HIGH COURT OF AUSTRALIA

MASON CJ, DEANE, TOOHEY, GAUDRON AND McHUGH JJ

 

 

 

SINGER v BERGHOUSE

(1994) 181 CLR 201

14 September 1994

 

 

Testator's Family Maintenance

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 the
deceased and the appellant that each desired his or her assets at
the date of execution to be for such use or disposition as he or she
should desire and should testamentarily be held for the benefit of
the party's children, descendants or other members of the family
respectively as the party might appoint. The deed contained mutual
covenants in like terms by each party foregoing claims against the
other's estate. Clauses 3 and 4 contained the covenants on the part
of the appellant. Clause 5 contained a provision applicable to the
covenants. Clauses 3-5 (inclusive) were as follows:
"3. Bernice has not and will not at any time in the future
have and/or make any claim under the provisions of any
legislative enactment of the State of New York, of the
United States of America, of the State of New South
Wales or of the Commonwealth of Australia or under any
provision of the Common Law of the said States and
Countries with respect to provisions for entitlement
to property arising out of the marriage relationship,
whether in its subsistence or beyond and/or arising out
of testamentary capacity or intestacy, to any of the
assets presently owned by Lionel or to any assets into
which these present assets may be converted by or on
behalf of Lionel.
4. Bernice further covenants that she will not at any time
take any action which may prevent or hinder or impede
Lionel from dealing with or disposing of his aforesaid
assets.
5. These agreements and covenants herein may be pleaded
in bar to any claim, by Bernice and/or Lionel made
contrary to such agreements and covenants, wheresoever
and within the jurisdiction of whichever court such
claim is made."



4. The Master concluded, rightly in our view, that the effect of the
deed was to provide that neither party would make any claim against
the estate of the other as it stood at the date of execution, or to
any assets into which those assets may have been converted. The
Master also concluded, again rightly in our view, that the provisions
of the deceased's will were intended to give effect to the agreement
embodied in the deed.



5. The net value of the estate on the date of death was $454,755.
The estate included a house property at 55 Beaumont Street Rose Bay,
Sydney, valued at $275,000. The balance of the estate consisted
mainly of the proceeds of life insurance policies. It was common
ground that, in the events which have happened, the whole of the
estate passed under the will to the deceased's son Joseph. At the
date of the hearing before the Master the net value of the estate was
in the order of $556,000. It was asserted that the widow departed
from Australia after the death of the deceased with $8,480 belonging
to the estate but the respondent does not require that this amount be
repaid. After deducting this amount and the value of the Rose Bay
property, the residue of the estate amounted to $180,000
approximately. This was reduced by the costs of the hearing before
the Master to $135,000 approximately. Since then, additional
expenses, including the costs of the litigation, advances to and
reimbursement of expenses incurred by Joseph Singer in connection with
the property, particularly the restoration of the property, appear to
have almost dissipated the residue of the estate, leaving a mortgage
to secure the sum of $30,000 on the property.



The relationship between the appellant and the deceased

6. The parties do not contest the findings made by the Master as
to the history and circumstances of the relationship between the
appellant and the deceased. The parties, each having been previously
married, met in 1986 and became fond of each other. The deceased had
been a member of the Consumer Claims Tribunal. In 1982 he had been
retired from that office and in 1986 he received $250,000 compensation
for loss of office. The appellant had been living in Brooklyn, New
York, where she had part-time employment which she gave up on
marriage. The appellant and the deceased stayed in the appellant's
house in New York for a short time after their marriage, returned to
Sydney and remained there from May until September 1987 and then spent
from September to December of that year in the United States. They
came to Sydney some months before the deceased's death and remained
there. The appellant contributed to their expenses while travelling.



7. They did not intend to live in the deceased's property. They
lived in a property for which the deceased paid the rent. They
contemplated purchasing a house, probably as joint tenants. Although
the deceased was not in good health during the marriage, his death was
unexpected.



8. The appellant returned to New York after the deceased's death.
She no longer worked and the Master considered that she would not work
in the future. Her health was not good. She owns a house in Brooklyn
worth about $230,000. The house is divided into two apartments in one
of which she lives. The other is let to her daughter at a rent of
$460 per month, the proper rental being about $630 per month. It
seems that at age 62 she became entitled to a pension of $370 per
month which increased to $460 per month when she turned 65. She had
$320,000 in bank deposits. The evidence did not reveal what her
income from these investments was.



The son's circumstances

9. Joseph was 44 at the date of the hearing before the Master. He
seems not to have had a settled occupation. Business ventures in
which he participated were not successful and he was virtually
penniless by the end of 1983. He went to the United States in 1983
and returned home in 1985. After his mother died in that year, he
looked after the deceased. He went overseas with the deceased in
1986. When they returned home in 1986 the Rose Bay property had been
badly damaged by a storm and was not habitable. Since the deceased's
death, Joseph has done much work on the house, work that had been
planned before the deceased's death. Joseph has spent some of his own
money on the work but has been largely reimbursed by the estate. He
married in 1987. His wife did part-time work earning approximately
$200 per week. Joseph had no assets apart from a motor vehicle worth
$10,000. He worked as a salesman. His income in the year ended
30 June 1989 was $13,653. The deceased intended that his son would
live in the Rose Bay property.



The case for the appellant

10. The appellant submits that the facts show a manifest failure
of testamentary duty on the part of the deceased to the appellant.
The appellant further submits that, in so far as the Master took
cognisance of the provisions of the ante-nuptial deed, the Master's
exercise of discretion was vitiated by an error of law and of
principle. The appellant also contends that the ante-nuptial deed had
no weight because it had receded in significance into no more than a
wish that the parties' children should inherit the respective family
homes and because the financial position of the estate was sufficient
to enable provision to be made for the appellant without affecting
Joseph's claim to the Rose Bay property.



The significance of the ante-nuptial agreement

11. It is convenient to examine at the outset the significance of the ante-nuptial agreement. The Master dealt with it briefly. He noted
that the appellant and the deceased had consulted Mr Berghouse who had
given the deceased a draft agreement but had suggested that it should
be checked by a New York lawyer. The appellant took it to her own
attorney who said that he did not know why it was needed but explained
it to her. The Master found that she understood it. He noted that
the final agreement was not the document prepared by Mr Berghouse.
That agreement was re-executed in Sydney. The Master went on to say:
"The strange provisions of the will are clearly intended to
give effect to the agreement and although the agreement does
not prevent this claim from being brought it is admissible
under s.9(3)(c) and (d) of the Family Provision Act although
no doubt it might not have been admissible and would be
held to have been irrelevant had the marriage lasted for a
reasonably long period of time."



