SAMSLEY v BARNES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and MEAGHER JJA 25 September 1990, 7 December 1990 [1990] NSWCA 161 FAMILY PROVISION — de facto husband's claim — bona fide relationship of eighteen years enduring to death — testatrix by her will makes no provision for her partner — leaves entire estate (valued at trial at approx $22,000) to godson aged twenty-seven — summons for provision to be made out of the estate in favour of the male partner of the deceased dismissed by Equity Division (Master Hogan) — held: (1) (by the Court) The Master's discretion had miscarried on the ground that (a) it contained an important factual error relating to the amount deposited in a bank account of the plaintiff; and (b) it found a failure to make adequate provision but, in contradiction, found no established need; (2) (by the Court) The Court of Appeal was authorised to, and should, reconsider the exercise of discretion under the Act according to law; (3) (per Meagher JA, Samuels JA concurring; Kirby P dissenting) Notwithstanding the lack of worthiness of the godson, the plaintiff had not shown that he was "bereft of adequate provision". He had sufficient means to provide himself "not only with bread and butter but also with a little cheese or jam". Blore v Lana (1960) 104 CLR 124, 135 applied; (4) Appeal, accordingly, (by majority) dismissed with costs. FAMILY PROVISION — de facto partner — discussion by members of the Court of the proper approach to claims by de facto partners. Luciano v Rosenblum (1985) 2 NSWLR 65; Hunter v Hunter and Ors (1987) 8 NSWLR 573; Gorton v Parks (1989) 17 NSWLR 1, 7 considered. FAMILY PROVISION — claim by persons eligible by statute — proper approach to — whether appropriate to adopt presumptions in respect of persons in particular relationships to the deceased eg adult able-bodied sons or persons in de facto relationships — Hunter v Hunter and Ors (1987) 8 NSWLR 573 discussed. Gorton v Parks (1989) 17 NSWLR 1 approved and Anderson v Teboneras [1990] VR 519 disapproved by Kirby P. ANTI DISCRIMINATION — family provision — de facto partner — proper approach to claim for provision by — discussion by members of the Court. Hunter v Hunter and Ors (1987) 8 NSWLR 573 referred to. STATUTES — construction — purposive approach — amendment to legislation — provision of a wider class of eligible persons for claims against the estate of deceased persons notwithstanding will — discussion of proper approach to construction of reform legislation. PRACTICE and PROCEDURE — Court of Appeal — hearing of appeal — oral argument before single Judge of Appeal — need for consent — when procedure is appropriate. WORDS and PHRASES — "inadequate for the proper maintenance... of the eligible person". Family Provision Act 1982, ss6,7,9. 2 UNREPORTED JUDGMENTS Supreme Court Act 1970, s43(1),s46. Testators' Family Maintenance and Guardianship of Infants Act 1916, s3(1). Kirby P This appeal from Master Hogan provides an occasion for considering theproper approach to a claim under the Family Provision Act 1982 (the Act) for provision to be made in favour of a de facto husband. If the purpose of Parliament is to be fulfilled by which provision may be made under the Act out of the estate of a deceased member of such a relationship, it is essential that lingering notions of discrimination against persons in such relationships who otherwise qualify should be put entirely out of mind. However much such attitudes were reflected in earlier statutes and case law, and were considered appropriate in earlier social conditions, they are inadmissible in this context following the passage of the Act. They are also inappropriate to the modern conditions of our society which are themselves reflected in the terms of the Act. Long relationship: no provision Mr Joseph Samsley (the appellant) lived with Ms Jullian Mason (the deceased) from 1966. There was no contest that he was living with her at the time of her death as her husband and on a bona fide domestic basis. They lived in a property in Croydon. The appellant had purchased the property out of his funds. According to the evidence, he alone paid the local council rates and the most significant accounts which arose during the relationship. The deceased paid no rent. However, she did contribute to various household expenses, especially for groceries and household goods. She also helped to pay the telephone bills. The deceased was born in August 1944. She was thus twenty-two years of age when she began living with the appellant. He had been born in 1930. He was thus thirty-six when the relationship commenced. He had married in 1955. However, he had separated from his wife in 1963. He finally divorced his wife in 1975. Of his marriage there were three children, two of whom are still alive. They are themselves married and each has children. The appellant is employed as a mechanic. He has been so employed for seventeen years before which time he had his own business. By the time he reaches the age of sixty-five years in 1995, he will have spent twenty-five years service with the one employer. He will be entitled to long service leave benefits. However, he has no other entitlements, eg by way of