Hertzberg v Hertzberg

[2003] NSWCA 311

CITATION:	Hertzberg & Anor. v. Hertzberg [2003] NSWCA 311
HEARING DATE(S):	23 October 2003
JUDGMENT DATE:	23 October 2003
JUDGMENT OF:	Hodgson JA at 1; McColl JA; Einstein J
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	SUCCESSION - FAMILY PROVISION - Large estate left substantially to daughters of first marriage - Order that second wife have ownership of matrimonial home and $600,000 - Whether appealable error.
LEGISLATION CITED:	Blackford v. Salmon, unreported, 27/7/94 Elliott v. Elliott, Supreme Court of NSW, unreported, 18/5/84 Golosky & Anor. v. Golosky, NSW Court of Appeal, unreported, 5/10/93 Langtree v. Campbell, Supreme Court of NSW, unreported, 7/3/91 Singer v. Berghouse (1994) 181 CLR 201 White v. Barrow (1980) 144 CLR 443
CASES CITED:	Family Provision Act 1982, ss.7, 9
PARTIES :	Clio Valda Hertzberg and Robin Gai Downey - appellants Valda Rebecca Hertzberg - respondent
FILE NUMBER(S):	CA 40063/03
COUNSEL:	Mr. D. Officer QC with Mr. P. McGuire for appellants Mr. J. Whittle SC with Mr. B. Townsend for respondent
SOLICITORS:	Cropper Parkhill, Sydney for appellants Blake Dawson Waldron, Sydney for respondent

LOWER COURTJURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC4141/02
LOWER COURT JUDICIAL OFFICER :	Acting Master Berecry

CA 40063/03
SC 4141/02

HODGSON JA
McCOLL JA
EINSTEIN J

Thursday 23 October 2003

HERTZBERG & ANOR V. HERTZBERG

Judgment

1 HODGSON JA: On 12 December 2002, Acting Master Berecry delivered judgment in Family Provision Act proceedings brought by the respondent against the appellants in respect of the estate of the respondent’s late husband Rueben Hertzberg. Orders pursuant to that judgment were made on 19 May 2003 and were relevantly as follows:

1. Pursuant to s.7 Family Provision Act 1982 and in addition to the provision made for the Plaintiff by the deceased during his lifetime, but subject to Order 5 below, the Plaintiff shall receive out of the estate of the late Reuben Hertzberg, for her own use and benefit absolutely:
(a) the real property situate at and known as 10/4 Greenoaks Avenue, Darling Point, Sydney, New South Wales;
(b) the items of furniture and other effects identified with the letter “V" in the Schedule attached to the letter from Blake Dawson Waldron to Cropper Parkhill dated 5 May 2003, a copy of which is attached hereto,
(c) a lump sum of $600,000.00.

2. No interest is payable on the lump sum in Order 1(c) above, if it is paid within 28 days of these Orders; otherwise interest is to be paid at the rate prescribed by the Wills Probate & Administration Act, 1898 in respect of unpaid legacies from 12 February 2003 until the date of payment on any amount unpaid.

3. The Plaintiffs costs of the proceedings shall be paid out of the estate.

4. The Defendants' costs of the proceedings, calculated on an indemnity basis, shall be paid out of the estate.

5. Pursuant to s.11(1)(e) Family Provision Act 1982 the provision made for the Plaintiff in these Orders is subject to the condition that the Plaintiff undertakes to the Court, effective from the date upon which Orders 1(a) and 1(c) are satisfied, not to make any further claim under the Deed made between her and the deceased on or about 12 October 1999 ("the Deed").

The appellants appeal from that decision.

2 The deceased died on 30 September 2001, leaving an estate in excess of $10 million. He was survived by the respondent, his second wife, and by the appellants, two daughters of the deceased’s first marriage.

3 By his last will dated 6 October 1999, the deceased appointed the appellant’s executors and trustees of his estate and he divided his estate, not quite equally, between his two daughters. He made no provision for the respondent apart from a condition placed on a gift of the deceased’s home unit, 10/4 Greenoaks Avenue, Darling Point, to one of the daughters, namely that the respondent may live in the unit as long as she wishes provided that she pay outgoings and keep the unit internally in repair. The will provided that the unit should not be sold until the respondent had, in the opinion of the trustees, cease to live permanently in the unit or to comply with the conditions, and that the unit should be given to the daughter in question on the death of the respondent or if she no longer resided in the unit.