12. In the Court of Appeal, Sheller JA observed that s.31 of
the Act enables a person to release his or her rights to make an
application under the Act in relation to the estate of a deceased
person, but that, in order to be effective, a release requires the
approval of the court. No such approval was sought in the present
case. Sheller JA went on to say that:
"The Master considered that the real relevance of the
agreement was to show that the parties thought its terms
fair at the time they signed it. In the event of her
husband's death the appellant could not say that she had
expectations of a more affluent life than she had led before
the marriage. For my part, I do not regard it as having, in
the circumstances of this case, any greater significance in
determining whether an order and if so what order should be
made in favour of the appellant."



13. In our view, Sheller JA was correct in approaching the matter
in this way. The agreement was admissible for the limited purpose
indicated in the passage quoted above. Its admissibility is
consistent with s.32(2) which makes admissible statements by a
deceased of any fact of which direct oral evidence by a deceased
would, if he or she were able to give that evidence, be admissible.
The deed was admissible because the court must take all the relevant
circumstances into account when determining whether a deceased made
inadequate provision for the proper maintenance and support of an
eligible person ((1) Hughes v. National Trustees, Executors and
Agency Co. of Australasia Ltd. (1979) 143 CLR 134 at 147-148.).
Obviously, there can be cases under the Act in which the existence of
such an agreement will have little or no real significance by reason of
either the circumstances in which the agreement was made or events
occurring during the course of the marriage or relationship. However,
given the brevity of the marriage, and the significant financial
contributions made by the deceased to the maintenance of both the
appellant and the deceased together with the lack of any detailed
evidence of either financial or non-financial contributions by the
appellant, we do not believe that this is such a case. It should also
be mentioned that the appellant did not deny that she and the deceased
intended that their own real estate properties should go to their own
children. Accordingly, the attack on the Master's use of the
ante-nuptial agreement fails.



The jurisdiction of the court

14. Section 7 of the Act provides that, subject to s.9, if the court
is satisfied that the person applying for provision is an eligible
person ((2) See s.6(1).), it may:
"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) provides that the court shall not make an order under s.7
unless it is 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 ((3) Compare the conjunctive in s.9(2)(a) with
the disjunctive in s.7. The difference is not significant.)
advancement in life of the eligible person".



15. 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. The first stage has been described as the "jurisdictional
question" ((4) See, e.g. White v. Barron (1980) 144 CLR 431 at 456;
Bondelmonte v. Blanckensee (1989) WAR 305 at 307; Golosky v. Golosky,
unreported, New South Wales Court of Appeal, 5 October 1993.). That
description means no more than that the court's power to make an order
in favour of an applicant under s.7 is conditioned upon the court being
satisfied of the state of affairs predicated in s.9(2)(a).



16. The Act draws a distinction between two classes of eligible
person. Thus, where the applicant is an eligible person by virtue of
s.6(1)(c) and (d), that is, a former spouse, a dependent grandchild
or a dependent member of the deceased's household, the court must
determine first whether there are factors which warrant the making of
an application. This initial inquiry is irrelevant when the applicant
is an eligible person under s.6(1)(a) or (b), that is, where the
applicant is a widow as here, a widower, a bona fide domestic partner
of the deceased, or a child of the deceased.



17. In Australia, it has been accepted that the correct approach to
be taken by a court invested with jurisdiction under legislation of
which the Act is an example was that stated by Salmond J in In re
Allen (Deceased), Allen v. Manchester ((5) (1921) 41 NZLR 218.).
In that case his Honour said ((6) ibid. at 220-221; appvd in Bosch
v. Perpetual Trustee Co. (1938) AC 463 at 479; appld in Worladge v
Doddridge (1957) 97 CLR 1 at 11; Goodman v. Windeyer (1980) 144 CLR 490
at 497.):
"The provision which the Court may properly make in default
of testamentary provision is that which a just and wise
father would have thought it his moral duty to make in the
interests of his widow and children had he been fully aware
of all the relevant circumstances."
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 ((7) Hughes v. National Trustees,
Executors and Agency Co. of Australasia Ltd. (1979) 143 CLR at 158;
Goodman v. Windeyer (1980) 144 CLR at 504-505.).



18. The first question is, was the provision (if any) made for the
applicant "inadequate for (his or her) proper maintenance, education
and advancement in life"? The difference between "adequate" and
"proper" and the interrelationship which exists between "adequate
provision" and "proper maintenance" etc. were explained in Bosch v.
Perpetual Trustee Co. ((8) (1938) AC at 476.). The determination
of the first stage in the two-stage process calls for an assessment of
whether the provision (if any) made was inadequate for what, in all the
circumstances, was the proper level of maintenance etc. appropriate for
the applicant having regard, amongst other things, to the applicant's
financial position, the size and nature of the deceased's estate, the
totality of the relationship between the applicant and the deceased,
and the relationship between the deceased and other persons who have
legitimate claims upon his or her bounty.



19. The determination of the second stage, should it arise, involves
similar considerations. Indeed, in the first stage of the process,
the court may need to arrive at an assessment of what is the proper
level of maintenance and what is adequate provision, in which event,
if it becomes necessary to embark upon the second stage of the
process, that assessment will largely determine the order which should
be made in favour of the applicant. In saying that, we are mindful
that there may be some circumstances in which a court could refuse to
make an order notwithstanding that the applicant is found to have been
left without adequate provision for proper maintenance. Take, for
example, a case like Ellis v. Leeder ((9) (1951) 82 CLR 645.),
where there were no assets from which an order could reasonably be made
and making an order could disturb the testator's arrangements to pay
creditors.



The nature of the two-stage inquiry

20. Although the precise nature of the jurisdictional question has
been the subject of some debate, the correct view is that the question
is strictly one of fact, notwithstanding that it involves the exercise
of value judgments ((10) White v. Barron (1980) 144 CLR at 441-443 per
Mason J, 448-449 per Aickin J, 456-457 per Wilson J; Goodman v.
Windeyer (1980) 144 CLR at 509 per Aickin J; Hunter v. Hunter (1987) 8
NSWLR 573 at 576 per Kirby P). The evaluative character of the
decision stems from the fact that the court must determine whether the
applicant has been left without adequate provision for his or her
proper maintenance, education and advancement in life.