superannuation or retirement insurance. According to the evidence, the appellant suffers from mild arthritis. He has other minor health complaints. The evidence establishes that his assets comprise the house at Croyden, an old car, a savings account and a cheque account. The house was valued at $220,000. The car was unvalued. In the savings account there was, at the hearing, $13,000. The cheque account contained $1,200. In his reasons for judgment, the Master mistakenly found that the latter account contained $12,000. That mistake is not disputed. The deceased's estate was valued at approximately $66,500. It comprised a house in Caboolture, Queensland worth approximately $60,000, some jewellery and certain moneys held on trust by a firm of solicitors. These moneys amounted to little more than $6,000. They represented the moneys collected from the rental of the property in Queensland to the date of the trial. The deceased's estate has been subject to many liabilities including considerable legal costs arising out of the present proceedings; agent's costs for the rental of the Queensland property; and council rates in connection with it. When these costs are deducted from the assets of the estate, it is estimated that URJ SAMSLEY v BARNES (Kirby P) 3 its nett value at the time of the trial was of the order of $22,000. It was not suggested that there had been any significant change in that value to the time of the appeal. The deceased left a will dated 23 July 1980. By that will, she named one of her sisters, Mrs Barnes, as executrix. She left the entire estate to her nephew, Mr Paul Barnes. He was the only child of the executrix and her husband. The evidence disclosed that he was about twenty-seven years of age at the trial. He was the godson of the appellant and the deceased. That fact alone suggests that the relationship between Ms Mason and Mr Samsley was not only prolonged (lasting eighteen years interrupted only for a short time mid-way) but also well known to, and accepted by, the members of the deceased's family including her sister, the mother of the beneficiary. The evidence also shows that Mr Barnes has been substantially unemployed, seemingly by choice. He has no assets of his own, although in due course he can look to inheriting the entirety of his parents' estate which includes another house in Queensland. There was some evidence that the deceased regarded Mr Barnes as "the son I never had". But the evidence does not suggest that he was close to his aunt. On the other hand, it did suggest that before her death, the deceased intended to alter her will to favour the appellant. This was not finally proved; nor was it relied upon in the present application. That application was made under s7 of the Act. It required the appellant to prove to the satisfaction of the Court that he was an "eligible person". If this were established, the Court's discretion was enlivened to make an 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, eduction or advancement in life of the eligible person." The discretion miscarried at first instance Because the power to make an order under the Act is, the pre-conditions being established, discretionary, the ordinary rules governing appellate review of discretionary decisions apply. It is not enough that the appellate court might consider for itself that a different order should have been made. It is necessary for the appellant to show that the decision at first instance has miscarried. So much is emphasised in many cases under the predecessor to this Act and its equivalents. See eg Huahes v National Trustees and Executors Agency Company of Australasia Limited (1979) 143 CLR 134, 147f; Hunter v Hunter (1987) 8 NSWLR 573, 575ff; Gorton v Parks (1989) 17 NSWLR 1, 7. Relevantly, the appellant must show that the discretion at first instance has miscarried because it has been exercised by reference to an incorrect principle or was based upon facts incorrectly found. In the present case both of the foregoing grounds for appellate intervention are established. In his brief reasons for judgment, the Master concluded that "the deceased failed to make adequate provision for the plaintiff'. There being no provision made in favour of the appellant by the deceased's will, he being without contest an eligible person under the Act, this finding is equivalent, in the terms of s9(2) of the Act, to a determination that, the deceased's provision was "inadequate for [relevantly] the proper maintenance... of the eligible person". Despite this finding, the Master denied the appellant an order under the Act because, in his opinion, it was "clear... that the plaintiff has not established any need". There is no reference to "need" or the obligation to "establish any need" in the terms of the Act. 4 UNREPORTED JUDGMENTS As Meagher JA has pointed out, the two findings of the Master in this regard are mutually inconsistent. If there were absolutely no "need", the provision, even of no benefit by the will would not, in such circumstances, be "inadequate" for the "proper maintenance... of the eligible person". On the other hand, if the deceased "failed to make adequate provision", this conclusion suggests that the failure was