4X-5D):

“We moved around a lot during our marriage. We lived at different times at Penrith, Mangrove Mountains near Gosford, Calga and Broken Hill. We lived variously in caravans, sheds and anything that would provide some shelter. The deceased was employed on an intermittent basis but often provided no financial support for me and the children. He often left us for long periods to pursue his love of horses. During these times, we received little or no financial support from him and often didn’t know his whereabouts. Because of this, we went back to live with his mother at various times. Eventually, I and the children moved in with my mother because the deceased was not providing us with financial support.
At around the time the eldest children were of school age, I told my husband to come home to Broken Hill where we were then living and get a job in the mines there. He did this for a while, but he soon left the family again. From this time onwards, I was a sole parent and had to work outside my home to support the family. The deceased would occasionally send me a few pounds in the post. I did not know where he was at this time. The children often went without shoes during these years.
The deceased was not violent towards me or the children, but he was often verbally cruel to us and he was chronically neglectful of his responsibilities to provide for us.”

She and the testator “endured … hardships and struggles over many years when we were together and trying to make a living” (Blue 1/69W-70E). The testator “had very little money” (Blue 1/72H).
“[We] suffered many hardships during our time together, including the time I mustered approximately 30 horses, on horse back, over a distance of many miles in heat and dust through rough bushland to enable them to graze, before returning them to their enclosure. I was pregnant at the time. The horses were used for the riding school which the Deceased and I operated at La Perouse.”

36    As the de facto wife's written submissions say, the testator's level of support of the de jure wife between 1949 and 1956 "is not clear", but it was certainly not adequate. In that period the testator was often away from his de jure wife. There were periods when he supplied no money (Blue 1/75R). He absconded (Blue 1/75K) with a car which was wholly or partly owned by the de jure wife (Blue 1/74T-V) and which she needed in order to work to support herself and the children (Blue 1/76J).
37    In the period from 1956 to 1972 or 1973 it is common ground that there was support, though it was less then munificent, and was at least initially compelled by the State. It took the form of maintenance ordered by a Children's Court on the de jure wife's application on 30 October 1956. At that time her two youngest children were aged 12 and 10. The order required her to be paid £5 a week for her own maintenance, and £5 a week for the two children, that is £40 a month. No maintenance was ordered in relation to Lance, aged 18, and Robert, aged 17.
38    In 1957 the figure rose to £50 a month. In 1958 it returned to £40 a month. There it stayed until 24 January 1973, or perhaps 4 September 1972, when it ceased. The trial judge's finding that "the testator continued making payments of $100 a month to the plaintiff until 1973" does not appear to be supported by the court records.
39    There was and is controversy as to the 1973-1986 period. There is no direct evidence that any substantial or regular sums were paid. However the trial judge made the following finding:

"The testator continued making payments of $100 a month to the plaintiff until 1973. There was an issue as to whether he continued such payments from then until mid-1986. I find that he did."

40    Whether or not the trial judge was correct in his conclusion as to the period terminating in 1986 is not a matter which it is necessary to resolve. Even if he is correct in that respect, in my judgment he was also correct in reaching an ultimate conclusion that the provision made by the testator for the de jure wife over the whole of their period as a married couple was minimal and inadequate.

Ground 3

41    This ground is:

"His Honour erred in finding that the Testator freed himself of financial and other responsibilities to the respondent for the purpose of beginning a new life for himself and the First Appellant."

42    The final departure of the testator in 1955 certainly had the effect, until the Children's Court ordered him to pay maintenance, of freeing himself from the making of any financial payments to the de jure wife, for he made none. The effect was also to free him from the performance of other personal responsibilities, for he fulfilled none of them. Each of these effects must have been known to the testator at the time, each was avoidable, and each in that sense was part of his purpose. The trial judge thus did not err in the manner which Ground 3 complains of. But even if he did err, the argument goes nowhere because the error does not appear to affect the trial judge's central conclusion that no adequate provision had been made.

Ground 4

43    Ground 4 complains that:

"His Honour erred in finding that the First Appellant knew what effect her de facto relationship marriage would have on the Respondent and on the Respondent's children."

44    Paragraph 22 of the de facto wife’s written submissions is as follows:

“His Honour, at Red 9T, found that the First Appellant, at the time she began her de facto relationship with the testator, knew what effect it would have on the respondent and the respondent’s children. This was not put to the First Appellant in cross examination.
The evidence of the First Appellant (at Blue 13X) was that the testator had informed her that he was a married man, separated from his wife and was in the process of filing for a divorce.
It is submitted that his Honour must have erroneously considered this adverse finding when considering the competing interests of the Respondent and the First Appellant.”

