Marks v Marks
[2003] WASCA 297
•2 DECEMBER 2003
MARKS -v- MARKS & ORS [2003] WASCA 297
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 297 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:125/2002 | 14 MAY 2003 | |
| Coram: | MURRAY J PARKER J WHEELER J | 2/12/03 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Substantive order made by Master set aside Application of the respondents dismissed | ||
| A | |||
| PDF Version |
| Parties: | JOAN LILLIAS MARKS DIANE KAYE MARKS KAREN MARKS MURRAY PHILIP WILLIAMS as Executor of the Will of the Deceased LYNETTE ANNE CAULDLE |
Catchwords: | Testator's family maintenance Claim by independent adult daughters Widow is sole beneficiary under Will of deceased Recognition of moral claim of daughters Whether error of law made in making award on the ground Whether exercise of discretion miscarried |
Legislation: | Inheritance (Family and Dependants Provision) Act 1972, s 6 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MARKS -v- MARKS & ORS [2003] WASCA 297 CORAM : MURRAY J
- PARKER J
WHEELER J
- Appellant
AND
DIANE KAYE MARKS
KAREN MARKS
First Respondents
MURRAY PHILIP WILLIAMS as Executor of the Will of the Deceased
Second Respondent
LYNETTE ANNE CAULDLE
Third Respondent
Catchwords:
Testator's family maintenance - Claim by independent adult daughters - Widow is sole beneficiary under Will of deceased - Recognition of moral claim of daughters - Whether error of law made in making award on the ground - Whether exercise of discretion miscarried
(Page 2)
Legislation:
Inheritance (Family and Dependants Provision) Act 1972, s 6
Result:
Appeal allowed
Substantive order made by Master set aside
Application of the respondents dismissed
Category: A
Representation:
Counsel:
Appellant : Mr R E Keen
First Respondents : Mr M N Solomon
Second Respondent : No appearance
Third Respondent : No appearance
Solicitors:
Appellant : Corsers
First Respondents : Gadens Lawyers
Second Respondent : No appearance
Third Respondent : No appearance
Case(s) referred to in judgment(s):
Collicoat v McMillan [1999] 3 VR 803
Kitson & Anor v Franks & Anor [2001] WASCA 134
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Singer v Berghouse (1994) 181 CLR 201
Singer v Berghouse (No 2) (1994) 181 CLR 201
Vigolo v Bostin & Anor (2002) 27 WAR 121
(Page 3)
Case(s) also cited:
Allardice v Allardice (1910) 29 NZLR 959
Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Baumgartner v Baumgartner (1987) 164 CLR 137
Bondelmonte v Blanckensee [1989] WAR 305
House v The Queen (1936) 55 CLR 499
Muschinski v Dodds (1985) 160 CLR 583
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Randell v Randell [1999] WASC 146
Riches v Holdman [2001] WASC 321
(Page 4)
1 MURRAY J: : The deceased died on 2 October 1998. He left a will dated 17 January 1991. Probate of the will was granted to the second respondent on 11 February 1999. The second respondent took no active part in defending the appeal.
2 The appellant is the widow of the deceased. She is the sole beneficiary under his will. The will contains a survivorship clause. Had the appellant not survived the deceased for 30 days, his estate would have been left in two moieties, one to be shared equally by his surviving children and the other to be shared equally by the surviving children of his wife, the appellant.
3 The appellant was the deceased's second wife. By his first wife, he had three daughters. The oldest of them is the third respondent. She took no part in the proceedings at first instance, nor on appeal. The first respondents are the second and third daughters of the deceased, respectively. The deceased's first marriage appears to have been an unhappy union, largely, it seems, as a result of the attitude and behaviour of the deceased. He certainly paid no attention to his daughters, for whom he appears to have been a remote and undemonstrative parent. Although this marriage persisted for many years, it ultimately ended in divorce at a time when the deceased was having an affair with an older friend of one of his daughters.
