Sayer v Sayer

[1999] NSWCA 340

CITATION:	SAYER v SAYER; GARBUTT v SAYER [1999] NSWCA 340
FILE NUMBER(S):	CA 40499/98; 40503/98
HEARING DATE(S):	30 July 1999
JUDGMENT DATE:	23 September 1999
PARTIES :	CA 40499/98 Anne Louise Sayer - Appellant Francesca Jane Sayer - Respondent CA 40503/98 Jane Margaret Garbutt - Appellant Anne Louise Sayer - Respondent
JUDGMENT OF:	Sheller JA at 1; Hodgson CJinEq at 39; Davies AJA at 99

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	3141/97 3637/97
LOWER COURT JUDICIAL OFFICER:	Bryson J

COUNSEL:	CA 40499/98 P Hallen SC - Appellant D B McGovern/ P D Rodionoff - Respondent CA 40503/98 D K Jordan - Appellant P Hallen SC - Respondent
SOLICITORS:	CA 40499/98 B Bilinsky & Co - Appellant Duncan MacLean - Respondent CA 40503/98 Lamond Howard & Associates - Appellant B Bilinsky & Co - Respondent
CATCHWORDS:	WILLS - application for provision out of estate - where insufficient funds available in estate to meet legacies - circumstances under which such application to be granted where order for provision would necessitate sale of matrimonial home - provision for dependant wife paramount
ACTS CITED:	Family Provision Act 1982 New Zealand Family Protection Act 1908 Testators Family Maintenance & Guardianship of Infants Act 1916
CASES CITED:	Bosch v Perpetual Trustee Company Limited [1938] AC 463 Eggler v Mitchelmore, NSW Court of Appeal, 11 November 1992, unreported Golosky v Golosky, NSW Court of Appeal, 5 December 1994, unreported Green v Green, Hodgson J, 16 July 1985 and 11 September 1985 unreported; Hoadley v Hoadley, Young J, 17 December 1987, unreported In Re Allardice, Allardice v Allardice [1910] 29 NZLR 959 King v Foster (unreported) Court of Appeal, 7 December 1995 Luciano v Rosenblum (1985) 2 NSWLR 65 Permanent Trustee v Fraser (1995) 36 NSWLR 24 Singer v Berghouse (1994) 184 CLR 201 Southgate v Waterford (1990) 21 NSWLR 427
DECISION:	CA 40499/98; 1. Appeal allowed; 2. Set aside the orders made by Bryson J other than the orders that the plaintiff’s costs of the proceedings be paid by the defendant out of the estate of the testator and that the defendant’s costs of the proceedings be paid or retained out of the estate of the testator; 3. In lieu of the orders set aside in order 2, order that the application be dismissed; 4. The respondent to pay the costs of this appeal but to have a certificate under the Suitors Fund Act 1951; CA 40503/98; Appeal dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40499/98; 40503/98
ED 3141/97; 3637/97

SHELLER JA
HODGSON CJ in EQ
DAVIES AJA

SAYER v SAYER
GARBUTT v SAYER

By his last will the testator left his wife, Mrs Anne Sayer, his house situated in Bowral and its contents. The testator left cutlery, paintings and $10,000 to his daughter, Mrs MacLean. To his grand-daughter, Francesca Sayer, the daughter of Mrs Garbutt, the testator left $10,000. He left the residue of the estate to his wife. The two gifts of $10,000 and of residue did not take effect due to the insufficiency of assets.

Mrs Garbutt and Francesca made applications under the Family Provision Act 1982. Mrs Garbutt’s application was dismissed by the trial Judge. On Francesca’s application, the trial Judge ordered that Francesca be paid $90,000 out of the estate, necessitating the sale of the Bowral property.

Both Mrs Anne Sayer and Mrs Garbutt appealed from the trial Judge’s decision.
Held:
Mrs Sayer’s Appeal
By Sheller JA, Davies AJA agreeing:
(1) The trial Judge’s order made against the estate in favour of the testator’s grand-daughter, Francesca, was so high as to indicate appealable error and should be set aside.
(2) The trial Judge failed to apply the correct test in determining whether any order should be made in favour of Francesca. Mrs Anne Sayer had a strong competing claim on her husband’s bounty. That claim was paramount. The trial Judge, in substituting the word “appropriate” for the statutory and well understood expression “proper maintenance”, failed to acknowledge the significant contribution involved when a wife gives up paid employment to be with and look after her husband. Singer v Berghouse (1994) 184 CLR 201 applied.
(3) This Court was required to determine whether the provision made in favour of Francesca by the deceased during his lifetime or out of his estate was, at the time of the appeal, inadequate for her proper maintenance, education and advancement in life. Unless the Court was so satisfied, it should not order provision out of the deceased’s estate.
(4) The question decided was whether Francesca had satisfied the Court that there was, in the circumstances and in accordance with prevailing community standards, sufficient in the estate to provide adequately for the widow’s proper maintenance and advancement in life and yet leave some amount out of which provision could be made for her. If sufficient had been left in the estate, Francesca had demonstrated an entitlement under the Family Provision Act. However, an order effectively removing Mrs Sayer from the matrimonial home and the continued lifestyle in that home, albeit of modest dimension, left inadequate provision for her proper maintenance and hence should not be made. Permanent Trustee v Fraser (1995) 36 NSWLR 24 applied. Luciano v Rosenblum (1985) 2 NSWLR 65 referred to.

Per Hodgson CJ in Eq:

(1) This was not a case where any significant identifiable error was shown. Mrs Sayer’s appeal depended upon a different evaluation which, objectively speaking, may have been no better than the first. Although there was force in the contention that Mrs Sayer should have been able to retain a house and garden to which she had a very strong attachment, it was not right to say that the trial Judge was plainly wrong in finding that she would be left, after payment of the provision for Francesca and costs, with sufficient to provide her with suitable housing.
(2) The provision for Francesca ordered by the trial Judge was so excessive as to indicate that the trial Judge’s discretion miscarried. This did not mean that the trial Judge’s other opinions and findings were to be disregarded, and he was not shown the be in error in his assessment of Francesca’s claim as a strong one, which was not to be defeated entirely by Mrs Sayer’s claim to be able to remain in her house. Consequently, the provision for Francesca should be reduced from $90,000 to $25,000.

Mrs Garbutt’s Appeal

By Hodgson CJ in Eq, Sheller JA and Davies AJA agreeing:
(1) Mrs Garbutt’s need for provision was shown and the trial Judge’s decision proceeded on the basis that Mrs Garbutt had been left with out adequate provision for her proper maintenance. It was appropriate for the trial Judge to take into account Mrs Garbutt’s lack of contribution to the welfare and assets of the testator, the strength of competing claims, and her own irresponsibility, consequently there was no ground shown to disturb the trial Judge’s exercise of discretion.
Legislation:
Family Provision Act 1982
New Zealand Family Protection Act 1908
Testators Family Maintenance & Guardianship of Infants Act 1916

Cases
Bosch v Perpetual Trustee Company Limited [1938] AC 463
Eggler v Mitchelmore, NSW Court of Appeal, 11 November 1992, unreported
Golosky v Golosky, NSW Court of Appeal, 5 December 1994, unreported
Green v Green, Hodgson J, 16 July 1985 and 11 September 1985 unreported;
Hoadley v Hoadley, Young J, 17 December 1987, unreported
In Re Allardice, Allardice v Allardice [1910] 29 NZLR 959
King v Foster (unreported) Court of Appeal, 7 December 1995
Luciano v Rosenblum (1985) 2 NSWLR 65
Permanent Trustee v Fraser (1995) 36 NSWLR 24
Singer v Berghouse (1994) 184 CLR 201
Southgate v Waterford (1990) 21 NSWLR 427

ORDERS

Mrs Garbutt’s Appeal No 40503/98

Appeal dismissed with costs.