45    The de facto wife must have known what effect her arrival would have had at least on the de jure wife. While the de jure wife is correct in contending (Blue 1/70Q, 73F and 79K) that to some extent the testator led a double life, keeping his dealings with each of the women partially concealed from the other, the de facto wife does not appear to have inquired about the progress of the supposed divorce proceedings: at least, if she did, there is no evidentiary record of it. She must have suspected the possibility that the testator, aged 35 in 1949, had had children with the de jure wife. She can have been under no illusions from 1956 on: the de jure wife arrived on her doorstep with a small child (Blue 1/16P) and later that year a Court Maintenance Order referring to two young children was served and the court-ordered maintenance began (Blue 1/16S). Whatever the de facto wife knew in 1949, she must have known by 1956 what effect the testator's relationship with her was having.
46    It is convenient at this point to refer to a submission which was not put in writing but was the first submission put orally as a submission additional to those appearing in the written submissions. The submission was this: on eight occasions the trial judge used words to the effect that the testator abandoned the respondent and their children. The submission was that the trial judge had taken a judgmental or moral view of the testator's conduct, and had allowed that to influence the way in which he had adjusted the estate.
47    It is true that on a number of occasions, sometimes in neutral language, and sometimes in less neutral language, the trial judge referred to the departure of the testator, either on a long term or on short term bases from his first family.
48    As I read the reasons for judgment of the trial judge, however, he was not incorporating whatever critical view he formed of the testator into the determinative reasons for his ultimate conclusions. Rather he inquired into the adequacy of provision, he inquired into the position of the de facto wife, and he endeavoured to come to a conclusion which would best accommodate the positions of both women. Accordingly, I would reject the submission that an irrelevant consideration was brought into the melting pot in the manner described in the submission.

Ground 5

49    This ground is:

“His Honour erred in finding that the Respondent was deprived of help and support by reason that the First Appellant and the Testator gave each other mutual help and support.”

50    Paragraph 2 of the de facto wife’s written submissions is as follows:

“His Honour, at Red 11I, found that the Respondent and her children were deprived of help and support of the testator by reason that the First Appellant and the testator were giving each other and their five children mutual help and support.
It is submitted that the conclusion does not logically follow. We do not know and cannot predict what course the life of the testator would have followed if he had not met the First Appellant in 1949. It does not follow that the actions of the First Appellant and the testator were the cause of the deprivation of the Respondent and her children.”

51    The fact is that until 1949 the testator, however unlucky or feckless he had been to that point, had maintained what was by his lights a normal family lifestyle. After that year he increasingly desisted from doing so. The inference drawn by the trial judge appears to be a safe one.

Ground 6

52    This ground is:

“His Honour erred in finding that the property ‘Twin Springs’ would soon have to be sold.”

53    Paragraph 24 of the de facto wife’s written submissions is as follows:

“His Honour, at Red 12Q, found the property (and home) of the First Appellant must inevitably be sold. This proposition was not put to the First Appellant in cross examination.
The evidence of the First Appellant, at Blue 95E, is that she intends to live on the property for the foreseeable future and she gives reasons for her wish.
It is submitted that it is not inevitable that the property must be sold during the lifetime of the First Appellant or even in the near future. Whilst it is reasonable to assume that the First Appellant could not maintain the property in ‘tip top’ shape on her own, nevertheless she has managed (possibly with the help of her children) to live on the property during the long illness of the testator and after his death.”

54    The de facto wife swore that as long as her health held she intended to continue to live in the property. And the court was taken to her oral evidence in which she repeated her lack of desire to move, and her lack of desire to live in what might be called town accommodation.
55    However she is in her 70th year. She said, "I do not enjoy good health. I recently suffered a series of strokes, albeit minor, and I am being treated for chronic back pain" (Blue 1/94W). A report dated 5 October 1999 from her treating general practitioner, annexed to her second affidavit, set out a long history of health difficulties, including chest pain, lightheadedness and heart trouble (Blue 1/119-123).
56    She also said (Blue 1/22J-O):

“My timber and iron home was built in 1940 and is in serious need of restumping in places. I now have the burden of coming up with the funds which, since Kel passed away have almost been halved, to maintain the property. This property needs continual maintenance, slashing has to be done, noxious weeds have to be poisoned, fences have to be repaired and I have to find $1,994.00 per year for the rates and money for public liability insurance on the property. Then I have the fuel cost for the farm machinery and sometimes repairs, eg recently the fuel pump had to be replaced on the tractor, a $20.00 belt replaced on the mower. Other than for several hundred dollars in the bank, my furniture, jewellery, clothes and motor vehicle I have no assets other than my home and the property for which I have worked all my life. My only income is the aged pension - $360.00 per fortnight.”

