In the Matter of the Inheritance (Family Provision) Act 1972: John Lyall Eckert v Judith Anne Starick, Malcolm Burt Starick and Margaret Daphne Eckert No. SCGRG 92/1858 Judgment No. 4584 Number of Pages 14

[1994] SASC 4584

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(1), BOLLEN(2) AND OLSSON(3) JJ

CWDS
Testator's family maintenance - failure by testator to make sufficient provision for applicant - principles upon which relief granted - application by grandchild - incidence of the charge - appeal against order under Inheritance (Family) Provision) Act directing respondent receive $50,000 from the residue of his late grandmother's estate - threshold test of applicant being left without adequate provision for proper maintenance, education or advancement in life an objective test insofar as the court applying the test can take account of all circumstances as at the date of death and all eventualities reasonably foreseeable by the testator apprised of all those circumstances - in determining what eventualities are reasonably foreseeable recourse may be had to events occurring between date of death and trial - grandchild applicant not required to establish special claim - observations as to the reluctance of appellate court to interfere with an exercise of discretion under the Act - in circumstances trial judge's conclusion that threshold test satisfied and exercise of discretion to make award both unassailable - charging of residue of estate with the award appropriate. Inheritance (Family Provision) Acts7. In the estate of Puckridge (1978) 20 SASR 72; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; In re Allen (Deceased); Allen v Manchester (1922) NZLR
218; Bosch v Perpetual Trustee Co (1938) AC 463; Hunter v Hunter (1987) 8 NSWLR 573 and In re Traiger (1949) SASR 180, applied.

HRNG ADELAIDE, 3 May 1994 #DATE 15:6:1994

Counsel for appellants Starick:     Mr D W Smith

Solicitors for appellants Starick:    Carpenter and Associates

Counsel for respondent J Eckert:     Mr M J Roder

Solicitors for respondent J Eckert: Knox and Hargrave

ORDER
Apeal dismissed.

JUDGE1 MOHR J I agree with the decision of Olsson J

JUDGE2 BOLLEN J I agree that this appeal should be dismissed.

2. I agree with the reasons of Olsson J. I add a few comments.

3. Mr Smith, for the appellant, submitted very earnestly that the evidence did not prove that the respondent was " .... left without adequate provision for his proper maintenance or advancement in life." That is to say Mr Smith submitted that the evidence did not prove "need".

4. In my opinion, there is no doubt that in December 1991 when he became unemployed the respondent lacked means with which adequately to provide for his maintenance and advancement in life. He was not a pauper. But he was in a very poor way financially. He had not been paid his wages for three months prior to December 1991. His shares in the company which employed him were almost worthless. He had borrowed to the extent of about $35 000. It is true that he owned real estate but the value of the real estate was offset by his debts and by his small income.

5. But as the argument developed it became clear that Mr Smith was relying heavily on a submission that the respondent's situation would not have been known to the testatrix. The testatrix died in August 1991.

6. The learned trial judge correctly said:- " The question as to whether a person has been left without adequate provision for proper maintenance, education and advancement in life is to be looked at as at the time of death, although events that are reasonably foreseeable at this time may be taken into account. (Coates v National Trustees Executors and Agency Co. Limited (1956) 95 CLR 494 at 508). If the stage is reached where the discretion is to be exercised, then the value of the estate at the date of the hearing is relevant. (White v Barron 1980) 144 CLR 431 at 447)."

7. Mr Smith submitted that to the testatrix just before her death in August in 1991 it would have seemed that the respondent was in employment with a company in which he held shares and that he owned some real estate. In short it would have seemed to the testatrix, according to Mr Smith, that the respondent was in no need of provision from her estate.