Mrs Sayer’s Appeal No 40499/98

1. Appeal allowed;
2. Set aside the orders made by Bryson J other than the orders that the plaintiff’s costs of the proceedings be paid by the defendant out of the estate of the testator and that the defendant’s costs of the proceedings be paid or retained out of the estate of the testator;
3. In lieu of the orders set aside in order 2, order that the application be dismissed;
4. The respondent to pay the costs of this appeal but to have a certificate under the Suitors Fund Act 1951.

*****

THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40499/98; 40503/98
ED 3141/97; 3637/97

SHELLER JA
HODGSON CJ in EQ
DAVIES AJA

Thursday, 23 September 1999

SAYER v SAYER
GARBUTT v SAYER

JUDGMENT

1    SHELLER JA: I have had the benefit of reading the reasons for judgment in draft prepared by Hodgson CJ in Eq. For reasons his Honour has given I agree that Mrs Garbutt’s appeal should be dismissed with costs. On the appeal by the executor, Mrs Anne Louise Sayer (Mrs Sayer), who was the second wife and widow of the testator, Peter Harry Sayer, and the principal beneficiary under his will, I agree that the order Bryson J made against the estate in favour of the testator’s grand-daughter, Francesca Jane Sayer, who was the daughter of the testator’s older daughter by his first marriage, was so high as to indicate appealable error and should be set aside. In addition, as will appear, I think his Honour failed to apply the correct test in determining whether any order should be made in favour of Francesca. The result is that this Court must itself determine whether the provision made in favour of Francesca by the deceased during his lifetime or out of his estate is, at this time, inadequate for her proper maintenance, education and advancement in life. Unless the Court is so satisfied, it “shall not” order provision out of the deceased’s estate; s9 (2) of the Family Provision Act 1982 (the 1982 Act).

2 Included amongst those defined in s6 (1) of the 1982 Act as eligible persons in relation to a deceased person is:

“(d) a person:
(i) who was, at any particular time, wholly or partly dependent upon the deceased person, and
(ii) who is a grand-child of the deceased person …..”

3 Section 9 (1) of the 1982 Act provides that where an application is made for an order under s7 by an eligible person who is such by reason only of para (d) of the definition “the Court shall first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors.” Bryson J determined that there were factors which warranted the making of Francesca’s application and this determination has not been challenged.

4 Section 9 (3) of the 1982 Act provides that in determining what provision (if any) ought to be made in favour of an eligible person out of the estate of a deceased person, the Court may take into consideration :

“(a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:
(i) the acquisition, conservation or improvement of property of the deceased person, or
(ii) the welfare of the deceased person, including a contribution as a homemaker,
(b) the character and conduct of the eligible person before and after the death of the deceased person,
(c) circumstances existing before and after the death of the deceased person, and
(d) any other matter which it considers relevant in the circumstances.”

5    At the heart of the Court’s statutory authority to make any order under the 1982 Act for provision out of the estate of a deceased person is the question whether at the time of determination the provision made by the deceased person in favour of the eligible person is “inadequate for the proper maintenance, education and advancement in life of the eligible person”. The words “inadequate” provision (“without adequate provision” in the Testators Family Maintenance & Guardianship of Infants Act 1916 (the 1916 Act)) and “proper maintenance, education and advancement in life” (“or advancement in life” in the 1916 Act) were authoritatively discussed and explained in the judgment of Lord Romer speaking for the Privy Council in Bosch v Perpetual Trustee Company Limited [1938] AC 463. At 476 his Lordship said:

“The use of the word ‘proper’ in this connection is of considerable importance. It connotes something different from the word ‘adequate’. A small sum may be sufficient for the ‘adequate’ maintenance of a child, for instance, but, having regard to the child’s station in life and the fortune of his father, it may be wholly insufficient for his ‘proper’ maintenance. So, too, a sum may be quite insufficient for the ‘adequate’ maintenance of a child and yet may be sufficient for his maintenance on a scale that is ‘proper’ in all the circumstances. A father with a large family and a small fortune can often only afford to leave each of his children a sum insufficient for his ‘adequate’ maintenance. Nevertheless, such sum cannot be described as not providing for his ‘proper’ maintenance, taking into consideration ‘all the circumstances of the case’ as the subsection requires shall be done. In the next place, it is to be observed that, when the condition precedent to the exercise of the powers given by the subsection is shown to be fulfilled, those powers extend to making such provisions as the court thinks fit for ‘such’ maintenance, that is to say, for proper maintenance.”

6 Section 3 (1) of the 1916 Act required satisfaction of the condition that the spouse or children of a testator or any of them were left without adequate provision for their proper maintenance, education and advancement in life before it proceeded to invest the Court with authority, “at its discretion”, to order that “such provision for such maintenance ….as the Court thinks fit shall be made out of the estate.” The 1982 Act is arranged in a different order. Section 7 enables the Court “[s]ubject to section 9” and upon satisfaction that the applicant is an eligible person to order “such provision be made out of the estate…..of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education and advancement in life of the eligible person.”

7 However, s9 (2) conditions the Court’s authority to make any order upon the satisfaction that the defined existing provision is “inadequate for the proper maintenance, education and advancement in life of the eligible person.” Lord Romer’s judgment and its emphasis on the expression “proper maintenance” still governs the approach the Court should take; see Singer v Berghouse (1994) 184 CLR 201 at 209.

8    At 477-8 Lord Romer went on to say that their Lordships agreed with Stout CJ’s statement in In Re Allardice, Allardice v Allardice [1910] 29 NZLR 959 of the principles that were to be followed by the Court in administering the equivalent provisions in the New Zealand Family Protection Act 1908. Amongst these principles were:

“(2) that the Act is not a statute to empower the Court to make a new will for a testator;
(3) that the Act allows the Court to alter a testator’s disposition of his property only so far as it is necessary to provide for the proper maintenance and support of a wife, husband or children where adequate provision has not been made for this purpose;
(4) that in the case of a widow the Court will make more ample provision than in the case of children, if the children are physically and mentally able to maintain and support themselves.”

9    On any view, Mrs Sayer had a strong competing claim on her husband’s bounty. In my opinion that claim was paramount; compare Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70. Mrs Sayer married the deceased on 24 March 1990. In his reasons for judgment Bryson J made the following findings:

* That in late 1989 the deceased formed “an emotional relationship” with Mrs Sayer which, when it began, was associated in part with plans for her to assist in the care of Francesca.

* That as the surviving nominated executor Mrs Sayer obtained probate.

* That the matrimonial home at 41 Queen Street, Bowral and the residue of its contents including personal effects were given to Mrs Sayer in a specific gift without interposition of a trust by the will.

* That after gifts to Mrs MacLean, the deceased’s younger daughter by his first marriage and Francesca’s aunt, of cutlery, six paintings and the sum of $10,000 and a gift to Francesca of $10,000, the residue after payment of debts, funeral and testamentary expenses was given to Mrs Sayer.

* That the total of these debts and expenses exceeded the residue leaving some of the testamentary expenses to be paid by Mrs Sayer.

* That clause 3 of the will appointed Mrs Sayer to be guardian of Francesca but this did not take effect as Francesca attained the age of 18 before the deceased died.

* That except perhaps for the cutlery, the assets of significant value passed to Mrs Sayer under specific gifts to her and no assets were available for payment of legacies.

* That Mrs Sayer was the sole occupant of the matrimonial home and that an attached residence known as 41A Queen Street, referred to as “The Cottage”, but better described as a small flat, was let out as a serviced flat for one day, a few days or a week at a time, the lettings being managed by an agent and Mrs Sayer attending to linen, cleaning and other services.

* That there was an extensive and beautiful garden the maintenance of which was a strong interest of Mrs Sayer and occupied much of her time and had also been a very strong interest of the deceased.

* That the upkeep of the garden involved significant expense and during the deceased’s lifetime he and Mrs Sayer received an award for the garden.

* That in about 1994 the deceased’s health and circumstances began to deteriorate and in 1995 his condition was diagnosed as dementia.

