Daniel v Van Zwol - [2015] SASCFC 38

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DANIEL v VAN ZWOL
[2015] SASCFC 38
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Parker)
7 April 2015
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW
Appeal from the judgment of a master on a claim pursuant to the Inheritance (Family Provision) Act 1972 (SA).
The testatrix made a will on 14 July 2009 appointing her daughter, the appellant, as the executrix of her estate. The terms of the will left the residue of the estate, after payment of expenses, in equal shares, to the appellant, her brother Johannes Antonius Van Zwol and their nephew Renae Van Zwol, who is the grandson of the testatrix. The 2009 will made no provision for the appellant’s remaining brother, Bauke Johannes Maria Van Zwol. The testatrix died on 19 October 2012. The 2009 will was admitted to Probate as the testatrix’s last will on 17 January 2013. Clause 5 of the 2009 will provided that provision was not made for Bauke as he had received the value of a property of the testatrix and had never repaid the value he received.
Bauke instituted proceedings claiming that by the terms of the 2009 will the testatrix failed to make adequate provision for his proper maintenance. The action was defended by the appellant and her brother Hans. Renae took no part in the proceedings. The testatrix’s estate is valued in the amount of $326,761.12 or thereabouts. It principally consists of cash. The master allowed the claim and awarded Bauke the sum of $70,000 from the estate with the three named beneficiaries entitled to the residue of the estate in equal shares. The master further made orders that the estate should pay Bauke’s costs on a solicitor/client basis, that the estate should pay the appellant’s costs as the executrix on an indemnity basis, and the estate should pay the costs of the appellant and Hans on a party/party basis.
The appellant seeks to set aside the judgment and orders of the master and seeks an order in lieu thereof that Bauke’s claim be dismissed with costs, including the costs of the appeal.
Held per Stanley J (Kourakis CJ and Parker J agreeing), allowing the appeal:
1. While there is some force in the appellant’s submission that her financial position was not “somewhat similar” to Bauke’s given the master’s error as to the value of the Nilma property, nonetheless the factual error was not material to the master’s finding (at [42]).
2. If the terms of clause 5 of the testatrix’s will were true, as matter of fact, that might establish a basis upon which the Court could exercise its discretion in s 7(3) of the Act to refuse to make an order in favour of Bauke on the ground that his conduct was such as to disentitle him to the benefit of the Act. However, the evidence establishes, as the master found, that the testatrix’s reason for excluding Bauke from any provision from her estate is incorrect (at [43]).
2. To the extent that the award made by the master results in Bauke receiving a greater share of the estate than the others whose claim on the testatrix’s bounty is the same, I consider the exercise of the master’s discretion miscarried (at [47]).
3. I would allow the appeal to the limited extent of adjusting the award made in favour of Bauke to provide that he receives a share of the residual estate equal to the others (at [47]).
4. I reject the appellant’s challenge to the master’s costs order (at [48]).
Inheritance (Family Provision) Act 1972 (SA) s 7; Supreme Court Civil Rules 2006 (SA) r 188; Supreme Court Practice Directions 2006 (SA) Practice Direction 8.1, referred to.
Van Zwol v Daniel & Ors (Unreported, Supreme Court of South Australia, delivered 30 June 2014); Singer v Berghouse (1994) 181 CLR 201; Bowyer v Wood (2007) 99 SASR 190; Vigolo v Bostin (2005) 221 CLR 191; Golosky v Golosky (Unreported, New South Wales Court of Appeal, delivered 5 October 1993); House v The King (1935) 55 CLR 499; De Winter v De Winter (1979) 23 ALR 211; Kazar v Kargarian (2011) 97 FCR 113; Southern Resources Ltd v Residues Treatment and Trading Co Ltd (1990) 56 SASR 455; N E Perry Pty Ltd v Judge (No. 2) [2003] SASC 364, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"adequate provision", "disentitling conduct", "appellate restraint"

DANIEL v VAN ZWOL
[2015] SASCFC 38
Full Court: Kourakis CJ, Stanley and Parker JJ

KOURAKIS CJ. I agree with the reasons of Stanley J and the order he proposes.
The reason for interfering with the order that the respondent be awarded a fixed sum discloses the need for some care in selecting between such an order and an order for the payment of a proportion of the net residue of the estate. Orders of the former kind ensure that a claimant is not left without adequate provision by reason of the legal costs of the executor and the beneficiaries which are payable out of the estate. However orders of that kind may, as happened in this case, unintentionally deny the beneficiaries just provision for their needs.
Difficulties of this kind may be avoided by determining the quantum of the costs payable out of the estate, perhaps by lump sum award, before final orders are made.
STANLEY J:
Introduction
This is an appeal from the judgment of a master on a claim pursuant to the Inheritance (Family Provision) Act 1972 (SA) (“the Act”).