21. In White v. Barron ((11) (1980) 144 CLR at 443.), although Mason J held that the question does not involve the exercise of a discretion,
his Honour observed:
"There is an element of the artificial in saying that
it is only after jurisdiction is established that the
exercise of discretion begins, for the twin tasks which face
the primary judge are similar."



22. In Goodman v. Windeyer, Gibbs J (with whom Stephen J and
Mason J agreed) expressly agreed with this comment and held that
the nature of the inquiry is such that the court is called upon to
exercise a discretion. Gibbs J said ((12) (1980) 144 CLR at 502.):
"(T)he words 'adequate' and 'proper' are always relative.
There are no fixed standards, and the court is left to form
opinions upon the basis of its own general knowledge and
experience of current social conditions and standards".



23. It is clear from this passage that his Honour was conveying that
the primary judge was in essence making a value judgment in much the
same way as a primary judge makes a sound discretionary judgment in
personal injury cases when he or she assesses the quantum of damages
say for pain and suffering, and for loss of amenities of life.



24. Strictly speaking, however, the jurisdictional question, though
it involves the making of value judgments, is a question of objective
fact to be determined by the judge at the date of hearing. This
conclusion may have consequences in terms of what an appellant needs
to demonstrate on appeal, an issue that will be considered shortly.



25. The decision made at the second stage, by contrast, does involve
an exercise of discretion in the accepted sense ((13) White v. Barron
(1980) 144 CLR at 442 per Mason J, 449 per Aickin J, 455 per Wilson
J; Goodman v. Windeyer (1980) 144 CLR at 501-502 per Gibbs J, 509 per
Aickin J). This is evident from the term "may" in s.7, and this
conclusion is not affected by the fact that this section, unlike s.3 of
the Testator's Family Maintenance and Guardianship of Infants Act 1916
(N.S.W.), the predecessor to the present Act, does not contain an
express reference to the court's discretion to make an order for family
provision. The fact that the court has a discretion under s.7 means
that, as stated above, it may refuse to make an order even though the
jurisdictional question has been answered in the applicant's favour
((14) Pontifical Society for the Propagation of the Faith v. Scales
(1962) 107 CLR 9 at 19 per Dixon CJ; Hughes v. National Trustees,
Executors and Agency Co. of Australasia Ltd. (1979) 143 CLR at 149 per
Gibbs J; White v. Barron (1980) 144 CLR at 442 per Mason J; Re Fulop
Deceased (1987) 8 NSWLR 679 at 680 per McLelland J).



The task confronting the appellant on appeal

26. The principles of law which regulate the circumstances in which
an appellate court may review the exercise of a judicial discretion
are not in doubt ((15) House v. The King (1936) 55 CLR 499 at
504-505.).



27. However, in the context of family provision cases, the principles governing the review of a decision on the jurisdictional question are
not settled. In Goodman v. Windeyer ((16) (1980) 144 CLR at 501.),
Gibbs J did not decide whether an appeal from a decision on the
jurisdictional question should be governed by the principles that
regulate appeals from decisions made in the exercise of a discretion.
Similarly, in Kearns v. Ellis ((17) Unreported, New South Wales Court
of Appeal, 5 December 1984 at 8-9.), Mahoney JA raised the issue but
did not express a concluded view.



28. Kirby P, by contrast, has held that the principles that govern
appellate review of discretionary decisions should apply ((18) Hunter
v. Hunter (1987) 8 NSWLR at 576; Golosky v. Golosky, unreported, New
South Wales Court of Appeal, 5 October 1993 at 15; Singer v. Berghouse,
unreported, New South Wales Court of Appeal, 24 July 1992 at 12-13.
See also White v. Barron (1980) 144 CLR at 435 per Barwick CJ). In
our view, this is the correct approach. In this respect we should
express our agreement with the following comments of his Honour in
Golosky v. Golosky ((19) Unreported, New South Wales Court of Appeal,
5 October 1993 at 13-14.):
"Unless appellate courts show restraint in disturbing the
evaluative determinations of primary decision-makers they
will inevitably invite appeals to a different evaluation
which, objectively speaking, may be no better than the
first. Second opinions in such cases would be bought at
the cost of diminishing the finality of litigation in a
troublesome area and, sometimes at least, with a burden of
costs upon the estate which should not be encouraged."



Conclusion

29. Accordingly, Sheller JA was correct in dealing with the appeal
to the Court of Appeal on the footing that it was necessary for the
appellant to show that the Master made "an entirely erroneous estimate
of what, in the circumstances, was an adequate provision for the
(appellant's) proper maintenance, education and advancement in life".



30. As recent cases in this Court have made plain ((20) See, e.g. Mallet v. Mallet (1984) 156 CLR 605 at 623 per Mason J, Deane J concurring.), it is important that the courts do not disregard or discount the
non-financial contributions made to the property and finances of the
parties to a marriage or marriage-like relationship, such as the
contributions made by parties as home-makers and parents, which are
not directly productive of a monetary return. In this case, however,
the relationship was one between two people with comparable assets
who, at a late stage of their lives, agreed to marry on the basis of
a written agreement about their respective future interests in their
existing and any subsequently acquired property. The evidence is
that, while the deceased and the appellant shared expenses when
travelling, the deceased paid their hotel and rental expenses for the
period during which they resided in Sydney.



31. In these circumstances, and paying careful regard to the need to
take due account in an appropriate case of contributions which are not
directly productive of a monetary return, we do not think that the
case is one in which the appellant has established that the Master's
estimate was entirely erroneous. The Master said:
"There is nothing to suggest that she is not able to lead a
perfectly satisfactory life comfortable in her own home with
a secure income backed by a large capital sum. In many
cases the need for maintenance is obvious without any
particular expression of the need but in this case no need
has been shown for anything now or likely to be required
in the future which would not easily (be) covered by the
(appellant's) own resources."
That was a conclusion which the Master was entitled to reach on the
materials before him. For our part, we are content to rely on the
reasons given by Sheller JA for holding that the appellant failed to
show that the Master's estimate was wholly erroneous. In particular,
we agree with the following comments by his Honour:
"The appellant argued that it was strange and unusual
that the deceased made no provision whatever in his will for
his wife to whom he had been happily married. I must say
that I find it extraordinary that the appellant presented
scant or no evidence as to her present income and outgoings
or as to her intentions or needs for the future or as to
what lump sum provision applying appropriate discount tables
would be required to meet these claims or needs, if they
existed. In my opinion, in the circumstances of this case,
for the Court, in the absence of any such evidence, to make
an order for the payment to the appellant of a lump sum is
to do no more than act on speculation and, contrary to the
prohibition contained in s.9(2) of the Act, to alter the
deceased's disposition of his property in the absence of
proof that he has inadequately provided for the appellant."



