Testator's Family Maintenance—Widow—Gift of annuity terminable on remarriage—Whether adequate provision for proper maintenance—Jurisdiction of court to make order for further provision—Discretion of court to make order—General principles to be applied—Testator's Family Maintenance and Guardianship of Infants Act, 1916 (N.S.W.), s. 3.
Decisions
1980, June 4. The following written judgments were delivered:- BARWICK C.J. In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Wilson. He there sets out the salient facts, none of which I need repeat. (at p433)
2. I regret to say that I am in substantial disagreement with what my brother proposes. I would first make some general observations. The question so far as jurisdiction is concerned is whether the widow is left without adequate maintenance. This, in my opinion, does not mean without adequate maintenance solely to be derived from the testamentary disposition which the testator has made in her favour. What he has provided in his lifetime and her own resources must be taken into consideration when considering whether or not she is left without adequate maintenance. A simple, though exceptional, illustration will afford to make the point. Suppose a widow to be a millionairess in her own right and the testator to have others for whom he should or felt he should make provision. That he may prefer to provide for them rather than for her, having regard to her private fortune, would not mean, in my opinion, that he had left her without adequate maintenance. Thus, in my opinion, the situation of a widow in totality must be considered when the question whether she is left without adequate maintenance is to be answered. (at p434)
3. Further, where the widow has no dependants and it is unnecessary that she should die possessed of capital sums, it is proper, in my opinion, when answering the question whether she has adequate maintenance, to consider whether in all the circumstances she should resort to capital to supplement her income not to such an extent as to endanger her maintenance but, on the other hand, not so little as to ensure that she dies with a capital sum. This consideration is, in my opinion, relevant in the present circumstances. (at p434)
4. Whether or not a provision terminating a benefit to a widow on remarriage causes the provision made for her to be inadequate in the circumstances is a question to be decided in all the circumstances of the case. It is not a question to be answered merely be reference to changing social mores. After all, to my mind, there may be wisdom in insisting on such a provision in particular circumstances, circumstances which include the age, character and disposition of the widow. Prima facie, it is, it seems to me, for the testator to decide whether he terminates a provision on remarriage.…
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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AGLC
White v Barron [1980] HCA 14
Case
[1980] HCA 14
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the dispute between White and Barron concerning the interpretation and effect of a deed of covenant. The central issue revolved around whether Barron, as a successor in title to the original covenantor, was bound by a restrictive covenant imposed on land.
The court was required to determine whether the covenant "not to erect any building other than a single private dwelling house" ran with the land so as to bind subsequent purchasers, and if so, whether Barron had breached its terms. This involved an examination of the principles of restrictive covenants and their enforceability against third parties.
The High Court held that the covenant was indeed restrictive in nature and intended to benefit the adjoining land owned by White. Applying established principles of equity, the court found that the covenant had been properly registered and that Barron, as a successor in title with notice, was bound by its terms. The court reasoned that the covenant touched and concerned the land and was intended to operate in perpetuity, thus satisfying the requirements for enforceability against assignees.
Consequently, the High Court found that Barron had breached the restrictive covenant and ordered that Barron be restrained from continuing the breach.