4 The will stated that the deceased made no provision for the respondent as he had made very generous provision for her in financial matters throughout the marriage, and additionally he had entered into a deed providing for payment to her of $1 million. Also on 6 October 1999, the deceased signed a statement of reasons as to the lack of provision for the appellant in the following terms:

In making provision for my wife in my Will, I have taken the following matters into account:
1. She is my second wife and we have been married for seventeen (17) years.
2. Most of my assets were acquired prior to our marriage.
3. She has two adult children who are self sufficient and financially secure.
4. She has assets in the United States of America.
5. She has her own sources of income both in the United States of America and in Australia.
6. I have made generous financial provision for her by Deed under which she will receive $1,000,000.00 and significant other benefits.

5 The deed referred to in the will and the statement of reasons was signed on or about 12 October 1999. It provided for payment by the deceased to the respondent of $1 million, and also for other benefits, including payment by the deceased of outgoings in relation to the unit, medical expenses, the cost of live-in help, should this become necessary, and expenses of moving to and living in a suitable retirement village or nursing home. The $1 million was paid to the respondent prior to the death of the deceased.

6 At the time of the death of the deceased and at the time of trial, the respondent was living in the deceased’s home unit at Darling Point, and she had assets of about $1.6 million, made up of money in various accounts and shares. Her yearly income was in the order of $120,000, although $40,000 of this was from an annuity which was to run out about two years after the hearing before the Acting Master. Her annual expenditure was about $61,000. The unit in which she was entitled to reside was worth about $1 million, but there was evidence that work of about $100,000 was required to be carried out to bring it up to a satisfactory standard.

7 On the evidence the only other persons with legitimate claims on the deceased’s estate were the appellants, and they gave no evidence of their assets. Accordingly there could be no suggestion that their claim on the deceased’s estate was supported by any need.

8 The respondent was born in 1914. She married her first husband in 1939, there was one child of that marriage born in 1940, and the respondent was divorced from her first husband in 1944. She married her second husband in 1946, moved to the United States of America, and there was one child of that marriage born in 1948. Her second husband died in 1970.

9 The deceased married his first wife, who was the respondent’s sister in 1939. The appellants are the daughters of that marriage. The deceased’s first wife died in 1979. The deceased and the respondent married in 1982.

10 The marriage lasted nineteen years. It was a happy marriage, at least until the deceased began to have health problems after the first ten years. As the deceased’s health worsened, the respondent became increasingly involved in his care, and this placed considerable stress on her. The Acting Master considered that the care, love and companionship the respondent brought to the deceased, particularly in his later years of ill health, should be given significant recognition, and he did not consider it a significant factor that the deceased had acquired most of his assets before his marriage to the respondent, or that the respondent did not make any substantial financial contribution to the marriage.

11 The Acting Master said that the question was whether or not adequate provision had been made for the respondent, and after a full and careful discussion, he concluded that provision should be made by way of transfer of the Darling Point unit and a lump sum of $600,000, coupled with the giving up by the respondent of any further rights under the deed.

12 The grounds of appeal simply allege that the Acting Master erred in his decision. However this was amplified in written submissions in the following terms:

C. The discretion
14. In the exercise of its discretion under ss.7 and 9 of the FPA the Court must take into account:
(a) the circumstances at the time the order was made;
(b) the need for provision for the maintenance, education or advancement in life of the Respondent;
(c) the provision made in favour of the Respondent during the lifetime of the deceased or out of the estate.

15. The exercise of this discretion requires the court to weigh the Respondent's financial means against her financial needs at the time the order was made. The trigger for the exercise of this discretion requires the Court to find that provision made during the deceased's lifetime is "inadequate for the proper maintenance education and advancement in life". The use of the word "proper" in this context means something different from the word "adequate" - Bosch v Perpetual Trustee Company Ltd [1983] AC 463 at 476.