57    It seems to me that the de facto wife is approaching the point of lacking both the physical and the financial capacity to maintain the property. As her written submissions say in para 13:

"[The testator] had the duty to provide [her] with a fund to meet unforeseen contingencies. There were, unfortunately, no funds in his estate to meet unforeseen circumstances."

58    Unforeseen circumstances frequently come to pass soon for old people. For all these reasons the trial judge's finding was an available one and has not been demonstrated to be wrong.
Ground 8
59    This ground is:

"His Honour erred in finding that the Appellants submitted that the Respondent was not an eligible person."

60    Paragraph 29 of the de facto wife’s written submissions is as follows:

“His Honour, at Red 13S, found that the Appellants submitted that the Respondent was not an eligible person. In written submissions at the hearing, at Blue 318M and Blue 325J, the Appellants submitted that the Respondent was an eligible person.”

61    This ground is misconceived. The trial judge did not say that the appellants submitted that the respondent was not an eligible person. Rather he said they "submitted that the plaintiff had not satisfied" what he called "the above initial, jurisdictional, requirement” and hence submitted “that, accordingly, the court has no jurisdiction to award the plaintiff anything". The relevant jurisdictional requirement to which he was referring is not that the de jure wife was a wife; it is that she was left with inadequate provision. The existence of that requirement was vigorously contested at trial, and remains vigorously contested on appeal.
62    In any event the de facto wife does appear to have submitted at the trial and submitted on appeal that there was no "man/wife relationship" between the testator and the de jure wife for the last 49 years of the testator's life - that is even if she were an eligible person, she was one only in the most technical sense. The departure of the testator 49 years before his death was not her doing, but even if it were, that fact would not have deprived the court of jurisdiction.
Ground 9
63    This ground is:

"His Honour erred in finding that the Respondent contributed to the Testator's acquisition of interests in property by saving him money in the bringing up of children and providing a home in which they could live."

64    The de facto wife’s written submissions contain the following:

“His Honour found, at Red 16N, that the respondent contributed to the testator’s interests in property by saving him money in the bringing up of the children and providing them with a home in which to live.
The testator only acquired property with the First Appellant in 1961 when they purchased a run down house in Hillston (Blue 17T). By this time the testator had been paying court initiated maintenance to the Respondent for 5 years. In 1951 he and the respondent had rented a house in Broken Hill (Blue 84). In 1954 the Respondent had moved, rent free, into the Chapple St property at Broken Hill. From 1949 to 1953 money had been sent by the testator to the Blore family.
It does not logically follow that the Respondent saved the testator money and that allowed him to acquire property. The more probable cause is that through the efforts of the First Appellant in assisting him in his work whilst bringing up two young children (Blue 16E, Blue 16M, Blue 17C-P, Blue 17V and Blue 17T) that the testator could acquire interests in property.”

65    The testator acquired more property than just a run down house in Hillston. The de jure wife's acquisition of the Broken Hill cottage had nothing to do with the testator. The maintenance received by the de jure wife was scarcely generous. The trial judge's simple point is that to the extent that the de jure wife supported herself and her children without the testator's assistance, his resources were freed to acquire property, namely "Twin Springs", with the de facto wife. That point has not been demonstrated to be wrong.
Ground 10
66    This ground is:

"His Honour erred in taking into account in exercising his discretion that the Respondent remained willing and able to receive the Testator back into her life."

67    The de facto wife argues that this was an irrelevant consideration. In my judgment it was not irrelevant. For one thing, it negates hints in the de facto wife's submissions below, though not to this court, of conduct on the part of the de jure wife which might be said to have disentitled her from relief pursuant to s 9(3)(b). For another, it reveals how easy it would have been for the testator to have made adequate provision for the de jure wife. And for another, it diminishes the significance of some of the bases of the de facto wife's claims about her contributions to the testator's estate and happiness, because the de jure wife was willing to make like contributions if the testator had been willing to let her.