8. But as the learned trial judge said, "events that are reasonably foreseeable at the time may be taken into account." This is well established by authority (Coates v National Trustees and Agencies Co Ltd (1956) 95 CLR 494 especially at 508 per Dixon CJ: Dun v Dun 1959 AC 272). In Dun v Dun, speaking for the Judicial Committee of the Privy Council, Lord Cohen said:-
    " It is unnecessary to refer to the facts of the
    particular case under consideration in In re Coates;
((1956) 95 CLR 494) it is sufficient to say that the
    High Court by a majority consisting of Dixon CJ, Webb
    and Kitto JJ, came to the conclusion that the question
    whether the provision made in a will for an applicant is
    inadequate for his proper maintenance is to be
    determined, according to the circumstances existing not
    as at the date of the hearing of the application, but as
    at the date of the death of the testator although, if
    the question be answered in the affirmative the court,
    in exercising its discretionary power to make such
    provision as it thinks fit, must take into account the
    facts as they exist at the time of making its order."

9. But the point is taken rather further in Hughes v National Trustees Executors and Agency Co of Australasia 3 Ltd (1978-79) 143 CLR 134. There Gibbs J (as he then was) (with whom Mason, Murphy and Aickin JJ agreed) said:-
    " ...There are no rigid rules; the question whether
    adequate provision has been made for the proper
    maintenance and support of the adult son must depend on
    all the circumstances - that is, on all the facts that
    existed at the date of the death of the testator,
    whether the testator knew of them or not, and all the
    eventualities that might at that date reasonably have
    been foreseen by a testator who knew the facts."

10. So the question of "need" must be decided on the facts as they existed at the time of death of the testatrix whether she knew those facts or not and on other eventualities as could have been foreseen by the testatrix. I think that this means that the question of need may be decided on the facts as they existed at the death of the testatrix whether she knew of them and even if foresight of things to happen on her part cannot be proved. That is to say if in fact the testatrix would have seen the respondent as someone in no need of provision from her estate the Court may judge the issue of actual need on the facts as they truly were in August 1991, i.e. just before the death of the testatrix. Looked at in the light I think that need here was well proved.

11. But I think it unrealistic to think that the testatrix could not have known of the poor position of the respondent. And she could, in my opinion, have foreseen unemployment and deterioration in the financial position of the respondent. I think that members of the family of the testatrix and she herself would in a small community have known enough to have foreseen what was likely to happen to the financial position of the respondent.

12. For a moment in considering this matter I paused. The respondent owned real estate. Does that prevent his being in need? When one puts in the scales lack of reasonable income, debts, obligations to estranged wife and child, worthless shares, depleting capital I think that the learned trial judge correctly decided the issue of need.

13. I think too, that he was correct in deciding the respondent had, in all the circumstances, a moral claim to the bounty of the deceased. His Honour correctly took into account the law with relation to grandchildren. Indeed he took into account the law perfectly correctly on every aspect of the matter. I associate myself with his reasoning.

14. I think, too, that a legacy of $50 000 was a fair and reasonable order in all the circumstances. I think it right that the residue should bear the burden of that legacy. I agree with the order for costs made by the learned trial Justice.

15. I would dismiss the appeal.

JUDGE3 OLSSON J This is an appeal against an order of Duggan J whereby, pursuant to section 7 of the Inheritance (Family Provision) Act, 1972 ("the Act"), he directed that the respondent receive a legacy of $50,000 for his maintenance and advancement in life out of the residue of the estate of his late grandmother, Hilda Sophie Eckert deceased ("the testatrix").

2. Most of the facts, as found by the learned trial judge, are of relatively simple compass and not now in dispute.

3. The testatrix died on 16 August 1991. Her husband predeceased her in 1986. Both had lived in Springton for many years on a modest farming property adjacent to the township, the principal activity on it being dairy farming.

4. As at the lastmentioned date that property and some other non-contiguous farming land near Springton were the substantial assets comprising the estate of the testatrix. That estate was valued at a net sum of the order of about $370,000. By her Will (and in the events which happened) the testatrix devised a block of land containing 22.37 hectares (valued at $77,000) to the respondent's mother. The residue of the estate passed to her daughter, the appellant Judith Anne Starick. No benefit was conferred on the respondent, although he had been named as a beneficiary in an earlier Will.

5. The testatrix had three children, one of whom died as a young child. The other two children were Judith Starick and the respondent's father Lyall.

