MCKENNA v SOLOMON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY P, HANDLEY and SHELLER JJA 1 November 1994, 9 December 1994 [1994] NSWCA 200 TESTATOR'S FAMILY MAINTENANCE — family provision — sometime defacto wife — 21 months relationship — leaves established employment and home to move interstate with deceased — loses seniority and salary — held: (allowing appeal): Provide $40,000 legacy — importance of provision for homemaker's contribution emphasised.Singer v Berghouse No 2 (1994) 68 ALJR 653; 123 ALR 481 (HC) considered. TESTATOR'S FAMILY MAINTENANCE — moral duty — whether erroneous consideration — need to avoid glossing the statute. TESTATORS FAMILY MAINTENANCE — family provision — sometime de facto wife's claim — man about 50 and woman 48 lived together for twenty-one months — woman abandons established employment to move from Wollongong to Brisbane to participate in man's business venture which later failed — parties returned to Wollongong and eventually agree to live apart — intimate personal relationship continues until death of man shortly after — informal will leaves entire estate to three daughters — woman's claim dismissed by Master McLaughlin — held: (1) In reviewing the order, the Court must approach the matter as of an appeal against a discretionary decision. Singer v Berghouse [No 21 (1994) 68 ALJR 653; 123 ALR 481 (HC) applied; (2) Errors of approach, principle and fact-finding authorised the Court to set aside the Master's orders and substitute its own. Eggler v Mitchelmore, Court of Appeal (NSW), unreported, 11 November 1992; [1992] NSWJB 114; (3) The Master erred in his evaluation of the nature of the relationship between the parties and in his failure to make proper provision for the contributions of the woman as a homemaker. Mallett vy MaDet, (1984) 156 CLR 605; Dwyer v Kajo (1992) 27 NSWLR 728 (CA) applied; (4) The administrators had failed to provide adequate information concerning the true value of the estate and the Court would infer that the estate was sufficient to sustain a legacy in favour of the woman. Blore v Lang (1960) 104 CLR 124; Black v Kellner [1992] FLC #92-287 referred to; (6) A legacy of $40,000 should be ordered out of the notional estate. Benney v Jones (1991) 23 NSWLR 559 (CA) referred to. TESTATOR'S FAMILY MAINTENANCE — family provision — "moral duty" — "moral obligation" — meaning of — necessity to avoid glossing the Family Provision Act 1982 — whether reference to vitiated exercise of discretion by Master — held: It did not. Singer v Berghouse [No 2] (1994) 68 ALJR 653; 123 ALR 481 (HC) explained; Hughes v National Trustees, Executors and Agency Co of Australalsia Ltd (21979) 143 CLR 134; Goodman v Windeyer & Ors (1980) 144 CLR 490 considered. WORDS & PHRASES — "ought" — "moral duty" — "moral obligation" — "proper provision". Family Provision Act 1982, s6, s7, s9, s23. Kirby P The Court has before it another appeal in the list of appeals under the Family Provision Act 1982 (the Act). 2 UNREPORTED JUDGMENTS The appeal arises out of orders of Master McLaughlin made in the Equity Division of the Supreme Court. Late de facto relationship: early death Mrs Davena McKenna (the appellant) challenges an order of dismissal of her claim under the Act. She also challenges the order by which the Master required her to pay the costs of her unsuccessful application. There was not a great deal of dispute concerning the background facts. In 1988, the appellant began a de facto married relationship with Mr John Solomon (the deceased). The couple lived together on a full-time basis for some twenty-one months until January 1990. Thereafter, they lived apart. However, each held keys to the other's homes. They visited each other regularly during the week and at weekends. It was upon one such visit to the deceased's home that the appellant found the deceased's body, soon after his death on 23 July 1990. At the time of his death, the deceased was between forty-seven and fifty-two years of age. His exact age was not proved by the evidence. It matters not. It is enough to say that the deceased's death was premature and unexpected. The appellant was forty-eight years of age at the time of the deceased's death. She was fifty-one years of age at the time of the hearing before Master McLaughlin in September 1993. The Master delivered his judgment in October 1993. Before commencing her relationship with the deceased, the appellant had worked for many years for the Postmaster General's Department (later Telecom Australia) in Wollongong. Soon after the de facto relationship with the deceased began in 1988, the appellant, at the deceased's suggestion, terminated her employment. She thereupon surrendered her various entitlements as a long-term employee. She was paid a sum of $21,100 for superannuation, long service leave and holiday pay. She and the deceased proceeded to Brisbane with the object of establishing two shops (a gift and dress shop) which the deceased had acquired. Unfortunately, the deceased's businesses quickly failed. The shops were closed in October 1988. The appellant and the deceased returned to Wollongong. The appellant managed to secure re-employment with Telecom in Wollongong. However, she had lost seniority and the security that went with it. In her new position she was paid a salary considerably lower than that which she had been earning when she resigned. According to the evidence, she was losing about $140 a week against her previous salary. The evidence also suggested that she was vulnerable