Ground 11

68    This ground is:

"His Honour erred in finding that by reason of the Testator contributing to the First Appellant's financial and personal welfare, the Respondent was deprived of the Testator contributing to her financial and personal welfare."

This ground has some similarities to Grounds 5 and 9.

69    Paragraph 34 of the de facto wife’s written submissions is as follows:

“His Honour found, at Red 17O-S, that by reason of the testator contributing to the First Appellant’s financial and personal welfare the Respondent was deprived (of financial and personal welfare).
It is submitted that this reasoning is erroneous. That the First Appellant and the Respondent had a happy, loving life together does not inevitably lead to the conclusion that this was a cause of any deprivation to the Respondent (if indeed there was any).
The reasoning of His Honour suggests that as he was of the view, and adopted the reasoning, that the actions of the First Appellant was the cause of deprivation to the Respondent and that this deprivation should now be corrected at the expense of the First Appellant despite the recognition that the First Appellant contributed significantly to the life of and the financial position of the testator.”

70    This is erroneous partly for the reasons given in relation to Ground 5. There is no reason to suppose that the testator would have ceased his life with the de jure wife and their children if he had not met, and departed with, the de facto wife. Further, it is a misreading of the trial judge's reasons for judgment to contend that he was blaming the de facto wife for what happened and impermissibly using that as a factor adverse to the financial position of the de facto wife.
Grounds, 1, 12, 14, 16 and 18
71    These grounds are as follows:

“1. His Honour erred in finding that the respondent is entitled to a provision out of the estate of Kelvin Thomas Byrne (‘the Testator’).
12. His Honour erred in holding that the Respondent was entitled to a greater share of the Testator’s estate than the First Appellant.
14. His Honour erred in failing to find that the First Appellant had a greater claim to the estate of the Testator than did the Respondent.
16. In exercising his discretion His Honour failed to give proper weight to the nature and strength of the claim to testamentary recognition of the First Appellant.
18. That the sum of $125,000 ordered by His Honour as a legacy was excessive and could not be reasonably arrived at upon the evidence.”

72    In oral argument Ground 18 was put, if anything, more starkly and extremely. No specific written arguments were directed to these grounds seriatim. The general approach of the de facto wife was to submit that she had been the true wife of the testator for 49 years, compared to the de jure wife's 11, she had made the major contribution to his wealth while the de jure wife had made none, and she had cared for him in his illnesses, particularly his last few months, while the de jure wife had not. There are several answers to these contentions. It was not the doing of the de jure wife that she had no opportunity to continue to be the testator's wife or to care for him. His conduct had deprived her of any opportunity to contribute to his wealth. However loving the relationship between the testator and the de facto wife for 49 years was, the testator appeared to feel some obligation to the de jure wife because of the payments he did make; there is no evidence that he took formal steps to divorce her; in 1988 he told her he was sorry he had abandoned his first family and still loved them; and in telephone conversations after 1988 he often expressed remorse for the way he treated his first family.
73    The justice of the trial judge's discretionary decision does not depend only on the factors relied on by the de facto wife. It depends also on balancing the needs of both women, taking into account the provision he made for each in life and taking into account the other assets of each woman. Each of them unquestionably has real needs.
74    The testator made much greater provision for the de facto wife in his lifetime - in the form of maintenance, half of "Twin Springs", the proceeds of the asset sales in 1995 and 1997, and better education for her children than the de jure wife's children enjoyed - than he had for the de jure wife.
75    He had also made much greater provision for the de facto wife in his will in that he gave her all the estate and gave the de jure wife nothing. The other assets of the de facto wife, namely her half share in "Twin Springs", far exceed the value of those of the de jure wife. Each woman has a just claim, and in my judgment the trial judge effected a just resolution of the competing claims in a difficult case.
76    There is one submission which the de facto wife which calls for specific attention. It commenced by contending that the purpose of the statutory jurisdiction is not the correction of "the hurt feelings or sense of wrong of the competing claimants upon the estate of the testator". The de facto wife submitted that the de jure wife:

"commenced these proceedings principally as the aggrieved former partner of [the testator]. She must have hurt feelings in relation to the actions of [the testator] in taking up with another woman. If the Respondent is and was in need of further maintenance than that that had already been paid, it was open to her to commence proceedings in the Family Court (or its predecessor) for maintenance and property settlement."

