SHANNON v SHANNON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and MEAGHER JJA 7 May 1991, 31 May 1991 [1991] NSWCA 245 TEM — Family Provision — legacy to one daughter — not to son error of fact finding — held: Smaller legacy to son justified by moral duty and needs. EXECUTORS and ADMINISTRATORS duty to provide evidence to court in Family Provision cases — limits on. TESTATORS' FAMILY MAINTENANCE — mother's will — leaves family home to eldest daughter — no provision made for son and younger daughter, all adults — at trial before Master, legacy ordered of $50,000 in favour of younger daughter claim by son dismissed — on appeal — held (1) It is unnecessary on this case to determine whether the primary decision of the Master was "discretionary" or "jurisdictional" in character. If it was flawed by error of fact finding the appellate court could intervene. House v The Ring (1936) 55 CLR 499, 505 applied; White v Barron (1980) 144 CLR 431, 445; Hunter v Hunter (1987) 8 NSWLR 573, 576; Kelehear v Smith, Court of Appeal, unreported, 4 October 1990; (1990) NSWJB 132 applied; (2) The Master erred in finding, as a fact, that the eldest daughter had ceased work for a year prior to the testatrix's death to attend to her and this error authorised the Court to review his findings; (3) Upon a review of the evidence, the son had established both a moral claim and need and was entitled to a legacy of $20,000 which sum bore a proper proportion to the entitlements of the sisters, to the size of the estate, to the desire of leaving the eldest sister in her home if possible and to the moral obligation of the testatrix to provide for the entitlement and needs of the son. — EXECUTORS and ADMINISTRATORS — provision of evidence duty of executor to provide evidence to court — held: It is not the duty of an executor in a claim under the Family Provision Act 1982 to provide evidence to the court of the alternative accommodation of beneficiaries under the will, in the event that the will is disturbed. The obligation of the executor is limited to disclosing the assets and liabilities of the estate. Churton v Christian (1988) 13 NSWLR 241, 242 explained. Family Provision Act 1982 s7 Kirby P This appeal challenges an order by Master Windeyer dismissing a claim by Mr Dermot Shannon (the appellant) for relief under the Family Provision Act 1982 (the Act). The appellant's claim was resisted at trial, and on the appeal, by the executors of the will of the late Mrs Margaret Shannon (the testatrix). The first named executrix, Ms Patricia Shannon, was the principal beneficiary under the will. The other child of the testatrix, Mrs Kathleen Jackson, secured an order under the Act in her favour for the provision of a legacy of $50,000. She did not appeal from that order; nor was it contested by the executors nor by the appellant. The Court was informed that the legacy had been paid. Accordingly, the only questions before the Court were: (1) Whether it had been shown that the exercise by the Master of his powers and discretion under the Act had miscarried; and (2) If it had whether, on the evidence, the Court could (as the parties invited) safely proceed to substitute its exercise of the jurisdiction under the Act for that of the Master. Children support their aged and sick mother 2 UNREPORTED JUDGMENTS The facts were not significantly disputed. For the purposes of my opinion, it is sufficient to state them thus. The testatrix had three children. Miss Shannon, the firstborn, was born in December 1951. She was thus just short of 38 at trial. She is now approaching 40 years of age. She has not married. The appellant, the only male child, was born in July 1953. He is two years younger than Miss Shannon. The youngest child, Mrs Jackson, was born in May 1955. She was thus 34 at trial. She is now 36 years of age. The family originally occupied a farm property at Merriwa. The family came to Sydney in 1964 and a property at East Wahroonga was purchased which became the family home. The children's father retired in 1978. From 1983, he drew on a full TPI pension, being increasingly ill and becoming gradually blind. He died in 1985. The following year, the testatrix, who had become a heavy drinker, broke her hip. Thereafter she required constant help. Miss Shannon provided the main source of daily support and assistance to the testatrix. Earlier, during his lifetime, she had done the same for her father during his illness and ascending blindness. Without interruption, Miss Shannon lived with her parents from 1979 until their respective deaths. Because of the difficulties experienced by the testatrix after she broke her hip, Miss Shannon took time off work as a legal secretary to help her between November 1976 and January 1987. During that interval Mrs Jackson and her husband moved from a property belonging to her husband at Wiseman's Ferry. With young children, this move involved a high degree of dislocation and, as it proved, a temporary disturbance to the education and welfare of their son. It says much for the