The testatrix, Theodora Johanna Van Zwol, made a will on 14 July 2009 (the 2009 will) appointing her daughter, the appellant, Anne Marie Daniel, as the executrix of her estate. The terms of the will left the residue of the estate, after payment of expenses, in equal shares, to the appellant, her brother Johannes Antonius Van Zwol (Hans) and their nephew Renae Van Zwol (Renae), who is the grandson of the testatrix and the surviving son of Cathurinus Van Zwol (Tony). Tony predeceased his mother. The 2009 will made no provision for the appellant’s remaining brother, Bauke Johannes Maria Van Zwol (Bauke). The testatrix died on 19 October 2012. The 2009 will was admitted to Probate as the testatrix’s last will on 17 January 2013.
Clause 5 of the 2009 will provided:
I DECLARE that I have not made provision in this my Will for my son BAUKE JOHANNES MARIA VAN ZWOL as he received the value of my house property at 42 Parsons Road Dernancourt in the State of South Australia and he has never repaid the value he received.
Bauke instituted proceedings pursuant to the Act claiming that by the terms of the 2009 will the testatrix failed to make adequate provision for his proper maintenance. The action was defended by the appellant and her brother Hans. Renae took no part in the proceedings and informed the Court that he would abide the event.
The testatrix’s estate is valued in the amount of $326,761.12 or thereabouts. It principally consists of cash.
The master allowed the claim and awarded Bauke the sum of $70,000 from the estate with the three named beneficiaries entitled to the residue of the estate in equal shares. The master further made orders that the estate should pay Bauke’s costs on a solicitor/client basis, that the estate should pay the appellant’s costs as the executrix on an indemnity basis, and the estate should pay the costs of the appellant and Hans on a party/party basis.
The appellant seeks to set aside the judgment and orders of the master and seeks an order in lieu thereof that Bauke’s claim pursuant to the Act be dismissed with costs, including the costs of the appeal. In the alternative, the appellant asks the Court to interfere with the amount of the award and the terms of the costs order made in Bauke’s favour.
Factual background
Bauke is a retired transport driver and weighbridge attendant. At trial he was 66 years of age. He is married and lives with his wife, Valerie Van Zwol, in country Victoria. They own this property. The value of the property is a matter of contention. The master found that its value was $450,000. Bauke concedes that this is incorrect. The evidence before the master was that the land had been purchased in an amount of $270,000 and a house had been constructed on the land in 2012 at a cost of approximately $460,000. In August 2012 a council valuation assessed the capital value of the property to be $592,000. The appellant placed considerable weight upon this factual error. I will come back to this. Since 2008 Bauke has suffered from Parkinson’s disease. His condition was diagnosed in 2012. Parkinson’s disease is a degenerative condition and his symptoms have increased over time so as to prove disabling. Bauke retired in 2011. He and Ms Van Zwol are now in receipt of aged pensions totalling $609.40 per week. In addition he receives a payment from a superannuation fund of about $344 per fortnight. The superannuation fund is valued at approximately $180,000. He and Ms Van Zwol jointly own a motor vehicle and a mobile home, each of which is valued at $10,000. They have no significant liabilities.
The appellant was at the time of the trial 60 years of age and married with one child. For 11 years she has been in receipt of a disability pension for a physical disability which significantly limits the use of her hands as well as a depressive illness. She lives with her husband who receives a carer’s allowance. They reside in a jointly owned house at Nuriootpa. The land on which they reside was purchased relatively recently for $132,000 and they constructed a house on the land at a cost of approximately $174,000. Further work is needed to complete the house. The appellant and her husband have savings in the vicinity of $25,000. Her husband has a superannuation fund totalling approximately $69,000. There was no evidence of their precise income.
Hans was 65 years of age at the time of the trial. He is the recipient of a totally and permanently incapacitated returned veterans’ allowance as a result of Post Traumatic Stress Disorder arising from his service in the Australian Army during the Vietnam War. In addition, he suffers from melanomas, tinnitus, deafness and pain in his knee, back and neck. He jointly owns a house with his wife valued at $706,000. They own two motor vehicles and a caravan. They have modest savings of nearly $20,000, a small parcel of shares valued at $3,000 and superannuation of approximately $155,000. Their combined annual income is in the vicinity of $84,000.
There was no evidence before the master of the income, assets and liabilities of Renae.
At trial much of the dispute between the parties concerned the circumstances surrounding the funding and purchase of property by Bauke and his parents at Golden Grove in 1975 (the Golden Grove property).