to retrenchment and loss of employment as she probably would not have been had she retained her previous employment seniority. It was assumed that this position would have continued for the rest of the appellant's working life. In April 1989, after their return from Brisbane, the appellant and the deceased moved into a house in Kanahoora. The appellant accompanied the deceased on his selection of this house which was to become the principal asset of his estate. In June 1989 the couple went on a holiday together to the United States. They returned to the house in Kanahoora. However, early in 1990 they decided to terminate the arrangements by which they lived together. A conversation took place between the deceased and the appellant which was accepted by the Master. It was clear to both the deceased and the appellant that the latter had suffered significant economic disadvantages by responding to the deceased's invitation to URJ MCKENNA v SOLOMON (Kirby P) 3 leave her employment and to join in his business venture in Brisbane. As recorded in the Master's reasons, the essence of the conversation was: "DECEASED: Once I have established myself and am organised in my new job, I'll make up to you for what you have lost. APPELLANT: That's all right John. Pll leave it to you." In February 1990 the appellant moved back to live singly. Nevertheless, the parties continued with the arrangement which I described at the outset of these reasons. They saw each other regularly until the deceased's death six months later. Before the relationship with the appellant, the deceased had been married and divorced. He had one natural daughter (Ms Lisa Anne Solomon). He also had two stepdaughters (Ms Lyn Maree Lagana and Ms Lori-Michelle Solomon). They were respectively thirty-three, twenty-eight and twenty-three years of age at the time of the Master's orders. The details of their respective financial position are set out in the Master's reasons. These have not been challenged. Only one aspect of the evidence concerning the financial position of the estate was challenged. I shall return to this in due course. In November 1989 the deceased executed a handwritten will. In November 1990, following the deceased's death, administration with the will annexed was granted to the respondents. By the will, the deceased named the respondents as the beneficiaries of his estate. His natural daughter was to receive 50% of the value of the real estate at Kanahoora. The remaining 50% was to be divided equally between the stepdaughters. The deceased made no provision at all for the appellant. It is to be noted that the will was executed at a time when the appellant and the deceased were living together in a full-time de facto married relationship. By her application, the appellant contended that she was an "eligible person" in relation to the deceased, that there were factors which warranted the making of her application and that the Court ought to make an order in her favour under the Act to repair the failure of the deceased to make adequate provision for her proper maintenance and advancement in life. The Master rejects the claim Master McLaughlin found that the appellant was an "eligible person". However, he confined this finding to para(d) of the definition of "eligible person" in the Act. He held that the appellant was a person who had been, at a particular time, "wholly or partly dependent upon the deceased" - and was "at any... time a member of the household of which the deceased person was a member'. The Master rejected the alternative claim, made belatedly for the appellant under para(a), that she had been: "at the time of the [deceased's] death... living with the deceased person as a wife on a bonafide domestic basis". The Master also found that, in all the circumstances, the appellant had established that there were "factors" - or at least one factor - which warranted the making of the possible promise of the deceased that he would "make up to" the appellant, constituted factors which the Master concluded warranted the making of the application. Nevertheless, the Master went on to conclude that the deceased owed no "moral duty" to the appellant. His only "moral duty" was to his daughter and stepdaughters. This "moral duty", by the will, he had discharged. Alternatively, the Master concluded that, even if the deceased (contrary to his primary 4 UNREPORTED JUDGMENTS conclusion) did owe the appellant a "moral duty", it had not been shown that his failure to make provision for her in his will amounted to inadequate provision for her proper maintenance and advancement in the circumstances. In reaching this conclusion, the Master took into account what he considered to be the appellant's relatively comfortable financial position, her recommencement of employment, the availability of social security protection in the event of unemployment and the comparatively less secure position of the; daughters for whom provision needed to be made from an estate which was not large. In a critical passage of his reasons, the Master said: "., the plaintiff even if unemployed would not be left destitute. Presumably she would be entitled to unemployment benefits whilst searching for another position. Even if the deceased did owe the plaintiff a moral duty to make provision for her by will, that moral duty would in my view be minimal having regard to the plaintiff's present f financial and material circumstances [and] must be determined in the context of the moral duty which the deceased