Devereaux-Warnes v Hall (No 3)

[2007] WASCA 235

DEVEREAUX-WARNES -v- HALL [No 3] [2007] WASCA 235

Reported Decision:	(2007) 35 WAR 127
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 235
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:132/2005	Heard:	1 JUNE 2007
Coram:	McLURE JA PULLIN JA BUSS JA	Delivered:	4/11/07
No of pages:	43	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
PDF Version

Parties:	SYLVIA KRISTEN DEVEREAUX-WARNES TANYA HALL PHILLIP RONALD WILSON as Executor of the estate of ANTHONY LAWRENCE PATRICK DUFFY (Dec)
Catchwords:	Succession Appeal against judgment of master granting applications made by adult children under Inheritance (Family and Dependants Provision) Act 1972 (WA) for provision from estate of father Application of s 6(1) of the Act The concepts of 'adequate' provision and 'proper' maintenance etc, 'need', 'moral duty' and 'moral claim' Where appellant was sole beneficiary of testator's will but not an eligible claimant within s 7 of the Act Relevant considerations in determining an application under s 6(1) of the Act where the beneficiary is not an eligible claimant within s 7 of the Act Whether master erred in his findings or conclusion
Legislation:	Family Law Act 1975 (Cth), s 72 Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6(1), s 7, s 10 Wills Act 1970 (WA), s 14, s 15
Case References:	Anderson v Teboneras [1990] VR 527 Barns v Barns (2003) 214 CLR 169 Blore v Lang (1960) 104 CLR 124 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Clemens v Byrnes [2007] NSWSC 421 Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494 Collicoat v McMillan [1999] 3 VR 803 Devereaux-Warnes v Hall [2006] WASCA 268 Devereaux-Warnes v Hall [2006] WASCA 86 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Kleinig v Neal [1981] 1 NSWLR 462 McCosker v McCosker (1957) 97 CLR 566 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Re F [1940] St R Qd 290 Re Hodgson (Dec) [1955] VLR 481 Re Saxon (Dec); Saxon v Elders Trustee & Executor Co Ltd (1975) 12 SASR 110 Re Sinnott [1948] VLR 279 Sampson v Sampson (1945) 70 CLR 576 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191 White v Barron (1980) 144 CLR 431 Worladge v Doddridge (1957) 97 CLR 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DEVEREAUX-WARNES -v- HALL [No 3] [2007] WASCA 235 CORAM : McLURE JA

PULLIN JA
BUSS JA

HEARD : 1 JUNE 2007 DELIVERED : 5 NOVEMBER 2007 FILE NO/S : CACV 132 of 2005 BETWEEN : SYLVIA KRISTEN DEVEREAUX-WARNES

Appellant

AND

TANYA HALL
First Respondent

PHILLIP RONALD WILSON as Executor of the estate of ANTHONY LAWRENCE PATRICK DUFFY (Dec)
Second Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER NEWNES

Citation : HALL & ANOR -v- PHILIP ROLAND WILSON as Executor of the estate of ANTHONY LAWRENCE PATRICK DUFFY (Dec) & ANOR [2005] WASC 207

File No : CIV 1709 of 2004

Catchwords:

Succession - Appeal against judgment of master granting applications made by adult children under Inheritance (Family and Dependants Provision) Act 1972 (WA) for provision from estate of father - Application of s 6(1) of the Act - The concepts of 'adequate' provision and 'proper' maintenance etc, 'need', 'moral duty' and 'moral claim' - Where appellant was sole beneficiary of testator's will but not an eligible claimant within s 7 of the Act - Relevant considerations in determining an application under s 6(1) of the Act where the beneficiary is not an eligible claimant within s 7 of the Act - Whether master erred in his findings or conclusion

Legislation:

Family Law Act 1975 (Cth), s 72

Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6(1), s 7, s 10
Wills Act 1970 (WA), s 14, s 15

Result:

Appeal dismissed

Category: A

(Page 3)

Representation:

Counsel:

Appellant : Mr A J Aristei
First Respondent : Mr D M Bruns
Second Respondent : No appearance

Solicitors:

Appellant : Elizabeth Wiese & Associates
First Respondent : Hoffmans
Second Respondent : No appearance

Case(s) referred to in judgment(s):

Anderson v Teboneras [1990] VR 527
Barns v Barns (2003) 214 CLR 169
Blore v Lang (1960) 104 CLR 124
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Clemens v Byrnes [2007] NSWSC 421
Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494
Collicoat v McMillan [1999] 3 VR 803
Devereaux-Warnes v Hall [2006] WASCA 268
Devereaux-Warnes v Hall [2006] WASCA 86
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Kleinig v Neal [1981] 1 NSWLR 462
McCosker v McCosker (1957) 97 CLR 566
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Re F [1940] St R Qd 290
Re Hodgson (Dec) [1955] VLR 481
Re Saxon (Dec); Saxon v Elders Trustee & Executor Co Ltd (1975) 12 SASR 110
Re Sinnott [1948] VLR 279
Sampson v Sampson (1945) 70 CLR 576
Singer v Berghouse (1994) 181 CLR 201

(Page 4)

Vigolo v Bostin (2005) 221 CLR 191
White v Barron (1980) 144 CLR 431
Worladge v Doddridge (1957) 97 CLR 1


(Page 5)

1 McLURE JA: I have had the advantage of reading in draft form the reasons for judgment of Buss JA. I have reached a different view on the merits and would uphold the appeal. The facts, grounds of appeal and reasons of the master are detailed in the reasons of Buss JA and not repeated here unless required for an understanding of these reasons. In summary, the master held that the testator had failed to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of his adult children. The testator's daughter (the first plaintiff/first respondent) was aged 37 at the date of her father's death in August 2003 and was 39 at the time of trial. At the time of the testator's death and the trial in August 2005 the first respondent was separated from her first husband, living in a de facto relationship with another man (Mr Stoffel) and had three children from her first marriage who lived with her. They were aged 7, 10 and 12 at the time of trial. The testator's son (the second plaintiff) was aged 41 at the time of the testator's death and 44 at the date of the trial.

2 The net value of the testator's estate at the time of trial was found to be in the order of $300,000. The sole beneficiary of the testator's will was his former wife, the appellant. The appellant had been married to the testator for over 30 years and was the mother of the plaintiffs. The appellant and testator were divorced on 15 November 1991. Property settlement orders were made by the Family Court in 1993 and the appellant remarried in 1994. She was not a person entitled to claim under the Act. The deceased did not remarry. Following the divorce, relations between the appellant and the testator were not cordial and the only contact between them was inadvertent.

3 On the application of the children under s 6 of the Act, the master upheld their claim and concluded that the size of the estate did not enable any amount to pass to the sole beneficiary under the will. The master awarded 80% of the net estate to the first respondent and 20% to the testator's son. There is no appeal from the award in favour of the son who was not joined as a party to the appeal.

4 The appeal raises the issue of the correct approach to determining what is adequate provision for the proper maintenance etc of a claimant under the Act when a testamentary beneficiary is not a person entitled to claim under the Act and has no legitimate (moral) claim on the bounty of the deceased other than by virtue of their status as a beneficiary under the will. It is apparent from the master's reasons that he placed the appellant in this category.

(Page 6)

5 It is necessary to address that question against the backdrop of the settled principles relating to the proper construction, and approach to the application, of s 6 of the Act. Section 6(1) materially provides that:

[I]f the Court is of the opinion that the disposition of the deceased's estate effected by his will … is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons [entitled to claim under the Act] the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.

6 On an application under s 6(1), the court is required to carry out a two-stage process. The first stage calls for the determination of whether the disposition of the testator's estate was not such as to make adequate provision for the proper maintenance etc of the applicant. This is the jurisdictional question which is to be determined as at the date of death of the testator. If that question is answered in the affirmative, the court in exercising its discretion to make such provision as it thinks fit, must take into account the relevant facts as they exist at the time of making the order: Singer v Berghouse (1994) 181 CLR 201.

7 The majority in Singer v Berghouse said:

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.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant (208 - 209).

8 The appellant conceded that the court's jurisdiction under s 6(1) was enlivened because the testator had failed to make adequate provision for the proper maintenance etc of his adult children.

9 On the facts in this case, the jurisdictional question could be answered without arriving at a determination of the proper level of

(Page 7)

maintenance etc and thus what was adequate financial provision for that purpose. If that is not done at the jurisdictional stage, it must be done at the second or discretionary stage. Ordinarily, what is adequate financial provision is assessed by reference to, inter alia, the size of the estate, the need and moral claim of the applicant(s) and the need and moral claim of other persons who have a legitimate claim upon the bounty of the testator. I should add for completeness that 'need' is not determined by reference only to minimum standards of subsistence and that I use the concept of 'moral claim' in the way approved by the majority in Vigolo v Bostin (2005) 221 CLR 191.

10 Persons who have a legitimate claim upon the bounty of the testator would include persons entitled to claim under the Act as well as testamentary beneficiaries who, although not entitled to claim under the Act, have a moral claim upon the bounty of the testator. The cases are silent on whether persons who have a legitimate claim on the bounty of the testator would include a testamentary beneficiary without any moral claim. A bequest to a charity is likely to fall in this category. In my opinion, the answer is yes. However, it is unnecessary to determine that question in this case because of the concession that the court's jurisdiction was enlivened.

11 As is apparent from the extract from Singer v Berghouse quoted above, the questions whether inadequate provision has been made and, if so, what amount would be adequate, are relative. That is, it will vary according to the circumstances of the case, including the size of the estate and the other legitimate claims on the testator's bounty. Thus, what may be adequate for a claimant in one case may differ in another case even if the merits of the individual claims are equivalent. However, if adequacy is entirely relative there would be no ceiling to what is adequate provision other than that dictated by the size of the estate.