32. Section 33(1) of the Act provides that the court may order that
the costs, charges and expenses of family provision proceedings be
paid out of the estate or notional estate of the deceased in such
manner as it thinks fit. However, nothing in the Act precludes this
Court from making an order for costs against an unsuccessful
applicant. Accordingly, the appeal must be dismissed with costs.


TOOHEY J This appeal is from an order of the Court of Appeal of New
South Wales which dismissed an appeal by the present appellant from a
decision of Master Windeyer refusing her claim for relief under the
Family Provision Act 1982 (N.S.W.) ("the Act").



The background

2. Lionel Singer ("the testator") and Bernice Singer ("the
appellant") were married in New York on 7 April 1987. The testator
was 66 years of age at the time; the appellant was 57 years of age.
It was a second marriage for both of them. The testator's first wife
died in 1985. He was a barrister of the Supreme Court of New South
Wales and, although in retirement at the time of his marriage to the
appellant, he had returned to practice on a limited basis. He had one
child, an adult son. The appellant was a widow at the time of her
marriage to the testator. She had two adult children, a son and a
daughter. She was living in Brooklyn, U.S.A. when she met the
testator.



3. After marriage they travelled together for a time and then came
to Australia. The testator had a house at Rose Bay but it had been
severely damaged by a storm and for a time they lived at the Cranbrook
Hotel at Rose Bay, then in a rented property at Bondi Junction. They
took steps to find a house which they had in mind to buy as joint
tenants. However the testator died, unexpectedly, on 9 March 1988,
only eleven months after their marriage.



4. Before their marriage the testator prepared a deed in
anticipation of marriage which he sent to the appellant. She took it
to a lawyer who explained its terms to her. She signed it and sent it
back. Later, after the marriage and when the parties were living in
Sydney, the deed was re-executed in the presence of the testator's
solicitor and friend, Maxwell Berghouse, who is the executor of his
will and the respondent to these proceedings.



5. The deed recites that each of the parties desires, with the
accord of the other party, that her or his present assets, or assets
into which they may be converted, be for her or his own use or
disposition and shall be "testamentarily held" for the benefit of
their respective children or other members of their separate families.
In consideration thereof each party covenants not to make any claim
on those assets and will not impede the other from dealing with or
disposing of those assets.



The will

6. The testator made a will on 31 July 1987. The will was drawn by
the respondent. The testator left his estate to the respondent as
executor, on trust for sale and to hold the proceeds upon trust to pay
"all my just debts funeral and testamentary expenses and all duties".



7. The testator disposed of the balance in the following way:
1. To pay any balance, being property or the proceeds of property
acquired up to the date of marriage, to his son Yossef Singer,
commonly known as Joseph Singer.
2. To pay any balance, being property acquired after the date of
marriage, to the appellant for life and thereafter to his son.
3. To pay any balance, being "real estate purchased by me after
the date of my said marriage" to the appellant for life and
thereafter to his son.



8. Clause 3 of the will directed the executor "to bind himself to
the terms of a Deed of Ante Nuptial Settlement made on 9 March 1987"
and declared that the testator had "no further interest in the
ante nuptial estate of my dear wife".



9. The effect of the will was that the testator's entire estate
passed to the son, Joseph. The estate, at the date of death,
consisted of the house at Rose Bay, valued at $275,000 and other
assets, mainly in the form of money in the bank and the proceeds of
life insurance policies, amounting to $291,735. The gross estate
was $566,735, with liabilities of $111,979, leaving a net estate of
$454,756. At the time of Master Windeyer's order the Rose Bay house
had an agreed value of $380,000 (subject to a mortgage of $30,000).
The cash in hand had been reduced to $176,000, in part in the
discharge of liabilities, though payments had been made to
Joseph Singer to reimburse him for moneys spent in restoring
the house. This does not take account of $8,400 which, in
Master Windeyer's words, "seems to have been taken by the widow". The
precise circumstances relating to this payment do not appear.



The application

10. The appellant applied, pursuant to s.7 of the Act, for an order
making provision out of the estate "for her maintenance, education and
advancement in life". The application was refused by Master Windeyer.
It should be said immediately that, while s.9(3)(b) of the Act
empowers the court to take into consideration "the character and
conduct of the eligible person before and after the death of the
deceased person", there was no suggestion that anything in the
character or conduct of the appellant operated to "disentitle" her
from an order under the Act, to use the language of some of the
cases ((21) See, for instance, Hughes v. National Trustees, Executors
and Agency Co. of Australasia Ltd. (1979) 143 CLR 134.). By all
accounts the marriage, though short-lived, was a happy one.



11. Attention should also be drawn to s.9(2) of the Act which
precludes the court from making an order under s.7 unless it is first
satisfied that the provision (if any) made in favour of the eligible
person is inadequate for the proper maintenance, education and
advancement in life of that person. In the present case, by reason
of the terms of the will and the assets of the deceased, there was
no provision at all made for the appellant in the testator's will.
Subject to a finding of inadequate provision, it is possible to focus
on s.7 of the Act which empowers the court to order such provision out
of the estate "as, in the opinion of the Court, ought ... to be made
for the maintenance, education or advancement in life" of the person
applying.



12. The appellant was in part-time employment before her marriage
to the testator though in the late 1960s she had two strokes which
disabled her from working for some years. She gave up employment on
marriage. She returned to Brooklyn after the testator's death. She
no longer works and the job she held previously does not exist.
Master Windeyer accepted that her health was not good, adding:
"I think it should be taken that she will not work in the future".



13. The Master assessed the appellant's position in the following
way, converting American into Australian currency. The appellant owns
a house in Brooklyn, worth about $230,000. It is divided into two
apartments. She lives downstairs and her daughter upstairs. She
receives rent from her daughter of $460 a month; the market rental
is about $630 a month. She has $320,000 invested in bank deposits;
two bear interest and one is a tax free investment which does not bear
interest but which, the Master said, "is presumably increasing in
value". She is entitled to a pension at age 62 of about $370 a month,
increased to $460 a month at age 65.