itself the result of "need" unfulfilled. The Master also made a serious error of fact-finding. It was one relevant to the exercise of the discretion, at least so far as to what was "adequate" or "inadequate" as a provision in the circumstances. His finding that the appellant had $12,000 instead of $1,200 in his cheque account would, arguably, be a consideration which weighed in his thinking in determining whether or not to make an order. Few people today would keep such a large sum of money in a cheque account, at least one bearing no interest. Anybody who did so would ordinarily be regarded as a person without any pressure for cash liquidity. For these two reasons alone, the Master's decision, although discretionary in character, must be set aside. The decision is flawed. The discretion must be exercised again according to law. It was not suggested that any issue of credit or fresh evidence arose which would require a redetermination of the matter in the Equity Division. The small size of the estate, the confined issue tendered for decision, the substantial costs already incurred burdening the estate and the delay which has followed the death of the deceased all argue for a decision in the case in this Court. Cf Gronow v Gronow (1979) 144 CLR 513, 517; Norbis v Norbis (1986) 161 CLR 513, 517. Purposive construction of the Act There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar. There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional. The former Act also operated in a society quite different from that of today. Apart from the comparative rarity of divorce, the illegitimacy of children was stigmatized. Such children were commonly described as "bastards". Cf Re D F Mackay (1928) 28 SR (NSW) 404, 406; 45 WN (NSW) 106, 107. Couples living in a bona fide domestic relationship (such as is now provided in the primary URJ SAMSLEY v BARNES (Kirby P) 5 definition of an "eligible person" under the present Act) were talked of as living "in sin". They were outside the "sanctity" which the law "throws around marital relationships" (Mackay loc cit). It was in such a society, quite different from that of today, that courts developed notions about the meaning of "proper", "adequate" and "in all the circumstances of the case" where the claimant for provision was in a class considered unmeritorious, especially as their claim was measured against the testator's right to dispose of the estate as he or she thought fit. Hence a number of decisions suggested that adult able bodied sons, without encumbrances who were able to maintain themselves were normally (though not invariably) to be denied orders under the former Act. See Allardice and Anor v Allardice and Ors [1911] AC 730, 732; Re Fuller (1917) 17 SR (NSW) 348, 350. It was in such social circumstances that it was considered relevant to a claim by an adult daughter that she had left home against the wishes of her parents. See Re Hallahan (1918) 18 SR (NSW) 138; 35 WN (NSW) 51. See also Re Harris (1918) 18 SR (NSW) 303; 35 WN (NSW) 122. In the same circumstances, it was common to see the right of the widow described as "paramount". See eg Re F W Crowe (1935) 35 SR (NSW) 547; 52 WN (NSW) 187. See also Re the Will of Gilbert (1946) 46 SR (NSW) 318, 322; 63 WN (NSW) 176, 178. None of these expressions should cause surprise when read from the cold pages of law books in a courtroom where the law of 1990 is being applied. What was said was clearly a reflection of the society to which it was said, and the values of that society. When women normally did not work, it might well have been appropriate to assign widows to a particular class and typically to describe their need for proper maintenance and advancement in life as "paramount". When divorce was infrequent, the notion of entitlements of a divorced spouse against the estate of a deceased ex-spouse might have been regarded as unthinkable. Certainly, the notion of a claim by someone who had lived "in sin" was not only outside the Act. It would have been regarded by many as immoral and undeserving of the support. Where "adult, able bodied sons" had to make their own way in life, whereas daughters might often stay at home with the parents until themselves married, the comparative needs of the daughter for "adequate" provision might seem so much more than those of an adult son. A "bastard" child was to be hidden - a source of shame. Grandchildren could look to their own parents. The very thought that persons could make a claim, based on some irregular relationship, simply because they had at some time been wholly or partly dependent on the deceased would have scandalised many - and doubtless still does, some. These are the considerations which lay behind my suggestion in Hunter v Hunter and Ors (1987) 8 NSWLR 573, 579 that the former law about "adult sons" should be seen now as replaced by a law appropriate to the society of today where adult sons, daughters and other persons enjoy quite different relationships with those who become testators. Attention was drawn in this appeal to the remarks of Ormiston J in Anderson v Teboneras [1990] VR 527, 538 where his Honour criticised my suggestion that Gibbs J in Huahes v National Trustees Executors