devotion of Mrs Jackson, and the support of her husband, that they were willing to move back to the Wahroonga property to give support to Miss Shannon in her care of the testatrix. After Mrs Jackson took up residence in Wahroonga, she performed many of the daily household chores. However, it would appear that she did so under the general direction of her sister. The testatrix executed her will on 15 August 1987. She had by then been diagnosed as suffering from breast cancer. She would therefore have known that her time was probably short. By the will, the testatrix appointed Miss Shannon and Miss Elizabeth Helen Calman as her executors. She purportedly gave an interest in a settlement fund (the James Hegarty Fund) to her three children in equal shares. She gave each of her daughters certain items of jewellery and household effects. She acknowledged and thanked her daughter, Kathleen Jackson, and her husband, "for coming to live with me to assist in caring for me during my illness". But she gave the property at Wahroonga to Miss Shannon absolutely, stating that she did so: "In acknowledgment of her care for my late husband and me during our respective illnesses". Although the testatrix purported to give the interest in the Hegarty Fund to her children, it appears that the Fund, by its own terms, so provided. In any case, the Fund must be disregarded for the purposes of the application of the Act. The Master so treated it. No other course was urged on this Court by any party. The jewellery and household effects were duly distributed. They were valued in relatively small amounts (totalling about $12,000). There were a number of liabilities. The Master found (and the parties accepted) that, after all liabilities "save for the costs of the proceedings, were paid, the assets remaining in the estate", unencumbered, were: Property 7 Clissold Road, East Wahroonga $360,000 Shares in companies 24,792 $384.792 URJ SHANNON v SHANNON (Kirby P) 3 As a result of the Master's orders, now under appeal, the fund of the unencumbered estate, taken by Miss Shannon, was reduced by two amounts: (1) Legacy order in favour of Mrs Jackson $ 50,000 (2) The costs of all parties to the proceedings (including the appellant) ordered to be paid out of the estate 32,740 $ 82.740 As it is the property at Wahroonga which passed by the will to Miss Shannon, it was this property which, at least notionally, was reduced by the foregoing sums. Thus the value of the benefits Miss Shannon received under the will amounted to a nett sum of $277,260. The Court was informed, without objection, that Miss Shannon had utilised her one-third share of the Hegarty Fund (valued, with interest, at about $35,000) towards paying the legacy ordered in favour of her sister, Kathleen. She had also raised a small mortgage on the property at Wahroonga for the balance. Up to the trial, and apparently thereafter, she had continued to live in the Wahroonga home. It has been her home for most of her life. It is a four bedroom home. Although at one time Miss Shannon accepted a boarder, this arrangement did not endure. Miss Shannon lives in the Wahroonga home alone but with her various pets. After the death of the testatrix, Mrs Jackson (who had given birth to a third child in February 1988) moved with her family out of the Wahroonga home to live with her parents in law at Asquith. However, in July 1989, she and her husband purchased in their joint names a property, also in Wahroonga for $205,000. This was described as a small two bedroom home. It was said to be "clearly inadequate" for a couple with three children. Providentially, their purchase of a more modest home, not far from the Shannon family home, demonstrates the cost of a two bedroom home in Wahroonga. It permits, by comparison with the assigned value of the Wahroonga home occupied by Miss Shannon, inferences to be drawn concerning the range of alternative housing costs in that suburb. Master dismisses claim for provision for adult son The Master, having awarded the legacy of $50,000 to Ms Jackson, dismissed Mr Shannon's claim in these words: "[T]aking into account [Miss Shannon's claim] and the claim of the other plaintiff [Mrs Jackson] I do not think that it could be said that Mr Shannon, with an interest in a home of at least $250,000, with what appears to be a secure job, with a wife who is capable of working and does provide some income for the family, has established a need for additional provision for his maintenance and advancement or that his mother failed in her moral obligation to him. Certainly it would be nice if the estate were sufficient to enable provision to be made so that he could have the $50,000 which he says he needs to buy the bobcat but when there is no evidence that the estate is sufficient to allow this and yet provide adequately for the other claimants and I do not consider it would be proper to disturb the provisions of the will of the deceased so far as the claim of Mr Dermot Shannon is concerned and therefore his claim must be dismissed." It is against