owed to the three defendants. Whilst none of the defendants is destitute, none can be described as affluent... The Court, in the exercise of its 'discretion, should not reduce the benefits given by the will to each of the defendants by making an order in favour of the plaintiff." Principles of appellate restraint By her appeal to this Court, the appellant challenges the orders of the Master. Her challenge must be considered by reference to the principles which govern appeals from orders made in claims under the Act. Although the Court is conducting an appeal by way of rehearing, it by no means ignores the conclusion of the primary decision-maker. Whatever doubts earlier existed it has now been made clear that, in reviewing an order of the kind here in question, the Court should approach the matter as it would a challenge to a discretionary decision. See Singer v Berghouse [No 2] (1994) 68 ALJR 653, 656f; 123 ALR 481 (HC), 489. In Singer, the High Court expressly approved the following comments of mine in Golosky v Golosky, Court of Appeal (NSW), unreported, 5 October 1993; [1993] NSWJB 108, my own judgment, 8f: "Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a second 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." See also Hunter v Hunter (1987) 8 NSWLR 573 (CA), 576. Accordingly, for the appellant to succeed in this appeal, it was accepted that she was obliged to show that the decision of the Master, reflected in his orders, demonstrated: (a) A relevant error of legal principle; (b) A significant error of fact-finding upon which the decision rested; or (c) An outcome on the facts so manifestly unreasonable as to indicate the application of an incorrect principle or misunderstanding of the facts even though this could not be isolated and identified in the reasons given. See eg Eggler v Mitchelmore, Court of Appeal (NSW), unreported, 11 November 1993; [1993] NSWJB 114, per Sheller JA, p 10. URJ MCKENNA v SOLOMON (Kirby P) 5 The appellant fully accepted the strictures laid down in Singer. But her case was that the Master's decision evidenced errors of principle, rested in part upon significant errors of fact-finding, and involved a conclusion which was manifestly untenable in the whole of the evidence. Some little argument was addressed to the order made by the Master for costs. But the argument in the appeal was virtually entirely addressed to the substantial attack upon the Master's decision dismissing the appellant's claim. In this approach I would agree. The costs order was discretionary. It would not ordinarily invite the intervention of this Court. The challenge to it must depend upon the outcome of the substantive appeal. The consideration of "moral duty" In the Masteis reasons, he refers on no fewer than twenty-three occasions to the "moral duty" of the deceased respectively to the appellant and the respondents. It is plain that the primary basis upon which the Master rejected the appellant's claim was his stated conclusion that the deceased did not owe a "moral duty" to the appellant. To that extent, all other observations in the Master's reasons were obiter dicta. It is appropriate to consider the Master's concept of "moral duty". Indeed, it is necessary to do so in the light of certain observations of the majority of the High Court in Singer. In that case, the majority (Mason CJ, Deane and McHugh JJ) offered comments concerning this commonly used expression so frequently referred to in cases of his kind. After referring to the well known remarks of Salmond J in Re Allen (Dec'd); Allen v Manchester [1922] NZLR 218 concerning the criterion of what "a just and wise father would have thought it his moral duty" to do, their Honours remarked (at 487 ibid 657): "For our part, we doubt that this statement provides useful assistance in elucidating the statutory provisions. Indeed, reference to 'moral duty' or 'moral obligation' may well be understood as amounting to a gloss on the statutory language." This comment was supported by a footnote reference to two opinions of Murphy J. The first of these opinions is found in Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134. In that case, Murphy J (who was part of the majority) was at pains to stress that a claimant, under what might generally be described as the Victorian equivalent to the Act, ought not to be put to the obligation of establishing, in addition to statutory qualification and need, a "moral" entitlement in order to secure relief Murphy J said (at 158): "Many cases suggest that an applicant must show a moral claim as well as [being left without adequate provision]...; this gloss on the Act is unwarranted and inconsistent with the language and with the legislative scheme. The statutory specification of a deceased's spouse and children as persons entitled to claim if the distribution of the estate does not make adequate provision... is a legislative judgment that such persons have a claim unless disentitled... or unless they are adequately provided for by independent means." J Goodman v Windeyer (1980) 144 CLR 490, Murphy J, is time in dissent, adhered to his opinion in Hughes. 