and Agency Co of Australasia Limited (1979) 143 CLR 134, 147 had discouraged the use of the line of authority, which formerly expressed approaches to be taken to claims of "able-bodied adult sons". With every respect to Ormiston J, I adhere to what I said in Hunter. I believe it is borne out by a careful reading of the observations of Gibbs J in the case cited. In Hunter it was agreed to by 6 UNREPORTED JUDGMENTS Hope JA (expressly) and by Priestley JA (at 583) by inference. See also now Gorton v Parks (1989) 17 NSWLR 1, 7. At the heart of the new approach to claims of this kind is not simply the application of the law, according to its terms, in an undiscriminating way without stereotyping preconceptions about particular relationships. It is also the requirement to apply a new statute which itself reflects changing relationships in society and provides for entitlement in some persons having a relationship to the deceased quite different from those which enlivened the discretion under the former Act. The remarks of Ormiston J in Anderson are to be disregarded in this State. They evidence an adherence to the words of earlier case law without attention to the instruction of later authority of the High Court. They also involve a risk of departure from the duty of courts to apply statutory provisions without discrimination and without blinkered preconceptions about relationships. Not only are such preconceptions at odds with Australian society today. They are also incompatible with the generality of the statutory language which is to be applied. If Parliament had intended, for example, that there should be discrimination against adult male persons as such because they were able-bodied adult or male, it would have said so. In other contexts and in earlier times statutory provisions have enacted discrimination on precisely such grounds. See eg Factory Shops and Industries Act 1962, s36. No such statutory warrant for discrimination exists under the Family Provision Act. Still less does it exist in the case of a man in a bona fide relationship, akin to marriage, with a woman. The enactment of the extended class of "eligible persons" contradicts any suggested discrimination between them and lawful spouses. Being eligible, the discretion is enlivened. Their entitlement is to be judged without preconceptions or moral disapprobation. It should perhaps be noted that people in such relationships do not have to run the gauntlet, as others do, provided by s9(1) of the Act. By that subsection, two of the categories of "eligible person" defined in s6(1), viz former spouses (para (c)) and previously dependent persons or grand-children who were previously a member of the deceased's household (para (d)) must first show that there are "factors which warrant the making of the application". A preliminary assessment of such claims is then envisaged by s9(1). See Diikhuiis (Formerly Coney) v Barclay (1988) 13 NSWLRI 639. No such assessment is required in the case of persons with a spousal or quasi-spousal relationship at the time of death or by children of the deceased. The latter categories of "eligible persons" are entitled to have their claim proceed for determination without having to establish such "factors" as "warrant the making of the application" in this way. The very relationship is deemed by Parliament sufficient to confer a right to consideration if persons in that relationship claim that the provision made by the will was "inadequate" under s9(2) of the Act. So far as the suggestion is made that the deceased's nephew had no "competing moral claim" on her estate because of his manner of life, I respectfully dissent. It is quite possible that the deceased, acting with wisdom and justice, might have considered that her godson had a proper claim precisely because of his perceived social disadvantages. In that sense his unemployment and his "acquaintance with drugs", far from disentitling him from her testamentary generosity, may well have attracted a rational disposition in his favour. The will in this case was made in 1980 when Mr Barnes was a youth. At least at that time, his settled mode of life, living on social security payments, lay before him. Above all, it is unlikely that the deceased would have thought any the 20. URJ SAMSLEY v BARNES (Kirby P) 7 less Mr Barnes because he was living with a "mistress". If she ever thought of it in those terms, that was how some would have described her eighteen year relationship with the appellant. It seems more likely to me that she would have described it in terms closer to the statute, viz that she was "living with him as his wife on a bona fide domestic basis". In popular parlance, she was his partner or "de facto". It is not appropriate, as it seems to me, to judge harshly the suggested disqualification of the godson. Competing moral claims may properly be taken into account in deciding whether less than what would otherwise be proper "maintenance" may be considered adequate provision in the circumstances. See eg In re Buckland [1966] VR 404, 414. But to take into account moral disapprobation of the godson or disapproval of his unemployment, mode of life, relation with a "mistress" or involvement