that order of dismissal that the appellant has appealed to this Court. He has put his arguments shortly. He contests the finding of a want of need. He urges that he has demonstrated his mother's failure to discharge her moral obligation to provide for his welfare, as one of her children. He says that, leaving aside the costs which result from the litigation, the position of each of the children of the testatrix, following the Master's orders, was in summary: Miss Patricia Shannon: 4 UNREPORTED JUDGMENTS Net share of real estate $310,000 Net weekly disposable income 300 Net assets $310,000 Mr Dermot Shannon: Net share of real estate Nil Net disposable income Nil Net assets $248,000 Mrs Kathleen Jackson: Net share of estate (legacy ordered) $ 50,000 Net weekly disposable income 270 Net assets $334,000 The appellant urged that, manifestly, the resulting position was unjust. He argued that it demonstrated, on its face, the evident failure of the Master to apply the correct test. However, the appellant accepted that it was first necessary for him to demonstrate an error by the Master in the exercise of his jurisdiction. Otherwise the intervention of the appellate court, to substitute its opinion would not be warranted. Cf Dunstan v Elwin, Court of Appeal, unreported, 9 November 1987 per Mahoney JA, 3; Hunter v Hunter (1987) 8 NSWLR 573, 576. The time of this Court was therefore taken to examine the reasons of the Master and to scrutinise these against the complaints that his "discretion" had miscarried in such a way as to authorise the Court to set the Master's order aside. Primary decision is "jurisdictional" not "discretionary" There is a controversy as to whether the primary decision made under the Act (as under its predecessor) is properly classified as "discretionary" in character. Some expressions of judicial opinion in the High Court of Australia, and in this Court, have suggested that it is so. Yet others have concluded that it is not and that the decision as to whether or not the beneficial provisions of the Act are attracted (the "jurisdictional question"') is susceptible to appellant review without the inhibitions ordinarily when a decision is categorised as "discretionary". See eg Hughes v National Trustees, Executors and Agency Co of Australasia Limited (1979) 143 CLR 134, 149; White v Barron (1980) 144 CLR 431, 445; and Nunter (above) 576. In other contexts, this Court has explored the meaning and definition of decisions "discretionary" in character. See eg Antonovic v Volker (1986) 7 NSWIR 151. In that case, Samuels JA took a narrower view of the classification and I agreed with him. See 154 ff. Mahoney JA took a wider view 166f, as he also did in Dunstan v Elwin (above). It is unnecessary in this appeal to resolve (if it be open to this Court to do so) the correct categorisation of the primary decision on which the Master's conclusion adverse to the appellant depended. Whether it is properly catalogued as "jurisdictional" or "discretionary", if it depends on an incorrect finding of fact, it is flawed. This Court is then authorised and required to set it aside. In the case of discretionary decisions, so much is shown by the well known passage in House v The King (1936) 55 CLR 499, 505. Amongst the grounds allowed for appellate intervention to review an order, discretionary in character, is where "the judge... mistakes the facts". As I shall endeavour to show this is what the Master did here and in a way significant to the conclusion he reached. Suggested errors in the bases of the primary decision Three suggested bases were advanced in the appeal to support the contention that the Master had erred in the premises upon which his decision affecting the appellant depended. URJ SHANNON v SHANNON (Kirby P) 5 The first may be disposed of without difficulty. It was argued that the Master had erred when he found, as he did, that the onus was on the appellant to establish the cost of providing reasonable accommodation in the Wahroonga area for Miss Shannon, to support his suggestion that it was reasonable and just that she should be required to vacate the large family home. It is argued that the appellant could scarcely have predicted that it would be the Master's opinion that it would be unreasonable to require Miss Shannon to move out of that suburb if she were dislocated by the obligation to sell the Wahroonga home to meet the requirement of a legacy to him. In support of this argument, the appellant called in aid the observations of Hope JA in Churtin v Christian (1988) 13 NSWLR 241, 242, where his Honour drew attention to the obligation of the executor to place such evidence before the Court as would enable it to consider all the circumstances as required from the special provisions of s9(2) of the Act. I do not take Hope JA to be there extending the executor's obligation to one of establishing the case for those who challenged the will. On the contrary, unless otherwise required by law, the executor's duty is to uphold the will. An executor may in some