14. Joseph Singer was 44 years of age at the time of
Master Windeyer's order. He has had a somewhat intermittent work
history and since his father's death has been working on the damaged
Rose Bay house. He has no assets of any value other than a car. He
is a salesman but earns very little. His wife is an actress who does
part-time work and earns about $200 a week from odd jobs.



15. Master Windeyer decided that the testator had not "failed in a
moral obligation to make proper provision for the maintenance and
advancement of his wife, she being the person he was bound to consider
first". There seem to be two considerations which led to that
decision. The first is the ante nuptial agreement which the Master
did not consider decisive but which he clearly accepted as reflecting
the wishes of the parties. In particular, he thought that:
"the real relevance of the agreement is to show that the
parties thought it fair at the time so that the plaintiff
could not say that she had expectations of a more affluent
life than she had led before marriage in the event of her
husband's death".
The other factor, which is not so explicit in the Master's reasons, is
the absence of evidence of expenses so that:
"There is nothing to suggest that she is not able to lead
a perfectly satisfactory life comfortable in her own home
with a secure income backed by a large capital sum."



The Court of Appeal

16. In the Court of Appeal Sheller JA, with whom Cripps JA
concurred, saw the ante nuptial agreement as having no greater
significance than that ascribed to it by Master Windeyer. In passing,
it may be noted that, by reason of s.31(2) of the Act, a release by a
person of his or her rights under the Act is ineffective unless the
court has given its approval to the release. No such approval was
given (or sought) in the present case. Reference should also be made
to s.32(2) whereby evidence of a statement made by a deceased person
is, subject to the section, "admissible as evidence of any fact stated
therein of which direct oral evidence by the deceased person would, if
he were able to give that evidence, be admissible".



17. In so far as Master Windeyer and Sheller JA attributed no
greater significance to the terms of the ante nuptial agreement than
to provide evidence of what the parties themselves saw as fair at the
time, no criticism can be made of their approach. But it is evidence
of what the parties thought at the time. In particular, the untimely
death of the testator was not anticipated; but what was anticipated
was that they would buy a house together.



18. Sheller JA countered the appellant's argument that it was
strange and unusual that the testator had made no provision for his
wife to whom he had been happily married, by saying:
"I must say that I find it extraordinary that the appellant
presented scant or no evidence as to her present income and
outgoings or as to her intentions or needs for the future
or as to what lump sum provision, applying appropriate
discount tables would be required to meet these claims or
needs, if they existed."



19. Sheller JA concluded his judgment by saying: "I am not
persuaded that the Master erred in the exercise of his discretion".
It is apparent from his Honour's conclusion and other references in
his judgment that he placed heavy emphasis on what he saw as the
discretionary nature of the task which the Master had to perform. In
doing so, his Honour was, in my respectful view, in error.



The exercise of a discretion?

20. Before this Court counsel for the respondent also took his
stand to a considerable extent on the "discretion" vested in
Master Windeyer. That submission invites consideration of what is the
discretion which exists, if it exists at all, in the court dealing
with an application under the Act.



21. Section 7 of the Act empowers the court to order such provision
out of the estate of a deceased person as, in the opinion of the
court, ought to be made having regard to the circumstances at the time
the order is made. Certainly, the decision that provision ought to
be made involves the making of a value judgment in the light of the
evidence. But that is not to say that the court has a discretion to
refuse relief if that judgment leads to the conclusion that provision
ought to be made. Part of the difficulty which affects this area
of the law lies in the use of "discretion", in relation to both the
making of an order and the terms of the order to be made.



22. Mason J approached the matter in White v. Barron in the
following way ((22) (1980) 144 CLR 431 at 441.):
" The question whether the testator left the appellant
widow 'without adequate provision' for her 'proper
maintenance' was to be determined by the primary judge by
reference to circumstances as they existed at the date of
the testator's death. Once this question was answered
in the affirmative, it was for the court to exercise its
discretion to order adequate provision for proper
maintenance for the appellant by reference to circumstances
as they existed at the date of the order."



23. When reference is made to earlier decisions of this Court to
support the discretionary nature of orders made for provision out of
the estate of a deceased person, it should be remembered that, at the
time, the court to which application was made was expressly empowered
"at its discretion" to make an order. Decisions such as Coates v.
National Trustees Executors and Agency Co. Ltd. ((23) (1956) 95 CLR
494.), McCosker v. McCosker ((24) (1957) 97 CLR 566.), Pontifical
Society for the Propagation of the Faith v. Scales ((25) (1962) 107
CLR 9.), as well as White v. Barron, must be read in this light. Even
so, Dixon CJ suggested in Scales ((26) (1962) 107 CLR at 19.):
"Perhaps this Court and other Courts of Appeal have attached too much
significance to the discretionary aspects of orders under appeal". At
least so far as s.7 of the Act is concerned, the court is empowered to
order that such provision be made out of the estate "as, in the opinion
of the Court, ought, ... to be made for the maintenance, education or
advancement in life" of an eligible person. If the court is of that
opinion, it is hard to see on what footing the court may decline to
order some provision ((27) However, it may be that the assets of the
deceased are such that no effective order can be made: Ellis v. Leeder
(1951) 82 CLR 645.). Of course, in reaching that opinion the court
must have regard to all the considerations which the Act makes
relevant, in particular those in s.9(3). But even then the
discretionary nature of this step should not be overstated. The task
of the court is to give effect to its opinion that some provision ought
to be made.



24. Indeed s.9 points the way in which the court is to exercise its
jurisdiction under the Act. In the case of an "eligible person",
who qualifies as such only because he or she is a former spouse
or a dependent grandchild or a dependent member of the deceased's
household, the court must first determine whether there are factors
which warrant the making of the application ((28) s.9(1).). By
clear implication, that initial inquiry is not required in the case of
a widow or widower. But the court is enjoined against making an order
under s.7 unless it is satisfied that the provision (if any) made for
the eligible person is, at the time the matter is before the court,
inadequate for the proper maintenance, education and advancement in
life of the eligible person ((29) s.9(2).). Finally, the court is
empowered, in determining whether any provision should be made, to take
into consideration such factors as any contribution made by the
eligible person to the property or welfare of the deceased, and the
character and conduct of the eligible person ((30) s.9(3).).