* That a burden of care for him began to fall on Mrs Sayer with occasional respite for three short periods which he spent in hospital or nursing homes.

* That the marriage continued for 6 years and 9 months until the deceased’s death and could not be thought of as a short marriage.

* That it was a good marriage with strong shared interests and experiences, including overseas journeys, and with appropriate material and emotional contributions on both sides according to the means available.

* That Mrs Sayer bore appropriately and well the burdens of the last two years.

* That Mrs Sayer received a pension income, which was, as at September 1997, $243.57 per week.

* That the pension varied, influenced, inter alia, by exchange rate variations between the Australian dollar and the pound Sterling and at the time of the hearing was $380 per week.

* That this was supplemented by income from the lettings which varied according to demand for the cottage.

* That the income net of commission which Mrs Sayer received in the 12 months to March 1998 was $7,364.60 or $141.62 per week, there being very wide variations from month to month.

* Apart from the property given to Mrs Sayer by the will she had few assets; personal effects, a 1988 Toyota Camry motor car and about $1,000 in bank accounts.

* Her living expenses were almost equal to her income and it was difficult for her to pay her Visa and Mastercard debts.

* Mrs Sayer calculated her total debts and liabilities at $11,877.97.

* Mrs Sayer said that her health was reasonable, but there were problems, as she received treatment for hypertension and migraines and suffered arthritis of the neck and spine which required frequent treatment.

10    In considering Mrs Garbutt’s application Bryson J referred “to the strong considerations which support provision for [Mrs Sayer] as his widow”. In speaking of the deceased’s role as a provider and parent for Francesca before Francesca went, early in July 1992, to live with Mrs MacLean, who became by deed a co-guardian, Bryson J observed that Mrs Sayer “attended to management of the household”.

11    When considering the burden of any provision in favour of Francesca Bryson J observed that the only source out of which it might be made was the matrimonial home at 41 Queen Street. He accepted that making provision for Francesca would have the necessary consequence that the house would be sold and that this burden would fall heavily on Mrs Sayer. However, he regarded it as “appropriate” as she would receive by far the greater part of the property available for disposition and a quite sufficient sum with which to provide for her housing in circumstances “adequate” for her needs. His Honour said:

“Mrs Anne Sayer has expressed strong attachment to the house, and there would be considerable advantages to her in retaining it, as income supplementing her pension income arises from letting the Cottage. This must be reflected in the value of the house. Mrs Anne Sayer has now lived in the house for over 8 years and she, with her late husband in his lifetime, spent much time and effort in working on the garden, a prize-winning achievement and a source of great pride and joy to her, and a well-established outlet for her energies. It can be expected that with further years the maintenance of the garden may become difficult for her, although there is little sign of this so far. In view of her age, the size and value of the house and the Cottage, and the other claim on the estate, it is my judgment that the provision made for her has been more than is appropriate . The sum which should remain to her will be very adequate to provide her with housing of a good standard in Bowral, appropriate to a widow living a retired life.
Mrs Anne Sayer’s strong feelings of attachment for the house and the garden are understandable and well-based in the length of her associate with them and with her happy shared experiences with the testator in establishing and working in the garden an decorating the house. These claims have to be brought under consideration with Ms Francesca Sayer’s need for provision, the strength of which is in a quite different order to the strength of claims based on attachment to and associations with a house and a garden.
The house, its contents and its garden are the defendant’s property under the provision of the testator’s will which express specifically his wish that she should be the owner of the house. No intervention in her property rights should be made unless the terms of s7 justify the intervention. Mrs Anne Sayer’s counsel contended that if the position were reversed and she were claiming provision she would have expected the court to award her the house, in substance the whole estate, to the exclusion of the claim of Ms Francesca Sayer. I do not think that this is right, although if the situation were reversed in that way the widow’s claims for provision, particularly of suitable housing, would have been the most prominent consideration; that need should be met appropriately , but not excessively.” [emphasis added]

12    Bryson J concluded:

“In my judgment it is appropriate that a provision of $90,000.00 be made for Ms Francesca Sayer out of the estate.” [emphasis added]

13    Mrs Sayer was born on 9 February 1934. In her affidavit of 18 September 1997, filed in Francesca’s application, Mrs Sayer said that in August 1996 she underwent an unsuccessful bladder operation. A second operation was postponed from August 1997. She said that she was unable, both because of her age and her medical condition, to obtain employment. She took the prescription drugs of Natrilix and Ramace daily for hypertension. For her migraine, Migraleve had been prescribed. At the time she first met the deceased in October 1989 she was working in Bowral. She was not looking for work but agreed to look after Francesca as a favour to the deceased. After they were married she travelled with the deceased to the United Kingdom for their honeymoon. They were away for approximately 4 to 5 weeks. The deceased paid their fares and expenses. In October 1993 the deceased and Mrs Sayer travelled to New Zealand for a week to attend a conference and between May and August 1994 went overseas for eleven weeks to visit relations in the United Kingdom. Mrs Sayer said she paid for her own fare and all her own expenses during the trip. In July 1995 she travelled alone to Mauritius for a period of just over 2 weeks. Her fare was paid by her daughter and son-in-law. The purpose was to see her new grand-daughter.

14    By her first husband Mrs Sayer had three children who at the time of the hearing were all adult. After their divorce in October 1983, Mrs Sayer supported herself working as Avon’s Southern Highlands District Manager until she was made redundant in 1987. From the proceeds of the redundancy she purchased the 1988 Toyoto motor car. Subsequently, Mrs Sayer conducted her own aromatherapy business in Bowral. She said she ceased working in February 1994 due to the deceased’s ill health and to her arthritis which was preventing her from working. After her marriage, as the deceased had furniture in the house, Mrs Sayer sold her furniture. She said that she applied the money towards general housekeeping expenses. At the conclusion of her affidavit of 18 September 1997 Mrs Sayer said:

“I have considerable sentimental attachment to the home as part of the deceased’s ashes are buried in the garden. Also, our dog and cat are buried under trees in the garden. It is only the second home I have ever had and I feel settled here. I like gardening. My present day-to-day activities involve some gardening which I enjoy. I feel very attached to and proud of my garden. The deceased and I created the garden at 41 Queen Street, Bowral, winning a national competition as ‘Garden of the Year’ conducted by ‘Your Garden’ Magazine in 1996. I regard 41 Queen Street, Bowral, as my home and wish to continue residing there. The sale of that property for the purpose of providing for the Plaintiff and also for the claim made by the Plaintiff’s mother against the estate would necessitate the sale of the house. This would disrupt my life considerably and cause me great distress by having to relocate and find alternative accommodation.”

15    In an affidavit made on 1 October 1997 Mrs MacLean said that in early December 1996, after her father had been placed in the Hammondville Home, she had discussions with Mrs Sayer as to her future intentions. Mrs Sayer told her that she had placed the house on the market for sale at $500,000 and said words to the effect: “I want to move - its too big for me, its too expensive to run. I can’t manage it on my own.” In response to this testimony, Mrs Sayer, in an affidavit of 6 November 1997, said that she had placed the house on the market for sale before her husband’s death. “At that stage, my husband having been confined to a nursing home, I was concerned that I may not have the funds to maintain him in the nursing home and that, for that reason, it would be necessary for me to sell the house.” She denied that she said that she wanted to move or that the house was too big for her or too expensive to run. She continued: “I could manage the house on my own. I did not wish to leave the house as I was attached to it and, in particular, enjoyed working in the garden which forms a very important part of my life. I had no desire to sell the house and in fact wished to remain in the house.” This statement was not challenged in cross-examination. We were told that the area of 41 Queen Street is about one-third of an acre.

16    In her affidavit of 19 May 1998 Mrs Sayer said that she had approached Sydney Legacy for a loan to enable her to repay all her outstanding debts.

“The loan would be a long term loan at a very low interest rate. Sydney Legacy has advised that it would consider my request favourably but only subject to the loan being secured by way of charge on the home at 41 Queen Street, Bowral. The maximum amount which would be advanced to me is $12,000.”