12 The determination of what is adequate cannot be entirely relative. There must be a ceiling or maximum amount that constitutes adequate provision which is objectively determined solely by reference to the claimant's need and moral claim without reference to the relativities. There is support for that proposition. Fullagar J said in Re Sinnott [1948] VLR 279 that:

The discretion given by the Act is obviously intended to be very wide. The size of the estate is always important, and there will commonly be needs and claims other than those of the applicant to be considered. But it is always, I think, primarily a matter of estimating need and moral claim (281).

(Page 8)

13 A beneficiary without a moral claim is likely to be disadvantaged unless attention is given to what is, on an objective basis, adequate financial provision for the claimant under the Act: Vigolo [13] (Gleeson CJ). Moreover, when assessing what is adequate provision, at least at the discretionary stage, the decision-maker must take into account and give weight to the existing rights of beneficiaries under the will in addition to any relevant need or moral claim. It is necessary to do more than pay lip service to the requirement that a court must limit its disturbance of a testator's will to that which is necessary to give effect to the purposes of the Act and to do no more: The Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, 19.

14 The master undertook a comparative assessment of the financial needs and moral claims of each of the children and the appellant; concluded that the children's claim on the estate was greater than that of the appellant; and determined what was adequate provision for the children solely by reference to the comparative strengths of the needs and moral claims of the children and the appellant. In assessing what was adequate provision, the master failed to take into account or give any weight to the fact that the appellant had an existing right as a beneficiary. This is apparent from [73] to [76] of the master's reasons which materially provide:

As I have said, I do not consider that the second defendant has the same claim on the estate of the testator as the plaintiffs. The second defendant went her own way after her divorce from the testator in 1991. She received approximately half of the matrimonial property in 1993 following a property settlement in the Family Court and she has made a new life with Mr Warnes, whom she married in 1994. Although the second defendant is not affluent, she and her husband own their own home and have significant savings.

In my view, a proper provision for the first plaintiff would be an amount equal to 80 per cent of the net value of the estate …

I consider the remaining 20 per cent of the estate should pass to the second plaintiff …

The size of the estate does not, in my view, enable any amount to be left to pass to the second defendant under the terms of the Will. The plaintiffs' call on the estate for their proper maintenance is greater than the claim of the second defendant to the estate, and once reasonable provision is made for the plaintiffs, the estate will be exhausted.

15 If adequacy is determined solely by reference to the size of the estate and the relative needs and moral claims of the claimant(s) and
(Page 9)

beneficiaries, the inevitable result in all cases would be that beneficiaries whose claim depended solely on their status as such would be wholly deprived of their entitlement under the will. That demonstrates the flaw in the approach. I accept that the moral claim (and perhaps need) of beneficiaries who do not have standing to claim under the Act is relevant in considering what is adequate provision for a claimant under the Act. However, the absence of any need or moral claim is not determinative because their status as a beneficiary is itself a relevant consideration.

16 Further, the master did not, in my view, make an objective assessment of what was an adequate amount for the first respondent's proper maintenance etc. This conclusion is supported by the fact that the master did not assess a fixed amount as reflecting an adequate provision. He concluded at [74] - [75] that a proper provision for the first respondent would be an amount equal to 80% of the net value of the estate and that the remaining 20% of the estate should pass to the second plaintiff. The consequence of approaching the matter in this way was that the claimants would be proportionately entitled to any increase in the net value of the estate. That was significant in this case because the parties relied at trial on a February 2004 valuation of the primary asset of the estate, being 13.3 ha of land in Mundijong. I am satisfied that, in failing to take into account and give any weight to the appellant's existing rights as a beneficiary and in failing to objectively assess what was adequate for the first respondent, the master made material errors of law in the exercise of his discretion at the second stage of the process. Accordingly, I would set aside the orders made by the master and re-exercise the discretion.

17 It is necessary to refer to the relevant facts. The first respondent completed her formal education at Year 12. In the period 1982 to 1989 she worked as a stable hand and on a production line making video cassettes. She married in 1988, ceased working in 1989, had her first child in 1992 and separated from her husband in 2001. Following her parents' separation in August 1990 the first respondent and her husband constructed a house, and lived, on the testator's Mundijong property. The first respondent lived there until July 2004 when she and her de facto partner left for Queensland.

18 The testator lived in the former matrimonial home which was close to the first respondent's house. The testator spent most of his daylight hours in the first respondent's house, returning to his own to sleep. The first respondent washed, cooked, cleaned and acted as a companion for the testator. In May 2003, with the financial assistance of the testator, the first respondent commenced a business agisting horses and training

(Page 10)

endurance horses on the testator's property. She made improvements to the property for the purposes of that business. The testator purchased a gooseneck trailer and truck for the first respondent's business which apparently never operated at a profit. The master made no findings as to the value of the improvements made by the first respondent to the testator's property or the financial benefit to the first respondent of living on the testator's property and his financial and other contributions to the running of her business. However, it is clear that they had a close, mutually supportive relationship from which both benefited. It is not suggested that the first respondent was financially dependent on her father.

19 In May 2003 the first respondent entered into a de facto relationship with Mr Stoffel to whom she was engaged at the time of trial. In July 2004 the first respondent, her children and Mr Stoffel moved to Queensland. In early 2004 the first respondent purchased a house on a five acre lot in a small town in rural Queensland. The purchase price was $55,000. She borrowed $33,000 from a financier and the balance of $22,000 from Mr Stoffel on an unsecured basis. She also owned a 1985 motor vehicle which she purchased for $500 and the gooseneck trailer and truck which she obtained from the estate in satisfaction of its indebtedness to her in the sum of $22,000. Further, the first respondent and her brother each received $14,000 from the testator's superannuation fund.

20 The first respondent's income at the time of trial was maintenance payments from her former husband (around $292 per fortnight) and a family allowance payment (around $188 per fortnight). Mr Stoffel contributed to household expenses. He earned in the order of $460 to $480 per week and the master inferred that he did not have substantial assets. For the reasons given by Buss JA, it was open to the master to draw that inference.

21 The first respondent did not identify any particular or specific needs for her education or advancement in life. Further, when assessing need, regard is had to the standard of living of the claimant in the testator's lifetime. At least from the time of her separation from her first husband, the first respondent's standard of living was modest. I do not equate standard of living with quality of life. Having regard to the strength of the first respondent's moral claim and her needs, her claim on the estate is stronger than that of her mother and brother although her mother had an existing entitlement to the whole estate. I would assess adequate provision for the first respondent from the estate in the sum of $210,000. That would enable the first respondent to extinguish her indebtedness in

(Page 11)

relation to the Queensland property, purchase a recent model motor vehicle and provide her with a means to supplement her income and cater for contingencies.

22 However, as the second plaintiff was not joined as a respondent to the appeal his award of 20% of the net value of the estate cannot be altered. That being the case, it would be unjust to alter the first respondent's award to a fixed amount. $210,000 is 70% of the estimated net value of the estate. I would set aside the orders made by the master and alter the testator's will to provide that the first respondent be awarded 70% of the net value of the estate, the second plaintiff 20% and the appellant 10%.

23 PULLIN JA: I have had the opportunity of reading in draft the reasons of McLure JA and Buss JA. There is a difference between their Honours about whether the appeal should be upheld. I agree with the reasons of Justice Buss and would dismiss the appeal.

24 However, because Justice McLure considered there to be two errors in the master's reasons, I thought I should address the points made by Justice McLure. I agree that the assessment of an adequate financial provision in a particular case must be made, inter alia, by reference to the size of the estate, the need and moral claim of the applicant and the need and moral claim of other persons who have legitimate claims upon the bounty of the testator. I also agree that the latter group include persons entitled to claim under the Act as well as testamentary beneficiaries who, although not entitled to claim under the Act, have a moral claim upon the bounty of the testator.

25 I also agree that the determination of what is adequate for a claimant cannot be 'entirely' relative. However, her Honour says there must be a ceiling or maximum amount that constitutes adequate provision which is objectively determined solely by reference to the claimant's need and moral claim 'without reference to the relativities'. I agree with the former statement but not the latter. What constitutes adequate provision in circumstances where the case involves a deceased and members of a wealthy family and a rich estate will produce a different result from the case of a very poor family and a very modest estate. As a result, the assessment of the amount which constitutes adequate provision cannot be made without any reference to 'relativities'.

26 The first error Justice McLure detected was that the master failed to take into account or give any weight to the fact that the appellant had an

(Page 12)

existing right as beneficiary. The second was that the master did not make an objective assessment of what was an adequate amount for the first respondent's proper maintenance etc, and that this was evidenced by the fact the master's order was for a percentage of the estate rather than a dollar figure.

27 Justice McLure detects the first error in the master's reasons between [73] to [76]. However, in [73] the master said that he did not consider that the appellant had 'the same claim' on the estate of the testator as the plaintiffs. In using the quoted words, I take the master to be acknowledging that the appellant did have an existing 'moral claim', using that phrase in the way approved by the majority in Vigolo v Bostin (2005) 221 CLR 191 .

28 As to the second error that McLure JA detected, I do not, with respect, consider that error is revealed because a percentage was used by the master to determine the amount of the award. In my opinion, the master's reasons reveal that he did make an objective assessment of what was an adequate amount. In [71] the master considered the plaintiffs' needs. In [76] he referred to the 'plaintiffs' call on the estate for their proper maintenance' and then said that once provision was made for the plaintiffs, 'the estate will be exhausted'. At the time of trial the value of the property was not in issue (see [69]) and the percentage was simply an acceptable method of setting the amount of the award in circumstances where property still had to be sold but where no-one (at the time of trial) raised any issue that there would be a significant change in value between judgment and the time of sale.