25. The structure and contents of the Act do not point to the
exercise of a merely discretionary judgment by the court. Rather,
they require the court to conduct the inquiry which the various
provisions identify. That is, the court must first be satisfied that
the provision (if any) made by the deceased is inadequate for the
proper maintenance, education and advancement in life of the eligible
person. If it then appears that the deceased has not made adequate
provision for the eligible person, the court is empowered to make an
order in favour of that person. The terms of the order it makes is
not so much the exercise of a discretion as an assessment of what is
required, in all the circumstances, to make that provision which ought
to be made. If that approach is not strictly in conformity with the
approach taken in the cases to which reference has been made earlier
in this judgment, the explanation lies in the language chosen by the
legislature in each instance.



26. It is clear that the majority in the Court of Appeal were
influenced by what they regarded as the discretionary nature of the
judgment below, coupled with the absence of detailed evidence as to
the appellant's "intentions or needs for the future".



27. Kirby P would have allowed the appeal. His Honour accepted that
the testator's will must be considered against the "background of an
uncontested moral obligation to his son". Nevertheless he was clearly
influenced by the fact that if Master Windeyer's orders stand,
"Mr. Joseph Singer receives the entirety of these assets; the
appellant receives nothing".



28. In dealing with the appellant's own financial position, it is
true, as the respondent said, that Kirby P made errors. One is of
importance. His Honour said that the appellant "also held jointly
with (her) daughter a deposit of about $US150,000 in financial
institutions". In fact, as already noted, the amount is $A320,000
and is not shared with her daughter. His Honour also said that the
appellant was not eligible for a pension until she reached 65. Again,
as noted earlier, she was entitled to a pension at 62, increasing
when she reached 65. The conclusion reached by Kirby P: "She was
therefore obliged to live on her capital" must be read in the light of
these circumstances. Nevertheless, the reason why Kirby P would have
allowed the appeal is more fundamental and his Honour's ultimate
conclusion that some provision should be made is not fatally flawed by
these considerations.



29. The policy underlying comparable legislation has been stated
by this Court and other courts on many occasions. Inevitably,
particularly in the older decisions, emphasis has been placed on the
obligations of a testator as husband and father. Necessarily, those
statements must now accommodate the changing position of parties to a
marriage or de facto relationship, including the heightened earning
capacity of women. Nevertheless, the observations of Salmond J in
In re Allen, deceased; Allen v. Manchester ((31) (1922) 41 NZLR 218 at
220.), which have been referred to so often by this Court and other
courts, have not lost their force ((32) See Bosch v. Perpetual Trustee
Co. Ltd. (1938) AC 463 at 479; Goodman v. Windeyer (1980) 144 CLR 490
at 497.):
"The Act is ... designed to enforce the moral obligation of
a testator to use his testamentary powers for the purpose
of making proper and adequate provision after his death for
the support of his wife and children, having regard to his
means, to the means and deserts of the several claimants,
and to the relative urgency of the various moral claims
upon his bounty."



30. Kirby P, in effect, asked rhetorically: How could it be said
that a testator who was able to make provision but made no provision
at all for his wife had met the obligation which the Act imposes?
This Court may ask the same question, adding: particularly when some
provision could well have been made for the testator's wife without
affecting his obligation to make provision for his son.



31. As things stood at the time of Master Windeyer's order, Joseph
Singer was to receive the house at Rose Bay, worth $380,000 or
thereabouts (subject to a mortgage), and disposable assets of about
$176,000. Mr Singer swore an affidavit in connection with the
appellant's application to which he exhibited a medical certificate
referring to a "nervous disorder". But the certificate was issued
on 8 July 1983 and its purpose was to explain the impact on him of
unsuccessful litigation in which he was involved relating to a
partnership business. Notwithstanding his intermittent work history,
nothing was said in the affidavit to indicate that Mr Singer is unable
to work. Much of his time in recent years has been spent in restoring
the house in Rose Bay and thereby of course enhancing its value to
him.



32. In those circumstances the proper conclusion is that the gift of
the Rose Bay house constituted adequate provision by the testator for
his adult son and that provision for his widow should be made from the
disposable assets.



33. While it is undoubtedly true that the Supreme Court would have
been assisted by more specific evidence from the appellant as to her
financial position, her application under the Act did not stand to be
determined on a current needs basis. Indeed, Sheller JA said: "The
appellant's claim was said expressly by her counsel not to be based
on any present need." The gravamen of the appellant's complaint does
not lie in her needs at the time of the testator's death; rather,
it asserts a failure by the testator to make proper and adequate
provision for her in all the circumstances.



34. The appellant was younger than the testator by some eight years.
She had a greater life expectancy. She has no job and, by reason
of her age and indifferent health, no real prospect of employment.
She has suffered the dislocation, financial and otherwise, of
moving to Australia and returning to the United States. In all
the circumstances there was no adequate provision made for the
appellant by the testator. And in all the circumstances it seems to
me inevitable that, in terms of s.7 of the Act, some provision ought
to have been made by the Court for her maintenance and advancement in
life.



35. Since this matter has been before the courts on four occasions
(including the application for special leave to appeal), it is
imperative that no more of the estate be consumed in legal costs than
is absolutely unavoidable. It is therefore desirable that this Court
dispose of the matter. An amount of $50,000 is reasonable provision
for the appellant in all the circumstances, without however requiring
her to account for the $8,400 she has received. I would order
provision for the appellant to this effect.



36. The appeal should be allowed. The parties should be given an
opportunity to file written submissions on the question of costs.


GAUDRON J Bernice Singer, the appellant, married Lionel Singer in
the United States of America in 1987. Their personal and financial
circumstances were very similar. They were both of mature years: she
was 57 and he was 66. Both had been married before. Mrs Singer was a
widow with two adult children, Mr Singer a widower with an adult son.
They each had a home of their own and their assets were of much the
same value, his mainly in Australia and hers in the United States.
Both earned or were in a position to earn income from their personal
exertions: Mrs Singer had permanent part-time employment with the
City of New York; Mr Singer was a qualified rabbi and, as well, had
recently resumed practice as a barrister of the Supreme Court of New
South Wales.



2. The position changed somewhat after the marriage. Mr Singer
returned to Australia where he was able to practise as a barrister
and, as well, discharge his duties as a rabbi. Mrs Singer, on the
other hand, gave up her employment to be with and look after her
husband. After arrival in Australia, they spent some time looking for
a house or other residential accommodation which, it seems, was to
be bought in joint names with money provided by Mr Singer. Mr Singer
died unexpectedly before any purchase was made.