in drugs would cause the fresh exercise of discretion in this Court itself to miscarry. Such considerations must therefore be put out of mind. Conclusion: inadequate provision As I said in Hunter (above, 575) the adjectives "adequate" and "proper" (qualifying the provision that is impliedly required) and the purposes ("maintenance, education or advancement in life") for which such provision is considered, provide the Court with the boundaries within which its task is to be performed. The determination of what is "adequate" or "proper" involves the Court in a task of evaluation. Inescapably, a judge's notion of the adequacy and propriety of the allowance made (if any) will depend upon his or her preconceptions of what a just testator, with the knowledge which the deceased person had at the time of death of the claims of any "eligible person", ought to have done to provide for that person's "maintenance, education or advancement in life". The appellant is such an "eligible person". The deceased left him nothing at all. This was so, despite their eighteen year, apparently stable and bona fide, relationship lasting to the time of her death. It was a relationship more enduring than many marriages. Inevitably, it involved the sharing of lives, of some property, mutual support and encouragement, affection and the ordinary physical and emotional incidents of such a long term association between two human beings. The deceased would have known that her estate was relatively small. She would also have known of the appellant's contribution to their relationship. She would have been aware of his health problem. A moment's inquiry would have revealed (if she did not actually know) the lack of proper provision for his retirement, the absence of superannuation or insurance and the fact that he had accepted the major responsibility over eighteen years in providing her with a home and sustenance. In comparison with these claims, the competing moral claim of her nephew stood in sharp contrast. It puts me in mind of the exchange portrayed by Shakespeare in Act V of Hamlet. Confronted unexpectedly by the burial of Orphelia with little ceremony and by a brother who sprang to defend her honour, the Prince declared: "T lov'd Orphelia; forty thousand brothers could not, with all their quantity of love, make up my sum. " So between the appellant and the deceased. His claim on her financial bounty may not have been overwhelming or urgent, for the appellant still had assets of his own for his future maintenance. But, then, her estate was not large. And the lack of any provision whatsoever, despite his potential needs in old age, lack of 8 UNREPORTED JUDGMENTS insurance and superannuation were such as to render her provision for him "inadequate" within the meaning of the Act, just as Master Hogan found. This conclusion can be tested thus. If a husband of eighteen years with a small estate left his wife, approaching retirement nothing from his estate, despite her lack of insurance or superannuation and knowledge of her health problems, I find it difficult to believe that the discretion provided by the Act would not be exercised in her favour. There must be no less generous approach for a widower making an application than for a widow. Luciano v Rosenblum (1985) 2 NSWLR 65, 69f. But equally, there must be no different approach for a claimant who is eligible because of a bona fide domestic relationship akin to marriage from the case of a widower in a legal marriage. It is particularly inappropriate to draw such a distinction where the relationship between the parties has endured for eighteen years up to the death of one partner. An applicant's home should not generally be regarded as expendable capital for the purpose of supporting himself or herself in old age. See eg Malone v Harrison and Anor [1979] 1 WLR 1353, 1365. This is so because, normally, the applicant will wish to continue to live in his or her home, particularly during advanced years when the disruption of moving will usually be regarded as extremely uncongenial and will usually be seen by a court as unreasonable. If such an approach is taken to the present case, the appellant's liquid assets are extremely modest. Talk of "bread and butter", "cheese and jam" is somewhat condescending in the facts of this case. In Blore v Lana (1960) 104 CLR 124 at 125, the analogy was used as a vivid image to emphasise the point that provision of a bare minimum will not always suffice to take the will outside the beneficial provisions of the former Act. Here, if it is appropriate to use the analogy, neither bread nor butter nor cheese nor jam were left. Nothing. In the circumstances proved, the failure to make any provision for the appellant represented an "inadequate" provision for his "proper" maintenance. This Court is therefore authorised to make an order under the Act. Fresh exercise of discretion: provide the whole estate In the exercise of its discretion, the Court should make such an order. Having regard to the small size of the estate, and the potential needs against which adequate provision should have been made, I have concluded that the appellant should have been given the entirety of the estate of the