29 BUSS JA: The appellant appeals to this court against the judgment of Master Newnes (as his Honour then was) in respect of applications made by the first respondent and Mark Anthony Duffy (who is not a party to this appeal) under s 6(1) of the Inheritance (Family and Dependants Provision) Act 1972 (WA) (the Act).

30 The first respondent and Mr Mark Duffy are the daughter and son of the testator (Anthony Lawrence Patrick Duffy), and each of them sought an order that provision be made for her or him from the testator's estate.

31 The defendants to the applications comprised the second respondent, Philip Roland Wilson as executor of the testator's estate, and the appellant, who is the testator's former spouse.

(Page 13)

The terms of the testator's will and an outline of his relationship with the appellant

32 On 27 February 1961, the testator and the appellant were married. In March 1962, the testator executed a will under which he gave the whole of his estate to the appellant.

33 The first respondent and Mr Mark Duffy were children of the marriage, the first respondent being born on 23 August 1961 and Mr Duffy on 16 October 1965.

34 On 15 November 1991, the testator and the appellant were divorced. There was an acrimonious dispute in relation to the distribution of the matrimonial property, and there were contested proceedings in the Family Court. On 17 February 1993, the Family Court made orders, relevantly, to the following effect:

(a) the principal asset of the testator and the appellant, namely, a property in Mundijong, was to be subdivided with the testator taking the northern portion (known as 'Oldbury' and comprising 13.3 hectares with improvements including two houses on it) and the appellant to take the southern portion (comprising 12.5 hectares);

(b) the appellant was to pay the testator $5,925, and the testator was to assume sole liability for a debt of $45,000 owing to a third party; and

(c) certain motor vehicles and chattels were to be divided between the testator and the appellant, as specified in the orders.

35 On 12 March 1994, the appellant remarried.

36 On 16 August 2003, the testator died unexpectedly. He had not revoked the will he made in March 1962 under which the appellant inherited the whole of his estate.

The determination of the applications under s 6(1) of the Act

37 The applications under s 6(1) of the Act were heard by the learned master on 30 and 31 August 2005. He delivered judgment on 22 September 2005.

38 The testator's principal asset was the Oldbury property. The learned master made findings as to the value of that property and the net value of the estate. He said, relevantly, at [44], [45] and [69]:

(Page 14)

In February 2004, the executor arranged for an independent valuation of the [Oldbury] property. The valuer assessed its value as being $540,000.

It appears that no subsequent valuation has been obtained, but the expenses of the estate have increased substantially. The [second respondent, the executor of the estate] has rendered accounts for legal fees totalling $85,207.85 and I was informed that there is a further amount of $7500, which has yet to be billed, for the period to 25 August 2005. The [second respondent] has not indicated whether he will separately charge an administration fee. There is also to be taken into account the costs of these proceedings.

…

Although the [second respondent's] legal costs owing by the estate are subject to taxation, it is, I think, reasonable to expect that, based on the 2004 valuation of the [Oldbury] property, the net amount of the estate will be in the order of $300,000. That was the amount suggested by counsel for the [appellant] and I accept, based on the possibly slightly outdated valuation of the property, that that is a reasonable estimate. The estate might therefore be described in current times as a relatively modest estate.

39 The learned master decided that the first respondent and Mr Mark Duffy had been left without adequate provision for their proper maintenance, education and advancement in life. He determined that the first respondent should have an amount equal to 80 per cent of the net value of the estate and that Mr Duffy should have the balance.

The conduct of the parties at trial and subsequently in relation to the value of the Oldbury property and the net value of the estate

40 The parties agreed, for the purposes of the hearing before the learned master, that the value of the Oldbury property was $540,000.

41 The learned master's finding that the net value of the estate was $300,000 was based on a submission to that effect made by counsel for the appellant. See the learned master's reasons at [69].

42 After the appellant commenced this appeal she made application for leave to adduce new evidence in the appeal as to the value of the Oldbury property and the net value of the estate. Wheeler JA dismissed the application: Devereaux-Warnes v Hall [2006] WASCA 86. An application to review her Honour's decision failed: Devereaux-Warnes v Hall [2006] WASCA 268.

43 By an application dated 2 May 2007, the appellant sought to amend her grounds of appeal by adding a new ground 5 which referred to new

(Page 15)

evidence in an affidavit sworn 2 May 2007 by Penelope Isabel Muecke, the solicitor having the conduct of this appeal on behalf of the appellant. At the commencement of the hearing before this court, counsel for the appellant abandoned the application.

The organisation of these reasons

44 First, I will set out the learned master's findings of fact, reasoning and conclusions. I will then examine the relevant legal principles. Finally, I will consider the merits of each ground of appeal.

The learned master's findings: the relationship between the appellant and the testator

45 After the property settlement between the appellant and the testator, the appellant sold her portion of the Mundijong property. The testator continued to reside in the former matrimonial home on his portion of the property (that is, the portion known as 'Oldbury').

46 The learned master found, at [8], that after the divorce the appellant and the testator each 'went their separate way and the relationship between them was not cordial'. He added:

It seems that the only contact between the testator and the [appellant] over the following 12 years was inadvertent contact on several occasions at the Fremantle Golf Club, where the deceased worked in the course of his employment with the Fremantle City Council and the [appellant] played golf. Although [Mr Mark Duffy] appeared to suggest in his evidence that the contact represented some degree of reconciliation between the testator and the [appellant], I am satisfied the contact was neither expected nor welcomed by either. Indeed, in her evidence the [appellant] said that when she 'bumped into' the testator she 'got a fright'. It seems they merely exchanged brief civilities.

The learned master's findings: the relationship between the first respondent and the testator

47 Before August 1990, the first respondent and her then husband constructed a residence on Oldbury (near the former matrimonial home of the appellant and the testator) in which they continued to live after the appellant and the testator had divorced. There was no evidence of the extent to which (if at all) the value of Oldbury (and, therefore, the testator's estate) had been enhanced by the residence.

48 The learned master recorded, at [14] - [16], the first respondent's account of her relationship with the testator:

(Page 16)

The [first respondent] says that, following her parents' separation in August 1990, she and her father lived in separate houses on the Oldbury property. The houses were some 100 metres or so apart and the deceased spent most of his daylight hours at the [first respondent's] house, returning to his own house only to sleep. The [first respondent] says that she washed, cooked, cleaned and acted as a companion to the testator after her parents separated. The [first respondent] says the kitchen in her father's house was in such a poor state that it was not usable and the house generally was in a state of disrepair. At the date of the testator's death, the [first respondent] and her husband had separated, and the [first respondent] and Mr Stoffel were living in a de facto relationship in the [first respondent's] house on Oldbury with the [first respondent's] three children.

The [first respondent] describes her relationship with her father as 'extremely close'. They shared a love of horses, particularly endurance horses, and of horse training. The testator was the vice-president of the WA Endurance Riders' Association.

It seems that the [first respondent] was with the testator at the time of his death on 16 August 2003, and she refers in her affidavit to attempting to resuscitate him until the ambulance arrived. The [first respondent] describes her father's death as sudden and unexpected.

The learned master accepted the first respondent's evidence as to her relationship with the testator. He said, at [55]:

I accept that the [first respondent] enjoyed a close relationship with the testator after her parents separated and that she provided many of his day to day needs in the nature of washing, cooking, cleaning and general companionship. The [first respondent] in turn was dependant on the testator for the use of Oldbury on which her house was built and on which her own horses and those associated with her business were run. Their common interest in endurance horses and horse training was also obviously a bond between them. It is a further indication of that relationship that in April 1998 the deceased nominated the [first respondent] as the sole beneficiary of his Local Government superannuation plan. In fact, [Mr Mark Duffy] submitted a claim for a share of the proceeds of that fund after the testator's death. The trustees ultimately paid the proceeds, a total amount of some $28,000, to [the first respondent and Mr Mark Duffy] equally.

The learned master's findings: the relationship between the appellant and the first respondent

49 The learned master found, at [17], that the relationship between the appellant and the first respondent had been 'at best' poor since 1993. The first respondent gave evidence that after an incident in 1993, on which the first respondent did not elaborate, she severed all contact with the appellant. The first respondent said that she had some contact with

(Page 17)

Mr Kevin Warnes, whom the appellant married on 12 March 1994. The learned master found, at [17], that the first respondent appeared to have a good relationship with Mr Warnes, but he accepted that the first respondent's contact with the appellant was 'no more than minimal'.

The learned master's findings: the circumstances of the appellant

50 As I have mentioned, on 12 March 1994 the appellant married Mr Warnes. They remain married and reside together.

51 The learned master set out the appellant's evidence as to her financial circumstances, at [38] - [42]:

The [appellant] has dealt with her circumstances in affidavits of 29 July 2004 and 2 August 2005. The [appellant] says she was made redundant from her employment as a laboratory assistant at Alcoa in 1995. At the hearing, the [appellant] said she was unable to obtain gainful employment because of her age, health and lack of formal qualifications. At the time of the hearing, the [appellant] was 62 years of age.

The [appellant's] statement of her financial position as at 29 July 2004 showed total net assets of $240,910 and liabilities of $5395, including $5000 for legal costs, apparently in relation to this action. Her principal asset was a half share in a unit in Melville Parade, Como, that 50 per cent interest being ascribed a value of $150,000. The assets also included savings of approximately $65,000, being a half share in deposits by the [appellant] and her husband in financial institutions totalling some $130,000, a half share in furniture and chattels of a total value of some $20,000 and a 1996 Honda motor vehicle valued at $8000. The [appellant] also had an amount of some $7000 in a superannuation fund.

According to the [appellant], for the financial year ended 30 June 2004 her husband received an allocated pension totalling $23,180. The [appellant] says that the pension reduces each year by about 15 per cent, so that by April 2006 she and her husband will be reliant in part [on] government pensions for their livelihood. I should say that the financial position of Mr Warne did not clearly emerge in the evidence.

