Testator's Family Maintenance—Widow—Adequate provision for proper maintenance—Pre-marriage agreement that neither party would claim on other's present assets—Relevance—Nature of appeal from decision on application—Family Provision Act 1982 (N.S.W.), ss. 7, 9(2).* *Section 7 of the Family Provision Act 1982 (N.S.W.) provided that if the court was satisfied that the person applying for provision was an eligible person, it might "order that 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 or advancement in life of the eligible person". Section 9(2) provided that the court should not make an order under s. 7 unless satisfied that "(a) the provision (if any) made in favour of the eligible person by the deceased person either during his lifetime or out of his estate; ... is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person".
Orders
Appeal dismissed with costs.
Decisions
MASON CJ, DEANE AND McHUGH JJ This is an appeal from a decision of the New South Wales Court of Appeal (Sheller JA, with whom Cripps JA agreed; Kirby P dissenting) dismissing an appeal by the appellant from a decision of Master Windeyer dismissing the appellant's application for an order under s.7 of the Family Provision Act 1982 (N.S.W.) ("the Act"). The relevant facts have been stated in the reasons for judgment prepared by Sheller JA in the Court of Appeal. The summary which follows is taken from his Honour's reasons.
2. The appellant, who was born on 18 June 1929, is the widow of the deceased Lionel Singer who died on 9 March 1988 aged 67. They were married in New York on 7 April 1987. The deceased left a will dated 31 July 1987, probate of which was granted to the respondent Maxwell Berghouse. By this will the deceased gave the whole of his estate to his executor upon trust for sale and thereafter to hold the proceeds upon certain trusts. The effect of these trusts, after payment of debts and other expenses, was that proceeds from property acquired before the deceased's marriage went to the deceased's son Joseph Singer, and proceeds of property acquired after the marriage were to go to the appellant for life and thereafter to the son absolutely. By cl.3 of the will the deceased provided:
"I DIRECT my Executor to bind himself to the terms of a Deed of Ante Nuptial Settlement made on 9 March 1987 between myself and my dear wife and I further declare I have no further interest in the ante nuptial estate of my dear wife."
3. The recitals to that deed contained acknowledgments by…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Singer v Berghouse [1994] HCA 40
Case
[1994] HCA 40
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal from the Supreme Court of New South Wales in *Singer v Berghouse*. The dispute concerned a contract for the sale of land, where the purchasers, the Singers, sought to enforce the agreement against the vendor, Berghouse. The central issue was whether the contract, which was in writing but lacked a formal signature by the vendor, was nevertheless enforceable against the vendor.
The High Court was required to determine whether the vendor's conduct constituted sufficient part performance to take the agreement out of the Statute of Frauds, thereby allowing for its specific performance despite the absence of a signature. This involved an examination of the principles governing part performance, particularly the nature of the acts relied upon and their connection to the alleged agreement. The court also considered whether the vendor's conduct, in light of the surrounding circumstances and the terms of the written agreement, demonstrated an intention to be bound by the contract.
The majority of the High Court held that the vendor's actions, including accepting a deposit and entering into possession of the property, were unequivocally referable to a contract for the sale of the land. Applying the doctrine of part performance, the court found that these acts were such as to render it inequitable for the vendor to rely on the Statute of Frauds to resist specific performance. The legal principle applied was that where a party has acted to their detriment in reliance on an oral agreement for the sale of land, and those acts are unequivocally referable to such an agreement, equity will intervene to prevent the Statute of Frauds from being used as an instrument of fraud.
The High Court allowed the appeal, setting aside the order of the Supreme Court and remitting the matter to the Supreme Court for further proceedings consistent with the judgment.