1h Goodman he said this (at 504f): "This is another case in which the question of whether an applicant was left without adequate provision is confused by 6 UNREPORTED JUDGMENTS the introduction of considerations of moral duty.... Unless an applicant is left without adequate provision, he or she is not entitled to an order, even if the circumstances disclose a breach of moral obligation. I adhere to what I said in Hughes v National Trustees Executors and Agency Co (Australasia) Ltd." Does the repeated indication by the Master of his consideration of the "moral duty", owed by the deceased respectively to the appellant and the respondents, indicate, with the benefit of Singer, that his discretion miscarried because exercised by reference to a consideration now perceived to be irrelevant? If this were to be the case, many, indeed nearly all, decisions under the Act before now would have to be set aside. For in most, as in this case, there is repeated reference to perceptions of "moral duty" and "moral obligation", just as there are in texts on this area of the law. See eg A Dickey, Family Provision After Death, Law Book Co, Sydney 1992, Ch 6, 73ff. Such a drastic consequence is not required either by the observations of the majority in Singer or by the High Court's reference, in the footnote, to what Murphy J said earlier. I have two reasons for expressing this conclusion. First, as a technical matter concerning the binding rule, the cited remarks of their Honours in Singer, although all deserving of the most respectful attention, were not essential to the decision in that case. That decision appears to have turned, ultimately, upon no more than the fact that Mrs Singer had failed, by evidence, to establish a relevant need for provision. That the remarks in Singer concerning "moral duty" and "moral obligation" are obiter is indicated by the language chosen by the majority to express them. The sentence in question begins with the word "indeed". This suggests that what was being said by their Honours went beyond that which is essential to their reasons. It was something additional or supplementary. Moreover, the verbs used by their Honours are the tentative "may well be understood". These are hardly normative words. As I read them, their effect is to go no further than to warn against any diversion of the attention of the decision-maker from the actual language of the Act. With that warning, I would respectfully agree. In every case, the duty of a decision-maker, exercising a statutory discretion, is to conform to the statute, having regard to its language and the implications properly to be derived therefrom. That it could not have been the intention of the High Court to expunge the notion of "moral obligation" altogether from this area of the law is made plain from the terms of the Act itself. By s23(b)(ii) of the Act, express reference is made by Parliament to this consideration: "23. On an application in relation to a deceased person made by or on behalf of an eligible person, if the Court is satisfied: (b) That at any time before the death the deceased person entered into a prescribed transaction: (ii) which took effect within the period of I year before his death, and was entered into at a time when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education and advancement in life of that or any other eligible person which was substantially greater than any moral obligation of the deceased person to enter into the prescribed transaction... the Court may... make an order designating... notional estate...." (emphasis added) In Singer, their Honours make no reference to this provision of the Act. Referring to "moral obligation" in s23(b)(ii) in the context of the making of "adequate provision by will or otherwise for the proper maintenance, education URJ MCKENNA v SOLOMON (Kirby P) 7 and advancement... of... [an] eligible person" makes it tolerably clear that the concept of "moral obligation" had not been entirely banished by Parliament from this realm of discourse. Secondly, it is important to reflect upon the concerns which occasioned Murphy J's observations in the cases cited in Singer. Murphy J was there stressing that the entitlement of the claimant was to be found in the terms of the Act. Thus, the claimant was not to be put additionally to the proof of having a "moral claim'. Nor did the existence of a "moral claim" suffice if the claimant was not, by the statute, eligible to claim. Reference to concepts of "morality", in this respect, might confuse the focus of attention afforded by s7 and s9 of the Act as might the repeated invocation of the image of a "wise and just testator". By the same token hitherto conventional reference to "moral duty" may, in the context of a particular decision, amount to nothing more than a shorthand expression for the lengthier statutory provisions in s7 and s9 of the Act. S7, for example, is expressed in the permissive "may". The Court "may" order that provision be made. But the discretion is, in turn, governed by the condition that it is the opinion of the Court that it "ought", having regard to the circumstances at the time the order is made, make such an order for the eligible person. By definition, for the claimant to succeed the deceased must have failed to make proper provision by the will. What does "ought" involve? It involves a reflection on the needs of the claimant which the Court considers "ought" to be met by an appropriate order. The "ought" in this sense, is a reflection of the need. The need occasions the "ought". Cf Benny v Jones (1991) 23 NSWLR 559 (CA) 560, 568. I take Murphy J in Hughes and Goodman, and the majority in Singer, to be warning that courts applying the Act must be very careful not to substitute notions of morality (eg in the sense of disqualifying personal conduct, drinking habits etc) for the purposes of the Act. By its terms, the Act is