This property consisted of a farm on two blocks, one of 15 acres and the other of 55 acres from which a dairy business was conducted. The property was purchased jointly for $61,100. In addition, the vendor, Cyril Roberts, loaned the purchasers $12,900. The purchase of the property was to be partly funded by the testatrix and her husband selling their residence at Dernancourt to Mr Roberts for $32,500 (the Dernancourt property). Mr Roberts provided vendor finance to cover the balance. Bauke did not contribute to the purchase price. The Golden Grove property was registered with one undivided moiety to the parents, as joint tenants, and one undivided moiety to Bauke. The loan of $12,900 was divided between Bauke in the amount of $6,450 and his parents in the same amount. Bauke used these funds to purchase a dairy herd and the associated plant and equipment from Mr Roberts.
For approximately one year after the purchase of the Golden Grove property, Bauke lived at the property with his parents and his de facto partner, Shirley Johnston, and her two teenage children. He worked as a truck driver while also conducting the dairy business. He was solely responsible for repaying the loan to Mr Roberts.
On 20 December 1975 a bushfire destroyed the dairy and part of the herd. Bauke suffered serious injuries in the fire which resulted in him being hospitalised for six weeks. By reason of his injuries he was unable to work for over six months. The master found he lost a substantial sum of money as a result of the fire. Some 12 months after the fire he returned to employment at an abattoir. During this time, his parents advised that rather than building another home on the Golden Grove property they had decided to leave the property and move to another house of their own. Accordingly, it was agreed that Ms Johnston would purchase their interest in the property which would be refinanced by Bauke and Ms Johnston taking out a new mortgage and discharging the debt to Mr Roberts. This is what occurred. The testatrix and her husband were thereby relieved from any liability for the property. A Memorandum of Transfer was tendered at trial evidencing the sale of the parents’ interest in the Golden Grove property to Ms Johnston for the sum of $26,100. The Memorandum of Transfer acknowledged the receipt by the testatrix and her husband of that sum. However, at trial, the appellant asserted that the moneys were never received and that the testatrix thereafter complained constantly about the loss of the value of the Dernancourt property which she alleged was owed to her by Bauke.
Bauke and Ms Johnston separated in about 1987. There was a property settlement. There was some dispute as to the basis of this settlement. The dispute concerns whether Bauke made a payment to Ms Johnston or transferred some portion of the property to her. I will return to this topic. In any event, Ms Johnston’s interest in the Golden Grove property was transferred to Bauke. Bauke sold the property in 1988 for $78,000 and moved to Victoria with his present wife Ms Van Zwol. They jointly purchased a farm property at Nar Nar Goon with Ms Van Zwol’s father (the Nar Nar Goon property). His one third share of the property cost $64,000. Ultimately Ms Van Zwol inherited her father’s interest in the Nar Nar Goon property upon his death. In 2011 they sold the Nar Nar Goon property for $760,000 with the net funds substantially being used to pay for their existing home in Nilma.
The testatrix’s husband died in 2003. The testatrix entered a nursing home in Adelaide in 2005 where she lived until her death.
Evidence at trial
The appellant gave evidence at trial as to the above matters. She testified that her parents were dissatisfied with the living arrangements at Golden Grove and moved out of the property some 11 months after it was purchased and bought a house at Tea Tree Gully. She asserted that Ms Johnston did not pay her parents the sum of $26,100 in respect of their interest in the Golden Grove property. She said that while the Memorandum of Transfer purports to acknowledge that payment, her parents could only read limited English and definitely would not have understood legal documents. She told the court she was aware from many conversations with her parents, both at the time of the transaction and subsequently, that no such payment of $26,100, nor any portion of that sum, was ever made. She gave evidence that this was the cause of much anxiety to the testatrix for the rest of her life and the testatrix raised this matter with Bauke on many occasions. The appellant testified that in 2009 the testatrix wanted to remake her will to disinherit Bauke because he had not repaid any of the money advanced to him. She transported her mother to a solicitor’s office for this purpose.
Bauke also gave evidence as to the above matters. He deposed to having a good relationship with his parents. After moving to Victoria he continued to see them for several weeks each year. After his father’s death, the testatrix’s health started to deteriorate. At this time all of her sons resided in Victoria. She visited them periodically. During these visits, she expressed a wish to move to Victoria. On one occasion she told Bauke she wished to make changes to her will to accommodate this. She made a codicil to her then will dated 21 January 2003 by which she appointed all her children, including Bauke, as co-executors. She also executed an Enduring Power of Attorney by which she appointed Bauke and his brother Tony as her attorneys. In late 2004 the testatrix informed Bauke that the appellant was unhappy about her relocating to Victoria and wanted her to enter a nursing home in Adelaide. A week or two before she was due to return to Victoria, Bauke was advised that the appellant had arranged to place the testatrix into residential care in Adelaide. The testatrix told Bauke that she thought it best to stay in Adelaide for a while in order to “keep the peace”. Thereafter, Bauke did not visit the testatrix but spoke to her regularly by telephone. He always contacted her on her birthday and at Christmas time and she did the same for his and Ms Van Zwol’s birthdays. She complained to him that no one came to see her. In 2009 the testatrix told Bauke that she had changed her will but he did not discover that he had been excluded from her estate until after his mother’s death.