circumstances have an obligation to disclose to the Court the assets and liabilities of the estate. But that obligation does not extend to proving the challenger's case for him or her. It is the challenger who must disturb the will and do so against a general presumption of the courts in favour of upholding the testator's intention expressed in the will, limiting departures from its terms to those strictly necessary to give effect to the requirements of the Act. He (or she) who asserts must ordinarily prove. A claim under the Act provides no exception from this general rule. The second challenge was that the Master erred in stating that it would be "nice" if the estate were "sufficient to enable provision to be made" to afford the appellant the $50,000 legacy he claimed. It was said that this observation amounted to a finding the existence of a moral duty in the testator to provide for the appellant but one which was denied only upon the basis that the estate was insufficiently large. The appellant contended that in deciding whether the estate was, as stated, "[in]sufficient to allow this", the Master has wrongly assumed an unwavering obligation to permit Miss Shannon to continue to reside in the Wahroonga property. Whilst this might be a desirable objective, it was not mandatory. If necessary, it would have to give way to a competing obligation to the appellant, as another child of the testatrix. I confess to having has some difficulty with this part of the Master's reasons. If he were merely saying that, from a larger estate, more could have been done for the appellant, such a comment would be empty and irrelevant to the considerations posed by the Act. The question under the Act is not what could be done in some other, quite different, circumstances but what ought to have been done by the testatrix in disposing of the estate, as it was. The reference to what might in other circumstances have been done would seem, with respect, to be a reference to an irrelevancy. However, ultimately, I have come to the view that the Master's cri de coeur is nothing more than a lament of an inability of such an estate to make provision for the appellant, given the conclusion earlier reached that each of the sisters had a prior claim which, together, exhausted the fund from which to provide for him. In this sense, the case bears some similarity to the facts discussed in Kelehear v Smith, Court of Appeal, unreported, 4 October 1990; (1990) NSWJB 132. I would not on the basis of this attack on the Naster's reasons, alone, conclude that the had erred in his approach to the appellant's claim. The fact that he felt obliged 6 UNREPORTED JUDGMENTS to acknowledge that, in other circumstances, (ie with a larger estate) the appellant would have established a claim for provision to be made under the Act at least indicates that the Master had concluded that nothing the appellant had done warranted his disentitlement from his mother's bounty or his entire exclusion from the benefits of her estate which was the result of the order he went on to make, now under review. This brings me to the third challenge to the Master's findings. Here it was acknowledged by the executors that a mistake occurred. The Master, quite properly and naturally, in considering the moral obligation owed by the testatrix to Miss Shannon placed considerable emphasis upon the fact that she had devoted a great deal of time to the care of the testatrix. Discussing this issue, he said: "On the other hand, although she took some days off work, she did work throughout the period until 17 November 1986 when she took leave off work to look after the deceased up to the time she died... " The evidence disclosed that the testatrix died on 3 January 1988. The period referred to by the Master is therefore in excess of 13 months. The finding by the Master is contrary to the evidence. It was not a finding suggested at the trial by Miss Shannon or on her behalf. In her affidavit, which was read, she said: "T took extended leave from work until January 1987. " Later, she deposed: "From 2nd to the end of December 1987 I took leave from work as holidays to care for my mother. " It may readily be inferred that Miss Shannon also continued to care for her mother intensively until she died a month later. But in the period from January 1987 until December 1987, Miss Shannon continued with her work as a legal secretary. It was during that period that Mrs Jackson was living in the Wahroonga home. She and her sister were sharing the daily duties according to an arrangement made between them. But because Mrs Jackson was on hand living in the household, it is not difficult to infer that many or most of the daily burdens would have fallen upon her. Certainly, the evidence showed that Miss Shannon continued to make arrangements for medical examinations and other attendances on her mother from her work, by telephone. As well, in the evenings, the evidence suggested that it was Miss Shannon who attended to most of her mother's needs, including the administration of