16. The Court is required to carry out a two-staged process.

17. The stage first requires a determination of whether the respondent had been left without adequate provision for her proper maintenance, education and advancement in life. A determination of this stage requires the court to assess whether the provision is inadequate for what in all the circumstances is the proper level of maintenance etc having regard to, amongst other things, her financial position, the size and nature of the deceased's estate, the totality of the relationship between the widow and the deceased - Singer v Berghouse (1994) 181 CLR 201.

18. The second stage, which only arises if the first stage is determined in favour of the Respondent, requires the Court to decide what provision ought to be made out of the deceased's estate.

19. The Court should only intervene with the will to the extent to which the deceased had failed to provide adequately. The obligation to provide is limited to the requirement to make "proper" and "adequate" provision. The purpose of the jurisdiction under the FPA is not the correction of hurt feelings, or sense of wrong felt by the applicant. The Court is obliged to simply respond to the application and to consider whether, as claimed, the provision made by the will is inadequate for her proper maintenance and advancement in life - Golosky v Anor & Golosky (unreported Court of Appeal, 8 September 1993), Heyward v Fisher (unreported Court of Appeal 26 April 1985) and Permanent Trustee Company Limited v Fraser (1995) 36 NSWLR 24.

D. Miscarriage of the discretion
20. The Acting Master's exercise of the discretion under ss.7 and 9 of the FPA miscarried and was plainly wrong in that:
(a) he failed to carry out, properly or at all, the two stage-process in exercising the discretion;
(b) he failed to take into account, adequately or at all, the generous provision made by the deceased during his lifetime;
(c) he failed to take into account, properly or at all, the needs of the Respondent for her proper maintenance, education and advancement in life;
(d) he failed to take into account, adequately or at all, the Respondent's ability to provide for herself for her future needs;
(e) he failed to take into account, properly or at all, that the Appellants were bound to continue to comply with the Deed and had given evidence that they would continue to do so [T34.5 & T34.10 & T50];
(f) he failed to hold that the Deed and the will provided adequately for the Respondent's future needs by ensuring that she was secure in the matrimonial home, by ensuring that her medical expenses were met, by ensuring that she had sufficient income to permit her to continue to live in the style to which she had become accustomed and by ensuring that she had sufficient funds to meet any unforeseen circumstances;
(g) in deciding to be unduly generous to the Respondent the Acting Master took into account irrelevant considerations and gave undue weight to the size of the deceased's estate - Annason v Phillips (unreported Young J 4 March 1988);
(h) he failed to hold that all that was required in the circumstances, in addition to the provision made under the will and the Deed was a legacy of $200,000 and an advance of $20,000 per annum, which in light of her age, life expectancy and existing provision was more than sufficient to free her mind from any reasonable fear of any insufficiency as she grows older - Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24, Luciano v Rosenbloom (1985) 2 NSWLR 2, Straney v Lee (unreported Cohen J 29 August 1988) and McGrath v McGrath (unreported Master Macready 25 February 1999);
(i) in light of the Respondent's age and life expectancy he should not have given her the premises and a large capital sum, because doing so, in the event of her early death, would result in a substantial benefit to her relatives, including her daughters from previous marriages (both of whom live in the USA), contrary to the wishes of the deceased - White v Barron (1980) 144 CLR 431 at p 444 and p 457;
(j) in the alternative, he failed to hold that in the circumstances of the Deed an order in the nature of the order made in Crisp v Burns Philp Trustee Co Ltd (unreported, Holland J 18 December 1979) was appropriate.

13 In oral submissions before us, Mr Officer QC, for the appellants, elaborated on what he submitted were appealable errors made by the Acting Master. Mr Officer submitted that the deed and the will of 1999 were central to the case, as regards the circumstances in which they are entered into, proper appreciation of the provisions in the deed, and the deed’s continuing efficacy; and his broad submission was that these matters were not properly dealt with in the judgment.