He testified that Ms Johnston had paid the $26,100 to his parents. He denied that the testatrix had ever complained to him that he or Ms Johnston owed her money or had failed to pay her money she was owed. He could not recall paying Ms Johnston any money upon separation nor could he recall subdividing a block for her. He denied being financially advantaged by his parents beyond the support given to his siblings.
Ms Van Zwol Van Zwol gave evidence which generally supported her husband’s evidence. She described the relationship between Bauke and his parents as happy and cordial. She described visits each paid to the other and telephone contact with the testatrix after she entered the nursing home. She denied ever hearing the testatrix, or for that matter her father-in-law, complain about not receiving any benefit for the Dernancourt property.
The master’s reasons
Considering the needs of those who might have a legitimate claim on the testatrix’s bounty, the master found that Bauke and the appellant’s financial and health positions are not greatly different from each other. He based his conclusion, at least in part, on the finding that Bauke and Ms Van Zwol’s property at Nilma is valued at approximately $450,000.
The master found that Bauke was a polite witness doing his best to assist the Court, although his memory appeared to be poor and there were many matters he could not recall. The master found Ms Van Zwol Van Zwol to be an impressive witness with good recall who testified in an objective and dispassionate fashion. He considered her evidence was largely unchallenged and accepted her as a witness of truth upon whom he could rely where there was any conflict with other witnesses. By way of contrast, he considered the appellant to have given her evidence in a hostile and defensive manner. He noted that she was the only witness who gave evidence of her parents, and in particular her mother, constantly complaining about her lost Dernancourt house. The master noted that no corroboration was provided for this complaint either in the affidavit filed by Hans or from the appellant’s husband who was present in court and was said by the appellant to have been present when the testatrix made many of these complaints. Notwithstanding her evidence that her parents could not understand legal documents generally, and in particular, that the testatrix could not have understood the acknowledgment in the Memorandum of Transfer of the receipt from Ms Johnston of the sum of $26,100, she asserted that she was present when her mother executed the 2009 will and clearly understood the provision in clause 5 excluding Bauke from her estate.

The master found that the appellant’s evidence of the non-receipt of the sum of $26,100 and her mother’s subsequent and frequent complaints about this matter was uncorroborated. He regarded this as weighing heavily against acceptance of the appellant’s version of events. He found that Bauke did not receive a disproportionate benefit from his parents and he was not engaged in any disentitling conduct 37 years before his mother’s death. He held that while the testatrix may have come to believe that Bauke had unfairly benefited from his parents’ support during those years, such a belief, if held, was mistaken.
The master found that, at the time the testatrix and her husband sold their interest in the Golden Grove property, they received the sum of $26,100. In addition they already had the benefit of $6,450 from the loan made by Mr Roberts. The master considered that even if they had not received the $26,100 the person who benefited from the failure to pay was not Bauke but Ms Johnston. The master further found that when Bauke and Ms Johnston separated the property was subdivided and part of the property transferred to Ms Johnston by way of settlement of any property claim she may have had against Bauke.
On the basis of these findings, the master reasoned as follows:[1]
In my view the evidence establishes that the plaintiff had a supportive relationship with his mother over many years. There is no disentitling conduct or disproportionate financial advantage that should disqualify him from receiving an inheritance under her will.
The plaintiff at the time of his mother’s death suffered significant ill health and his future was then and continues to be somewhat bleak. There is no pool of cash available to him and his wife from which expenses likely to be incurred in the management of his medical condition can readily be met. He is in a somewhat similar position by way of health and finances to that of the first defendant and his position a little worse to that of the second defendant. The assets, liabilities and income of the third defendant are unknown.
In her earlier will in 2003, Theodora had left her residual estate to be shared equally by her siblings. But for her mistaken view of the events of 1975 and 1976, it seems difficult to explain why that approach did not continue. She had an equal moral duty to the plaintiff as she did to the defendants. In my view the plaintiff has been left without adequate provision. I am mindful that providing for the plaintiff will reduce the provision going to the three defendants. The obligation of the Court is to do the best it can having regard to all of the circumstances. In this matter the Court must bear in mind the plaintiff’s deteriorating health and the likely need for funds to help manage that health situation as deterioration continues.
A proper provision for the plaintiff would be an award of $70,000.00. It was put for the plaintiff that contrary to the usual practice it would be appropriate in this matter to provide for an equal division of the estate between the plaintiff and the three defendants, such that each received a quarter share of the residual estate. In my view it is better to fix a lump sum for the plaintiff with the three defendants then becoming the residuary beneficiaries of an equal share in the residue. That lump sum has to be fixed having regarding to the competing claims on the testatrix and the small size of the estate.