designed to protect eligible persons where inadequate or no testamentary provision is made for their maintenance, education or advancement in life. I do not take the comment in Singer to go beyond this. Accordingly, I am prepared to take the Master's repeated references in his reasons to "moral duty" to be no more than a shorthand phrase for the "ought" in s7 of the Act and the words "inadequate" and "proper" in s9(2) of the Act. I did not take any of the parties in this case ultimately to be submitting to the contrary. But, in the light of the warning of the High Court in Singer (against glossing the statute) it would be wise if references to "moral duty" and "moral obligation" fell out of this lexicon. They should be replaced, where appropriate, by the phrases actually used by Parliament in the Act. This will ensure that the statute is not "glossed" and that the decision-maker's attention is kept upon the application of the stated statutory criteria. Furthermore, it will replace potentially confusing and sometimes controversial notions of moral obligation with the attention which the present Act requires upon the inadequacy of the provision for the claimant not at the time of death but at the time of the Court's order. This, as the Court has repeatedly pointed out, is an important distinction between the requirements of the Testator's Family Maintenance Act and Guardianship of Infants Act 1916, s3(1) and the terms of s7 and s9 of the current Act. See eg Benney, 569. 8 UNREPORTED JUDGMENTS The error of the Master This conclusion leaves for decision the correctness of the Master's opinion that the deceased did not owe the appellant a "moral duty" and trance that no order under the Act ought to be made for her. Was that conclusion appealably wrong? I acknowledge once again the considerations which restrain disturbance of such a conclusion which is inescapably evaluative, involves discretionary considerations; and affects a relatively small estate upon which claims are made by a number of persons, each of comparatively modest means. For a number of reasons I consider that the Master has erred in principle. This Court is therefore authorised to, and should, substitute its contrary conclusion that an order ought to be made for provision in favour of the appellant. My reasons are as follows: 1. The Master mistook, or seriously under-estimated, the quality of the relationship proved by the evidence to have existed between the deceased and the appellant. With respect, insufficient or no attention was given in the Master's reasons to the enduring, close and personal intimate relationship which was established between the deceased and the appellant and which lasted until the deceased's death. She may or may not have qualified as an "eligible person" on the basis that she was "living with the deceased... as his wife on a bona fee domestic basis". The Master rejected that claim. Because it was not contested that she was an "eligible person". In considering the order that ought to be made, the quality, nature, intensity and duration of the relationship between the appellant and the deceased fell to be evaluated. In performing this task of evaluation, the Master made what seem to me to be three mistakes. They can be detected in the following passages from his reasons: "Tt is appropriate to recognise, at the outset, that the relationship between the plaintiff and the deceased was of extremely short duration extending, at most, over a period of about twenty-one months... "The plaintiff conceded in cross-examination that she would not have expected the deceased to have made any provision for her by his will." "But the plaintiff was under no obligation to give up her employment and to accompany the deceased to Brisbane. She chose to do so of her own free will." Viewing the appellant as merely a person in the category of someone who had been "a member of a household of which the deceased person was a member" who at some time was dependent on him, the respondents supported the Master's conclusion. They pointed out that the Act should not be turned into a vehicle for making good ordinary contractual or like obligations. However, this submission, and the Master's remarks, extracted above, portray a misunderstanding of the relationship of the deceased and the appellant demonstrated by the uncontested evidence. That relationship, at the stage of life of these parties, was not "extremely short'. Moreover, it did not finish. It was continuing at the date of the deceased's death. It was one of emotional and physical attachment. Hamlet, offended by Laertes' brotherly laments at the grave of Ophelia declared (Hamlet, Act V, scene 1): "Forty thousand brothers Could not, with all their quality of love, Make up my " sum. It is the quality of an intimate relationship that appears to have been given little or no weight in this case. It is true that the appellant freely went to Brisbane. But the uncontested evidence makes it plain that she did so, at sacrifice to her own URJ MCKENNA v SOLOMON (Kirby P) 9 economic well-being, out of love for the deceased and a desire to respond to his call to contribute to his Brisbane venture. This was not a commercial relationship. It was one with the quality of love. The appellant's answer in cross-examination, that she would not have expected the deceased to make any provision for her in his will, must be understood, in its context. It indicated an expectation that the deceased would have lived to make good his promise to make up to