17    Mrs Sayer went on to say that she had been informed by her solicitor that in the event of her having to pay her own legal costs of and incidental to the two applications before the Court, the amount she would be required to pay, including counsel’s fees, would be approximately $12,000. “I have spoken to my daughter about the payment of legal costs and have been informed by her that in the event of my having to pay legal costs, she would be prepared to obtain a loan to assist me in the payment of such costs.” She said that she had made inquiries of a number of real estate agents in Bowral regarding the availability of comparable properties. She was told that there were no comparable properties for sale as the property at 41 Queen Street, Bowral had extensive gardens. Similar size houses for sale in Bowral, but in different locations, did not have the benefit of extensive gardens and views. She said that most of her spare time was spent in the garden.

“I gain a great deal of pleasure and relaxation from my garden. My house looks down on to the garden. From the enclosed balcony to my bedroom I have a view over the garden and often sit there in the afternoons. Also, from a small breakfast room adjoining the kitchen I have a similar view of the garden. I usually eat in this room and look down on to the garden and the birds that frequent the garden. Other properties that I have looked at in Bowral do not have the facilities that I presently enjoy, nor the ambience of the garden that gives me so much pleasure and satisfaction.”

18    During the course of her cross-examination Mrs Sayer said that after she finished with Avon she ran a health clinic at Berida Manor and later worked part-time at 41 Queen Street. Mrs Sayer’s arthritic condition related back to an old car accident. As she advanced in years, she had noticed that the arthritis had become progressively worse. She was asked whether it stopped her from any serious gardening and replied “I still do it”. It was put to her that she must appreciate that the ability she had for serious gardening was reasonably limited to which she replied “I hope not”. Mrs Sayer was further cross-examined as follows:

“Q. But being realistically [sic] and having regard to your age it is something you appreciate has a limited span of future activity for you? A. I have never thought about it.
Q. Thinking about it now, you would agree you are finding it more difficult to do the heavy things? A. Yes.
Q. It is expensive to keep a garden such as yours in prime condition? A. Yes.”

19    She agreed that she had spent a lot of money on the garden. Later she was asked:

“Q. In the Bowral area are there a lot of retirement villages? A. Yes.
Q. And there are many other houses to your knowledge that are of more modest dimensions than yours? A. Yes.
Q. And nonetheless from your observations of things there are many other houses that would provide you with modest accommodation? A. I don’t think so not with the time, money and love I have spent on my house and garden.”

20    She did not accept that units were adequate for her accommodation needs. She was shown advertisements of available accommodation which she clearly regarded as unsuitable. None would provide her with rental income. She said:

“One has to be motivated to look at something and I love my house and garden too much to want to contemplate actually moving.”

21    Perhaps to meet the argument that Mrs Sayer would suffer an inevitable loss of income, if the matrimonial home were sold, counsel put the following question:

“Q. Do you think you would be able to do some work, say in a nursery, with your knowledge of plants and horticulture? A. If I had time, but I have my own garden to work in which is [sic] for the garden scheme so there is a great deal of work to be done there.”

22    The cross-examination detracted in no way from Mrs Sayer’s evidence about the contribution that she had made to the lifestyle which the deceased was able to enjoy with her for the last years of his life, to her care for him and to the sacrifice she made in giving up the business she had started. The cross-examination emphasises the likely unhappiness and trauma that the loss of this lifestyle will have upon Mrs Sayer.

23    According to the life expectancy tables for Australia, a female aged 65 has a life expectancy of over 19 years. There is no doubt that Mrs Sayer is vulnerable, both physically and financially. Despite the suggestion by the cross-examiner, the proposition that she retains any significant earning capacity has no credibility.

24    Although Bryson J referred to the strong interests of Mrs Sayer and of the testator in the maintenance of the garden and that this occupied much of Mrs Sayer’s time and to the “appropriate” material and emotional contributions on both sides to the marriage, it is not clear from his Honour’s reasons for judgment that he took into account, in considering Francesca’s application, Mrs Sayer’s contribution to the deceased’s lifestyle and in particular to the embellishment of the main asset in his estate. In Singer v Berghouse at 228 Gaudron J said:

“The tendency of the courts to overlook or undervalue women’s work, whether in the home or in the paid workforce, has often been remarked upon. To my mind, that is what is involved in the failure to acknowledge the significant contribution involved when a wife gives up paid employment to be with and look after her husband. To put the present matter in terms appropriate to appellate review, the failure to acknowledge that by giving up her paid employment Mrs Singer made a significant contribution to her husband’s welfare amount to a failure to have regard to a relevant circumstances - indeed, a very relevant circumstance.”

25    In that case Gaudron J was in the minority. But with the greatest respect the result in the present case highlights the danger of the tendency to which her Honour referred and which is engendered by the substitution in Bryson J’s reasons for judgment of the word “appropriate” for the statutory and well understood expression “proper maintenance”. This is demonstrated in those passages where Bryson J said:

“I regard [the burden on Mrs Sayer of the sale of the matrimonial home to provide for Francesca] as appropriate as [Mrs Sayer] will receive by far the greater part of the property available for disposition, and a quite sufficient sum with which to provide for her housing in circumstances adequate for her needs. …….In view of her age, the size and value of the house and the Cottage, and the other claim on the estate, it is my judgment that the provision made for her has been more than is appropriate. The sum which should remain to her will be very adequate to provide her with housing of a good standard in Bowral, appropriate to a widow living a retired life. ……..[Mrs Sayer’s] need should be met appropriately, but not excessively. ……In my judgment it is appropriate that a provision of $90,000 be made for Ms Francesca Sayer out of the estate.”

26    Nowhere in the reasons for judgment does his Honour refer to the statutory expression and I have reluctantly come to the conclusion that his Honour’s attention was deflected from the essential consideration of what was adequate in all the circumstances for Mrs Sayer’s proper maintenance.

27    To my mind the application of the correct test confirms that in the present case, to use old fashioned and often unhelpful language, the deceased, when he made his will on 16 March 1991 and thereafter during his lifetime did not revoke it or change it, did in all the circumstances of the case what as a wise and just husband, father and grand-father he should have done in leaving to Mrs Sayer the matrimonial home together with its contents other than those the subject of specific bequests.

28    This brings me to consider whether Francesca’s claim, looked at today, nearly three years after the deceased’s death, is such as would permit the Court to make in her favour an order the effect of which would be to require the estate to sell the matrimonial home and deprive the widow of the income earned by letting out part of it. Although some further evidence was tendered before this Court, the parties agreed that rather than remitting the application to the Equity Division for re-hearing this Court should itself determine the application on the material that was before Bryson J. There is no doubt that Francesca was a dependent grand-child and that the deceased in many respects stood in the position of a parent to her. If the estate is sufficient the justice and propriety of the pecuniary bequest of $10,000 is uncontestable. But her claim on the estate is of a lesser order than Mrs Sayer’s claim.

29    Francesca was born on 28 August 1977 and has had the benefit of a good education to tertiary level. To this the deceased contributed by paying school fees and providing for clothing, housing, food, medical and dental needs within his home until 1992 and thereafter by contributing to her maintenance after she left to live in Tamworth with Mrs MacLean. This apparently continued after she enrolled as an undergraduate for a degree in social science at the University of Newcastle in 1996. She has been supported by an Austudy allowance, an Austudy supplemental loan and payments by Tamworth Legacy.

30    Bryson J said that Francesca’s resources were so narrow that she usually found herself without any money at all towards the end of each fortnightly period and that her obligations to repay Higher Education Contributions Scheme liability at the conclusion of her degree, anticipated in mid-1999, would amount to $9,348. I agree with Hodgson CJ in Eq when his Honour in his draft reasons explained that repayment of this liability is deferred until the beneficiary earns a threshold income from which deductions are then made under a sliding scale which operates up to a level of income where fixed deductions are made and that interest on the deferred repayments is charged at a rate below market rates.