14 As regards the circumstances in which the deed was entered into, Mr Officer submitted that they were as follows. In 1999 the respondent was aware that the deceased’s will, as it then existed, gave her the right to live in the matrimonial home for life, plus a cash legacy of $400,000. She became concerned not about the right to reside in the unit, but about the amount of cash. This led to negotiations with the aid of the accountant for the deceased and the respondent, in which the respondent had the advice of her solicitor. It was those negotiations which produced the deed, which the respondent then understood and was satisfied with.

15 Mr Officer submitted that there was no suggestion of any change of financial circumstances of the respondent between the time of the making of the deed and the death of the deceased, or indeed the trial. The deed itself, Mr Officer submitted, provided for extensive benefits in addition to the payment of $1 million, which I have already outlined. He submitted that its provision for payment of outgoings of the unit would prevail over the terms of the will which purported to require the respondent to pay those outgoings. He submitted that the deed made comprehensive provision covering every reasonably foreseeable contingency. It did not, he accepted, cover a move to other accommodation apart from a retirement village or nursing home, but he submitted that in circumstances where the respondent had lived in the unit for many years and expressed a wish to stay there, and where the deed had provision for live-in assistance, the prospect of any other requirement for accommodation was remote.

16 Turning to the judgment of the Acting Master, Mr Officer submitted that it contained a wholly inadequate acknowledgment of the relevant circumstances of the negotiations and of the respondent’s expressed satisfaction with the deed’s terms and the involvement of advisers, and an inadequate acknowledgment of all the benefits of the deed.

17 The circumstance that the Acting Master gave inadequate weight to the benefits of the will and the deed, Mr Officer submitted, was shown by his statement that the respondent had “nothing in substance out of the estate”. Mr Officer submitted the Acting Master also erred in apparently giving the provision less weight because it arose out of negotiations to increase what the Acting Master saw as a previously totally inadequate provision of $400,000.

18 Mr Officer submitted the Acting Master was in error in finding that the provisions of the deed were not workable. He pointed out that both appellants gave evidence that they intended to comply with the provisions of the deed, and Mr Officer submitted that in all respects up to the hearing, those provisions had been complied with. Insofar as the Acting Master relied on a refusal to provide the money for a vital call telephone system, he submitted that this was explained by the appellants on the basis that it did not fall within the terms of the deed, and in that respect, he submitted, the appellants were correct.

19 In those circumstances, he submitted, the Acting Master was in error in finding that the deed in some way left the respondent at the whim of the appellants, or in any other way was unworkable.

20 Dealing first with the written submissions, in my opinion the Acting Master’s decision is not vitiated by the absence of an explicit conducting of a two stage process. The Acting Master asked the correct question in relation to the first stage of such a process, namely whether or not adequate provision had been made for the respondent (see judgment para[33], last sentence), plainly meaning adequate provision for her proper maintenance. His careful discussion of that question and the orders that he made leave no room for doubt that he concluded that adequate provision had not been made for her. The order that he made also made it plain that, on the basis of his careful discussion this was what he considered to be the provision that ought to be made out of the deceased’s estate for the maintenance of the respondent, thus dealing with the second stage of the two stage process.

21 Turning to the question of whether the Acting Master’s exercise of discretion miscarried, in my opinion the appellant’s submissions do not make good any error of principle made by the Acting Master, any failing to take account of relevant considerations, or any taking into account of irrelevant considerations.

22 Mr Officer’s first submission before us was to the effect that error was shown by inadequate acknowledgment of the circumstances of the negotiations and of the effect of the deed. In my opinion the lack of reference to participation of the respondent’s legal adviser in the negotiations, or to the respondent’s satisfaction with the arrangement at the time, does not indicate that the Acting Master disregarded these matters, nor does it amount to any inadequacy in his reasons.

23 In my opinion, his reference to the fact that the benefits of the deed including $1 million only came from negotiations was not a matter given significant weight by the Master, and at most was a comment which could have some slight bearing on the weight to be given to the reasons advanced by the deceased for the provision that he made.

24 Similarly in my opinion the circumstance that the Acting Master referred only briefly to the benefits of the deed other than the $1 million is not indicative of error. In the light of his full consideration of the $1 million and the right of residence, and his reference to other benefits of the deed, the statement about “nothing in substance” out of the estate is not in my opinion indicative of error.