The [appellant's] income for the financial year ended 30 June 2004 was said to be $18,079, of which $11,590 was a half share in her husband's pension and the balance was income from the superannuation fund and her share of interest on their joint savings. The [appellant] said her personal expenditure for the year was $25,153. Although various items of expenditure are given in very precise figures, no indication of how they have been calculated is provided. They include furniture purchases of $4408 and what are described as 'miscellaneous items' in an amount of $7357. No income or expenditure figures for the [appellant] or her husband were provided for the financial year ended 30 June 2005.

(Page 18)

The [appellant] denied in cross-examination that the Melville Parade property, which has river views, was worth substantially more than $300,000, but acknowledged that it might now have a value of $350,000, making her half-share worth $175,000. That would give the [appellant] net assets of some $260,000.

52 The learned master made findings in relation to the appellant's financial circumstances, and compared her circumstances with those of the first respondent, at [63] - [66]:

The [appellant] has apparently not worked since 1995. It seems that her husband, Mr Warnes, has also not worked since he was made redundant by the Commonwealth Bank in 1994. It is not clear why neither sought paid employment following their redundancies. The [appellant] was at that stage 51 years of age. It was not suggested that she was impaired by ill health and there is no evidence that she would have been unable to find work then if she had sought it.

At the hearing, the [appellant] referred to her ill health as the reason she was not now working, but was vague as to the nature of that ill health and it was not supported by any medical evidence. It apparently has not prevented her from playing golf regularly over the years.

It was not suggested by the [appellant] that she had any claim on the testator's estate beyond the consequence of what she described in evidence as the testator having been 'very silly' in failing to make a new Will after their divorce. It was not contended, for instance, that the [appellant] had received less than an appropriate portion of the matrimonial property following the divorce, nor was it suggested that the [appellant] had had any involvement in the testator's life or affairs since the divorce. The only contact between the testator and the [appellant] had been the few occasions they had unexpectedly bumped into each other at the Fremantle Golf Club. Since 1991, the testator and the [appellant] had gone their separate ways and lived quite separate lives.

While the [appellant] is not affluent, her financial circumstances are nowhere near as modest, nor the demands upon them as great, as those of the [first respondent]. The [appellant] has no dependants. She and her husband own their own home and have significant savings. In the circumstances, I do not consider the [appellant] has the same claim upon the testator's estate as the [first respondent and Mr Mark Duffy].

The learned master's findings: the circumstances of the first respondent

53 The learned master noted, at [11] - [13], various details concerning the first respondent's education, employment history, and personal and financial circumstances:

(Page 19)

The [first respondent] finished year 12 at school in 1982. From then until about 1987 she worked as a stable hand for various employers and from 1987 to 1989 she worked on a production line making video cassettes. In March 1988, at the age of 23, the [first respondent] married Alan Hall and did not continue in paid employment after ceasing on the production line in 1989. The [first respondent] had her first child in 1992 and subsequently had two more children. The [first respondent] and her husband separated in 2001. The children continued to live with the [first respondent] and are currently aged 7, 10 and 12 years. Following the separation, the [first respondent] says her only income was a single parents' pension and maintenance from her husband in the sum of $360 per fortnight.

In May 2003, the [first respondent] entered into a de facto relationship with Roman Stoffel and her entitlement to a single parenting payment ceased.

The [first respondent] says that in May 2003, with the assistance of the testator, she commenced a business agisting horses and training endurance horses on the Oldbury property. The [first respondent] says that during 2003, with Mr Stoffel's assistance, she made a number of improvements to the property, including constructing a firebreak, a new concrete wash down area for the horses, an exercise round yard and establishing extensive reticulation on the property. The [first respondent] says that to assist in the business the testator bought a gooseneck trailer and a Mazda T3500 dual cab truck to tow it. The [first respondent] says that the business did not make a profit in the relatively short period in which it operated. The business came to an end when she left the Oldbury property in July 2004 to travel to Queensland. I will come back to those circumstances in due course.

54 The learned master evaluated, at [23] - [30], the first respondent's financial circumstances as at the date of death of the testator, and subsequently:

The financial position of the [first respondent] at the time of the testator's death can be briefly stated. At that time, the [first respondent] owned no real property and was receiving the sum of $360 per fortnight from her husband as maintenance for the children and a family allowance payment from Centrelink. The [first respondent's] business was not trading at a profit and was simply covering expenses. Her furniture and personal effects were valued at no more than $8500 and she owned a 1989 Falcon sedan, which she has estimated was worth no more than $2000. She had very recently entered into the de facto relationship with Mr Stoffel and her single parenting payment had ceased as a result.

There was no direct evidence as to the financial position at that time of Mr Stoffel, but I think it is to be inferred from the evidence as a whole that

(Page 20)

he did not have substantial assets. Mr Stoffel at that time operated a glazing business as a sole trader, without any employees.

Following the testator's death, the [first respondent], Mr Stoffel and the [first respondent's] children remained on the property until July 2004. In early 2004, the [first respondent] purchased a house on a five-acre lot in a small town in rural Queensland. The purchase price was $55,000, of which $33,000 was borrowed from Liberty Financial Pty Ltd on a first mortgage security and the balance of $22,000 was borrowed from Mr Stoffel on an unsecured basis. The [first respondent] said that Mr Stoffel in turn had borrowed the funds by way of a personal loan.

The [first respondent], Mr Stoffel and the children left Oldbury on 11 July 2004 and drove to Queensland with the [first respondent's] children. They have been living on the Queensland property since. The [first respondent] says that her Falcon sedan was damaged beyond repair while being transported to Queensland and she has replaced it with a 1985 Falcon station wagon which she purchased for $500. The [first respondent] also has the Mazda T3500 and the gooseneck trailer, which she accepted in payment of a debt of $22,000 owed to her by the estate of the testator.

In an affidavit sworn on 25 November 2004, the [first respondent] says that her financial position remains substantially unchanged, her only source of income being maintenance payments of $320 a fortnight from her former husband. In evidence at the hearing the [first respondent] said she received approximately $188 per fortnight from Centrelink and $292 per fortnight from her former husband by way of maintenance for the children. In cross-examination, the [first respondent] conceded that in her affidavit of 25 November 2004 she had omitted to include reference to the payments received from Centrelink. She said that Mr Stoffel also contributed to household expenses. The [first respondent] was unsure of Mr Stoffell's current income but believed it was in the order of $460 to $480 per week.

I should say that the [first respondent] was cross-examined on the contents of the application form lodged with Liberty Financial Pty Ltd to obtain the loan to purchase the Queensland property. The application form had been completed by a mortgage broker who had arranged the loan on the [first respondent's] behalf. In that form, which was signed by the [first respondent], her furniture and personal effects were stated to be worth $35,000, the plant and equipment of the [first respondent's] business was said to be worth $100,000 and the [first respondent]'s annual income was said to be $50,000. The [first respondent] was said to have superannuation of $3000 and a bank deposit of $19,000. The form also appeared to show the [first respondent] as the owner of Oldbury, which was ascribed a value of $540,000.

The [first respondent] said that the bank deposit referred to in the form was part of the money Mr Stoffel had borrowed to lend to her for the purchase of the Queensland property. She said she had told the broker that she had

(Page 21)

earned $40,000 before expenses from the business. The [first respondent] was adamant that she had told him she did not own Oldbury. She said she had not given him the other figures to which I have referred and that those figures were not correct. The [first respondent] said she had answered the questions he asked her correctly and had then signed the form where he indicated, without reading it.

I accept the [first respondent's] explanation of the contents of the form. How or why the broker came to insert the incorrect figures is not otherwise material. It is, in my view, plainly the case that they did not, and do not, accurately set out the first plaintiff's financial circumstances.

55 The learned master made further findings, at [58] - [60], in relation to the financial circumstances of the first respondent and Mr Stoffel, and their business expectations:

Shortly before the testator's death, the [first respondent] had entered into the de facto relationship with Mr Stoffel. There is no direct evidence as to Mr Stoffel's earnings or assets at that stage, but from the evidence as a whole it appears they are unlikely to have been substantial.

The [first respondent's] business came to an end when she left Oldbury in July 2004. It is apparent that the [first respondent] moved to Queensland with expectations that she would be able to establish a similar horse training business there and to obtain the business of a substantial Queensland horse owner. Those expectations have not been realised. I accept that since moving to Queensland the [first respondent] has not found it possible to carry on the horse training business and that she has not been engaged in any paid work. It is a matter for conjecture whether it will be possible in the future to re-establish the business.

Mr Stoffel's business expectations have also not been fulfilled, in part at least, it seems, because in Queensland his glazing business required him to be away from home for up to weeks at a time. Shortly before the hearing, Mr Stoffel gave up the business and took a job at a piggery close to home so that he could return home each night. The [first respondent] says that Mr Stoffel receives something in the order of $460 to $480 per week in that employment.

The learned master's reasoning and conclusions

56 The learned master expressed his satisfaction, at [67], that the testator did not make adequate provision for the proper maintenance, support or advancement in life of the first respondent or Mr Mark Duffy. In other words, he determined the 'jurisdictional question' in favour of the first respondent and Mr Duffy. He then considered what provision should be made for the first respondent and Mr Duffy out of the testator's estate for their proper maintenance, etc.

(Page 22)

57 The learned master noted, at [69], that on the evidence before him, a reasonable estimate of the net value of the estate was $300,000. He then observed, at [70], that his task was not to distribute the estate in accordance with his own notions of fairness, and that it was 'not to the point' that the appellant, as the sole beneficiary of the testator's will, might be regarded as receiving a windfall that could not have been intended by the testator. He added that the power to alter the will was not to remedy what appeared to be an unintended outcome or to give effect to what the court believed the testator would have intended had he turned his mind to the matter. The court's role was limited, in its disturbance of the will, to that which was necessary to give effect to the purposes of the Act.