the appellant for the losses which she had suffered. As it happened, the deceased did not live long enough to do so. But in any case, it is for the Court finally to say what ought to be done; 2. There is no real evidence in the Master's reasons that he gave consideration in this case to the distinct contribution made by the appellant to the welfare of the deceased as a homemaker. The obligation of the decision-maker to take such a contribution into consideration is found in s9(3)(a) of the Act. It is an obligation which must be given more than lip service and token attention. See Mallett v Mallett (1984) 156 CLR 605, 609 (1994) 9 Fam LR 449, 470; [1984] FLC #9 1-507 (HC). Cf In the Marriage of Ferraro (1992) 16 Fam LR 1 (F Fam C), 38. In Singer (above) the majority of the High Court (at 489) and Gaudron J in dissent (at 502) emphasised this consideration. So have decisions of this Court. See eg Dwyer v Kaljo (1992) 27 NSWLR 728 (CA) and Black v Black (1991) 15 Fam LR 109. 117; [1991] DFC #95-113. The evidence is that the appellant left her established employment at the deceased's suggestion and request. She went with him to Brisbane, leaving a settled job and home to be with him. She performed cooking, shopping duties and other home making activities both in Brisbane and on the return to Wollongong. Even when the parties re commenced living apart, the evidence suggests that the appellant continued to cook dinner for the deceased on the frequent evenings on which he visited her. She worked without wages in his business in Brisbane. She assisted him in finding his new home in Kanahoora' near Wollongong. She paid $3,000 of her own capital towards furnishing that home. She helped him in its establishment. It is true that, in Brisbane, the appellant received food and accommodation from the deceased. But this was because of the mutuality of their relationship. I see no indication in the Master's reasons that he took the homemaking contributions of the appellant to the deceased into account in evaluating what the Court ought to do in response to this claim. Cf In the marriage of Rolfe (1977) 5 Fam LR 146 (F Faam C), 148; 3. In evaluating the needs of the appellant, the Master appears to have adopted one error of approach and to have made a significant error of fact-finding. In a passage cited above, he referred to the appellant's protection by unemployment benefits against becoming "destitute" should she be retrenched and become unemployed. This comment was attacked upon three bases. The first was that it undervalued the economic consequences for the appellant and evidenced a misunderstanding of the character of what she had done. Secondly, it was argued that it was legally irrelevant to take into consideration the protection of federal social security legislation when evaluating the future needs of the appellant. Cf Shah v Perpetual Trustee Co Ltd & Anor (1981) 7 Fam LR 97; Bondelmonte v Blanckensee(1989) WAR 305; Dickie v Dickie, Supreme Court (NSW) (Master Gressier), unreported, February 1986. I do not consider that it is necessary in this case to determine that point. Thirdly, it was complained that the Master had applied a test of "destitution". His repetition of the word in the context also of the respondents (see above) raises the possibility that this was a mere flourish of 10 UNREPORTED JUDGMENTS language. Certainly, it is not necessary, to attract the protective application of the Act, to prove that without an order under the Act the applicant will be destitute. See eg In re Christie (Deceased) Christie v Keeble [1979] 1Ch 168, 174; destitution not the standard applied; and 4. An undoubted mistake of fact occurred in the Master's assumption that the appellant had intended to retire at the age of 55 years. The assumption was used to suggest that the economic losses and peril, suffered by the appellant as a consequence of responding to the deceased's request and proceeding to Brisbane, were of relatively short duration. But nowhere in the evidence did the appellant say that such was her intention. The suggestion appears to have originated in an assumption of an expert actuary, Mr Graham Osborn, who offered a number of calculations based upon various hypotheses which occurred to him. A retirement at age 55 had no foundation in the evidence of the appellant. Substitution of an order of the Court of Appeal The foregoing errors of approach and of fact-finding are sufficient, in my view, to warrant the setting aside of the Master's determination. It is therefore for this Court to substitute its own decision on what, if anything, ought to be provided at this time for the maintenance and advancement in life of the appellant which was not adequately provided by the deceased. So far as the appellant's needs were concerned, four considerations in the evidence should be noticed: 1. The evidence disclosed that there was a possibility - even a likelihood, that the appellant could lose her employment with Telecom. Certainly, her loss of seniority rendered her vulnerable to retrenchment. In the case of an independent woman, used to relying upon her own endeavours, this would be extremely disruptive, even devastating, particularly in a city such as Wollongong with high levels of unemployment; 2. The appellant's income at the trial was $29,341 per annum. This was less than the income of the daughter Lisa Solomon and also less than that of the stepdaughter Lori-Michelle Solomon although marginally greater than the income of the stepdaughter Lyn Maree