[1] Van Zwol v Daniel & Ors (Unreported, Supreme Court of South Australia, delivered 30 June 2014) at [62] – [65].
Submissions on appeal
Mr Gallasch, counsel for the appellant, submits that the master erred in making certain factual findings. First, that the property at Nilma owned by Bauke and his wife is valued at $450,000. Secondly, that the appellant and Bauke’s financial position is not greatly different from each other. Thirdly, that Bauke lost a substantial sum of money as a result of the fire. Fourthly, that the testatrix and her husband had received the sum of $6,450 cash from the loan by Mr Roberts. Finally, that the testatrix and her husband received the sum of $26,100 from Ms Johnston in consideration of the transfer of their interest in the Golden Grove property to her. The appellant submits, either by reason of these errors of fact or generally on the evidence, that the master erred in concluding that Bauke did not receive a disproportionate benefit from his parents and in failing to conclude that there was a financial imbalance between the appellant and Bauke resulting from the financial advantage he had received by reason of the subdivision and subsequent sale of the Golden Grove property, the insurance proceeds of the fire and the proceeds of the sale of farm chattels and his father’s truck. In the circumstances, the appellant submits that the master should have found that adequate provision had been made for Bauke by the testatrix prior to her death. In the alternative, the master erred in making so large an award in Bauke’s favour. Finally, the appellant submits that the master’s discretion miscarried in awarding Bauke costs on a solicitor/client basis.
Mr Ower, counsel for Bauke, accepts that the master erred in finding that the jointly owned property at Nilma is valued at approximately $450,000. However, he submits that the error was not material to the master’s ultimate conclusion that Bauke had been left without adequate provision for his proper maintenance. On the contrary, he submits that the master’s conclusion was based on a range of factors, open on the evidence, apart from the specific value of the house property as found by him. He submits that none of the other grounds relied upon by the appellant are made out. In the circumstances, there is no basis for the Court to interfere in the discretionary judgment of the master. In relation to the costs order, he submits that the award of solicitor/client costs in his favour was amply justified by the operation of 6SCR 188 given Bauke’s filed offer of $45,000 plus costs on a party/party basis. The late filing of additional supporting affidavits did not provide any justification for departing from the operation of the rule.
Relevant legal principles
The principles governing applications for family provision in estate matters are set out in s 7 of the Act. It provides:
7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person
(1)     Where—
(a)     a person has died domiciled in the State or owning real or personal property in the State; and
(b)     by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,
the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
…
(3) The Court may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Court thinks sufficient.
(4) The Court may, in making any order under this Act, impose such conditions, restrictions and limitations as it thinks fit.
…
(6) In making the order the Court may, if it thinks fit, order that the provision shall consist of a lump sum or periodic or other payments or a lump sum and periodic or other payments.
The inquiry as to whether adequate provision has been made involves a two-stage process. The first stage calls for a determination of whether the plaintiff has been left without adequate provision for his proper maintenance, education and advancement in life. The second stage, which only arises if that determination is made in favour of the plaintiff, requires the court to decide what provision ought to be made out of the deceased’s estate for the plaintiff.
The first stage of the inquiry was described by the High Court in Singer v Berghouse[2] as the jurisdictional question. The jurisdictional question is a question of fact but its determination involves the formation of an evaluative judgment.[3] It involves an objective assessment of all the circumstances in the case and the determination of whether, in fact, adequate provision has been made for the plaintiff. The second stage involves similar considerations. As the High Court observed in Singer, even at the first stage the court may need to arrive at an assessment of what constitutes the proper level of maintenance and what is adequate provision which, if the court is required to embark on the second stage of the process, will largely determine the relief to which the plaintiff is entitled.[4] However, the second stage involves the exercise of a judicial discretion in determining what provision, if any, ought to be made in favour of the plaintiff from the estate, having regard to the factors prescribed in s 7 of the Act.
[2] [1994] HCA 40, (1994) 181 CLR 201 at 208 - 209.
[3] [1994] HCA 40, (1994) 181 CLR 201 at 211.
[4] [1994] HCA 40, (1994) 181 CLR 201 at 209 – 210.
In Bowyer v Wood[5] this Court considered the principles for determining whether adequate provision is made for the proper maintenance, education or advancement in life of a person entitled to claim under the Act. The court considered the concept of “moral claim” and “moral duty” which, while not forming part of the express terms of the Act, inform the authorities on what constitutes adequate provision for a claimant’s proper maintenance, education or advancement in life.
[5] [2007] SASC 327, (2007) 99 SASR 190.