medications, washing her, attending to her toilet, washing the clothes for her, cooking on the weekends and doing weekend shopping as well as helping with the cleaning of the house at weekends. The precise weight which the Master gave to the suggested absence from work of Miss Shannon for more than a year before the death of the testatrix cannot be measured. It is not disclosed in the Master's reasons. Clearly, however, this would have been an important consideration in weighing up the respective moral obligations of the testatrix to her three children. Had the facts been as the Master stated, Miss Shannon would have lost the better part of a year's salary. Her life and career would have been dislocated over an extended period. Such considerations would naturally and properly have resulted in an appreciation of the primacy of her claim when compared either to that of Mr Shannon and Mrs Jackson. The executors did not seek to support the Master's finding. They argued that, although incorrect, it had not affected the conclusion which he had ultimately reached. I cannot agree. I consider that the prolonged absence of Miss Shannon from work must have weighed heavily with the Master as it would have to do, URJ SHANNON v SHANNON (Kirby P) 7 had the facts sustained the finding. This error vitiates the Master's conclusion on the appellant's competing claim. I can come to this opinion more comfortably because of the way in which the Master appears to have concluded that it would have been "nice" had he been able to make provision for the appellant if the estate had been sufficient for that purpose. Appellate consideration of the decision This Court is authorised, on the appeal, to substitute its opinion for that of the Master so long as it is satisfied that it has all the relevant material before it to permit that course to be taken. See Norbis v Norbis (1986) 161 CLR 513 at 521. The position in this case was complicated by the candid disclosure to the Court by counsel for the appellant that the factual premise upon which he had principally mounted his claim had changed since the trial. Although, in the Master's reasons, he ascribed the principal contention of the appellant as being for the provision of a legacy for $50,000 to permit him to buy a "bobcat" for use in his trucking business, in this Court the appellant's case was mounted on the basis of the evidence at the trial that the appellant needed some $61,000 for the purpose of effecting urgent repairs to the home in which he, his wife and three children live in Roseville. Certainly, evidence had been brought at the trial of the appellant's desire to purchase a "bobcat", which is a front and loader. This would have been used by him to enhance his earning capacity for work as a trucking contractor operating on various building sites. The object of such improvement was stated at the trial as being "to provide a better standard of living for his family including, of course, making repairs to the house". The evidence taken at the trial disclosed that the appellant's then home suffered from rising damp. The Master recorded that: "There is no doubt that... from the photographs of the bedrooms at the front that the walls were subject to this dampness." The cost of thorough repairs of the home would have been more than $116,000. However, for repairs considered by the appellant to be urgent and necessary for the basic well-being of himself and his family, it was contended that $61,000 was required. When the appeal was called, counsel for the appellant, in order not to mislead the Court or to invite it to act on a wrong assumption - properly informed the Court that the Roseville property had in fact been sold since the trial. The Court had no further evidence concerning the new home of the appellant or of its needs, if any. The option of sending the case back for retrial, because of this change of circumstances, is uncongenial. In absolute terms, the estate is not large. Already, the Court was told, allowing for the costs of the appeal, some $44,740 of this comparatively small estate has been expended in costs. Objectively, it seems undesirable to incur more costs unless that course cannot be avoided. Because of the invitation of the parties, I believe that this Court should proceed on the basis of the evidence at the trial to reconsider the entitlement, if any, of the appellant. It cannot review the order made in favour of Mrs Jackson as this was not appealed and has been satisfied. Although the Court knows that the appellant's then home has been sold and a new one purchased, it seems perfectly safe to assume that, objectively, the appellant's economic position between the trial and now will not have changed very much. Putting any unknown windfalls out of account, the fundamental relativities between the three siblings is unlikely to have changed significantly, having regard to their assets and earning capacities proved at the trial. The respective assets and needs of the children The executors placed before this Court a schedule setting