58 The learned master said, in relation to the first respondent, at [71]:

In my view, the [first respondent's] needs are substantial. Her income is very modest, she has responsibility for the upbringing of her three quite young children, with some financial assistance from her former husband, she has no significant assets, and she has no provision for her future or for any contingencies. Until 1994 her home was the house that she had constructed with her former husband on the testator's land. The house which she has recently purchased is modest by any standard, and her motor vehicle is old and inevitably of questionable reliability and longevity. Her ability to generate a significant income is limited by her lack of formal qualifications and her family responsibilities. Her partner, Mr Stoffel, I accept, does not have substantial assets of his own and is earning a very modest income.

The learned master concluded, at [72] that Mr Mark Duffy was 'substantially better placed' than the first respondent. He did, however, have significant debts in addition to significant assets.

59 The learned master then said, at [73], that the appellant did not have 'the same claim on the estate of the testator' as the first respondent and Mr Duffy. The appellant went her own way after the divorce from the testator in 1991, she received about half of the matrimonial property in 1993 under the property settlement in the Family Court, she made a new life with Mr Warnes (whom she married in 1994), and although the appellant was not affluent, she and Mr Warnes owned their residence and had significant savings.

60 The learned master decided, at [74] - [76], that provision should be made for the first respondent in an amount equal to 80% of the net value of the estate (that is, on the learned master's estimate of the net value of the estate, an amount of about $240,000). He commented that this amount would enable the first respondent to discharge her indebtedness in relation

(Page 23)

to the Queensland property, to purchase a suitable modern motor vehicle and to have a sum left over to invest for the purpose of supplementing her income and providing for contingencies. The learned master decided, at [75], that the remaining 20% of the estate should pass to Mr Duffy.

61 No provision was made for the appellant. The learned master explained this outcome, at [76]:

The size of the estate does not, in my view, enable any amount to be left to pass to the [appellant] under the terms of the Will. The [first respondent's and Mr Duffy's] call on the estate for their proper maintenance is greater than the claim of the [appellant] on the estate, and once reasonable provision is made for the [first respondent and Mr Duffy], the estate will be exhausted.

The formal orders

62 The learned master made formal orders, relevantly, altering the testator's will by deleting the provision for the appellant and substituting a provision under which the first respondent was entitled to 80% and Mr Mark Duffy to 20% of his net estate.

No revocation of a will upon divorce

63 In Western Australia, although a will is, in general, revoked by the marriage of the testator (s 14 and s 15 of the Wills Act 1970 (WA)), where a testator and his or her spouse are divorced or their marriage is annulled, the testator's will is not revoked by the divorce or annulment. The position in relation to the revocation of a will upon divorce or annulment is different in some other jurisdictions. See, for example, s 15A of the Wills, Probate and Administration Act 1898 (NSW) and s 15 of the Succession Act 1981 (Qld).

The relevant provisions of the Act

64 Section 6(1) of the Act states:

If any person (in this Act called 'the deceased') dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.

(Page 24)

By s 10, an order takes effect as a codicil to the will or, in the case of intestacy, as a modification to the applicable rules of distribution.

65 Section 7 enumerates the categories of eligible claimants. They comprise, in general, a spouse or de-facto partner; a former spouse or former de-facto partner who, at the date of the deceased's death, was receiving or entitled to receive maintenance from the deceased; children; grandchildren; and parents. The provision relating to a former spouse or former de-facto partner is set out in s 7(1)(b) in these terms:

a person who at the date of the death of the deceased was receiving or entitled to receive maintenance from the deceased as a former spouse or former de facto partner of the deceased whether pursuant to an order of any court, or to an agreement or otherwise;

The two-stage process under s 6(1) of the Act

66 By s 6(1) of the Act, the court is required to carry out a two-stage process.

67 The first stage involves the determination of whether the disposition of the deceased's estate effected by will or the law relating to intestacy is not such as to make adequate provision from his or her estate for the proper maintenance, support, education or advancement in life of the claimant. The first stage has been described as the 'jurisdictional question', which means no more than that the court's power to make an order in favour of the claimant is conditioned upon the court first being satisfied of the state of affairs referred to in the opening passage of s 6(1), ending with the words 'made under this Act'. See Singer v Berghouse (1994) 181 CLR 201 per Mason CJ, Deane and McHugh JJ at 208 - 209; Vigolo v Bostin (2005) 221 CLR 191 per Gleeson CJ at 196 - 197 [4] - [6], per Gummow and Hayne JJ at 212 - 213 [56].

68 The first stage involves a question which is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decision arises from the fact that the court must determine whether the claimant has been left without 'adequate' provision for his or her 'proper' maintenance, etc. See White v Barron (1980) 144 CLR 431 per Mason J at 441 - 443, per Wilson J at 456 - 457; Goodman v Windeyer (1980) 144 CLR 490 per Aickin J at 509; Singer per Mason CJ, Deane and McHugh JJ at 210 - 211.

69 The second stage, which only arises if the 'jurisdictional question' is determined in favour of the claimant, involves the exercise of discretion: the court may order that such provision as the court thinks fit be made out

(Page 25)

of the deceased's estate for the proper maintenance, etc, of the claimant. See White per Mason J at 442 - 443, per Aickin J at 449; Goodman per Gibbs J at 501 - 502, per Aickin J at 509; Singer per Mason CJ, Deane and McHugh JJ at 211.

The date as at which the first and second stages are to be determined

70 The question which arises at the first stage must be formulated and determined as at the date of death of the deceased, having regard to all material facts that existed at the date of death, whether the deceased knew of them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts. See Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494 per Dixon CJ at 508, per Webb J at 515 - 516, per Kitto J at 526 - 528; Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 per Gibbs J at 147 - 148; White per Barwick CJ at 437, per Mason J at 441, per Aickin J at 448 - 449; Goodman per Gibbs J at 498 - 499.

71 At the second stage the court exercises its discretion to order adequate provision for the proper maintenance, etc, of the claimant by reference to the circumstances as they exist at the date of the order. See Coates per Dixon CJ at 509; White per Mason J at 441; Goodman per Gibbs J at 499.

The concepts of 'adequate' provision and 'proper' maintenance, etc

72 The word 'proper' connotes something different from the word 'adequate'.

73 For example, a small sum may be sufficient for the 'adequate' maintenance, etc, of the claimant but, having regard to all the circumstances, including the size of the deceased's estate and the lifestyle to which the claimant had become accustomed during the deceased's lifetime, may be wholly insufficient for his or her 'proper' maintenance. By contrast, a sum may be quite insufficient for the 'adequate' maintenance, etc, of the claimant, and nevertheless be sufficient for his or her maintenance, etc, on a scale that is 'proper' in all the circumstances. See Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476; Worladge v Doddridge (1957) 97 CLR 1 per Kitto J at 14 - 15; White per Wilson J at 457.

74 The determination of whether the provision, if any, made for the claimant is 'adequate' for his or her 'proper' maintenance, etc, involves not

(Page 26)

only a scrutiny of the requirements of the claimant for maintenance, etc, that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased. See Goodman per Gibbs J at 496 - 497; Hunter v Hunter (1987) 8 NSWLR 573 per Kirby P at 575; Singer per Mason CJ, Deane and McHugh JJ at 209 - 210.

75 Plainly, the totality of that relationship would include:

(a) any sacrifices made or services given by the claimant to or for the benefit of the deceased;

(b) any contributions by the claimant to building up the deceased's estate; and

(c) the conduct of the claimant towards the deceased and of the deceased towards the claimant.

See Coates per Dixon CJ at 510; Hughes per Gibbs J at 147; Goodman per Gibbs J at 497.

76 Any such sacrifices, services or contributions (whether described as giving rise to a moral duty/moral claim or not) are a relevant consideration (as part of the totality of the relationship between the claimant and the deceased), but are neither a necessary nor a sufficient condition for the making of an order under the Act. See Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 per Kirby P at 28, per Sheller JA at 42.

77 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of maintenance, etc. The propriety of the provision, if any, for the claimant is to be assessed by reference to all the circumstances including contemporary accepted community standards. See Bosch at 476 - 479; Worladge per Williams and Fullagar JJ at 11, per Kitto J at 15 - 18; White per Stephen J at 440, per Mason J at 441 - 445, per Wilson J at 457; Goodman per Gibbs J at 497, 502; Singer per Mason CJ, Deane and McHugh JJ at 211, per Gaudron J at 227.

78 The capacity of a court to make 'adequate' provision for the 'proper' maintenance, etc, of the claimant may be constrained by practical considerations such as the size and nature of the deceased's estate, and competition from other persons having competing claims upon the deceased's bounty, and their relative urgency. See McCosker v McCosker (1957) 97 CLR 566 per Dixon CJ and Williams J at 571 - 572; Singer per Gaudron J at 227; Barns v Barns (2003) 214 CLR 169 per Gleeson CJ at 174 [4].

(Page 27)

79 The claimant may fail to establish that the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc, even though no provision was made for him or her in the will. See Goodman per Murphy J at 505; Singer per Mason CJ, Deane and McHugh JJ at 210.

80 In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, Dixon CJ pointed out, at 19, that the words 'adequate' and 'proper' are always relative. His Honour added:

The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning.

The concept of 'need'

81 The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.

82 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10 - 11.

83 The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575.

84 Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6 - 11;

(Page 28)

Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47].