6. Lyall, who was a severe asthmatic, died, I infer, of the effects of that ailment, in 1971. He was then aged 41 and left his widow Margaret Eckert and two children surviving him. The respondent is one of those children and is now aged 33 years of age. He is married (but separated) and has one young child, whom he is liable to support, to the extent that he has the means to do so.

7. Having completed his matriculation year, the respondent was employed in several wineries until shortly prior to when his last employer went out of business in December 1991, having not paid him his wages for the preceding three months. He had invested $10,000 in his employer's business and lost that investment. He has been in receipt of unemployment benefits since about the end of 1991. His employment ceased on 17 December 1991, since when he has only earnt small amounts as a wine promotion commission agent.

8. As at the date of death of the testatrix he owned a modest house in Springton (valued at $75,000) and was entitled to an interest (with his sister) in a block of farming land. His share in the latter was valued at about $32,000. He also owned some sheep which returned about $4,000 per annum. He had debts of about $35,000, in addition to which he owed a further unspecified amount to his mother and $1,200 for past maintenance of his daughter. His debts, in large measure, reflected the outcome of a property settlement in favour of his wife, from whom he parted on 4 August 1990.

9. Judith Starick is a married woman, now 57 years of age. She has three adult children. Her husband owns a 300 acre mixed farming property at Springton on which they grow grapes and run sheep. As at the date of the death of the testatrix her husband leased portion of the land forming part of the residue of the estate.

10. She owns 16 acres of grazing land jointly with her husband and a motor vehicle given to her by the testatrix. Her husband's farm property is unencumbered. He owns some stock and plant, but the evidence suggests that the farm does not return other than a modest living.

11. The evidence reveals and the learned trial judge found that both the respondent and his parents and also Judith Starick and her husband enjoyed good relationships with the testatrix and her late husband and were properly dutiful in their interactions with them during their respective lifetimes. They were all, in one way or another, involved in the farming operations over the years.

12. As to the plaintiff's parents, the learned trial judge found that they had "lived and worked as a close knit unit" with the testatrix and her late husband over many years. A partnership arrangement existed for some years, although Lyall found it necessary to supplement his income from that source and from running sheep, by working part time as a truck driver. The respondent's mother had, for many years, assisted with the demanding work in the dairy and was assisted in that activity by the respondent from an early age. She later obtained employment as a domestic at the Mount Pleasant Hospital.

13. The learned trial judge described the involvement of the respondent in the general farming activities in these terms (AB 408):-
    "... The plaintiff has remained in the area. He helped
    with work in his grandparents farming property from a
    very early age. I accept the evidence which he, his
    mother and sister have given as to the extent of his
    involvement. He drove trucks and utilities on the
    property from the age of eight, assisting with tasks
    such as the handfeeding of livestock. He assisted in
    various ways in the running of the dairy. His father's
    asthmatic condition resulted in the plaintiff doing
    quite heavy work for a boy of his age. Of course as he
    advanced in High School he found less time to assist,
    but he worked after school and an understanding teacher
    who was aware of the plaintiff's situation at home
    allowed him a day or two off now and then to help on the
    farm. The plaintiff's assistance with the farm work and
    the dairy in particular did not end with his father's
    death. He continued to assist his grandfather with the
    dairy and he did odd jobs around his grandparents'
    house. After his father's death he was also required to
    look after the sheep which were running on his mother's
    block. It seems to have been anticipated by both the
    plaintiff and his grandfather that the plaintiff's
    future would be tied up, in part at least, with the
    land. I find that when the plaintiff was 15 years of age
    his grandfather offered him the use of the vineyard so
    that he could produce grapes. The work required had
    become too much for the grandfather. However the
    plaintiff was anxious to continue with his High School
    education and he realised that it would be too difficult
    to devote the time needed for the running of the
    vineyard. His grandfather agreed eventually that the
    plaintiff's education at this stage was more important."