4 Later, in 1981, the appellant met and commenced a relationship with the deceased. She too was recently divorced. She has five children of her own. She and the deceased commenced to live together, first in 1984. After some time there was a break in that relationship, but it resumed and the appellant and the deceased again commenced to live together in 1987. They were married in 1990 and they remained so when the deceased died of cancer, as I have said, on 2 October 1998. Shortly thereafter, the first respondents, to whom I shall henceforth refer simply as the respondents, made an application under s 6(1) of the Inheritance (Family and Dependants Provision) Act 1972 (WA). Under s 7(1)(c), such an application may be made by a child of the deceased, and by s 6(1):
" … 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 s 7 of this Act as being persons by whom or on whose behalf application may be made
(Page 5)
- 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."
5 The application was heard by a Master of the Court who, on 13 August 2002, made the order that the will of the deceased be varied by ordering that the only major asset of the estate, a dwelling house and property in Vincent Street, Mount Lawley, should be sold and the net residuary estate of the deceased should be distributed, as to one-half to the appellant and as to the remaining half equally to the respondents. The costs of the parties before the Master were, as generally occurs, ordered to be taxed and paid out of the estate.
6 It is against that order that the appeal is brought, seeking primarily to have the respondents' application dismissed or, alternatively, that a different, lesser, provision be made out of the estate for the purposes specified in s 6.
7 The grounds of appeal are fully expressed. They contend, firstly, that the Master erred as a matter of law in the test he employed for the application of the section, when he found that there was a moral obligation on the deceased to make provision by his will for the respondents. It is asserted that the Master:
" … should have found that a moral obligation on its own was not sufficient to satisfy the requirement that the deceased had failed to make adequate provision for the proper maintenance, support, education or advancement in life of the first respondents."
8 The remaining grounds of appeal challenge the exercise of discretion by the Master in the provision he made. There is no challenge to the facts as found by the Master, but it is asserted that upon those facts there should have been no provision, or a lesser provision than that which was made. Particular reference is made to the fact that neither respondent was dependent upon financial assistance by the deceased. The total net value of the estate was $345,603.29. The older of the two respondents is described as having income and assets such that she was "reasonably placed" as at the date of death. The younger of the two respondents is described as having income and assets such that she was "comfortably placed" as at the date of the death. It is asserted that the case was found not to be one grounded on the failure of the deceased to provide for the
(Page 6)
- proper maintenance or support of the respondents. On the other hand, it is said that the Master found that the appellant's only income was a widows pension. She owned no property and had little in the way of assets as at the date of death.
9 The Mount Lawley property was the former matrimonial home. The appellant remained in residence, rent-free, for the period of about 4 years between the date of death and the date of the Master's judgment. During that period she had been using an old motor vehicle of little value, formerly owned by the deceased, as her transport. As I have said, this property is effectively the only asset of the estate, the net value of which was agreed and found by the Master to be in the region of $350,000.
10 The deceased had been formerly a union official and a member of the Communist Party. He had the attitude that ownership of property was a mark of a capitalist society in which he would not participate. In later years his views changed. He bought this property in 1988. At that time, the appellant sold a home of her own. From the proceeds of sale she contributed $15,000 towards the purchase of the Mount Lawley property. During their joint residence in the home she spent a further $6000 on improvements, a total investment, therefore, of some $21,000.
11 The Master took this into account, but he regarded that investment by the appellant as being balanced by the fact that she had lived rent-free in the property without having made any expenditure towards its upkeep or the payment of rates and taxes since the death of the deceased. The appellant contends, by a ground of appeal, that the Master erred when he wrongly took these facts into account in the exercise of his discretion. It is contended that the Master should have had regard to these matters by concluding that the appellant had, by the investment found to have been made, acquired an equitable interest in the property.