In Vigolo v Bostin[6] the High Court held that when making the value judgment required on the jurisdictional question, a court should have regard to considerations of moral claim and moral duty. They are considerations which connect the general but value-laden language of the Act to the community standards which inform its practical application. Moral duty and moral obligation may, according to circumstances, be relevant and within the contemplation of the Act, but a moral claim cannot be a claim founded upon considerations not contemplated by the Act, nor a substitute for the text of the Act.[7]
[6] [2005] HCA 11, (2005) 221 CLR 191.
[7] [2005] HCA 11 at [11] – [25] and [113] – [121], (2005) 221 CLR 191 at 199 – 205 and 228 – 230.
In Bowyer v Wood[8] Debelle J, with whom Nyland and Anderson JJ agreed, addressed the considerations relevant to the jurisdictional question by reference to the established authorities in the following terms:[9]
[8] [2007] SASC 327, (2007) 99 SASR 190.
[9] [2007] SASC 327 at [41] – [42], (2007) 99 SASR 190 at 202 – 204.
In McCosker v McCosker (1957) 97 CLR 566 at 571 to 572 Dixon CJ and Williams J identified the relevant considerations in these terms:
The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd) the word “proper” in this collocation of words is of considerable importance. It means “proper” in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.
[Citations omitted].
As will have been noticed, there is continued reference to the size of the estate as a relevant factor. In the case of large estates, provision can be made for the well-to-do but that consideration is subordinated to the dominant purpose of determining what provision would be made by a just testator making proper provision for the maintenance, education and advancement of his family: Lieberman v Morris (1944) 69 CLR 69 at 91 - 92 per Williams J.
In Singer v Berghouse, Mason CJ, Deane and McHugh JJ re-iterated the above principles in these terms at 209:
The first question is, was the provision (if any) made for the applicant “inadequate for [his or her] proper maintenance, education and advancement in life”? The difference between “adequate” and “proper” and the interrelationship which exists between “adequate provision” and “proper maintenance” etc. were explained in Bosch v Perpetual Trustee Co. Ltd. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
Considerations relevant to the determination of an adequate provision were explained by Callinan and Heydon JJ in Vigolo v Bostin at [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, as here, 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.
There can be no argument that an appeal from a trial judge’s determination of the second stage question is governed by the principles concerning appellate review of a discretionary decision. Further, it is now settled that an appeal against a trial judge’s determination of the first stage or jurisdictional question is also governed by the principles concerning appellate review of a discretionary decision. In Singer, Mason CJ, Deane and McHugh JJ said:[10]
[I]n the context of family provision cases, the principles governing the review of a decision on the jurisdictional question are not settled. In Goodman v Windeyer, Gibbs J did not decide whether an appeal from a decision on the jurisdictional question should be governed by the principles that regulate appeals from decisions made in the exercise of a discretion. Similarly, in Kearns v Ellis, Mahoney JA raised the issue but did not express a concluded view.
Kirby P, by contrast, has held that the principles that govern appellate review of discretionary decisions should apply. In our view this is the correct approach.
[Citations omitted].
[10] [1994] HCA 40, (1994) 181 CLR 201 at 212.
That statement of principle was applied in Vigolo v Bostin[11] in the joint reasons of Gummow and Hayne JJ. Those principles are well understood.[12] Those principles emphasise the importance of appellate restraint. In Singer Mason CJ, Deane and McHugh JJ approved the following comments by Kirby P, made specifically in the context of estate litigation, in Golosky v Golosky:[13]
Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be brought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged.
[11] [2005] HCA 11 at [82], (2005) 221 CLR 191 at 220.
[12] House v The King (1935) 55 CLR 499 at 504 – 505.
[13] [1994] HCA 40, (1994) 181 CLR 201 at 212.
Consideration
I accept that the master erred in finding the value of the Nilma property jointly owned by Bauke and his wife was approximately $450,000. The evidence suggests the value of the property is in the vicinity of $592,000. It could be as high as $730,000, being the aggregate of the purchase price of the land and the cost of construction of the house. This is an error of fact. At issue is whether it is a material error in the sense that the mistake of fact vitiates the exercise of the judicial discretion. In De Winter v De Winter,[14] Gibbs J, with whom Aickin J agreed, said:[15]
It may, in some cases, appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error…
The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand, notwithstanding the unsoundness of some of its foundations.
[14] [1979] FLC 90 – 605, (1979) 23 ALR 211.
[15] [1979] FLC 90 – 605, (1979) 23 ALR 211 at 217 – 218.
In determining whether the mistake of fact made by the master was material to his decision that Bauke has been left without adequate provision for his proper maintenance, it is necessary to analyse the master’s reasons for this finding. He found that at the time of the testatrix’s death Bauke suffered significant ill health which would deteriorate in the future. He found there was no pool of cash available to Bauke from which medical expenses could readily be met. The master considered that Bauke’s health and finances were somewhat similar to the appellant and a little worse than Hans. The evidence did not permit him to make any finding in relation to Renae. The master found that the testatrix had an equal moral duty to provide for Bauke as she did for the appellant, Hans and Renae.