31    Francesca lived in a shared house with other students. She had very few resources but was able to meet her current living expenses out of the resources available to her. Her standard of living as a student receiving Austudy with a small charitable supplement from Legacy was very restricted. She valued her possessions at $1,235 and had a small amount in a bank account. His Honour said:

“She has given in evidence a list of basic needs, a bed, a dressing table, a lounge, a record player, clothing, sheets and towels for which she estimates she would require $1950. She also stated that she has a need for a small second-hand car, but I do not regard that as practical. She owns her great-grandmother’s diamond engagement ring, held for her by Mrs MacLean and her only patrimony. She hopes and expects to obtain employment as a trainee social worker on graduation. Her expected earnings are in the order of $20,000 per year. She may undertake higher studies.
If no provision is made for Ms Francesca Sayer out of the estate of the testator the probabilities are that she will find a way to continue to study, with charitable assistance, in hard circumstances at the minimum scale of expenditure achievable. She has and will have no resources whatever with which to be established in life, and with which to face or even begin to face needs to provide for her own housing or accumulate a deposit, and no other resources to meet the needs which present themselves in adult life. She has a history of coping with narrow resources and continuing her education in the face of difficulties.”

32    Apart from the parental bond between the deceased and Francesca, Francesca stands in what quite properly Bryson J described as “quite unusual circumstances for progressing into adult life”. His Honour said:

“Her mother is not in a position to give any material assistance, and she does not have the social capital available to many young adults in the form of housing or other capital owned by close relatives and freely available. All of life’s problems of establishing herself in adulthood will fall directly on her. She may well sense some familial responsibility for her mother. She needs about $20,000 to meet present needs and carry her through to her first degree in a position to pay her HECS and loan obligations and pressing needs and start her working life free from debt.”

33    All these are circumstances appropriate to be taken into account. Indeed, there is no suggestion that Bryson J, in considering her claim, took into account anything that he should not have taken into account. However, Francesca presents as a young person who, despite what must have been in many respects an unhappy and traumatic childhood, is healthy and qualified by a good education to make her way in life. She can reasonably expect satisfactory employment when she finishes her studies. As Hodgson CJ in Eq has remarked in his draft reasons:

“Whereas Francesca may reasonably be expected to be able to improve her situation as time passes, it is likely that Mrs Sayer will not be able to improve hers, so that whatever provision she receives from this estate will need to be adequate for her proper maintenance for the remainder of her life having regard to her age, health and circumstances, it would not be reasonable to expect that she would work in the future.”

34    In my opinion, the question is whether Francesca has satisfied the Court that there is, in the circumstances and in accordance with prevailing community standards (Permanent Trustee v Fraser (1995) 36 NSWLR 24 at 46), sufficient in the estate to provide adequately for the widow’s proper maintenance and advancement in life and yet leave some amount out of which provision can be made for her. I am satisfied that if sufficient had been left in the estate, then Francesca has demonstrated an entitlement under the 1982 Act.

35    In King v Foster (unreported) Court of Appeal, 7 December 1995 I said:

“A widow who has been a devoted wife and contributed to the upbringing to the children of the marriage and the accumulating of the deceased’s estate, such as it is, is entitled to more than bare subsistence or in the present case an amount insufficient to meet her daily needs. Adequate provision for proper maintenance takes account of the lifestyle the widow enjoyed while the deceased lived and which she might expect to continue after his death.”

36    Mrs Sayer might reasonably be expected to live for another 19 years, but without significant earning capacity and facing the likelihood of declining health. An order effectively removing her from the matrimonial home and the continued lifestyle in that home which she had shared with her husband, albeit of modest dimension, in my opinion, leaves inadequate provision for her proper maintenance and hence should not be made. I repeat that the effect of the order is to reduce significantly, by removing part of its source, an income which is already modest and barely sufficient to cover reasonable outgoings. I add that, in the context of the lifestyle Mrs Sayer enjoyed during her husband’s lifetime and which she might expect to continue to enjoy thereafter, it is important that she not be deprived of her full time interest in the garden which the deceased and she created.

37    In my opinion, Francesca’s claim should be dismissed. Mrs Sayer does not seek to disturb the costs order in favour of Francesca that Bryson J made.

Orders

38    I propose the following orders:

Mrs Garbutt’s Appeal No 40503/98

Appeal dismissed with costs.

Mrs Sayer’s Appeal No 40499/98

1. Appeal allowed;
2. Set aside the orders made by Bryson J other than the orders that the plaintiff’s costs of the proceedings be paid by the defendant out of the estate of the testator and that the defendant’s costs of the proceedings be paid or retained out of the estate of the testator;
3. In lieu of the orders set aside in order 2, order that the application be dismissed;
4. The respondent to pay the costs of this appeal but to have a certificate under the Suitors Fund Act 1951.

39    HODGSON, CJ IN EQ:

INTRODUCTION

The late Peter Harry Sayer died on 26th December 1996, aged 75 years. The estate, according to the Probate application, consisted of a house property at Bowral said to be worth $400,000, furniture and effects said to be worth $20,000, cutlery said to be worth $12,000, and a residue of just under $10,000. Debts and funeral and testamentary expenses slightly exceeded $10,000.

40    The testator was survived by his widow Mrs Anne Sayer, whom he had married in March 1990, and two daughters of a previous marriage: Mrs Jane Margaret Garbutt born in 1948, and Mrs Elizabeth Anne MacLean born somewhat later. The testator also had a close relationship with a daughter of Mrs Garbutt, Francesca Sayer, born 28th August 1977. I will refer to her as Francesca.

41    By his last will dated 16th March 1991, in the events which happened, the testator appointed his wife as executor; gave his house and contents to his wife; gave the cutlery and six paintings and also a sum of $10,000 to Mrs MacLean; gave $10,000 to Francesca; and gave the residue to his wife. The gifts of $10,000 and of residue did not take effect, because of the insufficiency of assets.

42 Two applications were made under the Family Provision Act. First, there was an application by Mrs Garbutt; and this application was dismissed by the trial judge. Second, there was an application by Francesca; and on this application, the trial judge ordered that Francesca be paid $90,000 out of the estate, this provision to be borne by the Bowral property. Appeals have been brought in both cases, and have been heard together.

OUTLINE OF FACTS

43    The facts as found by the trial judge were not disputed on appeal; except that Mrs Sayer disputed the finding that she would be left, after payment of the provision for Francesca and costs, with sufficient to provide her with suitable housing.

44    The testator had served in the Royal Navy, retiring in 1970 having achieved the rank of Commander. He then pursued a second career managing and conducting real estate agencies.

45    In 1977, he established a home for himself and his wife Dorothy Sayer in Bowral; and from about 1981 lived with her at 41 Queen Street, Bowral. Dorothy Sayer died in June or July 1989. As mentioned earlier, there were two daughters of this marriage. In late 1989, the testator formed an emotional relationship with the defendant Mrs Anne Sayer, and they were married on 24 March 1990. Mrs Sayer had previously been married in 1953 and divorced in 1983. There were three children of that marriage. Mrs Sayer had worked from 1983 to 1987 as a district manager for Avon, and then practised aromatherapy, continuing apparently until about 1994. At the time of the marriage, she owned a motor vehicle and some furniture and effects, the latter of which she sold. From the time of her marriage to the testator, Mrs Sayer has lived at 41 Queen Street, Bowral.

46    This marriage continued for six years and nine months, until the death of the testator. The trial judge described it as a good marriage, involving strong shared interests and experiences, including overseas journeys.

47    In 1994, the testators health and circumstances deteriorated, and in 1995 his condition was diagnosed as dementia. A burden of care fell on Mrs Sayer, which, in the words of the trial judge, "she bore appropriately and well".

48    41 Queen Street is a two-bedroom timber house, with an attached flat called the Cottage. The house is now solely occupied by Mrs Sayer. The garden is extensive and beautiful, and won an award during the testator's lifetime. The garden is a strong interest of Mrs Sayer.