77    The last sentence of this submission goes close to conceding that there was in truth inadequacy in the provision which the testator made of the de jure wife in his lifetime. As to the balance of the submission, there is no evidence to suggest that the de jure wife commenced these proceedings out of revenge or to assuage hurt feelings, as distinct from seeking adequate provision.
78    Her only substantial asset is a cottage worth $70,000 which required $55,000 worth of repairs and renovations. She has no chattels of any value. Her only source of income is the pension. Her car is 20 years old. All her home appliances need replacement. The existence of those circumstances, which are lamentable for a woman aged 78, is a total explanation for her institution of the proceedings. Further, there is nothing to suggest that the trial judge arrived at his conclusions as part of an attempt to correct any hurt feelings or sense of wrong experienced by the de jure wife.

Ground 15

79    This ground is:

“In exercising his discretion his Honour failed to take into account and [sic] size and nature of the estate of the Testator and that any substantial legacy to the Respondent must inevitably result in the home of the First Appellant being sold.”

80    In oral argument considerable and proper emphasis was placed by Mr Garling on the fact that the property may well have to be sold if the trial judge's order stands. Assuming that that is so, that is to say assuming it is not possible for some financing of the legacy by mortgage to take place, and accepting the undesirability from the de facto wife's point of view of having to move from where she has been living for a long time, nonetheless, and this is one of the aspects of the case that make it difficult, if the justice called for by the statutory criteria is to be supplied to the de jure wife it must follow that the de facto wife will have to leave her property. It is simply a consequence of the way in which the testator arranged his affairs during his lifetime and with effect from his death in his will.
81    In relation to Ground 15 the trial judge appears to have taken into account the fact that there is, as it were, some surplus value in "Twin Springs", because although it is the de facto wife's home, it is also more than a home, it is a property which is capable of being used as an agricultural asset, and which may possibly be capable of subdivision. That aspect of the property is in my judgment a further reason supporting the soundness of the trial judge's conclusion.

Ground 17

82    This ground is:

"The trial judge erred in order that interest on the legacy should accrue at the rate of 9.5 per cent per annum from 1 March 2000."

83    It will be recollected that the date of the judgment was 1 November 1999. The trial judge's thinking appears to have been that a four month period would be sufficient for arrangements to be made to sell the property, and that it would not be just to order any interest until that had happened, but that thereafter 9.5 per cent was a just rate. The complaint was that the interest rate specified in the Wills, Probate and Administration Act 1898 should have been adopted. The effect of 84A of that Act and regulation 6 of the Wills, Probate and Administration Regulation is that the present rate is 6 per cent.
84 Whether or not s 84A(1) in terms applies to "legacies" ordered to be paid under the Family Provision Act, the prescribed rate of 6 per cent does give way to any contrary order of the Court. The appellants made no submission about the rate of interest to the trial judge, perhaps because their concentration was on the somewhat ambitious submission, which was their posture also on appeal, that the claim of the de jure wife was "misconceived and should never have been brought". The rate of interest presently payable on unpaid judgments in the District Court is 9.5 per cent. There does not appear to be any error of principle in the selection by the trial judge of that figure in relation to the $125,000 he ordered to be paid to the de jure wife.
85    I propose the following orders:
1. The appeal be dismissed.
2. The appellant pay the respondent's costs of the appeal.
86    MEAGHER JA: I agree.
87    HANDLEY JA: This appeal arises out of the difficult situation created by the co-existence of a legal and a de facto marriage undertaken by the late Kelvin Thomas Byrne. Cases such as this are difficult for the parties and for the Court.
88    The function of the Court under the Family Provision Act neither requires nor authorises the making of moral judgments in cases such as this. There were two claims on the testator's bounty, and it could not be suggested that the widow was disqualified from making a claim under the Act.
89    The deceased did not leave sufficient assets to accommodate the reasonable requirements of both of these women. Both are in need, and the needs of each for suitable housing and other provision are not unreasonable. This is essentially a case where there are two rights and no relative wrong by either which is relevant to the exercise of the Court's powers under the Act.
90    The right of the de facto wife is not absolute, and not such as to require dismissal of the widow's claim. The Court's task is to do the best it can to meet the reasonable need of both women out of the available assets so far as this is possible.
91    If the right of the de facto wife to continue to live on "Twin Springs" were to be upheld the result would be to deny any relief for the widow, as Mr Garling freely conceded. This would be a harsh and inappropriate result under this Act.
92    I agree that the appeal fails in the circumstances of this case, and I agree with the orders proposed by Heydon JA.
93    MEAGHER JA: The orders of the Court therefore are the orders proposed by Heydon JA.

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