While there is some force in the appellant’s submission that her financial position was not “somewhat similar” to Bauke’s given the master’s error as to the value of the Nilma property, nonetheless I consider that the factual error was not material to the master’s finding. I come to this conclusion for two reasons. Firstly, because it is apparent that the master’s evaluation was directed to whether Bauke’s financial position enabled him access to a pool of cash from which he could meet the costs of managing his deteriorating health into the future. I consider that he assessed the appellant’s position on a similar basis. To that extent, while the value of the appellant’s residence is significantly less than Bauke’s residence, the material consideration is whether they had access to a pool of liquid funds from which they could meet their future health needs. Neither of them was in a position to do so. As a matter of fact, both of them only owned a residential property, had access to a super fund and relied on a pension. Considered in that way, it could be said that their financial position was somewhat similar. Secondly, because the relevant evaluative judgment required of the master was not solely the respective positions of Bauke and the appellant, but the capacities, means and competing claims of all the potential beneficiaries.[16] The master correctly undertook that evaluative judgment in weighing the needs, means and competing claims of each of Bauke, the appellant, Hans and, to the extent possible on the evidence, Renae. Recognising the principle of restraint referred to in Singer, no basis has been established to warrant the Court’s interference.
[16] Vigolo v Bostin [2005] HCA 11 at [122], (2005) 221 CLR 191 at 230 – 231.

In any event, it is necessary to recognise the basis upon which the testatrix excluded Bauke from her bounty. This was explained in clause 5 of the testatrix’s will. That says that he had received the value of her house property at Dernancourt and had not repaid the value he received. In my view, if the terms of clause 5 of the testatrix’s will were true, as a matter of fact, that might establish a basis upon which the Court could exercise its discretion in s 7(3) of the Act to refuse to make an order in favour of Bauke on the ground that his conduct was such as to disentitle him to the benefit of the Act. However, the evidence establishes, as the master found, that the testatrix’s reason for excluding Bauke from any provision from her estate is incorrect. The Golden Grove property was jointly purchased by Bauke of one part and his parents of the other part. The purchase was financed by the parents providing capital of $32,500 obtained from the sale of their home at Dernancourt and by borrowings from Mr Roberts. The loan from Mr Roberts was secured by mortgage. Bauke was responsible solely for making the mortgage repayments. He solely conducted the dairy business on the property until the fire. Subsequently, he refinanced the loan through Lombard Australia and Ms Johnston purchased the parents’ interest in the property for $26,100. That price represented a loss, but it must be remembered that the sale to Ms Johnston occurred approximately a year after Bauke and his parents had purchased the property and in the interim the value of the property was, most likely, adversely affected by the fire. While it was a matter of contention at trial whether Ms Johnston had actually paid the testatrix and her husband the purchase price of $26,100, the master appears to have found that she did. Given the evidence of the acknowledgment of receipt of payment in the Memorandum of Transfer, I consider that apparent finding was open. Mr Ower submits that the master did not make this finding, however, while the terms of the master’s reasons are not unequivocal on this matter, I am satisfied that he so found. In any event, as the master pointed out, even if the payment was not made by Ms Johnston, any benefit received by reason of the failure to pay was received by Ms Johnston not by Bauke. Bauke continued to repay the loan from Lombard Australia. Accordingly, the evidence contradicts the assertion by the testatrix in clause 5 of her will. Bauke did not receive the value of her house property at Dernancourt. He paid for his share of the Golden Grove property and his parents were paid by Ms Johnston for their interest in the property which they had financed by investing the proceeds of the sale of their Dernancourt home. Accordingly, there is no question of him being under an obligation to repay the value of the Dernancourt property. Additionally, the appellant submits that the master erred in finding that the testatrix and her husband had received $6,450 cash by way of a loan from Mr Roberts. I consider that finding was plainly open on the evidence. An additional amount of $12,900 was borrowed from Mr Roberts in excess of the amount required to purchase the Golden Grove property. The unchallenged evidence is that Bauke used half of this sum to purchase the dairy herd and plant and equipment and his parents had the benefit of the remaining $6,450. Bauke assumed responsibility for repaying the entire amount of the loan of $12,900. The appellant also submits that the master erred in finding that the sale price of the Golden Grove property was $78,000. This submission is based on the proposition that the property had been subdivided and a portion transferred to Ms Johnston as a part of a property settlement. This argument is misconceived. These events post date by a decade the sale of the parents’ interest in the Golden Grove property to Ms Johnston. How Bauke and Ms Johnston subsequently dealt with the property is irrelevant to the allegation that he received the value of the Dernancourt property and failed to repay it, or to the allegation that he had received some disproportionate benefit from his parents inter vivos.