25 The other main oral submission was that error was shown in the Acting Master’s view that the deed was not workable. In my opinion it is clear that many of the requirements of the deed are qualified by a requirement of reasonableness or suitableness. As regards “other expenses” concerning the home unit, the requirement that they be reasonable is expressed. In relation to outgoings, repairs and maintenance, in my opinion there would be an implied requirement that these satisfy some test of reasonableness. Any retirement village or nursing home which the respondent wished to move into would have to be “suitable” if it was to be provided for under the deed. These expressions mean that there is a very substantial grey area as to what the deed does or does not require; and in my opinion a fair reading of the Acting Master’s decision is that there was a substantial possibility that the appellants would take a narrow view of what was covered, prejudicially to the satisfactory operation of the deed.

26 In my opinion that view was well open to the Master, despite the evidence of the appellants that they would comply with the deed, in circumstances where that evidence had to be considered in the light of their refusal to pay $800 for a vital call telephone system, which could in my opinion fall within “reasonable expenses on the unit” within the deed, and also in the light of other evidence about the breakdown of the relationship between the respondent and the appellants.

27 In circumstances where in my opinion no appealable error of principle has been shown, the only remaining question is whether the result was such as to indicate that the exercise of discretion miscarried. In my opinion the result does not indicate this.

28 The legitimate claim of the respondent on the estate of the deceased was a very powerful one indeed. The marriage was one of nineteen years, over the last half of which the respondent cared for the deceased through years of deteriorating health. The legitimate claims of the appellants are of far less weight, particularly in circumstances where they have given no evidence of their own assets. Having regard to those matters and the size of the estate, it is open to the Court to take a liberal view of what is “adequate” and what is “proper”, within s.9 of the Family Provision Act.

29 In my opinion it was well open to the Acting Master to find that the provision for the respondent’s accommodation was not adequate. She had only a right of residence, with no right to substitute a different residence should the home unit become unsuitable for any reason. On the evidence the unit itself was in some need of repair; and the Acting Master concluded, as he was entitled to, that he could not be confident that the appellants would pay for the repairs which the respondent wanted. In circumstances where, at the date of the deceased’s death, the relationship between the respondent and the appellants had broken down, it would be burdensome to leave the respondent dependent in any way on negotiations with or support from the appellants.

30 In these circumstances, it is impossible to say that a decision that full ownership of the home unit was required for adequate provision for the proper maintenance of the respondent was an erroneous decision. Anything less would leave her to some degree dependent on negotiations with the appellants in the event that some change in her accommodation was required.

31 As regards the lump sum provision, when one has regard to the circumstances that the respondent’s annuity was shortly to run out, and that substantial expenditure was required on the home unit, and the circumstance that the respondent’s expenditure could be considered likely to increase, whereas her income would not increase, even to keep pace with inflation, it cannot be said that the decision to give her $600,000 was beyond what could be considered the provision which ought to be made to ensure that she had adequate provision for her proper maintenance.

32 The estate was large enough to make a provision for the respondent which would leave her without financial worries, and still leave over $8 million to be divided between the two daughters. In my opinion it has not been shown that the Acting Master’s discretion miscarried, so there is no occasion for this Court to make its own independent assessment of the matter.

33 For those reasons the appeal should be dismissed. The ordinary result would be that it be dismissed with costs, but if there any submission about costs that can be dealt with in a moment.

34 McCOLL JA: I agree with Hodgson J, and will just make some short remarks. In considering the Acting Master’s judgment it is essential to bear in mind that s.9(2) of the Family Provision Act directs the Court to consider the issues of jurisdiction and the exercise of discretion at the time of the proceedings, not at the time the will, and in this case the deed, were made. In reaching his decision the Acting Master took into account community expectations. He referred to Young J’s observations in Blackford v Salmon unreported, 27 July 1994, in which his Honour said:

It seems too that for a widow of a thirty year marriage who has lived in the house for some time and who continues to wish to live there, the expectation in the community would be that a wise and just testator would have left her the house in fee simple.