49    Mrs Sayer is now aged 63. Her health is reasonable, though she does have some health problems.

50    At the date of the hearing, her assets, apart from the provision under the will, comprised personal effects said to be worth about $5,000; a Toyota motor vehicle said to be worth $5,000; and about $1,000 in bank accounts. Her debts were about $12,000. Her annual expenses were estimated at $18,000. She was receiving pension income of about $380 per week, and in addition about $100 per week from renting out the Cottage. The trial judge accepted that her living expenses were almost equal to her income.

51    Mrs Garbutt was born on 27 May 1948. She has suffered from a manic depressive disorder, and has been diagnosed as having paranoid schizophrenia. When she was about 28 years of age, she began a relationship with a Mr Ferry, and Francesca is a child of that relationship. From about this time, Mrs Garbutt lived at various addresses in the Bowral region, sometimes with her father's assistance.

52    In 1981, the Children's Court at Bowral committed Francesca to the care of her grandparents.

53    In about 1983, the testator built the Cottage for Mrs Garbutt, and from that time until July 1991, she lived there. She did not achieve independence in those circumstances, and her parents brought meals to her. Over this time, Francesca was living mostly in the main house with her grandparents, and the grandparents bore the main parental responsibility for her.

54    In 1989, Mrs Garbutt met Norman Garbutt, and he commenced living in the Cottage in about 1990. The testator disapproved of this relationship. In about July 1991, Mr and Mrs Garbutt were married, and they moved out of the Cottage.

55    In 1990 and 1992, Mrs Garbutt received an inheritance from the estate of her maternal uncle. She received about $75,000 in December 1990, and a further sum of about $14,000 in March 1992.

56    In 1991, she purchased a house at Bundanoon for $106,500. She paid $28,000 towards this purchase, borrowing about $82,000. According to the trial judge, she gave no satisfactory account of how the balance of her inheritance was disposed of; although she did say that she spent about $7,000 on heroin. Mr and Mrs Garbutt had difficulty repaying the loan, and the house was sold in 1995 for $103,000. Mr and Mrs Garbutt became tenants in that house, but they left in April 1998 due to default in payment of rent. This default occurred notwithstanding Mr Garbutt's receipt, some time before, of a superannuation payment of about $22,000.

57    At the date of the hearing, Mr and Mrs Garbutt were living as invalid pensioners in rented accommodation in Bundanoon in poor circumstances. Each received a pension of about $360 per fortnight, and Mr Garbutt received rental assistance of $50 per fortnight. They were having difficulty with grocery and pharmacist accounts. Both depended heavily on medication. They were spending about $70 per week on cigarettes.

58    Francesca was born on 28th August 1977. From 1990, she attended a private school in Bowral, with the testator paying the fees. For most of her school life, the testator provided for all her economic needs, and took the role of a parent in the management of her life.

59    In 1992, Francesca had some psychiatric difficulties, and there were conflicts between her and the testator and Mrs Sayer. In the result, it was arranged that she go to live with the testator's younger daughter Mrs MacLean in Tamworth. She lived there from about July 1992 to about October 1994. During this time, the testator paid Mrs MacLean $200 per month until Francesca was 16 years of age, after which time Mrs MacLean received an Austudy allowance. Francesca attended Oxley High School.

60    In October 1994, Francesca left Mrs MacLean's house, and lived elsewhere in Tamworth, continuing to attend Oxley High School.

61    Over this period, Francesca continued in communication with the testator. She visited him about twice a year, and often spoke to him by telephone.

62    In 1996, she enrolled in the University of Newcastle for a degree in social science. The testator gave her $550 to help with fees and books.

63    At the time of the hearing, she was receiving an Austudy grant of about $200 per week, and she was receiving about $80 per week in addition from Tamworth Legacy. She had incurred a liability under the Higher Education Contributions Scheme amounting to $6,848, and it was estimated that, at the conclusion of her degree, this liability would be $9,348. She had obtained an Austudy loan, entitling her to draw up to $7,000, which would probably be fully drawn by the time she graduated.

64    At the time of the hearing, Francesca was living in shared accommodation with other students. Her assets were estimated at $1,235, plus her great-grandmother's diamond engagement ring

THE TRIAL JUDGE'S REASONS

65    The trial judge gave the following reasons for dismissing Mrs Garbutt's claim:

The defendant submitted that Mrs Garbutt's difficulties are self-created. I do not accept that this is so. However it is a reality of her circumstances that apparently good opportunities to improve her economic position have not produced the results which should be expected.
I have regard to the long history of dependence and assistance, to the many benefits including benefits specifically relating to her need for housing which the testator conferred on Mrs Garbutt, to the lack of success of her attempts to purchase housing when she had what was, in relation to her circumstances, a very large amount available to put towards equity in a house and very generous finance through Home Fund, the misapplication of her funds and there having been no useful application of Mr Garbutt's funds. I also have regard to the grounds on which provision should be made for Ms. Francesca Sayer out of the estate, to the provision which the testator made for Mrs Anne Sayer, and to the strong considerations which support provision for her as his widow.
In my opinion, notwithstanding Mrs Garbutt's need, and having regard to the circumstances of the present time, no provision ought now to be made for Mrs Garbutt's maintenance or advancement in life out of the estate in the application of the test in s.7 of the Family Provision Act.

66    He gave the following reasons for his order in favour of Francesca:

If no provision is made for Ms. Francesca Sayer out of the estate of the testator the probabilities are that she will find a way to continue to study, with charitable assistance, in hard circumstances at the minimum scale of expenditure. She has and will have no resources whatever with which to be established in life, and with which to face or even begin to face needs to provide her own housing or accumulate a deposit, and no other resources to meet the needs which present themselves in adult life. She has a history of coping with narrow resources and continuing her education in the face of difficulties.

In my judgment it is not appropriate that she should receive no provision out of the estate of the testator, having regard to the amount of his resources, the claims and entitlements of Mrs Anne Sayer, fully recognised by his testamentary provisions, and the position of Ms. Francesca Sayer as his grand-daughter in relation to him. He stood towards her in the position of a parent, and acknowledged this in a number of ways, formal and informal. ...

There was also a personal relationship and emotional bond appropriate to a grandparent, father or other closely related guardian, which only came to an end with his last illness and death. There were difficulties and strains in the relationship caused by Ms. Francesca Sayer's illness and attitude which seem to have been, in an exaggerated form, characteristic of adolescent girls and not a subject of attribution of blame to her; indeed, in relation to the circumstances of her life, they are unremarkable. Although they caused the testator to join in arrangements for her to be looked after in Mrs MacLean's household, they did not cause a rupture of the relationship. The provisions of his will which did not take effect show that he saw that it was appropriate for him to leave her a legacy.

Ms Francesca Sayer stands in quite unusual circumstances for progressing into adult life. Her mother is not in a position to give her any material assistance, and she does not have the social capital available to many young adults in the form of housing or other capital owned by close relatives and freely available. All of life's problems of establishing herself in adulthood will fall directly on her. She may well sense some familial responsibility for her mother. She needs about $20,000 to meet present needs and carry her through to her first degree in a position to pay her HECS and loan obligations and pressing needs and start her working life free from debt.

Addressing the opinion in s7, it is not only appropriate to make provision which will enable her to pass through her university career and emerge free of obligations incurred during it, but she should also have a capital amount which will assist her to become established in life and will be available for purposes such as forming the nucleus of a deposit on purchasing housing, or financing higher studies which she hopes to undertake.

Burden of provision out of estate.
There is only one source out of which provision can be made. The house at 41 Queen Street. The gift of the house and its contents to Mrs Anne Sayer is the only provision of the will which can have any substantial effect. Making provision for Ms Francesca Sayer would have the necessary consequence that the house would be sold. While this burden will fall heavily on Mrs Sayer, I regard it as appropriate as she will receive by far the greater part of the property available for disposition, and a quite sufficient sum with which to provide for her housing in circumstances adequate for her needs.