out their contentions as to the 8 UNREPORTED JUDGMENTS respective capital assets of the appellant, of Miss Shannon and of Mrs Jackson at the time of the trial. For the purposes of my approach to the appeal, I am prepared to act upon their figures. I reproduce that schedule hereunder: Miss Shannon Property in East Wahroonga $360,000.00 Balance of share of Hegarty Trust money 31,446.00 1/2 interest in car 1,000.00 $392,446.00 Less Payable to Mrs Jackson under Master's order $ 50,000.00 $342,446.00 Mr Shannon (Appellant) Property in Roseville $300,000.00 Furniture 7,000.00 Cheque Account 1,500.00 1976 Holden Sedan 3,000.00 $311,500.00 Less Mortgage to ANZ Bank 27,500.00 Loan from father in law Kevin J. Finn 25,000.00 $ 52,500.00 Net $259,000.00 Mr and Mrs Jackson Property in Lower McDonald, Wiseman's Ferry $100,000.00 Mr Jackson's 1/2 interest in house in Wellington, NSW 30,000.00 House in Wahroonga (joint) 205,000.00 Mr Jackson's interest in joint accounts with brother 1,900.00 Joint accounts of Mr and Mrs Jackson 1,000.00 $337,900.00 Less Mortgage on Wiseman's Ferry property $25,000.00 1/2 mortgage on Wellington property 14,000.00 Mortgage on Wahroonga property $85,000.00 $114,000.00 $223,900.00 Plus Amount of legacy found by Master Windeyer $ 50,000.00 $273,900.00 The result is that the appellant, his wife and three children have net assets which are more than $80,000 smaller than those of Miss Shannon, and smaller by more than $20,000 than the net assets of Mr and Mrs Jackson, after allowance is made for the legacy provided in Mrs Jackson's favour. It is not contended that the appellant was disqualified under the will because he was the adult son of the testatrix. Although remnants of that discredited and discriminatory doctrine are sometimes found in other jurisdictions, it is not law in this State. See Hunter v Hunter (1987) 8 NSWLR 573, 580; and discussion in Gorton v Parkes (1989) 17 NSWLR 1, 8. Each of the children of the testatrix was an adult. Two of them had children who were the grandchildren of the testatrix. All of them, in their differing ways, had made contributions to their parents during their respective lifetimes. None of them had a falling out with either parent. Each at least started with the moral claim that derived from his or her being a child who had been dutiful, loving and in different ways supportive. URJ SHANNON v SHANNON (Kirby P) 9 There is no doubt that the primary claim was that of Miss Shannon. She lived with her parents continuously from 1979. Although her father remained independent, virtually to the end, it can readily be inferred that, in many ways, she gave daily help to him as his health deteriorated and his sight declined. Her care for her mother was quite intensive. It endured over a continuous period and is most admirable. Even after Mrs Jackson moved into the house with her family, it was Miss Shannon who continued to provide the primary care. Her bedroom was close to her mother's. She was, in short, a most dutiful eldest daughter whose life had revolved around her parents and the family home. So much was not disputed by the appellant. The claim of Mrs Jackson was, nevertheless, also very strong. It was she, and her family, who dislocated their then residence in 1987. Whilst the change had some advantages for Mr Jackson's work, the move was disruptive for them. In such circumstances, I am not surprised that the Master reached a conclusion that a legacy of $50,000 should be made for her. That leaves the appellant. The evidence shows that after his father's death, the appellant visited his mother regularly. He did odd jobs around the Wahroonga home. He regularly enquired about her mother's health. As Miss Shannon acknowledged, he was available to, and did on occasion, assist in various emergencies which arose. There was no suggestion that he had been excluded entirely from the benefits of the estate (as effectively he was by the will) because provision had been made for him by the testatrix or her husband in their lifetimes. Nor was it suggested that any conduct on his part had disqualified him from provision. The executors suggested that there was no moral obligation to provide for the appellant by reason of the size of the estate, the prior claim to Miss Shannon to continue to live in the Wahroonga home and the absence of any established need for provision on his part. So far as need is concerned, I cannot agree with this suggestion. The appellant had no formal educational or vocational qualifications. He was a truck driver. Although his wife was a school teacher, with three young children to care for she was only able to work one day a week. Miss Shannon, on the other hand, worked fulltime as a legal secretary. Mr Jackson was a special investigator with the Corporate Affairs Commission. He had property of his own. His income was above average. The income of the appellant and his wife was committed entirely to providing the bare necessities for themselves and their three children, aged 9, 8 and 3 at the trial. The combined