12 It is convenient to deal at once with this assertion. There were, of course, no proceedings before the Court which called upon the Master to make any declaration that the property was held by the executor of the deceased's estate, in whom the legal estate resides, on a constructive trust as to any particular portion commensurate with the value of an equitable interest declared in favour of the appellant. Nor, in my opinion, would it be proper to say that merely by reason of the money contributions made, such an equitable interest should be found. Much more would need to be known about the circumstances in which those contributions were made than appears in the affidavits and the executor of the estate would need to
(Page 7)
- be afforded the opportunity to address the issue and gather evidence relevant to its determination.
13 In my opinion, this particular ground of appeal cannot be made out and, so far as the matter bore upon the exercise of discretion, I can see no error involved in the approach of the Master to have regard to both the appellant's contribution of $21,000 and the benefit received by the appellant from her use of the assets of the estate after the death of the deceased, when considering the provision to be made.
14 I need say no more, I think, in the context of this appeal, about the position of the appellant as at the date of death and as at the time when the matter fell to be determined by the Master. Her position was then little different from her situation 4 years earlier. The Master found that the appellant considered that she had not the capacity to keep up the Mount Lawley property and continue to reside there. She was 61 when the matter was before the Master.
15 In an affidavit sworn and filed just before the hearing before the Master, at which no deponent was required for cross-examination, she deposed that her weekly expenses exceeded her income, which consisted of a widows pension. She said that the house was 90 years old and in need of quite major maintenance which she could not afford. In an effort to alleviate her financial difficulties she had taken a teaching position in China, but she did not think that she would accept a renewal of her contract, due in February 2003, because, "I am finding that the work and living conditions are too stressful to my health."
16 Out of the net residuary estate realised upon the sale of the Mount Lawley property she proposed to purchase suitable accommodation, a reliable car and to have a little capital in reserve to cope with unexpected expenses. She thought that would be all that could be provided from the estate once the legal costs and other liabilities were paid. That general position was accepted by the Master but, having regard to the moral claims, as he found them to be, of the respondents, the Master concluded:
"While there is no doubt that the [appellant] was entitled to consideration by the deceased, there is no reason why she should have received the whole of the estate."
17 As to the claims of the respondents, again the Master noted that their positions were little different as at the hearing of their applications from their situations as at the date of death. The Master did not discuss at any length the nature of their relationships with their father during his lifetime.
(Page 8)
- He noted that to the extent that there was distance between the deceased and the respondents, that was a distance and remoteness of his own making and there was certainly no suggestion that either respondent had been guilty of any conduct which might disentitle her to an award in her favour, if such an award was otherwise justified under the Act: s 6(3).
18 The older of the two respondents was aged 47 as at the date of death and her younger sister was 43. Both were, therefore, mature women, unmarried and making their own way in life. The older respondent is a teacher. Her ordinary expenditure effectively matches her income. The Master found that she had a half-interest, with her partner, in a home in Maylands. Her interest was of the value of between $125,000 and $130,000. She was said to be responsible for a mortgage of just over $23,000. She had a motor vehicle of modest value, $7000 in cash and some superannuation. The Master summed up her position by saying that, "While she was not impoverished, she was no more than reasonably placed."
19 The Master described the financial situation of the younger respondent by saying that she was a human resources co-ordinator, earning a little more, ordinarily, than her older sister. Her income also was effectively matched by her ordinary expenses. She owned a home which she purchased some 4 years before the date of death for just over $158,000, taking out a mortgage at that time of just over $105,000. Again, she had a car of modest value, preserved superannuation and negligible cash assets. She has no dependent children. The Master summed up her situation by saying, "As with her sister, she is reasonably comfortably placed, without being in a strong financial position."
20 One difference between the two women was that the older sister had a worse state of health and she was said to be marginally less well-placed financially than was her sister, but, as I have noted, in the end the Master considered that it was inappropriate and unnecessary to attempt to draw fine distinctions between their respective positions and he held that their claims were of equal merit, resulting in the order to which I have referred.