Mrs Anne Sayer has expressed strong attachment to the house, and there would be considerable advantages to her in retaining it, as income supplementing her pension income arises from letting the Cottage. This must be reflected in the value of the house. Mrs Anne Sayer has now lived in the house for over 8 years and she, with her late husband in his lifetime, spent much time and effort in working on the garden, a prize-winning achievement and a source of great pride and joy to her, and a well-established outlet for her energies. It can be expected that with further years the maintenance of the garden may become difficult for her, although there is little sign of this so far. In view of her age, the size and value of the house and the Cottage, and the other claim on the estate, it is my judgment that the provision made for her has been more than is appropriate. The sum which should remain to her will be very adequate to provide her with housing of a good standard in Bowral, appropriate to a widow living a retired life.

Mrs Anne Sayer's strong feelings of attachment for the house and the garden are understandable and well-based in the length of her association with them and with her happy shared experiences with the testator in establishing and working in the garden and decorating the house. These claims have to be brought under consideration with Ms Francesca Sayer's need for provision, the strength of which is in a quite different order to the strength of claims based on attachment to and associations with a house and a garden.

The house, its contents and its garden are the defendant's property under the provision of the testator's will which express specifically his wish that she should be the owner of the house. No intervention in her property rights should be made unless the terms of s7 justify the intervention. Mrs Anne Sayer's counsel contended that if the position were reversed and she were claiming provision she would have expected the court to award her the house, in substance the whole estate, to the exclusion of the claim of Ms Francesca Sayer. I do not think that this is right, although if the situation were reversed in that way the widow's claims for provision, particularly of suitable housing, would have been the most prominent consideration; that need should be met appropriately, but not excessively.

Conclusion:
In my judgment it is appropriate that a provision of $90,000 be made for Ms Francesca Sayer out of the estate.


SUBMISSIONS ON APPEAL

67 All parties provided written submissions which will be left with the papers. No challenge was made to the trial judge's acceptance that both applicants were eligible persons, within s.6 of the Family Provision Act. All parties provided affidavits up-dating financial circumstances, although, apart possibly from Mrs Garbutt, it was not suggested that these should be considered unless the Court was minded to uphold an appeal and itself consider what orders should be made.

68    Mr Hallen SC, supporting Mrs Sayer's appeal against the order in favour of Francesca, first challenged the trial judge's finding that, if provision was made for Francesca, there would still be sufficient left to provide housing for Mrs Sayer. He pointed out that, taking into account the surplus of debts and expenses in the estate of about $500, the costs of the proceedings before the trial judge of $40,500, the costs associated with sale of the Queen Street property of $13,500, the costs of purchase of a new property of about $8,000 (not referred to by the trial judge), and the $90,000 provision for Francesca, a total of about $152,500 would come out of the $400,000 value of the Bowral property, leaving only about $247,500 to provide for Mrs Sayer. Mr Hallen pointed out that no reference was made in the judgment to Mrs Sayer's uncontradicted evidence as to the non-availability of comparable properties.

69    Mr Hallen conceded that appeal courts should show restraint: see Golosky v Golosky, NSW Court of Appeal, 5 December 1994 unreported; Singer v Berghouse (1994) 181 CLR 201 at 212. However, he submitted, the trial judge's conclusion was so apparently unreasonable as to indicate that he had acted on an incorrect principle, or misinterpreted the statute, or made some other unidentified error: Eggler v Mitchelmore, NSW Court of Appeal, 11 November 1992, unreported.

70    The testator's will showed that he recognised that his primary obligation was to Mrs Sayer, to provide her with secure accommodation, and to provide income for the maintenance of her style of life: see Luciano v Rosenblum (1985) 2 NSWLR 65. The latter was to some extent provided by the availability of the Cottage for renting, although even with this, Mrs Sayer's income was insufficient.

71    On the other hand, Francesca was a young adult, who appeared to be obtaining a good education, who expected satisfactory employment on completion of that education, and who was in no different position from many other university students. No justification was given for the sum of $90,000, having regard to the principle that the Court should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant: see Permanent Trustee Co v Fraser (1995) 36 NSWLR 24; King v Foster, NSW Court of Appeal, 7 December 1995, unreported.

72    The estate was too small to allow for provision to Francesca. Mrs Sayer was a 65 year old widow, unable to work, and she had not worked for six years. Even with rent from the Cottage, her income was insufficient. The trial judge's statement that the provision for Mrs Sayer was "more than is appropriate", was wrong, and in any event misstated the relevant test.

73    Indeed, it was not appropriate that Mrs Sayer should have to sell the home where she had lived for ten years, and move to a home unit.

74    Mr McGovern for Francesca referred to well-known passages from Singer v Berghouse at 208 and 211, where it was pointed out first, in relation to ss7 and 9 of the Family Provision Act 1982 (NSW), that:

It is clear that, under these provisions, the Court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant.

Then, at 211, it was pointed out that the first stage is a question of objective fact to be determined by the judge at the date of hearing, and the judgment went on:

The decision made at the second stage, by contrast, does involve an exercise of discretion in the accepted sense.

Mr McGovern also referred to Fraser and Bosch v Perpetual Trustee Co [1938] AC 463.

75    Mr McGovern submitted that no challenge had been made to the trial judge's finding that Francesca was left without adequate provision for her proper maintenance, education and advancement in life. Accordingly, the challenge was to the trial judge's discretionary decision, involving the principles stated in House v The King at 505. Mr McGovern also referred to the passage mentioned earlier from Golosky and to its approval in Singer. He also referred to Southgate v Waterford (1990) 21 NSWLR 427 at 442.

76    Mr McGovern noted the contention for Mrs Sayer, contrary to the finding of the trial judge, that the estate was insufficient to provide adequately for Mrs Sayer's housing, and leave something for Francesca. However, Mr McGovern submitted, it was open to the trial judge to make the following findings, which he did in fact make. First, that with further years, the maintenance of the garden may become difficult for Mrs Sayer, as well as being expensive. Second, that the sum left after making provision for Francesca was adequate to provide housing for Mrs Sayer: there was evidence of the availability of reasonable two bedroom units in the Bowral area with a price range between $105,000 and $130,000. Third, that the provision for Mrs Sayer was more than appropriate, having regard to what would be left over after purchase of such housing.

77    Mr McGovern submitted that the case was very different from King v Foster: that case dealt with a widow surviving after a marriage of 35 years, in which she had made a substantial contribution in the bringing up of the two children of the marriage; where there was a substantial financial contribution by the wife to the joint assets; where the wife had made a substantial contribution working on the couple's farm property, as well as bringing up the children; and where the evidence showed that her expenses exceeded her income by $93 per week. Courts in fact faced an infinite variety of circumstances and relationships, so that it was impossible to formulate anything like a range of acceptable results: it was very much a matter for the discretion of the judge in an individual case, and that discretion should be overturned only in clear cases. Here, the trial judge had looked at all relevant matters very carefully, and given weight to circumstances favourable to the widow.

78    Mr Jordan for Mrs Garbutt submitted that the trial judge had found "need" in relation to Mrs Garbutt. It should be taken that he had found the first stage of the enquiry in favour of Mrs Garbutt: otherwise, there was error in that the trial judge had failed to give reasons relating to the first stage of the enquiry, and in any event, such a decision would be plainly wrong.

79    Coming to the second stage, and looking at factors taken into account by the trial judge, the history of dependence of Mrs Garbutt on the testator, and the benefits he had provided her, were matters which supported her claim. Her mismanagement of funds, also adverted to by the trial judge, were due to her medical problems and difficulties, which the trial judge had found were not self-created. Contrary to the trial judge's view that Mrs Garbutt's claim was outweighed by the claims of Mrs Sayer and Francesca in a small estate, Mrs Garbutt's needs and claim were in fact stronger. If the Queen Street property were sold, there would be sufficient left for Mrs Sayer, even after appropriate provision had been made for Mrs Garbutt.