14. Duggan J went on to comment (AB 410):-
    "I accept the plaintiff's assertion that he has always
    had an ambition to be a farmer. I also find that his
    grandparents encouraged that interest. I have already
    referred to the grandfather's offer concerning the
    vineyard. Furthermore in 1984 the plaintiff was
    permitted to use his grandparents' 80 acre allotment
    located next to the block of the same size owned by his
    mother. The plaintiff has continued to run sheep on the
    property. He has been required to pay the rates as
    rent."

15. In his published reasons the learned trial judge described Mrs Starick as a dutiful daughter, who had done everything which one would have expected, over the years, to assist her mother, particularly in the later years of her life. She helped with tasks such as banking and business affairs generally, as well as shopping. He noted that the respondent's mother also assisted in various respects. Although this is not specifically referred to in those reasons, the evidence indicates that, over time, Mr Starick also assisted his parents-in-law in various ways related to the conduct of the farming activities.

16. Against that background the learned trial judge directed his attention to the provisions of the Act and the relevant authorities bearing on their proper application.

17. As he correctly identified, the threshold question was whether it had been demonstrated, as a question of fact, that the applicant was "left without adequate provision for his proper maintenance, education and advancement in life". He stressed that the words "advancement in life" have a wide meaning, not confined to an early period of life in the members of the family. (In the estate of Puckridge (1978) 20 SASR 72 at 77.)

18. Having adverted to the salient concepts and principles of approach identified by various authorities, the learned trial judge pointed out that there is no general rule limiting the claims of grandchildren, where they fall within the purpose of the Act, although it is relevant to consider what inheritance or financial support a grandchild might fairly expect from his or her parents. He stressed that, in the instant case, it was relevant to take into account that the respondent had a close relationship with his grandparents, which became more direct when his father died.

19. Having noted the relatively poor financial position of the respondent, the learned trial judge went on to say (AB 414):-
    "Of course these circumstances, of themselves, do not
entitle the plaintiff to an order under s7 of the Act.
    The plaintiff must go further and establish that he has
    a moral claim to the deceased's bounty. It is important
    to bear in mind that the plaintiff is an adult. The fact
    that the plaintiff is the grandchild of the deceased and
    not her child is, of course, a most relevant factor.
    However the relationship which the plaintiff had with
    his grandparents seems to me to have been exceptional in
    certain respects which are relevant to his claim. Not
    only did he work as a child and young person in the
    combined family business, but it is clear that his
    grandparents encouraged him to anticipate that he would
    have a role in working the property in due course. He
    was offered the use of the vineyard when still at
    school; he was allowed to use the grandparents' 80 acre
    block; the grandparents had promised to give the
    plaintiff's father land; and when the deceased was in
    hospital shortly before she died she told the
    plaintiff's mother that the plaintiff would get the 80
    acre block and that the plaintiff's mother would be
    "taken care of".

20. I accept the plaintiff's evidence that he had conversations with his grandparents in the course of which they explained to him that they wanted to transfer the 80 acre block to him on condition that he pay the cost of the transfer, but they eventually said that they were concerned this would affect their pension. Nevertheless they told him that eventually he would get the block. I have no doubt that because of the relationship with his grandparents and what they said to him, the plaintiff assumed that at least part of his future maintenance would be derived from a share in the land owned by his parents and that he planned his career accordingly. The grandparents must have known this and I regard it as a significant factor in determining whether the plaintiff has a sufficient moral claim on the bounty of the deceased. It is interesting to note that when the grandparents made earlier wills on 5th February, 1974 they left half the residue of their estate to Judith Starick and one-quarter each to the plaintiff and his sister in the event that one grandparent predeceased the other. It is puzzling why the deceased did not pursue the aim of assisting the plaintiff in life by making allowance for him in her will but, whatever the reason, I am satisfied on the evidence that it was through no fault of the plaintiff and that he has done nothing which would disentitle him to the benefit of the Act."

21. In arriving at an ultimate decision the learned trial judge bore in mind the size of the estate of the testatrix, the competing claim of Judith Starick to her bounty and the fact that, in 1991, the testatrix and her husband gave the respondent's mother a house situated in Springton, now valued at $75,000.