85 Often 'need', in the sense of the claimant's inability to satisfy his or her financial requirements from his or her own resources, and a 'moral claim', in the sense of a claim arising from the totality of the relationship between the claimant and the deceased (for example, sacrifices made or services given by the claimant to or for the benefit of the deceased or contributions by the claimant to building up the deceased's estate) and contemporary accepted community standards, will co-exist. Sometimes there may be a strong 'moral claim' but no 'need'. Sometimes the 'moral claim' may be slight but the 'need' dire. Whether the court should intervene or not will depend on all the circumstances of the case; in particular, whether the value judgment made upon an examination of those circumstances is that the claimant has been left without 'adequate' provision for his or her 'proper' maintenance etc. See Re Sinnott [1948] VLR 279 per Fullagar J at 281.

The concepts of 'moral duty' and 'moral claim'

86 The term 'moral duty' has been used as a shorthand expression referring to a deceased's 'duty' to make adequate provision for the proper maintenance, etc, of persons within the statutory class, the nature and extent of that 'duty' in any case being determined by reference to the totality of the relationship between the claimant and the deceased, and contemporary accepted community standards. Where 'moral duty' has been used in this sense, the term 'moral claim' has referred to the 'right' which is correlative to that 'duty'. See Permanent Trustee Co per Kirby P at 28 - 29; Collicoat per Ormiston J at 818 - 820 [43] - [45].

87 In Vigolo, Gleeson CJ held, at 202 [21], that the concept of the 'moral duty' of a deceased was useful as part of an exposition of the legislative purpose embodied in s 6(1) of the Act, and in the understanding and application of the statutory text. His Honour referred to the observations of Mason CJ, Deane and McHugh JJ in Singer, at 209, to the effect that it was doubtful that references to 'moral duty' or 'moral obligation' provided useful assistance in elucidating the statutory provisions, and may well be understood as amounting to a gloss on the statutory language. Gleeson CJ said, at 202 [21]:

In Singer v Berghouse ((1994) 181 CLR 201 at 209), Mason CJ, Deane and McHugh JJ doubted that the statement of Salmond J, [in In re Allen; Allen v Manchester [1922] NZLR 218 at 220 - 221] provided useful assistance in elucidating the statutory provisions. I do not share that doubt.

(Page 29)

I add, however, that it is one thing to seek assistance in elucidating statutory provisions, and another to substitute judicial exposition of statutory purpose for the legislative text. Their Honours went on to describe references to 'moral obligations' as a gloss on the statutory text. If, by that, they meant that such references are not to be used as a substitute for the text, I agree. If they meant that such references are never of use as part of an exposition of legislative purpose, then I regret that I am unable to agree (A detailed examination of this aspect of Singer v Berghouse appears in the judgment of Ormiston J in Collicoat v McMillan [1999] 3 VR 803 at 815-821). The descriptions of references to moral duty or moral obligations as a gloss upon the text was not new. In 1956, in Coates v National Trustees Executors and Agency Co Ltd ((1956) 95 CLR 494 at 523), Fullagar J said: 'The notion of "moral duty" is found not in the statute but in a gloss upon the statute. It may be a helpful gloss in many cases, but, when a critical question of meaning arises, the question must be answered by reference to the text and not by reference to the gloss.'

88 In Vigolo, Callinan and Heydon JJ noted, at 230 [121], that for many years several justices of the High Court had found it convenient and generally useful to resort to the concepts of 'moral duty' and 'moral claim' in deciding both whether, and how much, provision should be made for a claimant under the Act. Their Honours added:

In our respectful opinion they have not been wrong to do so. These are not concepts alien to, or in any way outside, the language of s 6 of the Act.

89 By contrast, Gummow and Hayne JJ said in Vigolo, at 218 [73], that references to the 'moral duty' of the deceased and the 'moral claim' of the claimant, as a convenient shorthand expression, may mislead, and it is therefore better to forego any convenience that those expressions may offer in favour of adherence to the statutory language.

Appeals from decisions on the 'jurisdictional question' or at the second stage of the process

90 The principles of law which regulate the circumstances in which an appellate court may review the exercise of a judicial discretion apply, in the context of the Act, to an appeal from a decision on the 'jurisdictional question' or the discretionary judgment made at the second stage. See Worladge per Williams and Fullagar JJ at 11; Singer per Mason CJ, Deane and McHugh JJ at 212; Vigolo per Gummow and Hayne JJ at 220 [82].

(Page 30)

Freedom of testamentary disposition

91 Freedom of testamentary disposition is a relevant and important consideration. A will should only be disturbed if, and to the extent that, 'adequate' provision has not been made for the 'proper' maintenance, etc, of the claimant. In Pontifical Society for the Propagation of the Faith, Dixon CJ explained, at 19:

The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.

Also see Hunter per Kirby P at 576.

The relevance of the claims of beneficiaries under a deceased's will

92 Where a claimant makes an application under s 6(1) of the Act in relation to the will of a deceased, the beneficiaries of the will may or may not be within the categories of eligible claimants specified in s 7 of the Act.

93 In the present case, the appellant was the sole beneficiary of the testator's will, but the parties were agreed that she was not an eligible claimant within s 7. In other words, the appellant would not have been entitled to make an application under s 6(1) (whether she was a beneficiary or not). The appellant was not an eligible claimant in that, at the date of the testator's death, she was not receiving or entitled to receive maintenance from the testator as his former spouse, whether pursuant to an order of any court, or to an agreement or otherwise. See s 7(1)(b).

94 An issue arises, in this appeal, as to whether the learned master was entitled or bound to have regard to:

(a) the totality of the relationship between the testator and the appellant (including the conduct of the appellant towards the testator and of the testator towards the appellant); and

(b) the appellant's financial and personal circumstances (including whether, with or without the benefits conferred by the testator's will, the appellant has or does not have 'needs' which she cannot meet from her own resources),

(Page 31)

in determining the 'jurisdictional question' in relation to the first respondent's application under s 6(1) or in exercising the discretion at the second stage of the process.

95 It is well-established that, in determining an application under s 6(1), the court should have regard to the deceased's 'moral duty' to other people who are within the statutory class of claimants (whether or not they are also beneficiaries of the deceased's will), and the 'moral claims' of those other people against the deceased, when considering the 'jurisdictional question' and, if that question is resolved in favour of the claimant, at the second stage, especially where the deceased's estate is of modest or moderate value. See, for example, Sampson v Sampson (1945) 70 CLR 576 per Rich, Dixon and McTiernan JJ at 584 - 585; McCosker per Dixon CJ and Williams J at 571 - 572; Blore v Lang (1960) 104 CLR 124 per Dixon CJ at 128; Pontifical Society for the Propagation of the Faith per Dixon CJ at 19; Anderson v Teboneras [1990] VR 527 per Ormiston J at 533 - 535.

96 In McCosker, Dixon CJ and Williams J, in elucidating the meaning of the word 'proper', said, at 571 - 572:

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. (emphasis added)

Later, in the context of a claim by an 'able bodied son', their Honours noted, at 576:

Each case must depend on its own circumstances. The claim of such a son may well have to be relegated to a low order of priority where there are other competing claims, such as those of a widow or unmarried daughters, and the estate is of insufficient value to meet them all. (emphasis added)

97 This issue was also considered by Ormiston J in Anderson. His Honour observed, at 534 - 535:

[I]t was argued … that it was not appropriate to examine either the needs or the 'moral claims', as they have been described, of the other beneficiaries, because, it was said, a failure to make adequate provision must always be made out by the plaintiff by reference to his own circumstances, his financial position and his right to call upon the testator's

(Page 32)

bounty. It may be conceded that absence of moral obligation to the named beneficiaries will not establish the plaintiff's right to provision, if he can make out no moral claim to be benefited. It is, however, an oversimplification to say that in every case the decision rests solely upon an evaluation of the merits of the plaintiff's position. More often than not one cannot decide whether the testator has made adequate provision for a particular claimant without also looking at the size of the estate and to 'the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty', to repeat the oft-cited words of Salmond J in Re Allen (deceased); Allen v Manchester [1922] NZLR 218, at p 221: cf, for example, Blore v Lang (1960) 104 CLR 124, at pp 128-9 per Dixon CJ and Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, at p 147, per Gibbs J. (emphasis added)

A little later, Ormiston J noted, at 535, in relation to the proceedings before him:

Here the estate is one of significant but moderate value so that it is relevant to inquire what are the competing claims of the beneficiaries, without ignoring the need to leave untouched the testator's distribution so far as may be fairly practicable. Moreover, after making due allowance for the testator's desire to benefit his widow and children, it has been accepted over many years that, if a beneficiary says nothing as to his or her financial position or other claims on the testator's bounty, then the court is fairly entitled to assume that the beneficiary has no special claim other than relationship and that, in particular, he or she has adequate resources upon which to live. (emphasis added)

98 There are also authorities to the effect that the court, in determining an application under s 6(1), should have regard, at the first and second stages, to:

(a) the totality of the relationship between the deceased and a beneficiary of the deceased's will; and

(b) the financial and personal circumstances of the beneficiary,

even though the beneficiary is not an eligible claimant within s 7. See Re Saxon (Dec); Saxon v Elders Trustee & Executor Co Ltd (1975) 12 SASR 110 per Hogarth J at 115 - 116; Kleinig v Neal [1981] 1 NSWLR 462 per Holland J at 466; Clemens v Byrnes [2007] NSWSC 421 per Hall J at [166], [209].