21 The Master reached that conclusion by holding that:
"This is not a case where the claim of the [respondents] is founded upon a failure of the deceased to provide for the proper maintenance or support of the [respondents]. Neither is in a position where they are dependent upon the bounty of the deceased in the future. … This, in my view, is one of those
(Page 9)
- cases where the moral obligation on the testator arises out of his relationship with the [respondents]. … In my view, both have a moral claim."
22 As has been seen, the Master took the view that although the estate was relatively small, it was not so small that there was no capacity to discharge the perceived moral claims of the respondents, undertaking a process of comparison of the respective financial positions and future prospects of the appellant and the respondents to arrive at the order finally made.
23 In his approach to the application of the section, the Master relied principally upon the decision of the High Court in Singer v Berghouse (1994) 181 CLR 201. For the purposes of this case, it is sufficient to refer to the judgment of the majority, Mason CJ, Deane and McHugh JJ, at 208-12. The following propositions emerge –
• The application of s 6(1) involves a two-stage process.
• The first question is whether, at the time of the death of the deceased, he or she left the applicant without adequate provision from the estate for the proper maintenance, support, education or advancement in life of the applicant.
• This is a question of fact, but it is one of objective fact involving the judgment of the court in the consideration of what it would be proper to provide for the purposes of the Act and what would have been adequate to properly provide for those purposes.
• All the surrounding circumstances, as illuminated by the evidence, are to be considered; the relationship between the deceased and the applicant, the competing claims of others, the size of the estate, the age of the applicant, their status in life, their capacity to provide for themselves, what contribution, both financially and otherwise, the applicant may have made to the well-being of the deceased during his or her life and other matters of that kind.
• If an affirmative answer is given to this first question posed by the Act, then the court will be involved in the exercise of a discretionary judgment as to the provision, if
(Page 10)
- any, to be ordered to be made towards the purposes of the Act out of the estate of the deceased.
- • This is truly a matter of discretion and, in a proper case, an applicant who has satisfied the test posed in the first stage of the process may properly be denied an award out of the estate of the deceased if, on consideration of factors of the kind mentioned above and any other relevant matters applicable at the time that the court is called upon to make the award, it is necessary, in the view of the court, to decline to do so, or to make an award less than that which, in the judgment of the court, ought to be made to satisfy the purposes of the Act.
• It follows from the discretionary nature of the judgment finally to be made, that an appellant asserting that an award is excessive or inadequate, as the case may be, or an appellant who, as in this case, seeks to attack the exercise of the discretion on the basis that no award at all should have been made, faces the difficult task of demonstrating to the appellate court that the judgment of the court below can not be justified as a proper exercise of discretion.
• That is a task which confronts an appellant in seeking to overturn a decision made under the Act by establishing error at either of the two stages of the process of judgment which, under the Act, may lead to an award.
24 The proper approach to the application of the section has recently been considered by this Court in Vigolo v Bostin & Anor (2002) 27 WAR 121. The judgment of the Court was that of Sheppard AuJ, with whom Steytler and Parker JJ agreed. That decision was made on 4 December 2002, well after the decision of the Master in this case. Vigolo is not only relevant to the decision of this case, having regard to the view of the law adopted there, but it is also of passing interest having regard to the facts because, in that case also, the applicant pursued what the Judge at first instance described as a moral claim and not a claim made on the basis of financial need. In that case, however, it was found that the application failed at the first hurdle and it was dismissed on that basis.
25 Having regard to the terms of the Master's judgment in this case, it is necessary to say something about the notion that an applicant for an order
(Page 11)
- under the Act may succeed by demonstrating an unfulfilled "moral claim" or that the deceased had a "moral duty" or "moral obligation" to make provision out of his or her estate in favour of the applicant, which obligation had not been discharged. The majority in Singer, at 209, made what is regarded as the obiter observation:
"For our part, we doubt that this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to 'moral duty' or 'moral obligation' may well be understood as amounting to a gloss on the statutory language."