22. At the end of the day it was his view that the respondent had been left without adequate provision for his proper maintenance and advancement in life and concluded that, having regard to the size of the estate, he ought to receive "a modest share by way of a legacy of a lump sum of $50,000" - which, in all fairness, ought to come from residue and not out of the devise to the respondent's mother.

23. By her appeal Judith Starick contends that the learned trial judge erred in finding that the respondent qualified for provision from the estate of the testatrix or, alternatively, that the sum awarded was excessive. As further alternative pleas, it was asserted that the burden of any provision in favour of the respondent ought to have been borne by that part of the estate passing to the respondent's mother or, at the very least, from those portions passing both to her and to Judith Starick. It was also complained that the respondent's costs ought not to have been debited to residue.

24. In considering the submissions advanced on behalf of the appellant it is essential to bear firmly in mind the express provisions of section 7 of the Act. So far as is relevant for present purposes, that section stipulates that:-
    "7. (1) Where -
    (a) a person has died domiciled in the State or owning
    real or personal property in the State;
    and
    (b) by reason of his testamentary dispositions or the
    operation of the laws of intestacy or both, a person
    entitled to claim the benefit of this Act is left
    without adequate provision for his proper maintenance,
    education or advancement in life, the Court may in its
    discretion, upon application by or on behalf of a person
    so entitled, order that such provision as the Court
    thinks fit be made out of the estate of the deceased
    person for the maintenance, education or advancement of
    the person so entitled."

25. It is at once to be seen that subparagraph (b) of subsection (1) postulates what has been described as a "threshold" test, which must be satisfied by an applicant, before any question of discretion arises. Moreover, and contrary to what I took to be suggested by Mr Smith, of counsel for the appellant, the test is clearly one of objective fact and is not limited to the actual state of knowledge of the testatrix at the relevant time. That time is the date of death of the testatrix (Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 148 and In re McCaffrey deceased, infra at 585).

26. As Gibbs J pointed out in Hughes Case (at 147-8), "the question whether adequate provision has been made for the proper maintenance, education or support" of a claimant "must depend on all the circumstances - that is, on all the facts that existed at the date of the death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts". (See also In re McCaffrey, deceased; Hay v Elder's Trustee and Executor Co Ltd and Ors (1982) 29 SASR 582 at 585.)

27. It is clear that, in considering the eventualities that the deceased ought reasonably to have foreseen at date of death, the court may have regard to events and circumstances arising between the time of death and the date of trial, as these may tend to indicate what a fully informed deceased should have expected. (Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 508, Dun v Dun (1957) 99 CLR 325.) Those events and circumstances must, however, have been within the range of reasonable foresight of the deceased - fully apprised of all relevant facts at the relevant time - that is, at date of death. (Coates Case, Dun v Dun, Re Bodman
(1972) Qd R 281 at 285.)

28. In the course of his submissions Mr Smith sought to contend that there was no sufficient basis of evidence to support the conclusion of the learned trial judge, which the latter expressed in these terms:-
    "The first question is whether the plaintiff has been
    left without adequate provision for his proper
    maintenance, education or advancement in life. No case
    can be made out based upon education. However the
    plaintiff has been unemployed since December 1991 and
    the winery at which he last worked was in financial
    difficulty well before that. As I have said the
    plaintiff was not paid for the last three months of his
    employment. Bearing in mind that the deceased died in
    August 1991 I think it must be conceded that the
    precarious nature of the plaintiff's financial situation
    was evident at that time. He had outlaid $10,000 to buy
    shares in the wine company and by that time they were
    close to worthless. At the time of the deceased's death
    the plaintiff's borrowings amounted to approximately
    $35,000 and he had a wife and child to support. The few
    sheep which he was then running on the 80 acre block
    returned approximately $4,000 in the 1992 financial
    year. He owned and still owns a home at Springton valued
    at approximately $75,000. His share of the 80 acre block
    which he owns with his sister is worth approximately
    $32,000."

29. Whilst it is true that the specific aspects of the evidence touching on the financial circumstances of the respondent at the date of death of the testatrix are, to some extent, wanting in definition, it seems to me that the conclusions of the learned trial judge are warranted as inferences fairly arising on that evidence.