99 In Re Saxon, the testator's residuary estate was divided into various shares. A niece and two nephews of the testator were entitled to the income during their lives, and five grand-nephews and grand-nieces of the testator were entitled to the corpus on the death of the niece and nephews. The testator's widow, who was aged 77, made application for further
(Page 33)

provision from the estate under the Inheritance (Family Provision) Act 1972 (SA). The residuary beneficiaries were not within the statutory class entitled to make a claim under the Act. Hogarth J said, at 115 - 116:

What is proper for a person with a strong moral claim such as that of the applicant, of course, must be viewed in the light of what other claims there are by persons having a moral claim against the estate. But, apart from the blood relationship of the nephew and niece and grand-nieces and grand-nephews, no moral obligation is shown to have existed from the testator to the residuary beneficiaries. If they had any real regard for the testator, one would have expected them to show some gratitude to the woman who shared his labours in the early years and made his life comfortable over so many years. It does them no credit that, far from doing this, they are opposing her receiving any benefit other than the somewhat miserly provisions left for her in the will. Mr Clark gave evidence of friendly relations between himself and the testator over many years. He also deposed to the fact that while his son David (one of the residuary beneficiaries) was at school, the testator regularly made substantial payments towards the cost of his school fees at a private school. This was a creditable act on the part of the testator, but in my view, did not place him under any moral obligation to make provision either for his nephew or his great-nephew in his will. Apart from minor kindnesses done by Mr Clark for the testator, there is no suggestion in the evidence of the testator having received any benefits from them which might have placed him under any obligation to make provision for them on his death.

…

In the result, therefore, at the date of the testator's will we have an elderly woman with an extremely strong moral claim on his estate for her proper maintenance; and on the other hand, relatives with no moral claim other than the collateral tie of blood.

In short, then, I have no hesitation at all in finding that the testator did not make proper provision for the maintenance of the applicant in his will.

(emphasis added)

100 In Kleinig, the testator left a dutiable estate valued at $717,572. By the will, the plaintiff received a legacy of $1,000, the second defendant (Mr Noblett) received specific bequests and half the residue, worth in total $399,226, and two charities, the RSPCA and the Salvation Army, received one-quarter of the residue, $158,173, each. New South Wales death duties were imposed equally on those shares. An order was made in favour of the plaintiff under the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW), increasing his legacy to $80,000. The issue then arose as to how the burden of that order should
(Page 34)

be apportioned amongst the beneficiaries. By s 6(2) of the Act, the burden was to be borne as between the beneficiaries rateably according to the value of their interests, unless the court otherwise ordered. Holland J said, at 466:

Mr Macfarlan for the Salvation Army submitted that the statutory rule should be left to operate. He argued that the discretion to order otherwise should be regarded as being directed to the case where the share of a beneficiary who was eligible to claim under the Act would be affected by an order in favour of another statutory claimant and not to the relative merits and needs of non statutory claimants such as Mr Noblett and the two charities benefited by the present will. I could not agree with this restriction. It would eliminate consideration of the claims of de facto spouses, ex-nuptial children and other non-family individuals to whom the deceased may have owed heavy moral obligations of which he had acquitted or endeavoured to acquit himself by the way he had left his estate.

The de facto spouses, ex-nuptial children and other non-family individuals referred to by his Honour were not within the class of statutory claimants under the Act.

101 In Clemens, the plaintiffs, who were the testator's adult children, made claims under the Family Provision Act 1982 (NSW) for provision from the testator's estate for their maintenance, education or advancement in life. The sole beneficiary under the will was the daughter of a woman who had had a close, but platonic, relationship with the testator. After her mother's death, the sole beneficiary maintained a close friendship with the testator. Hall J said, at [164] - [166], relevantly, that at the second stage of the statutory process it was necessary to consider, amongst other things, the 'nature and strength of the defendant's claim to testamentary recognition'. His Honour said, later, at [209]:

The claims of the plaintiffs as earlier stated, must be approached in the light of the competing claims upon the testamentary beneficence of the deceased. The only such competing claim is that of the defendant [Ms Byrnes]. The Court is required to balance any needs of the plaintiffs as adult children of the deceased with the provision made for the defendant: Eather v Maher [2006] NSWSC 746. Ms Byrnes enjoyed an active relationship with the deceased and I take that into account. I also have regard to and take into account her personal circumstances.

102 In Vigolo, Gleeson CJ compared the position of a beneficiary (such as a charity) with whom a deceased had no connection on the one hand, with the position of a dependent relative on the other, and said, at 200 [13]:
(Page 35)

Similarly, when courts come to address the discretionary question of making fit provision, they had to consider the interests of those upon whom the burden of an order might fall. In making decisions, courts have had regard to competing claims upon a testator (or, later, a person who died intestate). It would now be regarded as self-evident that a court would be readier to disturb a testamentary provision in favour of a beneficiary, such as a charity, with whom a testator had no connection than a provision in favour of dependent relatives. (See eg, Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 510, per Dixon CJ). Why is this so? The answer, again, lies in concepts of moral obligation.

103 In my opinion, the court, in determining an application under s 6(1), should have regard, at the first and second stages, to:

(a) the totality of the relationship between the deceased and a beneficiary of the deceased's will; and

(b) the financial and personal circumstances of the beneficiary,

even though the beneficiary is not an eligible claimant within s 7.

104 A beneficiary who is not an eligible claimant may have a 'moral claim' on the testator's estate arising, independently of the Act, from the totality of the relationship between the claimant and the testator and contemporary accepted community standards. The existence of such a 'moral claim' and its relative strength or weakness, or the absence of such a claim, is a relevant consideration at the first and second stages.

105 The propositions I have enunciated are consistent with the observations of Gleeson CJ in Vigolo, at 200 [13]. His Honour referred, by way of illustration, to a court being readier to disturb a testamentary disposition in favour of a beneficiary, such as a charity, with whom a deceased had no connection than a provision in favour of dependent relatives. My propositions also reflect the principle that what the deceased regarded as 'superior claims or preferable dispositions' (Pontifical Society for the Propagation of the Faith per Dixon CJ at 19) is a relevant consideration in determining the 'jurisdictional question' and in exercising the discretion at the second stage. Those 'superior claims or preferable dispositions' may include, for example, a testamentary disposition in favour of a person who is not an eligible claimant within s 7, but who has had a close and enduring relationship with the deceased during his or her lifetime, has made sacrifices for, or given services to or for, the benefit of the deceased, and has a particular 'need' for the provision made for him or her in the deceased's will. The words 'adequate' and 'proper' in s 6(1) enable the court to take into account what

(Page 36)

the deceased regarded as 'superior claims or preferable dispositions' and give appropriate weight to the deceased's exercise of his or her right to freedom of testamentary disposition in determining what provision, if any, should be made for the claimant.

106 In my opinion, the learned master was correct in taking into account:

(a) the totality of the relationship between the testator and the appellant; and

(b) the appellant's financial and personal circumstances,

in determining the 'jurisdictional question' in relation to the first respondent's application under s 6(1) and (having found that the first respondent had satisfied that question) in exercising the discretion at the second stage.

Ground 1

107 Ground 1 provides:

1. a) The learned Master erred in law or alternatively in fact in holding that the size of the Deceased's Estate did not enable any amount to be left to pass to the [appellant] under the terms of the Will.

b) The learned Master should have held that the 'relatively modest' size of the Deceased's Estate was relevant to the question of the adequacy of provision to be ordered in favour of the [first respondent], thereby enabling a residual amount to pass to the [appellant] under the Will.

108 Ground 1 attacks the learned master's exercise of discretion at the second stage of the process. The circumstances which were relevant in the exercise of that discretion included the size of the testator's estate, the relationship between the first respondent and the testator, the financial and personal circumstances of the first respondent, the relationship between the appellant and the testator, the financial and personal circumstances of the appellant, and the claim of Mr Mark Duffy. It is apparent from the learned master's reasons that he weighed all of the relevant circumstances. The critical factors in his decision that the testamentary provision in favour of the appellant should be expunged entirely, were:

(a) the relatively modest size of the testator's estate (which had a net value of about $300,000 and, after making the provision for Mr Duffy which is not challenged in this appeal, about $240,000);

(Page 37)

(b) the close relationship between the first respondent and the testator, especially in the latter years of the testator's life, including the first respondent having rendered significant services to the testator in the nature of washing, cooking, cleaning and general companionship, and the first respondent (and her then husband) having built a residence on the testator's property, Oldbury, for themselves and their children in close proximity to the testator's residence;

(c) the first respondent's need for financial assistance for herself and her three children (aged 7, 10 and 12 years at the time of trial) in the context of the first respondent having no significant assets, no provision for her future or any contingencies, and limited educational and employment qualifications;

(d) the first respondent's partner, Mr Stoffel, not having substantial assets and earning a very modest income;

(e) the poor relationship between the appellant and the testator since their separation and divorce;

(f) the appellant's receipt of about half of the matrimonial property in 1993 under the property settlement in the Family Court; and

(g) the appellant's co-ownership with Mr Warnes of their residence and their combined significant savings.

109 The learned master found, in essence, that the first respondent had a strong 'moral claim' on the testator's estate and, by contrast, any 'moral claim' of the appellant was not, in the circumstances, significant. On the evidence, those findings were reasonably open. Any 'moral claim' of the appellant would have arisen independently of the Act, from the totality of the relationship between her and the testator and contemporary accepted community standards.

110 The learned master did not err in his understanding of the concepts of 'adequate' and 'proper' in s 6(1) of the Act, and he did not err in the application of those concepts to the facts as found. He recognised that the testator's will should not be disturbed beyond that which was necessary to give effect to the purposes of the Act: see [70] of his reasons. The learned master was entitled to conclude that the competition between the first respondent's claim under s 6(1) on the one hand, and any 'moral claim' of the appellant and her status as a beneficiary under the will on the other, should be resolved, in the circumstances, including a relatively modest estate, by an order in favour of the first respondent in respect of the whole of the net value of the estate, after providing for Mr Duffy.