3. The relevant provisions of Mr Singer's will are set out in other
judgments. It is sufficient to note that the will contained provision
for property acquired after the marriage to go to Mrs Singer for life
and thereafter to Mr Singer's son, Yossef, who is also known as
Joseph. No property was acquired after the marriage and Mrs Singer
took nothing under the will. Instead, the entire estate, the net
value of which at the date of death was $454,756, passed to the son.



4. Probate of Mr Singer's will was granted to the respondent,
Maxwell Berghouse, and in due course Mrs Singer applied under s.7 of
the Family Provision Act 1982 (N.S.W.) ("the Act") for provision out
of the estate for her "maintenance, education or advancement in life".



5. The application, which was heard by Master Windeyer (as he then
was), was dismissed. In the course of his ruling, the Master noted
the circumstances of the marriage between Mr and Mrs Singer, their
life together and the personal and financial circumstances to which I
have earlier referred and the details of which are set out in other
judgments. He found that Mrs Singer's job with the City of New York
no longer existed, that her health was not good and that she would not
work in the future. He also noted the terms of an agreement, which
has been referred to as an ante-nuptial settlement, and the somewhat
precarious financial circumstances of Mr Singer's son. Again, the
relevant terms of the ante-nuptial settlement and the details of the
son's circumstances are set out in other judgments and need not be
repeated. The Master also noted that Mrs Singer "ha(d) given no
evidence of expenses other than some rough figures for the outgoings
on the property but (that) she ha(d) a large capital sum from which
to receive income". He found that there was nothing to suggest
that Mrs Singer "is not able to lead a perfectly satisfactory life
comfortable in her own home with a secure income backed by a large
capital sum" and added that "no need ha(d) been shown for anything now
or likely to be required in the future which would not easily (be)
covered by (her) own resources".



6. The Master's decision dismissing Mrs Singer's application was
based on the consideration that "recent cases such as Re Fulop ((33)
(1987) 8 NSWLR 679.) and Hunter v. Hunter ((34) (1987) 8 NSWLR 573.)
make it quite clear that the provisions of the will are only to be
interfered with when the (Act) requires that to be done". It is
apparent from the Master's earlier finding as to Mrs Singer's needs and
resources that he considered that, at least in a case where no
provision was made by the deceased person, the Act only required such
interference if it were shown that an applicant had needs or
requirements that could not be met from his or her own resources.



7. Mrs Singer appealed unsuccessfully to the Court of Appeal. It
was held by majority (Sheller and Cripps JJA, Kirby P dissenting)
that it had not been shown that "the Master erred in the exercise of
his discretion". As will later appear, I do not think it is strictly
accurate to describe the power conferred by s.7 as a discretion,
notwithstanding the fact that it is phrased in terms of what the court
may do. But no matter how the power is described, an analysis of the
relevant provisions of the Act discloses, in my view, that there is an
error apparent in the Master's decision and another, arguably more
significant, implicit in his approach.



8. Section 7 of the Act confers power on the Supreme Court of New
South Wales to make an order for provision out of the estate of a
deceased person in the following terms:
"Subject to section 9, on an application in relation to
a deceased person in respect of whom administration has been
granted, being an application made by or on behalf of a
person in whose favour an order for provision out of the
estate or notional estate of the deceased person has not
previously been made, if the Court is satisfied that the
person is an eligible person, it may order that such
provision be made out of the estate or notional estate,
or both, 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."



9. Section 9 provides, amongst other things, as to whether an order
can be made and whether an order should be made. There is special
provision, in s.9(1), in the case of an application "by an eligible
person who is such a person by reason only of paragraph (c) or (d) of
the definition of `eligible person'" in s.6 of the Act ((35) Par.(c)
relates to former spouses of the deceased, while par.(d) concerns
grandchildren and some time dependents and members of the household of
the deceased.), but that is of no relevance in this case ((36)
Section 9(1) provides that in such a situation "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 an 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".). Mrs Singer is an
eligible person by reason of par.(a)(i) of that definition, being a
person who "was the wife ... of the deceased person at the time of
(his) death".



10. Putting s.9(1) to one side, the question whether an order can be
made under s.7 is governed by s.9(2) which relevantly provides:
"The Court shall not make an order under section 7 ...
in favour of an eligible person out of the estate or
notional estate of a deceased person unless it is 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."



11. The questions whether and, if so, what order should be made are
governed by s.9(3) and (4) which provide:
"(3) In determining what provision (if any) ought to be
made in favour of an eligible person out of the estate or
notional 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:
(4) Nothing in subsection (3)(a) limits the generality
of subsection (3)(b), (c) and (d) and the Court may consider
a contribution of the same nature as that referred to in
subsection 3(a) or of a different nature in so far as it
considers it relevant under subsection 3(b),(c) or (d)."



12. The question under s.9(2)(a) is whether "the provision (if any)
made ... by the deceased person ... is ... inadequate". That is
different from the question whether adequate provision has been made.
If the latter were the question posed by s.9(2)(a), the fact that
provision had not been made might well lead to the conclusion that
it was not adequate. But that is not the case when the question is
whether the provision (if any) is inadequate. That is a question
that can and must be answered regardless of whether provision has
been made. And as earlier indicated, the answer to that question
determines whether or not an order can be made under s.7.



13. The preliminary question under s.9(2)(a) and the first question
directed by s.9(3), namely, whether provision ought to be made,
involve considerable subjective assessment and may be said to call for
the making of a value judgment ((37) See with respect to the "value
judgment" required under s.3 of the Testator's Family Maintenance and
Guardianship of Infants Act 1916 (N.S.W.), the predecessor to the Act,
White v. Barron (1980) 144 CLR 431 at 434-435 per Barwick CJ, 449
per Aickin J and Goodman v. Windeyer (1980) 144 CLR 490 at 509
per Aickin J). Unless both questions are
determined in favour of an applicant, there is no power under s.7 to
make an order for provision out of the estate or notional estate but,
assuming no issue arises under s.9(1), if both are determined in
favour of the applicant, such an order must be made. This follows
from the direction in s.9(2)(a) that "(t)he Court shall not make an
order ... unless it is satisfied that the provision (if any) made ...
by the (testator) ... is inadequate", the opening words of s.7,
namely, "(s)ubject to section 9", and the incongruity that would be
involved if s.7 were to be construed as allowing the Court to make or
refuse to make an order for provision contrary to the opinion formed
in accordance with s.9(3). The same considerations lead to the
conclusion that, once a decision has been made under s.9(3) as to
what provision ought to be made, that is the provision that must be
made under s.7. Thus, putting s.9(1) to one side, a decision under
s.7 is not a discretionary decision in the usual sense of a discretion
whether or not to make an order at all. Rather, a decision under s.7
is one that is dictated by the subjective assessments or value
judgments required by s.9(2)(a) and (3). However, where a subjective
assessment or value judgment is concerned, appellate review depends on
essentially the same considerations as those which apply in cases
involving the exercise of a discretion ((38) Hunter v. Hunter (1987) 8
NSWLR at 576 per Kirby P See generally, O'Sullivan v. Farrer (1989)
168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ and
the cases referred to therein.).