30. True it is that, as at date of death, the respondent was currently in receipt of a salary at the rate of about $23,000 per annum as a winemaker. However, the fact was that, within a few weeks thereafter, such was the employer's financial situation that it was unable to continue to pay his salary. It eventually went into some form of receivership or liquidation several months later. As a matter of plain common sense, the writing must clearly have been on the wall and the situation of the respondent have plainly been precarious at date of death.

31. But, as Mr Roder, of counsel for the respondent, emphasised, this was not the only relevant fact. Shortly prior to date of death and following his earlier separation from his wife, the respondent became financially committed to a property settlement in relation to which he had to raise substantial loans which he could not repay in the short term.

32. Moreover, he had a responsibility to pay maintenance in respect of his daughter, to the extent that he had the means to do so.

33. In my opinion the learned trial judge, who had the considerable benefit of the atmosphere generated by all witnesses at the trial, was patently justified in concluding not only that the respondent was in a precarious financial position and facing an uncertain employment situation at date of death, but, also that a fully informed testatrix must clearly have appreciated, at that point, the probability of the type of eventualities which later actually occurred.

34. Duggan J was well justified in concluding that the threshold test had been satisfied.

35. It then became his duty to approach the situation on the basis articulated by Salmond J in In re Allen (Deceased); Allen v Manchester (1922) NZLR 218 at 220-1 and adopted by their Lordships in Bosch v Perpetual Trustee Co (1938) AC 463 at 478-9:-
    "The Act is ... designed to enforce the moral obligation
    of a testator to use his testamentary powers for the
    purpose of making proper and adequate provision after
    his death for the support of his wife and children,
    having regard to his means, to the means and deserts of
    the several claimants, and to the relative urgency of
    the various moral claims upon his bounty. The provision
    which the Court may properly make in default of
    testamentary provision is that which a just and wise
    father would have thought it his moral duty to make in
    the interests of ... (the relevant persons) ... had he
    been fully aware of all the relevant circumstances."

36. As was correctly pointed out by Mr Roder, it is important to bear in mind that, in recent times, there has been some degree of shift in the attitude of the courts in the mode of application of such a test to the situation of relatives other than a surviving spouse or infant children of a deceased. No longer is there any need to establish the existence of some basis of so-called "special claim" upon the estate, as has been adverted to in earlier cases. (See authorities cited by Matheson J in Lambeff v Farmers Co-operative Executors and Trustees Ltd and Ors (1991) 56 SASR 323 at 328.) The word "proper", as employed in section 7(1) of the Act simply connotes what is proper in all the circumstances of the case.

37. It is stating the obvious to say that such a consideration demands the exercise of a wide and flexible discretion in light of the facts revealed by the evidence in the particular case.

38. I digress to make the point that, in addressing this aspect of the appeal, it is important to bear in mind the well settled principles touching on the proper approach of an appellate court in reviewing orders which evidence what is fundamentally an exercise of discretion.

39. The general principle is that enunciated in authorities such as House v The King (1936) 55 CLR 499, Uznanski v Searle (1981) 26 SASR 388, Concrete Constructions v McNamara (1990) 92 ALR 427, and Westpac v Spice (1990) ATPR
51,386. It is trite to say that an appellate court will be reluctant to interfere with the exercise of a discretion by a trial judge; and will normally only do so where it is demonstrated that the judge has misapprehended the principles upon which the discretion is to be exercised, has misunderstood relevant facts, has failed to take into account relevant circumstances, has taken into account extraneous considerations, or has exercised the relevant discretion in a manner which no reasonable tribunal could have adopted without inherent error of the foregoing types, even if it is not apparent precisely what error was in fact involved.