deceased. Provision should now be made accordingly. I so conclude by reference to the considerations set out in s9(3) of the Act. That section reads: "9(3) 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 URJ SAMSLEY v BARNES (Samuels JA) 9 (d) any other matter which is considered relevant in the circumstances." By the application of all of these criteria, the appellant had a claim for adequate and proper provision to be made in the will of the deceased. Taking those considerations into account, the discretion to be exercised in this Court should be in favour of making an order under the Act in effect to substitute the appellant for the godson as the sole recipient of the remaining assets of the estate. Course of the proceeding It is appropriate to note that, in this appeal, the oral argument was advanced before one member of the Court, (Meagher JA) sitting alone. This was done because the Court, as constituted to hear the appeal could not be assembled, two of the Judges (Samuels JA and myself) having become part-heard unexpectedly in another appeal. Because of the small size of the estate and the desirability of an early resolution of the appeal, it appeared to the Court undesirable that the matter should simply stand-over for another day. The result of this would have been to burden the estate or the appellant with costs which could be ill-afforded and which arose without anyone's fault. It was in these circumstances that the proposal was made that the oral argument should proceed before one member of the Court. The parties consented to that course. It was obviously sensible. Having regard to s43(1) and s46 of the Supreme Court Act 1970, the course adopted could not have been followed without the parties' consent. The transcript of argument was made available to the other members of the Court and read by them, as were written submissions. Had it been necessary or desirable to do so, the case would have been relisted for further oral argument before the three judges of the Court. As events transpired, the record of the hearing before Meagher JA was completely adequate for the just resolution of the appeal. The procedure adopted in this case has been used in a number of cases since. It may be especially suitable in urgent cases where the issues raised are contained within a relatively narrow compass. It is a procedure less suitable where differences emerge in the Court which might be refined during oral argument, where that refinement might itself further the deliberation of the Judges to their respective conclusions. Orders For the reasons which I have stated, it is my opinion that the following orders should be made: 1. Appeal allowed; 2. Set aside the order of the Equity Division (Master Hogan) dated 10 March 1989 dismissing the appellant's summons to that Division; 3. In lieu thereof, order - (a) That provision be made for the plaintiff out of the estate of the late Jullian Marie Mason to the extent of the entire estate; and (b) That the costs of the summons at first instance as between the parties be borne, as to the plaintiff, on a common fund basis and as to the defendant on a trustee basis out of the estate of the late Jullian Marie Mason; and 4. That the respondent, as executrix, pay out of the estate the costs of the appeal but have, in respect thereof, a certificate under the Suitors' Fund Act 1951. Samuels JA I have read the transcript of the oral argument by consent heaard by Meagher JA alone, and the written submission. I have also read in draft Meagher JA's judgment and I agree with him. 10 UNREPORTED JUDGMENTS Meagher JA This is an appeal by Mr Joseph Charles Samsely, the de facto partner of the late Miss Jullian Marie Mason, against the refusal of Master Hogan to make an order in his favour under s7 of the Family Provision Act 1982 against the estate of the late Miss Mason, the executrix of whose will is the respondent Mrs Barnes, one of her sisters. Miss Mason died on 20 December 1984, and by her last will, dated 23 July 1980, left her entire estate to her nephew, Mr Paul Barnes, the only child of the executrix. Miss Mason and Mr Samsely lived together from 1966 until her death. It was an apparently an amicable enough union, although in 1973 they separated for a period variously estimated at 6 weeks and 3 months. They lived at his premises at 37 Brady Street, Croydon. She was born on 9 August, 1944; she never married, and had no children. He was born on 14 August, 1930, married in 1955, separated from his wife in 1963 and was divorced in 1975. He had three children of his marriage, two of whom are still living, both married with children. Mr Samsely bought his house with his own money, except for a bank mortgage, which he discharged with his own money. He paid Council and water rates on it. She did not pay rent. He gave her a small weekly housekeeping allowance. She employed that allowance, together with moneys of her own, in purchasing food and paying other household expenses, including the telephone account. There is a dispute, largely irrelevant, about exactly how much of her own funds were thus employed. Mr Samsely is employed as a motor mechanic by an employer with whom he has worked for 17 years. He