27 The matter was discussed in Vigolo by Sheppard AuJ at [76] – [94]. His Honour expressed the view that courts ought to give effect to the obiter observations of the majority in Singer about the lack of utility in considering the application of the Act in terms of an unmet moral claim. In reaching that conclusion, his Honour also relied upon a later decision of the Court of Appeal of NSW, Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24, a majority decision of Kirby P, as his Honour then was, and Sheller JA, with Handley JA in dissent. Sheppard AuJ expressed a preference for the views of the majority in that case, to the effect that concepts such as moral duty and moral obligation should not be utilised in considering the application of the Act.
28 Relative to the decision of this appeal, however, it should be noted that, at 31, Kirby P said:
"In the light of Singer and with the wisdom of hindsight, it would have been preferable had the Master not referred to concepts such as 'moral duty'. This is a criticism of the language used in his reasons. But the focus of attention in this Court is, as in any appeal, not upon the verbiage of the reasons by which the decision-maker explains his or her opinion, but on whether the order which was made has been shown to be wrong. Obviously, the reasons must be examined, for they may indicate that the order is contaminated by error which may then authorise the intervention of this Court into a decision held to be discretionary in character. But if the ultimate order appears correct, this Court will not intervene to substitute what it thinks
(Page 12)
- to be more felicitous reasons, embellished with legal hindsight, for those offered by the Master."
29 Fraser was not cited to the Master, nor was another recent case, of the many in this area, to which Sheppard AuJ referred in Vigolo. In Collicoat v McMillan [1999] 3 VR 803 at 819, Ormiston J, after discussing relevant authorities, said:
" … I consider that the expression 'moral duty' remains a simple and convenient way of referring to the obligation, hypothetical as it may be in some cases, resting upon a testator to make a wise and just assessment of all persons who might fairly ask to be taken into account in determining what adequate provision for proper maintenance and support should have been made for them had the testator been fully aware of all the relevant circumstances."
30 His Honour continued by saying that in this context the word "moral":
" … is particularly apposite when considering family relationships and the obligations arising from them for the purpose of ascertaining what is right and just as between members of a family."
31 There is a danger, I think, that this debate becomes a debate more about semantics than about substance. It was, of course, not necessary under the section for the respondents to establish that they were in impecunious circumstances before an award might be made in their favour. The first question before the Court was simply whether the deceased died leaving them without adequate provision for their proper maintenance, support, education or advancement in life.
32 As to that, their claims, it seems to me, stood or fell together because, as the Master found, their situations were not materially much different one from the other. Both were mature women. The older of the respondents had some health issues with which the younger was not afflicted, but both were women who were, or were capable of, maintaining themselves and making their way in life as at the date of the death, albeit, as the Master found, neither could be regarded as being in a secure financial position and both were no more than reasonably placed. And yet, as the Master found, neither was in necessitous circumstances in the sense that they were in any way dependent upon financial assistance by their father.
(Page 13)
33 In my opinion, their position was to be contrasted with that of the appellant, an older woman who, although not without qualifications, was not employed and there appears to be no suggestion that following the death of the deceased there would be any reasonable prospect that she would be able to find employment and support herself in that way. As at the date of death, therefore, she faced the prospect, which eventuated, that her income would be a widow's pension, insufficient to enable her to meet her ordinary living expenses, which are not suggested to be in any way extravagant, and insufficient to enable her to meet the costs of the upkeep of the Mount Lawley property.
34 While the value of the estate was not insignificant, it was by no means a substantial estate. It was certainly sufficient, after meeting the costs of the respondents' claim and other liabilities, to enable sufficient capital to be realised to enable the appellant to purchase alternative accommodation which she could afford to keep up without going into debt. There would be good prospects that she could replace the car, which was an asset of the estate, with a vehicle of reasonable quality and there might be a relatively small capital fund left over as a hedge against the adverse contingencies of life. But it is clear, in my opinion, that to the extent that the respondents were held entitled to an award out of the estate which was more than a mere token payment, there was a clear danger that it would be so reduced in value that it would be insufficient to meet the appellant's reasonable needs.