At trial the appellant further contended that Bauke had received some disproportionate benefit by reason of him retaining the proceeds of an insurance claim from the fire and the sale of “chattels” and a truck belonging to his father which were on the Golden Grove property. These allegations were made late in the trial. The relevant evidence as to the value of these items was vague. The master found that Bauke suffered a significant loss as a result of the fire. That is inconsistent with him receiving some disproportionate benefit by retaining the proceeds of an insurance claim from the fire. The master’s finding that Bauke suffered a loss as a result of the fire was open on the evidence. He gave evidence that the dairy was underinsured. The insurance payout amounted to a few thousand dollars. He was not challenged on this evidence in cross-examination. In addition, he was off work for 12 months as a result of injuries he suffered in the fire.
Further, the evidence does not establish any disproportionate benefit received by Bauke from any suggestion of him having retained the proceeds of sale of the truck and other chattels left on the property 35 years earlier. It follows that the premise upon which the appellant submits that Bauke has received some disproportionate benefit from his parents or the testatrix is not made out.
The remaining grounds of appeal concern complaints about the exercise of the master’s discretion in making the award of $70,000 in favour of Bauke. With the exception of one matter, I consider these arguments to be misplaced. The submission that the master erred in the exercise of his discretion in making the award amounts to little more than an invitation to this Court to substitute its evaluative judgment for that of the master. The principle of restraint enunciated in Golosky v Golosky[17] and approved in Singer stands firmly against adopting this approach.
[17] Unreported, New South Wales Court of Appeal, delivered 5 October 1993.
The exception concerns the amount of the award given the costs orders subsequently made by the master. At the trial Mr Ower submitted that, contrary to the usual practice, it would be appropriate for an order to be made for an equal distribution of the estate between Bauke, the appellant, Hans and Renae. The master did not accept that submission. He awarded Bauke $70,000. The others are beneficiaries in equal shares of the residue of the estate. When the master made the order, he was unaware of the extent to which the costs orders would deplete the residue of the estate. The Court has been informed that since the master calculated the value of the estate at $326,761.12, some further expenses have been incurred by the executrix and the amount of the costs orders subsequently made by the master are in the vicinity of $64,000. Accordingly, after allowing for the order made by the master in favour of Bauke, the costs orders and the further expenses, the residue of the estate is approximately $192,000. Dividing that sum into three equal shares produces a figure of $64,000. I do not consider the master intended that Bauke should enjoy a greater share of the testatrix’s estate than the others. Mr Ower submits that the Court should not interfere with the award, however, I consider that the effect of the master’s award discloses an error in approach. To the extent that the award made by the master results in Bauke receiving a greater share of the estate than the others whose claim on the testatrix’s bounty is the same, I consider the exercise of the master’s discretion miscarried. I would allow the appeal to the limited extent of adjusting the award made in favour of Bauke to provide that he receives a share of the residual estate equal to the others.
I reject the appellant’s challenge to the master’s costs order. A costs order involves a discretionary judgment. There is no good reason to adopt a different approach to an appeal from a costs order in a family provision matter from any other matter. On appeals against discretionary costs orders there is a strong presumption in favour of the correctness of the decision.[18] In order to succeed on an appeal against an order for costs, the appellant must show that the exercise of the discretion of the trial judge as to costs was so unreasonable or unjust as to require the appellate court to substitute its own discretion.[19] The appellant complains that the judge erred in ordering the estate to pay Bauke’s costs on a solicitor/client basis. The order was made by reason of the operation of 6SCR 188 in circumstances where Bauke had filed an offer of settlement on 5 March 2014 which the appellant failed to better at trial. She complains that the master erred in giving insufficient weight to Practice Direction 8.1, the late filing of Bauke’s documents and the belated presentation of supplementary disclosure and affidavits. Considerations of whether the trial judge gave sufficient weight to a relevant factor is not a basis upon which to interfere with a discretionary judgment on costs.
[18] Kazar v Kargarian (2011) 97 FCR 113.
[19] Southern Resources Ltd v Residues Treatment and Trading Co Ltd (1990) 56 SASR 455; N E Perry Pty Ltd v Judge (No. 2) [2003] SASC 364.
Conclusion
I would allow the appeal to the extent of setting aside the award made for provision of $70,000 out of the estate in favour of Bauke and, in lieu thereof, order that a payment be made out of the estate in favour of Bauke in an amount which represents one quarter of the residual estate. I will hear the parties as to the terms of the formal order to be made. Further, I will hear the parties as to the question of costs.
PARKER J: I agree with the reason of Stanley J and the order he proposes.