intends to work as long as he can. He receives $320.00 per week. By the time he reaches 65 years of age he will have worked for 25 years and become entitled to the benefits of long service leave. On the other hand, he has no insurance or superannuation benefits entitlement. He has mild arthritis and a minor heart complaint. The assets which he owns are his house, which is unencumbered, and is worth some $220,000.00; an old motor car; a savings account which, at the date of hearing, was some $13,000.00 in credit ($8,000.00 of which had been accumulated in the two years preceding the hearing); and a cheque account which at the date of hearing was $1,200.00 in credit (not $12,000.00 as the Master found). From 1966 until 1975 Miss Mason worked as a hospital cleaner. In 1975 she won $30,000.00 in a lottery, whereupon she retired from work. Presumably when that money had been spent, in about 1980 she recommenced work as a part time cleaner, and remained so employed until she died. Her estate is not large. As at the date of the appeal, her estate assets amounted to some $66,500.00, $60,000.00 of which is represented by Queensland real estate. On the other hand estate liabilities amounted to over $44,000.00, the bulk of which, triste dictu, consisted of legal costs. At the date of the appeal, therefore, the net value of her estate was $22,000.00. The beneficiary, Mr Paul Barnes, is now about 27 years of age. He is the godson of Miss Mason and Mr Samsely. Since he turned 21 he has lived in Sydney. He is mainly unemployed. He often chooses to remain unemployed even though work is available for him. Since he has neither employment nor the will to obtain employment, he has no assets. He is not unacquainted with drugs. Although Miss Mason regarded him as "the son I never had", his behaviour to her was not unbearably filial. He lives with his mistress, who is also unemployed, in rented premises. He always expected to inherit his aunt's estate and still expects to inherit the whole of his mother's estate and the whole of his father's estate. His URJ SAMSLEY v BARNES (Meagher JA) 11 attitude hardly excites either sympathy or admiration: he has elected to pursue a life of idleness, financed by Social Security hand-outs over $400.00 per fortnight, until his remainders fall in. The Master's ultimate finding, - and the whole of his reasoning, should be set out in full: "T have come to the conclusion that the deceased failed to make adequate provision for the plaintiff. It is clear, however, in my view, on the evidence, that the plaintiff has not established any need." The Act requires the Court to make an initial determination whether an applicant has been left with "inadequate" provision for his "proper maintenance, education and advancement in life". If that determination is made in the affirmative, the applicant may (but need not necessarily) obtain an order in his favour: S9(3). The Act does not use the expression "need". However, many judges have used, and still do use, that expression. In this context, I am unable to appreciate what the word "need" means, unless it means "a need for further provision to ensure adequate maintenance, education or advancement'. The findings of the Master are therefore internally contradictory. A finding of inadequate provision necessarily involves a finding of need. Conversely, a finding of no need nessarily involves a finding of no inadequate provision. Since the Master applied a wrong legal test, and also made a major error of fact (mistaking $1,200.00 for $12,000.00), his decision must be reviewed afresh by this Court. On such a review, however, I have come to the conclusion that Mr Samsely is not entitled to an order. It is not enough for him to rely on the domestic bliss he conferred on Miss Mason. Nor is it enough for him to point to the unworthiness of Mr Barnes. He must show that he is bereft of adequate provision. He already has a large unencumbered house. He may, if he wishes, sell it and purchase a more modest establishment instead. He has a steady job which yields him a regular income. He has set aside savings which can act as a cushion against future contingencies. He has the ability to save $4,000.00 a year. In his affidavits he did not refer to any inability to do anything he reasonably wanted to do. He does not say that some enterprise he reasonably wishes to embark on will be frustrated through lack of funds. He has no call on his resources except to provide for himself. He already has sufficient means to provide him not only with bread and butter but also with a little cheese and jam (see Fullagar and Menzies JJ in Blore v Lang (1960) 104 CLR 124 at 135). The appeal should therefore be dismissed with costs. I should add that I sitting alone heard the oral submissions of Counsel. The Court has considered the matter on the basis of the written submissions together with a transcript of the oral submissions. This course, eminently sensible, could, of course, only be taken with the consent of both parties. Appeal dismissed with costs. Counsel for the Appellant: GC Lindsay Counsel for the Respondent: P Hallen Solicitors for the Appellant: C P White and Sons Solicitors for the Respondent: Lloyd and Lloyd