Lagana. In large part, the modest income earned by the appellant was a consequence of her decision to abandon her stable long-term employment and to throw in her lot with the deceased; 3. There was also evidence of the appellant's need to finish work on her own home. As stated, she had spent some money fitting out the deceased's home. Similar work remained to be done on her own. She had little in the bank for this purpose ($3,000); and 4. The appellant gave evidence of the need to replace her very old motor vehicle. There was a need to provide for vicissitudes. Something of a contest arose concerning the present value of the deceased's estate. The Master found that its principal asset, the home at Kanahoora, was valued at $160,000 and that the deceased had available cash or insurance totalling $50,000. He found that the deceased owned a one-third interest in remainder in real property at Chatswood. Because he had no valuation of this property it was difficult for the Master to estimate its worth. He decided that the total estate, less administration expenses, would amount to $190,000, "possibly less". The appellant complained that the respondents, as administrators of the estate, had failed in their duty to provide the Court, by affidavit, with the necessary information by which to assess the value of the real property at Chatswood. The duty in question is recognised in Pt77 r59 of the Supreme Court Rules. It is self-evident that an accurate estimation of the value of the estate is of the most URJ MCKENNA v SOLOMON (Kirby P) 11 fundamental importance in every application of this kind. See Blore v Lang (1960) 104 CLR 124, 138. The administrators' affidavit merely described the interest in property as being in remainder with no other description or detail as to its value or likely accrual. The tender of a solicitor's letter, purporting to describe the interest, was objected to and rejected at the trial. The oral evidence on the point was unclear. Each of the parties to the proceedings is in default here. The clear duty of the respondents was to provide the necessary information to the Court. In the Family Court of Australia there is a long line of cases which emphasises the obligation of the party in possession to make full disclosure of relevant assets. Cf Black v Kellner [1992] FLC #92-287 (FC). See also Oriolo v Oriolo [1985] FLC #91-653; Briese v Briese [1986] FLC #91-713; Stein v Stein [1986] FLC #91-779 at 75, 676; Mazzacappa v Mazzacappa [1987] FLC #91-853. The duty of the legal personal representative in this Court under the rules is similar and for a like reason. The appellant was also in default. Before or at the trial, or at the latest at the call-over before the hearing of this appeal, the appellant could have taken steps to request orders to be made for the provision of the necessary information. Alternatively, the appellant could have conducted searches to identify the property, its value, the life interest and its probable duration. None of this was done. During the hearing of the appeal, the solicitor for the appellant made a belated lunch-hour visit to the property. Without objection it was described to the Court as a single dwelling constructed of brick and tile in a well-established leafy neighbourhood within a hundred metres of an important artery, Mowbray Road, and a block from the Chatswood golf course. Clearly enough, the valuation suggested by the appellant for the fee simple of such a property (viz $400,000) would seem reasonable. The Court was informed that the life interest was enjoyed by a woman in her seventies. Although, upon the available information, it is impossible to value this asset with accuracy, it must clearly be taken into account in determining the deceased's estate and in deciding what ought to be provided from it, if anything, for the appellant and the deceased's daughters. The appellant complained that the administrators had failed to provide valuations of the furniture, watches, jewellery and personal effects of the deceased or of the company by which he conducted his business. This complaint is also warranted. The fact remains that the Court does not have such information before it. Proper provision for the appellant: a legacy The Court was told that the estate of the deceased had already been distributed. Accordingly, it is necessary to consider whether provision should be made out of the notional estate. Like the Master, the Court must keep in mind the provisions for the daughter and stepdaughters of the deceased. In these cases, the Court is repeatedly enjoined to disturb as little as possible the testamentary wishes of the deceased expressed in the will. See eg Hunter (above), 575. Taking into account all of the circumstances, it seems to me that an order ought to be made extending time for the making of the appellant's application and providing for her out of the notional estate of the deceased. The order necessary to repair the failure of the deceased to make proper provision for the maintenance and advancement of the appellant is the provision of a legacy. I consider that a legacy of $40,000 ought to be ordered. 