(Page 38)

Although his formal order conferred on the first respondent 80 per cent of the net value of the testator's estate rather than a fixed sum, it is plain from his reasons (in particular, at [69] and [74]) that he based that order on his unchallenged findings that the net value of the estate was about $300,000 and 80 per cent of that net value was therefore about $240,000. Indeed, as I have mentioned, the parties agreed before the learned master that the value of the Oldbury property was $540,000, and his finding that the net value of the estate was $300,000 was based on a submission to that effect made by the appellant's counsel. In my opinion, the learned master did not make any material error of law or fact of the kind alleged in ground 1. His exercise of discretion did not miscarry.

111 Ground 1 fails.

Ground 2

112 Ground 2 provides:

2. a) The learned Master erred in law or alternatively in fact in determining what was an adequate provision from the Deceased's Estate for the proper maintenance, education, support and advancement in life of the [first respondent] in that the sum ordered by way of such provision exceeded an amount sufficient to discharge the proper exercise of his discretion, having particular regard to the facts that:

i. The Deceased's Estate was a relatively modest estate;

ii. In light of the relatively modest size of the Deceased's Estate, further provision to supplement the [first respondent's] income and to provide for her contingencies in life would exceed a 'proper' provision in all the circumstances;

iii. The sum required to discharge the [first respondent's] liability with respect to the Queensland property was the sum of approximately $55,000;

iv. Apart from the loans for the purchase of the Queensland property, there were no other substantial debts or liabilities of the [first respondent];

v. The [first respondent] was engaged to be married to her de facto partner, Mr Roman Stoffel, and Mr Stoffel was able to and did contribute to the maintenance and support of the [first respondent]; and

(Page 39)

vi. After the death of the Deceased, the [first respondent] received approximately $14,000 … from a superannuation policy of the Deceased.

b) The learned Master should have held that a sum: sufficient to discharge the [first respondent's] indebtedness in relation to the Queensland property; to purchase a suitable motor vehicle, and a lesser sum for her contingencies - was a 'proper' provision that was sufficient having regard to all the circumstances.

113 The word 'proper' in s 6(1) of the Act prescribes the standard of maintenance, etc, by reference to which it was necessary to judge the amount of the provision which should be made for the first respondent. What was 'proper' provision for her maintenance, etc, was to be assessed by reference to all the circumstances including contemporary accepted community standards.

114 In my opinion, the learned master did not make any material error of law or fact, as alleged in ground 2, in deciding that 80% of the net value of the testator's estate (or, expressed as a monetary sum, about $240,000) was, having regard to all the circumstances including contemporary accepted community standards, 'proper' provision for the first respondent's maintenance, etc.

115 The learned master found, significantly, that:

(a) the first respondent completed Year 12 at school in 1982, and had engaged in unskilled or semi-skilled employment until 1989;

(b) the first respondent had three children who were aged 7, 10 and 12 years at the time of trial;

(c) in May 2003, shortly after the testator's death, the first respondent commenced a de facto relationship with Mr Stoffel;

(d) between about May 2003 and about July 2004, the first respondent carried on a business on the Oldbury property which involved agisting horses and training endurance horses, but the business did not make a profit;

(e) in about July 2004, the first respondent and Mr Stoffel (and the first respondent's children) moved to Queensland;

(f) at the time of trial, Mr Stoffel was employed in a piggery and earned about $460 to $480 per week in that employment;

(Page 40)

(g) the first respondent, her children and Mr Stoffel live in a house which is 'modest by any standard', and the first respondent's motor vehicle is 'old and inevitably of questionable reliability and longevity';

(h) the first respondent's ability to generate a significant income is limited by her lack of formal educational qualifications and her family responsibilities; and

(i) Mr Stoffel does not have substantial assets of his own and is earning a very modest income.

All of those findings were reasonably open.

116 Also, the learned master's findings in relation to the personal and financial circumstances of the appellant and Mr Warnes were reasonably open.

117 After the discharge of the first respondent's liabilities (of about $55,000) and the purchase of a more modern and reliable motor vehicle (at a cost of, say, $15,000), the sum of about $170,000 would remain for investment. If $170,000 were to attract a rate of return of, say, 7.5% per annum, the income derived, before taxation, would be $12,750 per annum. In my opinion, it was reasonably open to the learned master to hold that an amount of about $240,000 was, in the circumstances, 'adequate' provision for her 'proper' maintenance, etc, and that the income stream which I have mentioned would constitute 'a modest supplement of her income' and a means for funding any 'contingencies'. His exercise of discretion was not vitiated by any error.

118 Ground 2 fails.

Ground 3

119 Ground 3 provides:

3. a) The learned Master erred in law or alternatively in fact when determining the extent of the provision to be properly made for the [first respondent] out of the Deceased's Estate in that he took into account the following irrelevant considerations, namely that:

i. The learned Master took account of the value of the income, assets and ability for gainful employment of the [appellant];

(Page 41)

ii. The learned Master took account of the value of the income and assets of the husband of the [appellant], Mr Kevin Warnes.

b) The learned Master should not have taken into account the factors referred to in the previous sub-paragraph herein when determining what adequate and proper provision should be made in favour of the [first respondent].

120 At the hearing of this appeal, counsel for the appellant sought leave to amend ground 3(b), by the addition of certain words, as follows:

The learned Master should not have taken into account the factors referred to in the previous sub-paragraph herein when determining (whether on the jurisdictional issue or the adequacy issue) what adequate and proper provision (if any) should be made in favour of the [first respondent].

Counsel for the first respondent opposed leave to amend. In my opinion, the amendment does not occasion any relevant prejudice to the first respondent, and leave should therefore be granted.

121 It is apparent that the learned master took into account the value of the income and assets of the appellant and her capacity for gainful employment, and also the value of the income and assets of her husband, Mr Warnes, at the first and second stages of the process.

122 In my opinion, the matters I have mentioned were relevant considerations in the determination of the 'jurisdictional question'. See [103] - [106] above. In particular, the financial circumstances and capacity for employment of the appellant were relevant in determining whether the testator's failure to make any provision out of his estate for the first respondent was 'proper', and the extent of any provision which the court should make for her. The financial circumstances of Mr Warnes were relevant in that:

(a) Mr Warnes in fact contributed towards the appellant's financial support;

(b) there was no basis to doubt that Mr Warnes would continue to contribute towards the appellant's financial support; and

(c) Mr Warnes had a conditional statutory obligation to maintain the appellant.

See Re F [1940] St R Qd 290 at 294 - 295; Re Hodgson (Dec) [1955] VLR 481 at 494 - 495; s 72 of the Family Law Act 1975 (Cth).

(Page 42)

123 In my opinion, the value of the appellant's income and assets and her capacity for gainful employment, and the value of the income and assets of Mr Warnes, were also relevant considerations in the exercise of the learned master's discretion at the second stage. See [103] - [106] above. Those matters were of particular relevance in the present case where the size of the testator's estate was relatively modest, and the first respondent otherwise had a much stronger 'moral claim' than the appellant (see [108] - [110] above) for provision out of the testator's estate.

124 Ground 3 fails.

Ground 4

125 Ground 4 provides:

a) The learned Master erred in fact in that it was not open to find, or alternatively it was against the weight of the evidence, to find that the [first respondent's] fiance Mr Roman Stoffel was unlikely to have any substantial assets or earnings.

b) The learned Master should have found that Mr R Stoffel was able to and did substantially contribute to the maintenance and support of the [first respondent] when determining what adequate and proper provision should be made in favour of the [first respondent].

126 Mr Stoffel was not a witness at the trial. The first respondent gave evidence, however, without objection, as to his income, assets and earning capacity. She said, relevantly:

(a) Mr Stoffel and the first respondent shared household expenses (ts 69).

(b) Mr Stoffel had been employed in Western Australia, for some time, as a glazier (ts 70).

(c) Mr Stoffel was, in addition, self-employed in Western Australia as a glazier, in which capacity he carried out work on weekends (ts 70).

(d) Initially, upon arriving in Queensland, Mr Stoffel was self-employed as a glazier (ts 73).

(e) About six to eight weeks before the hearing, Mr Stoffel ceased working as a glazier and commenced employment in a piggery (ts 78).

(f) At the date of trial, Mr Stoffel was aged about 38 years (ts 73).

(Page 43)

(g) In about December 2003, Mr Stoffel and the first respondent became engaged to be married (ts 78).

(h) Mr Stoffel made a loan to the first respondent in the sum of $22,000 to enable her to purchase the home in Queensland (ts 72).

(i) Mr Stoffel had a separate bank account in connection with his self-employed work (ts 84).

(j) The interest on the mortgage debt in connection with the Queensland property was paid from a bank account in the joint names of Mr Stoffel and the first respondent (ts 84 - 85).

127 The appellant complains that bank statements relating to the joint bank account were not annexed to the first respondent's affidavit or provided for inspection. It appears, however, that by a letter dated 5 August 2005 the appellant's solicitors requested the first respondent's solicitors to produce specified documents. The first respondent's solicitors produced those documents at trial, but the appellant's legal representatives did not inspect them.

128 In my opinion, there was a substantial body of evidence as to Mr Stoffel's income, assets and earning capacity. It is true that the relevant evidence was adduced by the first respondent and at least some of it was of a hearsay nature, but no objection was taken by the appellant.

129 In my opinion, it was reasonably open to the learned master to find, as he did, that Mr Stoffel was unlikely to have any 'substantial assets or earnings'. It is apparent that he took into account the fact that Mr Stoffel did, to some extent, contribute to the first respondent's maintenance and support in determining what adequate provision should be made for her proper maintenance, etc. The learned master did not err in failing to find that Mr Stoffel was able to, and did, 'substantially contribute' to the first respondent's maintenance and support.

130 Ground 4 fails.

The first respondent's notice of contention

131 The first respondent filed and served a notice of contention, but counsel for the first respondent abandoned the notice at the hearing before this court.

Conclusion

132 I would dismiss the appeal.