35 His Honour’s judgment recognised the community expectation that a testator should make provision for a widow to ensure that she can lead an independent and dignified life. That prospect is diminished when the widow does not have the benefit of the fee simple, but rather, a right of occupation of her home with a provision for expenses associated with that right being left in the hands of the executors. In this case the situation was exacerbated where, regrettably, the previously affectionate relationship between the appellants and the respondent had, as Acting Master Berecry found, completely broken down following the execution of the deed. Thus the situation in which the deceased may well have contemplated he had left the respondent appeared to have altered.

36 As the respondent said at Black 18C, when asked what had changed in her personal circumstances since the entry into the deed, “It is my home and I want my home to be my home”. In these difficult circumstances in my view Acting Master Berecry exercised his discretion soundly. The estate was a large one, and while as Hodgson JA has said, the appellants had a legitimate claim on it, they elicited no evidence of their assets and the Acting Master was entitled therefore to conclude that there were no competing claims. While Acting Master Berecry made generous additional provision for the respondent, he also decided that she should relinquish all her rights under the deed-rights, which as Mr Officer of Queens Counsel submitted, were substantial.

37 In my view the appellants have not demonstrated that Acting Master Berecry fell into appellable error. I agree with the orders Hodgson JA proposes.

38 EINSTEIN J: I agree with the reasons for judgment given by Hodgson JA and McColl JA. I seek only to add the following short observations first, in relation to the challenge to the manner in which Acting Master Berecry approached the exercise of the Court's discretion and secondly, in relation to the special significance to be attached to the respondent’s entitlement not to be beholden to the executors or trustee.

The two staged enquiry

39 The Acting Master correctly set for himself [see paragraph 22 and the last sentence of paragraph 34] the two-stage process required in the exercise of the Court’s jurisdiction to make orders pursuant to section 7 of the Family Provision Act 1982 ("the Act"). There can be no doubt from a careful reading of his reasons for judgment that he in fact answered the question posed by the first stage inquiry which, albeit involving the exercise of a value judgment, is strictly one of fact [sometimes described as the “jurisdictional question”], proceeding to cover that issue in the extensive and detailed summary of the respondent's general circumstances and financial resources to be found at paragraphs 23-38. He examined whether the provision in fact made for the respondent inter vivos and by the will was seen to be inadequate for what, in all of the circumstances, was the proper level of maintenance and advancement in life of the respondent having regard to her financial position, the size and nature of her estate and the totality of the relationship between the respondent and the deceased. He quite clearly held that considering all of the circumstances at the time the order was made, the provision made for the respondent by the deceased inter vivos and by the will was inadequate for her proper maintenance and advancement in life. As Hodgson JA has pointed out the legitimate claim of the respondent was of high order.

40 In Singer v Berghouse (1994) 181 CLR 201 Mason CJ and Deane and McHugh JJ at 210 put the matter as follows:

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.

41 As was observed by Mason J in White v Barron (1980) 144 CLR 431 at 443:

There is an element of the artificial in saying that it is only after jurisdiction is established that the exercise of the discretion begins, for the twin tasks which face the primary judge are similar.

42 The Acting Master proceeded [particularly in paragraph 40] to exercise the discretion by deciding what provision ought to be made for the respondent out of the deceased's estate. The fact that in reaching this decision certain of the matters which required to be taken into account had already been considered in earlier paragraphs, cannot be suggested as showing the second stage inquiry can be seen not to have been carried out by the Acting Master.

43 Clearly there are many matters appropriate for consideration in each of the two staged inquiries and provided that the reasons, as here, make clear that the correct questions were asked and answered, no appellable error is demonstrated by the process engaged in.

44 The jurisdiction of the court to make orders under section 7 of the Act arises for exercise in terms of claims made by a number of categories of eligible persons including persons who had been the wife or husband of the deceased person at the time of the deceased person's death. Not infrequently the jurisdiction comes to be exercised upon the application of a wife or husband of very advanced age and in circumstances where high tension arises between other family members as to the real probable beneficiaries in the event that an order be made and that the applicants remaining number of years may prove to be relatively short. This was just such a case. Whilst such tensions sometimes provide at least part of the backdrop and reasons for the respective stances taken in the litigation, the task of the Court is no more and no less than to exercise its jurisdiction in accordance with the Act.