80    It would be wrong to refuse an order just because of the possibility that it might be dissipated. The Court could tailor an order to guard against that possibility: see Green v Green, Hodgson, J, 16 July 1985 and 11 September 1985 unreported; Hoadley v Hoadley, Young, J, 17 December 1987, unreported.

81    Mrs Garbutt wished particularly to have a house in which to live; and the new evidence sought to be relied on showed that such a house was available for around $50,000. Mr Jordan submitted that Mrs Garbutt has no means: she was given nothing in the will, and it was an error that she receive nothing as a result of her application. It was against community expectation that Mrs Garbutt have nothing, whereas Mrs Sayer should have such a valuable house.

82    In reply, Mr Hallen submitted that the new evidence concerning Mrs Garbutt's accommodation indicated that her father-in-law was now in effect providing rent-free accommodation, saving Mr and Mrs Garbutt $100 per week. There was no suggestion that this was in jeopardy, so that there was no need for accommodation.

83    In any event, he submitted, the trial judge's decision was well supported by evidence.

DECISION

84    Dealing first with the Sayer appeal, there is force in Mr Hallen's submissions that Mrs Sayer should not have to sell her house, and that she needed help from rent from the Cottage in relation to her income; and that the $90,000 provision for Francesca was excessive.

85    However, this is not a case where any significant identifiable error has been shown. The appellant's case depends upon, to adopt the words of Kirby P in Golosky, an appeal to a different evaluation which, objectively speaking, may be no better than the first. It depends upon an appeal judge saying, in relation to a matter of discretion, that the decision of the trial judge is so plainly wrong that there must have been some error. And in coming to such an opinion, it is incumbent upon the appeal judge to recognise both that he or she is dealing in an area of discretion, and that his or her own opinion on the matter may, objectively speaking, be no better than the trial judge's.

86    It seems to me that there are two crucial opinions expressed by the trial judge which are at the heart of his exercise of discretion: first, that an award of $90,000 to Francesca was appropriate; and second, that Mrs Sayer was adequately provided for by what was left after expenses and provision for Francesca.

87    In relation to the second finding, I note that the trial judge did have evidence before him of apparently reasonable two bedroom villa units on offer in the Bowral area in the range of $105,000 to $130,000. I note also that this was not a case, like King v Foster, of a lifetime marriage, with shared raising of children, and with a substantial contribution from the wife to the assets of both parties; although, as the trial judge found, the marriage was not a short one and the widow did have the strongest and the largest claim. Further, although the trial judge noted that Mrs Sayer's living expenses were almost equal to her income, it would seem that some of those living expenses may be reduced if Mrs Sayer moves into a unit, for example rates of $1,500 per annum and expenses for house and garden maintenance in a similar sum; and also that there could be a significant capital sum left over after purchase of a villa unit.

88    Accordingly, although there is force in the contention that Mrs Sayer should be able to retain a house and garden to which she has a very strong attachment, I am unable to say that the trial judge was plainly wrong in this second finding.

89    Coming to the question of the appropriateness of a sum of $90,000 for Francesca, this must be considered in the light of the general principle that the Court should not interfere with the testator's dispositions any more than is necessary to ensure that the applicant does have adequate provision for his or her proper maintenance, education and advancement in life. The trial judge stated that Francesca needed about $20,000 to meet present needs and carry her through to her first degree, in a position to pay her HECS and loan obligations and pressing needs and start her working life free from debt. He went on to say that she should also have a capital amount which will assist her to become established in life, and it appears that he took the view that $70,000 was such an appropriate capital amount. However, he gave no further explanation of how he arrived at this figure of $70,000.

90    The trial judge's view is supported by the consideration that Francesca has minimal assets, and has no prospect of assistance, either in the near future or the medium term future, from any close relative. Further, community expectations may be troubled by the possibility that, if no order is made in Francesca's favour, the whole of Mr Sayer's estate will eventually find its way to Mrs Sayer's children, to the exclusion of the testator's descendants, in circumstances where those descendants would probably have no claim on Mrs Sayer's estate. However, this consideration does not significantly affect what would now be adequate provision for Francesca's proper maintenance, etc.

91    Further, I am not certain that I would identify repayment of HECS obligations as a pressing need of Francesca. The applicable law, as I understand it, requires repayment of these amounts out of income, once a threshold of $22,000 per annum is passed, on a sliding scale beginning at 3% and going to a maximum of 6% where the gross income reaches $39,500 per annum. Interest on these amounts, as I understand it, is charged only to the extent necessary to equal CPI, so that there is no undue disadvantage in repayment being delayed until the income threshold is crossed. Another important consideration is that, whereas Francesca may reasonably be expected to be able to improve her situation as time passes, it is likely that Mrs Sayer will not be able to improve hers, so that whatever provision she receives from this estate will need to be adequate for her proper maintenance for the remainder of her life: having regard to her age, health and circumstances, it would not be reasonable to expect that she would work in the future.

92    In all the circumstances of this case, my opinion is that $90,000 is too high a figure. It seems to me that, if Francesca had effectually been given (say) $25,000 by the testator, there would have been no chance whatsoever that a court would have treated such provision as inadequate. While I believe that Francesca had a legitimate claim and a need, which could properly be quantified in such an amount as this, and to that extent be allowed to reduce Mrs Sayer's provision, it seems clear to me that Mrs Sayer's claim to the difference of $65,000 is stronger. The question is, should I give such weight to this evaluation, which may objectively speaking be no better than the trial judge's evaluation, as to conclude that the trial judge's discretion must have miscarried. It is appropriate to give more than lip service to the statement in Golosky, to which I have referred.

93    However, while I must recognise the possibility discussed in Golosky, I still must ultimately act upon my own opinion; which is that $90,000 is so excessive as to indicate that the trial judge's discretion has somehow miscarried. However, that view does not I believe mean that I must totally disregard the trial judge's other opinions and findings; and in my opinion, I can and should still give weight to the trial judge's opinions concerning the sufficiency of the estate to provide for Mrs Sayer after provision has been made for Francesca. Although it could be suggested that this opinion is itself vitiated by the trial judge evaluating Francesca's claim too highly, I take the view that the trial judge is not shown to have been in error in his assessment that Francesca's claim was a strong one, and should not be entirely defeated by Mrs Sayer's claim to be able to remain in her house.

94    In exercising its own discretion, this Court will consider relevant changes in circumstances since the original hearing; but I do not believe the recent affidavits of Mrs Sayer and Francesca materially affect the position. Mrs Sayer's recent evidence about the availability and price of accommodation comparable to the Queen Street house does not displace the trial judge's opinion to the effect that less expensive accommodation would be appropriate for her needs. In my opinion, provision of $25,000 to Francesca would be appropriate. It would give her the choice of repaying her education debts and starting her working life free from debt; or alternatively, if she considers other uses of that money more pressing, she could apply it to those uses.

95 For those reasons, I would allow the appeal to the extent of reducing the provision for Francesca from $90,000 to $25,000. I would not disturb the costs order below. I would order that Francesca pay Mrs Sayer's costs of the appeal, and have a certificate under the Suitors' Fund Act. Having regard to the relatively small provision for Francesca, I would be minded to make some adjustment in her favour to the extent that the certificate does not cover all the costs of the appeal.

96    As regards Mrs Garbutt's appeal, I accept that need was shown, and I accept that the trial judge's decision proceeded on the basis that Mrs Garbutt had been left without adequate provision for her proper maintenance.

97    Turning to the second stage, the discretionary decision, in my opinion it was appropriate for the trial judge to take into account Mrs Garbutt’s lack of contribution to the welfare and assets of the testator, the strength of competing claims, and her own irresponsibility - even recognising that the illness which greatly contributed to that irresponsibility can in no way be considered her fault.

98    Taking these matters into account, in my opinion no ground is shown to disturb the trial judge's exercise of discretion. I would therefore dismiss the appeal in this case, with costs.

99    DAVIES AJA: I agree with Sheller JA.

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