Singer v Berghouse

The case of *Singer v Berghouse* was heard in the High Court of Australia. The dispute concerned an appeal against a master's refusal to interfere with the distribution of a testator's estate as provided by their will. The appellant contended that this refusal was an error, particularly in light of the provisions of the *Family Provisions Act 1982* (the Act), which was before the Court for consideration for the first time.

The central legal issue before the High Court was the interpretation and application of the *Family Provisions Act 1982*, specifically concerning the "ought" question in relation to making provision for an eligible person from a deceased's estate. The appellant argued that the Act, while maintaining the principle that courts should consider the circumstances at the time an order is made, had potentially magnified the importance of this consideration compared to previous legislation. The court was required to determine how the statutory language, particularly section 7 and section 9 of the Act, directed the court's discretion in making provision for eligible persons.

The court's reasoning focused on the structure and language of the *Family Provisions Act 1982*. It was noted that the Act places the "ought" question first in its sequence of considerations. Section 7 empowers the court to order provision as it "ought" to be made for maintenance, education, or advancement in life, having regard to the circumstances at the time the order is made. The appellant argued that this phrase meant that findings of fact established at the date of the hearing were the sole basis for the court's decision. However, the court also considered section 9, which outlines conditions for making an order, including being satisfied that the estate is inadequate for the proper maintenance, education, and advancement of the eligible person. The court's analysis suggested that the "ought" question was paramount, with the adequacy of provision being subordinate to this primary consideration.