Security

45 Security of accommodation and security generally, in terms of having an income sufficient to enable the applicant to live in a reasonable degree of comfort and free from financial worries are matters of high significance where an applicant is of advanced age. Powell J in the two decisions to which the Acting Master referred has had occasion to flag the signal significance of these matters:

[W]here, after all the appropriate interests have been taken into account, it is possible to do so, a widow in the position of the Plaintiff ought to be put in a position where she is mistress of her own life, and in which, for the remainder of her life, she is not beholden to executors, or trustees and, still less, to remaindermen .[ Langtry v Campbell (Supreme Court of New South Wales, unreported, 7 March 1991)]

"I take the view - which view, I believe, is supported by authorities - that, in a case such as this, where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband, and assisted him to build up, and maintain, his estate, the duty which the deceased owes to his widow can be no less than, to the extent which his assets permit him to achieve that result; first, to ensure that his widow be secure in her home for the rest of her life, and that if, either, the need arises, or, the whim strikes her, she have the capacity to change her home; second, that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort, and free from any financial worry; and, third, that she have available to her a fund to which she might resort in order to provide herself with such modest luxuries as she might choose, and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring." [ Elliott v Elliott , (Supreme Court of New South Wales, unreported 18 May 1984) at 11]

46 In Golosky & Anor v Golosky, (New South Wales Court of Appeal, unreported, 5 October 1993), Kirby P (with whose reasons for judgment Cripps JA agreed), summarised the proper provision for widows in the following terms:-

In testing the Master's decision it is appropriate to keep in mind the principles which governed the approach which he was obliged to take to the widow's application under the Act. Relevantly, these included:
(a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9, 19; White v Barron & Anor , above, 458; Hunter , above, 576;
(b) The purpose of the jurisdiction is not the correction of the hurt feelings or sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testator's household and to consider whether, as claimed, the provision made by the will is inadequate for that person's proper maintenance and advancement in life. See Heyward v Fisher , Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81;
(c) Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano (above) 69-70;
(d) A mere right of residence will usually be an unsatisfactory method of providing for a spouse's, accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore , Court of Appeal, unreported, 16 May 1984, per Hutley JA, 2;
(e) Considering what is 'proper' and by inference what is 'improper' as a provision in a will, it is appropriate to take into account all of the circumstances of the case including such matters as the nature and quality of the relationship between the testator and the claimant; the character and conduct of the claimant; the present and reasonably anticipated future needs of the claimant; the size and nature of the estate and of any relevant dispositions which may have reduced the estate available for distribution according to the will; the nature and relative strengths of the competing claims of testamentary recognition; and any contributions of the claimant to the property or to the welfare of the deceased. See Re Fulop Deceased (1987) 8 NSWLR 679 (SC); Churton v Christian and Ors (1988) 13 NSWLR 241 (CA), 252.”

47 Whilst the exercise of the Court's discretion is always instant specific to the circumstances of the particular case in hand, the Acting Master is seen to have properly exercised that discretion in this case. The case is marked most particularly:

· by the deed entered into generally contemporaneously with the execution of the will;

· by the deceased's statement in the will that he had made no provision for the respondent as he had made very generous provisions to her in financial matters throughout her marriage and additionally had entered into the deed; and

· by the statement of reasons by the deceased as to the provision for the respondent made in the will.

48 The Court exercises the relevant discretion provided for under the Act taking all the facts, matters and circumstances into account. In the proper exercise of the Court’s discretion the Acting Master was not bound by the terms of the deed nor by the statement of the deceased's reasons nor by the deceased's statement of reasons. The exercise of the discretion was in terms of the position as it was seen to be on the occasion when the orders were handed down.

49 No appellable error has been shown in terms of the proper exercise of the discretion by the Acting Master.

Orders

50 The Appeal should be dismissed with costs.

51 HODGSON JA: The order of the Court is, appeal dismissed with costs.

**********

Last Modified: 10/28/2003