35 In my opinion, to the extent that the Master rested his judgment upon an unmet moral claim in the respondents, he erred and, I think, did so in a way which tended to divert him from consideration of the jurisdictional question posed by the Act. As to that, the Master said at [2002] WASC 197, p [26]:
"It is true that the deceased's estate is not large and that both applicants are, as I have said, in a reasonable financial position. But there is sufficient in the estate to allow for a disposition in favour of the plaintiffs. Neither of the plaintiffs is in such a strong financial position that such a disposition would be of no consequence. The relationship between the deceased and the plaintiffs, in my view, warrants some award in their favour. While there is no doubt that the second defendant was entitled to consideration by the deceased, there is no reason why she should have received the whole of the estate."
(Page 14)
36With respect, the error made by the Master is, in my opinion, encapsulated in those remarks, by which it seems to be made clear that the Master was moved to make an award by the perceived moral claim of the respondents. In short, the Master appears to have taken the view that they were overlooked and ill-treated by their father during his life and they were, therefore, entitled to be provided for out of his estate after his death, particularly in circumstances where the making of such a provision was regarded as being of use to them financially. It was appreciated by the Master that that would have an impact upon the nature of the provision intended by the deceased to be made by his will for the appellant, but the Master took the view, which, in my respectful opinion, is erroneous in terms of the Act, that her claims to support out of the estate were not such as to entitle her to the whole of it.
37 In my view, the grounds of appeal are generally made out. I think, in the end, the discretion finally miscarried in the award that was made in favour of each of the respondents, having regard to the impact upon the disposition by will in favour of the appellant that would occur when her benefit from the estate was reduced to half the net residuary estate. Nor, in my opinion, was it open to the Master to conclude that in all the circumstances of this case and of the estate itself the deceased, as a wise and just testator and father, ought to have concluded that he should make, out of his estate, provision for his daughters of the order of that made by the Master on the ground that a failure to do so would leave them without adequate provision for their proper maintenance, support, education or advancement in life. In my view, the proper conclusion was that their claims failed at that initial stage.
38 I would allow the appeal and set aside the substantive order made by the learned Master. I would dismiss the application of the respondents. As at present advised, I would see no reason to disturb the order made by the Master that the costs of all parties of the proceedings before him should be paid out of the estate. I would, however, hear the parties further in relation to the question of costs generally.
39 PARKER J: For the reasons published by Murray J I agree that the appeal should be allowed and the substantive order made by the learned Master set aside, and further that the application of the respondents should be dismissed.
40 WHEELER J: I have had the advantage of reading the judgment of Murray J, with whom I am aware that Parker J is in agreement. I differ
(Page 15)
- from their Honours in one respect, which difference would have led me to a somewhat different result. Because of the views taken by their Honours, it is I think necessary that I set out my own reasons only briefly.
41 I agree with Murray J that the Master's focus on the concept of "moral duty" may, as the High Court warned in Singer v Berghouse (No 2) (1994) 181 CLR 201 at 209 have led to a focus on the wrong issue. There is clearly a moral content in the judgment which the Inheritance (Family and Dependants Provision) Act 1972 requires, since the question of what is "adequate" provision for the "proper maintenance ... or advancement" of a claimant is a question which can only be answered by reference to contemporary standards; not only to contemporary standards of living, but also to contemporary standards as to what provision it would be appropriate for a testator to have made, a concept which necessarily entails a moral stance. The moral content of the evaluation has been long recognised, and continues to be recognised in recent authority: eg Kitson & Anor v Franks & Anor [2001] WASCA 134, especially [7], [33], [78] and [88]).