14. As earlier indicated, the Master disposed of the application by
asking whether the Act required "the provisions of the will ... to be
interfered with". That was a proper approach in so far as the Act
required the making of an order for provision if the issues under
s.9(2)(a) and (3) were to be determined in favour of Mrs Singer and
required that no order be made if either issue were to be determined
against her. But at no stage did the Master expressly ask or answer
either the question directed by s.9(2)(a) or that directed by s.9(3).



15. Although the questions under s.9(2)(a) and (3) are distinct,
there is no necessity that they be decided separately from each other
or from the ultimate question to be determined under s.7. It is thus
possible that the Master determined all questions compendiously by
determining that the Act did not require an order to be made. It is
also possible that he simply determined the question raised by s.9(2).
The Court of Appeal appears to have approached the case on the basis
that the decision was based on that sub-section, the issue being
identified in the judgment of Sheller JA (with which Cripps JA
agreed) as the making of "an order ... (based) on speculation and,
contrary to the prohibition contained in s.9(2) of the Act". I shall
assume, although it is far from clear, that the Master was addressing
that question and that, in so doing, he made an independent assessment
or value judgment.



16. It is well settled that the preliminary question which arises
under testators' family maintenance legislation, namely, whether the
provision (if any) is inadequate, is to be determined in the light of
all the circumstances of the case ((39) Bosch v. Perpetual Trustee Co.
(1938) AC 463 at 476.). It follows, at least as a matter of law, that
the issue goes beyond the question whether the applicant has needs and
requirements that cannot be met from his or her own resources.
Conversely, if an applicant does establish needs and requirements of
that kind, he or she will have gone a very long way towards satisfying
and, as a general rule, will satisfy the requirement in s.9(2)(a) of
the Act. That was the point of Hunter v. Hunter to which the Master
referred in his decision.



17. There may be cases where, given the circumstances and the size
of the estate, an applicant will, in practical terms, only succeed by
proving needs and requirements that cannot be satisfied from his or
her own resources. But that is a practical consideration only. And
it will not even be a practical consideration in a case where the
estate is sufficient to meet the moral claims of all members of the
family.



18. This is not a case of a small estate and competing moral claims.
It is clear that Mr Singer's estate was sufficient to provide for
Mrs Singer and, as well, to satisfy any moral claim of his son. There
was, thus, no practical necessity for Mrs Singer to establish needs
and requirements which could not be met from her own resources. Nor,
as I have indicated, was there a legal requirement for her to do so.
The Master's decision proceeded on the basis that, either as a matter
of practical necessity or as a matter of law, Mrs Singer had to
demonstrate some need of that kind and, to that extent, it is apparent
that the decision was reached without having proper regard to all the
circumstances of the case. That was an error which should have been
recognized and dealt with by the Court of Appeal.



19. It is also well established that the preliminary question that
arises under testators' family maintenance legislation, namely whether
the provision is inadequate, is similar to, or "may come ... very
close to" the question as to what provision ought to be made ((40)
White v. Barron (1980) 144 CLR at 449 per Aickin J, speaking in
relation to the questions that arose under the Testator's Family
Maintenance and Guardianship of Infants Act. See also Goodman v.
Windeyer (1980) 144 CLR at 509 per Aickin J). To put the matter in
the context of s.9, the question that arises under s.9(2)(a) is not
wholly distinct from that which arises under s.9(3). And the matters to
which regard may be had under s.9(3) are, or usually will be,
circumstances to be taken into account on the preliminary question
under s.9(2)(a).



20. One matter to which regard may be had under s.9(3) is the
"contribution (by the applicant) ... whether of a financial nature or
not ... being a contribution directly or indirectly to ... the welfare
of the deceased person" ((41) See s.9(3)(a)(ii).). Mrs Singer made a
most significant contribution - one might even say sacrifice - to the
welfare of her husband. She gave up her employment with the City of
New York to be with and look after him. It may be that that
contribution is not strictly a financial contribution, but it is one
which, to a very large extent, can be measured in money terms.



21. The tendency of the courts to overlook or undervalue women's
work, whether in the home or in the paid work force, has often
been remarked upon ((42) See, for example, Scutt and Graham, For
Richer For Poorer: Money, Marriage and Property Rights, (1984),
especially Ch 3; Scutt, Women and the Law, (1990), Ch 3; Graycar and
Morgan, The Hidden Gender of Law, (1990), Ch 5; Waring, Counting for
Nothing: What Men Value and What Women are Worth, (1988). And see
also Australian Law Reform Commission, Report No.69, Pt 1, Equality
Before The Law: Justice for Women, (1994) at 11-13.). 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 amounted to a failure to have
regard to a relevant circumstance - indeed, a very relevant
circumstance. For that reason, as well as for the error apparent in
the Master's decision, Mrs Singer's appeal to the Court of Appeal
should have been allowed. Similarly, her appeal to this Court should
be allowed.



22. My view is a minority view and it is, thus, unnecessary for me to consider the issues which would fall for determination if the Master's
decision were set aside. I should, however, note that I agree with
the view that the ante-nuptial settlement was a matter properly taken
into account for the limited purposes identified by Sheller JA. In
particular, it was relevant to show that Mrs Singer "could not say
that she had expectations of a more affluent life than she had led
before (the) marriage". Equally, however, there was nothing in the
circumstances of the case to suggest that she expected or should have
expected a less affluent one. But that is what she has: she no
longer has employment and, as the Master found, she will not work in
the future.



23. Mrs Singer was only employed by the City of New York for a short
time and, given her health and age, it may be that she would not have
stayed in employment for very long. But the fact is that she is now
worse off than she was when she married Mr Singer and, in a real
sense, worse off because she married him. That warrants a finding
that Mrs Singer was not adequately provided for and, also, the making
of an order in her favour under s.7 of the Act.