40. Further, in the case of orders made pursuant to statutes such as the Act, an appellate court will be particularly slow to intervene, for reasons articulated in authorities such as Hunter v Hunter (1987) 8 NSWLR 573 at 576, In the estate of Guthrie deceased; Guthrie and Ors v Crane and Anor (1983) 32 SASR 86, Sampson v Sampson (1945) 70 CLR 576 and Bosch v Perpetual Trustee
(1938) AC 463 at 479-80. A "strong and cogent case" must be made out by an appellant who seeks to overturn a discretionary order made under the Act. As was said by Kirby P in Hunter v Hunter at 576:-
    "... particular care must be taken in an appellate court
    when it is invited to substitute its judgment for that
    of the trial judge. In part, this is because of the
    disputes which can sometimes arise from contests as to
    the truth telling of witnesses in acrimonious family
    contests. Happily, that consideration can be disregarded
    in the present case. In part, it is simply a reflection
    of the advantage a trial judge necessarily has in the
    evaluation of the detail of evidence taken before him,
    usually in a continuous trial in which evidence is
    presented to him consecutively. In part, it is a
    reflection of the recognition by appellate courts of the
    evaluative considerations which necessarily arise when
    the relevant statutory language to be applied contains
    words requiring judgment, such as 'adequate' and
    'proper' do. In such cases, there is always the risk of
    differing solutions at differing levels of the judicial
    hierarchy, with no satisfactory principle to justify the
    preference of one opinion over another: cf Mason J, as
he then was in White v Barron (1980) 144 CLR 431 at 445.
    In part, it is the operation of the well-known
    principles which governs the review of discretionary
    decisions. Although the determination of the
    qualification of a claimant under the Act is not,
    strictly speaking, a discretionary decision, the relief
    provided certainly is, as repeated references in ... the
    Act make plain."

41. When all is said and done the learned trial judge was confronted with a situation in which a dutiful grandson, who had always had a close and excellent relationship with his grandparents, had worked hard and supportively as an adolescent, following the untimely death of his own father, was unemployed and in a most difficult financial situation and, on the evidence, had had reasonable expectations of bounty from the testatrix. Indeed they had been realized in terms of an earlier Will.

42. By way of contrast, the appellant was in a secure and comfortable, although not affluent, situation. By virtue of her past relationship with and assistance to the testatrix, she too had a strong moral claim to the bounty of the latter, but not to the total exclusion of the respondent.

43. The quantum of the estate left by the testatrix was not insubstantial and the issue to be determined did not fall to be decided purely on the "balance sheet" type of approach propounded by Mr Smith - weighing relative benefits conferred, over time, by the grandparents collectively on each branch of the family. Such an approach is unduly simplistic and ignores those considerations which particularly and properly weighed on the mind of the learned trial judge in arriving at the conclusion to which he came. In particular, an otherwise proper claim in the respondent to the bounty of the testatrix is not to be defeated solely by reason of dispositions in favour of other members of his family, the more so when one of these considerably pre-dated the death of the testatrix and concerned a transaction in which his sister obtained a considerable windfall in relation to land purchased by her and her husband from the grandparents in 1976 and which, by mid 1985, had escalated considerably in value.

44. In all of the circumstances I can perceive no basis, consistent with authority, on which this court could properly intervene as to the quantum of the amount ordered to be paid to the respondent. On the contrary, I am of opinion that it represented what was patently a fair and reasonable benefit, in light of the size of the estate and all of the relevant circumstances.

45. The appellant sought to argue that, in any event, the burden of the sum awarded to the respondent ought to be borne against the devise of land in favour of his mother, as should any costs payable to him. It is stating the obvious to say that the practical effect of so doing would, in effect, be almost to negate the benefit left by the testatrix to the 15 respondent's mother, who had not been an active participant in the litigation; and, prima facie, had a strong, personal moral claim to the bounty actually conferred on her.

46. In my view such an approach would be manifestly unfair, if not preposterous.

47. Given the provisions of section 9(2) of the Act (which are, in any event, inconsistent with the appellant's proposition), what fell from Mayo J in In re Traeger (1949) SASR 180 at 183 clearly provides ample warrant for the course adopted by the learned trial judge and which plainly recognises the practical justice of the case.

48. I consider that this appeal is misconceived. I would unhesitatingly dismiss it.