42 Nevertheless, it is one thing to recognise that the evaluation required by the legislation has a moral content, and another to arrive directly at a decision by reference to a moral judgment about the conduct of the testator. It appears that the Master did fall into the error of proceeding directly by reference to the moral claim which he thought arose from the deceased's lack of care for the first respondents while he was alive. That appears not only from certain portions of his reasons, particularly that quoted by Murray J, but also from the fact that the Master was prepared to vary the distribution of the estate by substituting a distribution which awarded only one half of it to the appellant and the remainder equally divided between the first respondents. A distribution of that kind is in my view explicable only by reference to competing moral claims arising out of the family relationship, untempered by a reference to the financial circumstances of each of the parties.
43 It follows from what I have said above that I too would have allowed the appeal. However, I would have substituted for the order made by the Master one which did make some provision, although of a limited kind, for the first respondents. The Master observed that neither of the first respondents was in a "strong financial position". The first-named first respondent had always suffered from indifferent health and had expenses which roughly matched her income. She had a half interest in a house which interest was valued at somewhere between $125,000 and $130,000, a relatively small mortgage of little over $23,000, together with a motor
(Page 16)
- vehicle of modest value and a small amount of cash and superannuation. Although those assets might be regarded as adequate for a woman 51 years of age, she was in a far from comfortable position. Her ongoing health problems and her limited savings placed her in a position where it is reasonably clear that a modest additional lump sum might well provide her with much needed financial security, and a buffer against her ordinary vicissitudes of life. Further, as she said in an affidavit sworn 24 July 2002 in support of her application:
"I would ideally love to travel overseas to broaden my life education and experiences, and to have some ongoing element of financial security, to see to ongoing living and housing expenses and to be able to maintain an increasing level of aged care for my mother as her health declines."
Those are all entirely reasonable aspirations, and some disposition from the estate of the deceased would clearly be capable of providing for her "advancement" in life in the sense of assisting her to achieve some of them. The second-named respondent was in a slightly more favourable position, in the sense that she had not had the health problems of her sister. Her income too, however, was roughly matched by her expenses and her assets were modest in value. In my view the Master was right to observe that neither of the first respondents was "in such a strong financial position that such a disposition [that is a disposition from the estate of the deceased] would be of no consequence".
44 As a threshold issue then, I would form the view that, looking at the first respondents in isolation, the deceased had failed to make adequate provision for the proper support and advancement in life of the first respondents. However, it is of course necessary to consider the competing claims on the bounty of the testator, and the claim of the appellant must be recognised as a very strong one.
45 She was at the time of the proceedings 61 years of age and her only income was a Department of Veterans Affairs widow's pension. Her evidence was that her weekly expenses exceeded her income, although that fact appears to have been in part attributable to the cost of maintenance on the house which was the deceased's principal asset and in which she was then living. Her assets appeared to consist only of that house, a small quantity of furniture, and a very old motor vehicle.
46 In her affidavit dated 31 July 2001 she submitted that after payment of rates and taxes and discharge of the mortgage and after payment of costs she would be left with approximately $265,275. Of that amount she
(Page 17)
- estimated that she could purchase suitable accommodation for between $200,000 and $230,000, a new vehicle for $20,000 and retain the balance as a relatively small capital sum to meet unexpected expenses. There does not seem to have been any evidence as to the cost of alternative accommodation and acquiring another motor vehicle. The estimates appear however to be reasonable although a little on the high side; it is plainly possible to purchase a small new car for less than $20,000.
47 In my view, an appropriate disposition would have been to allow the appellant a sum of the order of $215,000 for alternative accommodation and a vehicle, and to divide the remaining sum equally between the appellant and the two first respondents. The effective result of that would be that each of the first respondents would receive approximately $15,000; although the sums are small, they would still be capable of making a difference to the financial position of each of the first respondents.
48 In the light of the reasoning which I have outlined above, a difficult question would arise at this stage of the proceedings, where the costs are likely to be considerable, as to the way in which the costs should be dealt with. However, given the conclusions reached by the majority, it is my view that it is not necessary for me to deal with this issue.
94
14
1