net income of the appellant and his wife, after tax, was $475 a week. The evidence disclosed that this income was virtually wholly consumed by their ordinary living expenses. On the other hand, the evidence showed that Miss Shannon enjoyed a net disposable income of over $300 a week. She agreed that she was well able to go to restaurants, plays, theatre and the like. Whereas the appellant had expended his share in the Hegarty Fund to perform essential repairs on the Roseville home as had Mrs Jackson, at least until the Master's order in favour of Mrs Jackson, Miss Shannon held her share which was worth more than $31,000 on deposit, earning interest. Especially in the conditions of the Roseville home as described in the evidence, I cannot agree that the appellant failed to show need. A wise and just testatrix, attending to her moral obligations to the appellant, would have considered his needs and those of the immediate family who depended on him. Certainly, as described in the evidence about the Roseville property, I would have considered the appellant's needs to be urgent. The evidence showed that the 10 UNREPORTED JUDGMENTS wallpaper had come off the walls of the home; that the plaster fell from the walls in the children's bedroom and that, in places, the plaster was patched with "contact paper" which could not remedy the basic problem of rising damp. It is said that, in comparison to the daily attentions of Miss Shannon over the decade, and the care of Mrs Jackson during the critical last year of the life of the testatrix, the attentions of the appellant to the welfare of his parents were insubstantial. I certainly agree that more was done by the sisters. But in judging the appellant's moral claims, it is necessary to remember that it would not have been feasible for his family too to have moved into the Wahroonga property. Therefore, his attentions were necessarily afforded at a distance. But when required, he was there. Conclusions and orders The result is that I have reached a conclusion different from that reached by the Master. I do so with diffidence. I am authorised to give effect to my conclusions because of the significant error of fact finding which has been demonstrated (and not contested) and because sensibly, the parties have invited this Court to act upon the evidence rather than to send the matter back for retrial. On the evidence of trial, I consider that the appellant made out a case for provision to be made in his favour under the Act. His claim was for a legacy. In my view the legacy should be provided under the Act in the sum of $20,000. If the legacy should be in that sum it would not be sufficient to permit the appellant to purchase the "bobcat" or to repair his house. However, it would be sufficient to reduce the most urgent needs of his home for himself and his family. I appreciate that the provision of such a legacy would constitute another burden on the Wahroonga home which the testatrix left to Miss Shannon. Nevertheless, having regard to the evidence of her income as a legal secretary, a mortgage to provide for the payment of such a legacy could be met by her with only a partial reduction of her disposable income. This is so much more than that enjoyed by her brother and his dependants. I was at first minded to order parity between the legacy ordered in favour of Mrs Jackson and that provided for the appellant. However, I have restricted the amount of the legacy to $20,000 by reference to three considerations. The first is the size of the estate and the absence of liquid assets from which the legacy may easily be paid. The second is the desirability, if at all possible, of leaving Miss Shannon to live in the Wahroonga property as the testatrix clearly intended and as she wishes. The third is the amount of the legacy provided in favour of Mrs Jackson who had, as I have ultimately concluded, a higher moral claim by reason of her exceptional conduct in moving her home and family and attending to her mother's daily needs as she approached her death. The need for conciliation in such cases I depart from this case with a sense of regret that, of the assets of the testatrix's estate, nearly $45,000 will, at the end of the litigation, have been expended on legal costs to achieve the provision of legacies of $50,000 for Mrs Jackson and $20,000 for Mr Shannon. This is nobody's fault. Litigation is costly. Family disputes are often the most intractable to resolve. Like disputes with neighbours they require, for their early resolution, techniques of conciliation which are not available under present court arrangements. I repeat what I said in Hemmes Hermitage Pty Limited v Abdurahman, Court of Appeal, unreported, 22 March 1991: "[I]t would be no misfortune if, associated with the Court's procedures, facilities were available to add the authority of the Court at an attempted consensual resolution, at least for cases between persons such as family or URJ SHANNON v SHANNON (Samuels JA) 11 neighbours, who must continue to live in relation with one another." See