12 UNREPORTED JUDGMENTS Although the Court does not have, full details of the assets of the estate, the information which it has is sufficient to sustain the proposed order. The substantial justice and merits of the case warrant the making of such an order. To the extent that the administrators have failed to place before the Court accurate and up to date information concerning all of the assets of the deceased, I consider that it is open to the Court to infer that assets, adequate for the proposed legacy, existed in the estate. Because the will of the deceased -shared his real property in unequal proportions between the daughter and two stepdaughters the proposed legacy should likewise, in default of agreement otherwise, be shared in like proportions. The separate appeal against the cost order no longer needs to be considered. The order which I propose will carry the consequence that the costs of the trial, both of the administrators and of the appellant, should come from the estate or notional estate. ORDERS The parties should, within 28 days of the publication of these reasons, bring in short minutes to give effect to the foregoing decision. Such orders will include the provision that the respondents pay the appellant's cost of the appeal but have, in respect thereof, a certificate under the Suitor's Fund Act 1951. Handley JA In this matter I have had the benefit of reading the reasons for judgment of Kirby P in draft form. I agree that the Master's decision to dismiss the appellant's claim was vitiated by the factual errors Kirby P has identified and by the error of principle inherent in his references to the fact that on any view the appellant was not facing destitution. I also consider that the learned Master failed to give proper weight to the continuing detriment the appellant was experiencing as the result of her decision to resign from her permanent and senior position with Telecom Wollongong in order to accompany the deceased to Brisbane. Although she was able to secure another job with Telecom at Wollongong on her return from Brisbane she had been permanently disadvantaged by her loss of salary, seniority and superannuation benefits. In these circumstances there is no need for me to consider in this appeal the status and effect of the remarks of the majority in Singer v Berghouse (1994) 68 AIJR 653 at 657. lL also agree with his Honour's remarks about the state of the evidence in these proceedings. The executor in her affidavit disclosed as an asset of the estate an undivided share of an interest in remainder in a property at Chatswood. However she did not disclose the nature of any improvements, the value of the fee simple, the age of the life tenant, the value of the estate's interest, or the terms of the instrument under which the interest passed to the deceased. The legal advisers for the appellant should have noticed these deficiencies and required them to be rectified by the filing of further evidence by or on behalf of the executor which would comply with her duty under SCR Pt77 159. Such a direction should have been sought at the latest on the call-over when the case was fixed for hearing before the Master. In the present case it would not have been too late to have sought such a direction at the trial because at the conclusion of the hearing on 24 September, 1993 the Master reserved his decision which was not delivered until 11 October. Accordingly the executor could have been directed to URJ MCKENNA v SOLOMON (Sheller JA) 13 file a supplementary affidavit within a limited time after the conclusion of the hearing which would have enabled the Court to determine the realisable value of the whole estate. A court faced with a situation where an executor or administrator has failed to file a proper affidavit or affidavits as required by SCR Pt77 159 is entitled to draw appropriate inferences from such failure in accordance with the principles applied in Jones v Dunkel (1959) 101 CLR 298, Commercial Union Assurance v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419, and Armory v Delamirm [1722] 1 Strange 505 (93 ER 664). In the present case this means that the Court should infer that the net value of the actual estate of the deceased was sufficient to satisfy any proper order that this Court might decide to make in favour of the appellant. I agree with the orders proposed by Kirby P. Sheller JA I have had the benefit of reading the judgments of the President and Handley JA. Like Handley JA I agree that the Master's decision to dismiss the appellant's claim was vitiated by the factual errors identified by the President and by the error of principle inherent in his references to the fact that, on any view, the appellant was not facing destitution. I agree also that the Master failed to give proper weight to the continuing detriment the appellant experienced as the result of her decision to resign from her position with Telecom Wollongong in order to accompany the deceased to Brisbane. In these circumstances it is not necessary for me to consider, in this appeal, the status and effect of what was said by the majority of the High Court in Singer v Berghouse (1994) 68 ALJR 653 at 657 about references to "moral duty" or "moral obligation". I agree with what the President and Handley JA have said about the state of the evidence in these proceedings and with the orders proposed by the President. The parties should, within 28 days of the publication of these reasons, bring in short minutes to give effect to the foregoing decision. Such orders will include the provision that the respondents pay the appellant's costs of the appeal but have, in respect thereof, a certificate under the Suitors' Fund Act 1951. Counsel for the Appellant: M D Broun QC / D J Durston Solicitors for the Appellant: Atkins Jones Counsel for the Respondent: I G Harrison Solicitors for the Respondent: Marshall Marks Kennedy