also now Law Reform Commission (NSW) Neighbour and Neighbour Relations Discn Paper, 1991, 59. Had such facilities been available here and had their use been successful, the substantial amounts paid out of the estate in legal costs would have been available to the parties. Even more important, the wounds caused by litigation may have been avoided which typically take many years to heal. Orders The orders which I propose are: 1. Appeal allowed; 2. Set aside the orders of Master Windeyer dated 1 November 1989 in ED 3849 of 1988; 3. In lieu thereof, order that: (i) In addition to the provision made for him under the will of Margaret Mary Shannon deceased, the plaintiff Dermot Kevin Shannon to receive a legacy of $20,000 from the estate; (ii) Such legacy to bear interest at the rate provided for interest on judgments under s95 of the Supreme Court Act 1970 from 1 January 1990; and (iii) The costs of the plaintiff on the common fund basis and of the defendant on the trustee basis to be paid out of the estate of the deceased and, in so far as the residue is insufficient, then out of that part of the estate passing to the defendant Patricia Anne Shannon; 4. The respondents to pay the appellant's costs of the appeal but to have, in respect thereof, certificate under the Suitors' Fund Act 1951 and in respect of any amount of costs thereafter remaining, such amount of costs to be paid out of the estate of the deceased and, so far as the residue is insufficient, then out of that part of the estate passing to the respondent Patricia Anne Shannon. Samuels JA I have had the benefit of reading in draft the judgment prepared byKirby P. It is, of course, clear that the Master made a mistake of fact when he said that Patricia Shannon had taken leave from work in order to look after her mother for the thirteen months immediately preceding her mother's death. However, I was dubious whether I could infer that this error had, or might have, led the Master to the grant of relief which he would or might otherwise have denied. He did not indicate in his reasons precisely what weight he attributed to this part of the evidence; and there was other evidence, which was not in dispute, which would, to my mind, have supported the propriety of the orders which he ultimately made. It is true, as the President points out, that had the facts been as the Master thought they were Patricia Shannon would have lost the better part of a year's salary, and this financial detriment and her willingness to absorb it in performing what she evidently regarded as a filial duty would have lent significant strength to her case. On reflection, it seems to me that the President's assessment of the effect or possible effect of the evidence is sounder than the one to which I was at first inclined. If I may seek guidance in a rather different area of law, from the cases which deal with the circumstances in which a new trial should be granted or refused for the wrongful rejection or admission of evidence, it may be that in such a case as this the Court should intervene unless it feels some reasonable assurance that the mistake could not reasonably be supposed to have influenced the result: Balenzuela v De Gail (1958-59) 101 CLR 226 at 235. In any case, if 12 UNREPORTED JUDGMENTS the Master's final orders were made in the exercise of a discretion then the celebrated passage in House v The Kina (1936) 55 CLR 499 at 505 would represent our authority to interfere and there the court included amongst the grounds for intervention "if the judge... mistakes the facts... " I therefore agree with the President's approach to the matter, and with the orders which he proposes. Meagher JA I agree with Kirby P and Samuels JA. 1. Appeal allowed; 2. Set aside the orders of Master Windeyer dated 1 November 1989 in ED 3849 of 1988; 3. In lieu thereof, order that: (i) In addition to the provision made for him under the will of Margaret Mary Shannon deceased, the plaintiff Dermot Kevin Shannon to receive a legacy of $20,000 from the estate; (ii) Such legacy to bear interest at the rate provided for interest on judgments under s95 of the Supreme Court Act 1970 from 1 January 1990; and (iii) The costs of the plaintiff on the common fund basis and of the defendant on the trustee basis to be paid out of the estate of the deceased and, in so far as the residue is insufficient, then out of that part of the estate passing to the defendant Patricia Anne Shannon; and 4. The respondents to pay the appellant's costs of the appeal but to have, in respect thereof, a certificate under the Suitors' Fund Act 1951 and in respect of any amount of costs thereafter remaining, such amount of costs to be paid out of the estate of the deceased and, so far as the residue is insufficient, then out of that part of the estate passing to the respondent Patricia Anne Shannon. Counsel for the Appellant: F Donohoe Counsel for the Respondent: Dr K Lindgren Solicitors for the Appellant: Finn Cruikshank and Associates Solicitors for the Respondent: Abbott Tout Russell Kennedy